text:
    Madeline ROSENBERG, by her natural mother, Margaret ROSENBERG; Bess Levine, by her natural mother, Janet Levine, individually and on behalf of all those similarly situated, Plaintiffs, v. Margaret M. HECKLER, Secretary of the Department of Health and Human Services, and the Commissioner of the New York State Department of Social Services, Defendants.
    No. 79 Civ. 4953 (GLG).
    United States District Court, S.D. New York.
    Oct. 1, 1985.

      Murray B. Schneps, New York City, for plaintiffs Rosenberg and Levine.
    Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City (David R. Lewis, Asst. U.S. Atty., Annette H. Blum, Regional Atty., Region II, Joseph Y. Willey, Asst. Regional Atty., Dept, of Health and Human Services, New York City, of counsel), for Margaret M. Heckler.
    Robert Abrams, Atty. Gen. of the State of N.Y., New York City (Stanley A. Camhi, Marion R. Buchbinder, Asst. Attys. Gen., New York City, of counsel), for State defendants.
   OPINION

GOETTEL, District Judge.

On September 9, 1980, this Court remanded these matters to the Secretary of Health, Education, and Welfare (“Secretary”) for administrative action in accordance with the Court’s March 8, 1980 order in Slctvin v. Secretary, 486 F.Supp. 204 (S.D.N.Y.1980). Currently before the Court is the plaintiffs’ motion for an order rejecting in part and affirming in part the Secretary’s decision and supplemental decision regarding each claimant’s eligibility for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383c (1982), and entitlement to New York State supplementary payments, under the New York State Social Services Law, N.Y.Soc.Serv.Law §§ 207-12 (McKinney 1976 & Supp.1984). For the following reasons, the plaintiffs’ motion is denied.

I. Background

Plaintiff Madeline Rosenberg, a forty-two year old resident of Queens County, suffers from profound mental retardation and seizures. Ms. Rosenberg has an I.Q. of approximately twenty and a mental age of two to two and a half years. She is able to undress herself but needs assistance in dressing herself. She also needs assistance in cutting her food and in taking care of her personal hygiene. Ms. Rosenberg is subject to both petite mal and grand mal seizures. Ms. Rosenberg’s doctors have recommended that she not take extended rides in vehicles because they believe that the trips might be a factor causing her seizures. Members of a consultant team from the New York State Office of Mental Retardation and Developmental Disabilities (“the New York team”) who examined Ms. Rosenberg in August 1980, reported that she could walk slowly without assistance. They also found that while Ms. Rosenberg needed verbal prompting to climb stairs, she demonstrated the skill and potential to be independent.

In 1974, Ms. Rosenberg began receiving SSI and New York State supplementary payments. Federal SSI payments are uniform throughout the United States. Some states make additional payments to needy persons, and pursuant to 42 U.S.C. § 1382c, may enter into agreements with the Secretary of the Department of Health and Human Services (“the Secretary”) to provide for federal administration of those payments. New York provides such optional supplementary payments and has entered into an agreement with the Secretary to administer those payments. The New York statute providing such payments to “aged, blind and disabled persons,” N.Y. Soc.Serv.Law §§ 207-12 (McKinney 1976 & Supp.1980), defines eligibility in terms of residence. To be eligible, an individual must be “a resident, of the state,” id. § 209(1)(a)(iv), and must continue “to reside in the state.” Id. § 209(1)(c).

From sometime in 1965 until August 1975, Ms. Rosenberg attended and resided at the Fairview School in New York State. When Fairview announced its plans to close, Ms. Rosenberg transferred to the Vineland Training School of the American Institute for Mental Studies at Vineland, New Jersey (“Vineland”). Consequently, in August 1976, the Social Security Administration notified Ms. Rosenberg that her New York State supplementary payments were being terminated because her attendance at a school in New Jersey made her a New Jersey resident. Therefore, she was not entitled to New York’s supplementary benefits. The plaintiff requested and received a hearing before an Administrative Law Judge (“AU”) in the Social Security Administration to determine the legality of her termination. The AU denied her claims. Her appeal of that decision was unsuccessful.

Like Madeline Rosenberg, plaintiff Bess Levine is a disabled adult who has been denied the New York supplementary payment because she attends a facility outside New York State. Ms. Levine, a thirty-seven year old resident of Kings County, New York, suffers from a rare disease known as familial dysautonomia. Manifestations of her disease include defective laerimation, insensitivity to pain, vomiting, respiratory infection, and most significantly, dysautonomic episodes or “seizures” in which she becomes violent and abusive. There is conflicting evidence regarding the frequency of Ms. Levine’s seizures. Her brother testified that she experiences seizures three to six times a year. Similarly, doctors from the New York team who examined Ms. Levine in August 1980, reported an average frequency of four seizures per year. However, the physical therapist who was part of the New York team and who also examined Ms. Levine’s medical history reported that Ms. Levine had experienced only seven episodes from February 1969 until August 1980, with just two occurring since January 1971.

Ms. Levine is mildly retarded. Her language and mathematical skills range from the fourth to the sixth grade levels. She has, however, earned a general diploma issued by the New York State Department of Education.

Ms. Levine also has severe kyphoscoliosis, curvature of the spine. Despite this handicap, the physical therapist who was part of the New York team noted that Ms. Levine’s gait pattern is functional. She further reported that Ms. Levine would be able to function motorically in the community even though her motor functioning exhibited deviations from the norm. In fact, Ms. Levine told members of the New York team that she travels alone by taxi to a local shopping center and shops independently. Ms. Levine is also independent in bathing, dressing, eating, grooming, and toiletting skills.

Since 1968, when her family became unable to cope with the frequency and severity of her dysautonomic episodes, Ms. Levine has attended the Elwyn Institute (“Elwyn”) at Elwyn, Pennsylvania. She was placed in Elwyn on the recommendation of the New York State Department of Education. The state provided partial funding through the school year in which she turned twenty-one. In 1974, the Social Security Administration granted her application for SSI but rejected her application for New York State Supplementary payments. Pursuant to a written demand by Ms. Levine, an AU held a hearing in February 1977 to consider her application. The AU declared her eligible to receive the New York State supplement despite her attendance at a facility outside of New York State. In April 1978, the appeals council reversed the AU’s decision. Ms. Levine was found ineligible for New York State supplementary payments on the basis of her residence at an institution outside of New York.

In September 1979, Ms. Levine and Ms. Rosenberg filed a class action complaint seeking relief on behalf of themselves and all other mentally disabled New York State residents who had been denied either SSI or New York State supplementary payments or both because of their attendance at residential facilities for the mentally disabled located outside of New York State. No motion for class certification was ever filed. On their own behalf, Ms. Rosenberg and Ms. Levine sought review of the appeals council decisions denying their claims for New York State supplementary payments.

In September 1980, this court issued an order remanding the plaintiffs’ claims to the AU for a decision consistent with this Court’s decision in Slavin v. Secretary of Health, Education, and Welfare, 486 F.Supp. 204 (S.D.N.Y.1980). Slavin held that a mentally retarded adult does not lose her New York State residence, and consequent eligibility for social welfare benefits, merely by attending an out-of-state residential facility. Id. at 208. Slavin proceeded to discuss in further detail eligibility for supplementary payments under the Social Services law. That law provides for five categories of supplementary benefits to mentally and physically disabled persons, with different payment levels based on a beneficiary’s living arrangements. One such level, known as Congregate Care Level III (“Level III”), provides payments to those “receiving care in a residential facility for the mentally retarded.” N.Y. Soc.Serv.Law 209(2) (McKinney 1976). Slavin held that an individual could attend an appropriate facility outside New York State and remain eligible for this congregate care level of payment so long as New York did not have an appropriate facility available to her. Moreover, even if New York had an appropriate facility available to a New York resident attending an out-of-state institution, if transfer to the New York facility would create an undue hardship for the claimant, she would be entitled to supplementation at a congregate care level. Id. at 210. However, an individual in an out-of-state facility who did not meet these criteria would be eligible only for the lower, “living alone” rate of payment.

The AU held a de novo hearing for each plaintiff. His findings with respect to plaintiff Rosenberg were equivocal, but he found Ms. Levine eligible for Congregate Care Level III payments beginning January 1974.

In reviewing the AU’s decision, the appeals council found that both Ms. Rosenberg and Ms. Levine had been New York state residents at all pertinent times. They found that from September 1975 to November 1975, New York state had no institutions or facilities appropriate for and available to Ms. Rosenberg, but that since December 1975, New York had appropriate available facilities. However, because removal of Ms. Rosenberg from Vineland to an appropriate available New York facility during the period from December 1975 through November 1980, would have constituted undue hardship, she was eligible for Level III state supplementatary payments for that period. Beginning in December 1980, Ms. Rosenberg was found eligible only for the lower, “living alone” rate, so long as she remained in a non-superior institution outside New York state, because transfer to an appropriate available New York facility would no longer have constituted undue hardship.

With respect to Ms. Levine, the appeals council found that from January 1974 through June 1981, New York state had no appropriate available institutions or facilities, and that since July 1981, New York state has had appropriate available institutions to which transfer would not constitute undue hardship. Thus, until June 30, 1981, Ms. Levine was entitled to Level III state supplementary payments. Thereafter, she was eligible for state supplementary payments at the “living alone” rate, so long as she remained in an out-of-state institution that was not superior to an appropriate available New York facility.

Both plaintiffs now move for an order rejecting in part and affirming in part the appeals council’s determinations. Ms. Rosenberg does not challenge the determination in her favor for the period through November 30, 1980. She contests the findings that appropriate facilities within New York state were available to her beginning December 1, 1975, and that her removal from Vineland after November 30, 1980, would not have constituted an undue hardship. She further contends that the appeals council’s conclusion that, commencing December 1, 1980, appropriate available facilities existed in New York state wholly disregards the import of the testimony at the hearing. Ms. Levine argues that the testimony before the AU failed to establish the existence of any appropriate available facility in New York after July 1, 1981.

II. Discussion

The only issue for review is whether the Secretary’s post-hearing determinations are supported by substantial evidence. The Second Circuit recently defined “substantial evidence” as “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ It is ‘more than a mere scintilla’____ [E]ven if [a] court could draw different conclusions from those drawn by the agency, that would not prevent the agency’s decision from being supported by substantial evidence.” Local One, Amalgamated Lithographers of America v. NLRB, 729 F.2d 172, 175-76 (1984) (citations omitted).

A. Madeline Rosenberg

1. Appropriate Available Facilities

Neither side contests the appeals council’s finding that until November 30, 1980, transfer of Ms. Rosenberg to an appropriate available facility would have constituíed undue hardship. Thus, we need only examine the availability of appropriate facilities for Ms. Rosenberg as of December 1980.

Ms. Rosenberg contends that the testimony of her mother, Mrs. Margaret Rosenberg, describing continuous, persistent efforts since 1975 to locate a suitable New York facility, conclusively establishes that since 1975 no appropriate facility was available in New York. Mrs. Rosenberg testified that although she communicated with facilities located in New York, voluntary agencies providing residential services to the mentally retarded, professionals in the field of mental retardation, and the New York City Regional Office of the Office of Mental Retardation and Developmental Disabilities, she was unable to locate an appropriate available facility. Plaintiff Rosenberg contends that the testimony of the state’s six witnesses at her hearing and that of the three witnesses at the Slavin hearing fails to -counter her mother’s testimony. She asserts that the testimony of these witnesses was “initial and tentative at best, did not establish either availability or appropriateness, [was] not based upon sufficient data to draw any proper conclusion and did not even include .all of the ‘data’ available at that time.” Declaration of Murray B. Schnepps, Esq. at 7. She further contends that the priorities accorded to both “Willowbrook class members” — individuals whom a 1975 federal court order obligated New York state to place into residential facilities — and to mentally retarded New York residents not receiving any community residential services, made her placement extremely unlikely.

We find these contentions unpersuasive. The evidence substantially supports the conclusion that, as of December 1, 1980, facilities appropriate to plaintiff Rosenberg’s needs were available in New York state. On February 13, 1981, an Assistant Attorney General of the State of New York wrote to Ms. Rosenberg’s counsel describing specific appropriate residential and day programs for Ms. Rosenberg including the Bernard Fineson Developmental Center (“Fineson”) in Corona, Queens. Fineson has been accepting clients on Ms. Rosenberg’s functioning level since 1978. The building has elevators, eliminating problems associated with Ms. Rosenberg’s difficulty in climbing stairs. There is a day program in the building. The availability of this program eliminates the risk that Ms. Rosenberg will experience seizures induced by vehicular travel to a day program. Booth Memorial Hospital or Flushing General Hospital would provide back-up medical services if necessary. Judith Delasi, who as Director of Community Placement Services for the Office of Mental Retardation and Developmental Disabilities is responsible for placing community clients and Willowbrook class members, testified that Fineson has had on-going vacancies since at least 1978. Thus, the Assistant Attorney General’s description and the testimony at the hearing provided a substantial basis for the appeals council’s conclusion that Fineson was an appropriate available facility as of December 1, 1980.

We believe that the priority accorded the placement of Willowbrook class members was no longer a factor preventing the availability of an appropriate facility as of the March 1980 Slavin order. That court order warned the state that its policy of denying Level III funding to mentally retarded residents institutionalized out of state was in jeopardy. Consequently, after Slavin, placement for individuals such as Ms. Levine in an appropriate New York facility was in New York’s best interest despite any other existing class priorities.

2. Undue Hardship

The appeals council found that although Vineland had an international reputation for the care of the mentally retarded for many decades and was on the New York State Department of Education’s approved list of schools for the handicapped, it was not actually superior to the appropriate available New York facilities since August 1975. The evidence at the hearing supported that finding. Nonetheless, the appeals council — applying an extremely generous interpretation of the term “undue hardship” — concluded that until November 1980, undue hardship existed because Ms. Rosenberg’s mother reasonably believed, based on Vineland’s long-established international reputation, that Vineland was a superior facility. As of November 1980, however, when New York state notified the parents and guardians of New York state students at Vineland that Vineland’s accreditation was removed effective January 1981, she had reason to believe that Vine-land was no longer superior. Even if, as Ms. Rosenberg claims, Vineland’s disaccreditation related only to school-aged children, the disaccreditation put Ms. Rosenberg’s mother on notice that the overall quality of Vineland was no longer superior to appropriate available New York State institutions. Regardless of the test applied by the appeals council, there is no doubt that substantial evidence supported the conclusion that Ms. Rosenberg’s removal from Vineland after November 30, 1980 would not have constituted an undue hardship.

B. Bess Levine

1. Appropriate Available Facilities

Substantial evidence also supports the appeals council’s conclusion that since July 1, 1981, facilities appropriate for and available to Bess Levine existed in New York. In February 1981, the state notified Ms. Levine’s counsel that she had been recommended for placement at a newly opened facility for retarded adult women located in Brooklyn and operated by Bais Ezra, a voluntary agency. This institution was to be staffed by several trained specialists and run by a live-in couple. Maimonides Hospital would provide backup medical services. While at this facility, Ms. Levine would attend a day program in Brooklyn or Manhattan. In June 1981, after Ms. Levine’s guardians failed to follow up on this recommendation, the state notified her brother and her attorney that she had been accepted for immediate interim placement at the “Housing for the Disabled” in the Bronx with the intention of transfer to the “Carmel” residence in Brooklyn scheduled to open in December 1981. However, counsel for Ms. Levine refused permission for Builders for Family and Youth (“BFY”) (the operator of the “Carmel” residence) staff to examine Ms. Levine in order to make a final determination about her placement at the Carmel residence. Her attorney continued to insist that he would not seriously consider any offer of placement in a New York institution until appropriate provisions were made for the “special medical care” and “repeated hospitalizations” required for treatment of her familial dysautonomia. The appeals council concluded that no later than the end of June 1981, the same month in which the state offered immediate interim placement pending final confirmation of acceptance at Carmel and four months following the initial recommendation to Ms. Levine’s guardian to seek placement at Bais Ezra, there was a high probability that Ms. Levine would have been placed in New York. It further found that no significant placement impediments in the form of priority for other classes of individuals then existed. We agree with the appeals council that Ms. Levine had a duty to investigate these specific placement recommendations, and that she cannot benefit from her willful refusal without good cause to undergo examination for potential placement. Thus, we affirm the appeals council’s conclusion that by the close of June 1981, facilities in New York were available to Ms. Levine.

We also agree with the appeals council that the institutions identified for placement in 1981 were appropriate. Ms. Levine contends that the institutions identified in 1981 were inappropriate because they did not provide adequate back-up medical services or emergency service for her dysautonomic tantrums. However, the appeals council had ample evidence from which to conclude that the institutions identified for placement in 1981 were capable of providing the requisite services. We agree with the appeals council that

[t]he record demonstrates that [Ms. Levine’s] overall functioning had improved to the extent that her seizures or dysautomic episodes were quite infrequent and that she had made several trips outside Elwyn without staff supervision and thus had been considered for placement in a community residence. Second, the evidence shows that both the Bais Ezra and the BFY operated facilities had overnight staffing with back-up hospital service____ Moreover, based on a preliminary review of the psychological evaluations of [Ms. Levine] provided to them, BFY indicated that [Ms. Levine] would be appropriate for admission into their new Williamsburg facility opening in December 1981____ Although the record demonstrates that the major concern prompting the necessity for “regular medical monitoring” and “emergency back-up hospital service” was the possibility of the recurrence of the “seizures” or ... dysautonanic tantrums, ... [Ms. Levine] does not show that her periodic hostile outbursts ... are qualitatively different from seizures experienced by other mentally handicapped individuals and thus require management by specially trained personnel other than in restraint techniques or that there are other disease manifestations so unique as to require specialized training for medical or non-medical care staff. Nor has [Ms. Levine] ... shown why New York hospitals adjoining appropriate residential facilities cannot handle occasional hospitalizations of the claimant as may be required due to dysautonomic tantrums. There is no evidence in the record to show that New York hospitals could not apply the necessary sedation and restraint techniques for immediate medical management or acquire in timely fashion the necessary medical consultation to bring Ms. Levine through a dysautonomic episode. Indeed, it is clear that they had done so for many years prior to Ms. Levine’s entrance into Elwyn in 1968.

Levine at 12-13.

Ms. Levine also challenges the appropriateness of these placements on the ground that they would have required her to travel independently to a day care program. She claims that her awkward gait renders her unable to climb bus and subway stairs making such travel impossible. The appeals council based its conclusion that Ms. Levine would be able to ascend the steps of buses and subways on a physical therapist’s report stating that Ms. Levine could ascend and descend railed stairs at a normal pace and that, despite some deviations from the norm, her gait pattern was functional and her motor functioning was sufficient so as not to interfere with independence at community mobility skills. Despite Ms. Levine’s challenge to the accuracy of the physical therapist’s report, we believe that the appeals council could have fairly concluded that the physical therapist’s expert opinion “appears consistent with the significant number of activities of daily living which [Ms. Levine] is able to carry out independently.” Levine at 13.

2. Undue Hardship

The evidence also supports the appeals council’s conclusion that as of July 1981, Ms. Levine’s removal from Elwyn would not have constituted an undue hardship. Ms. Levine’s physical and mental functioning had improved during her stay at Elwyn. In 1975, the Elwyn staff recommended that Ms. Levine be considered for transfer to a less restrictive environment such as a community residence facility. However, they expressed reservations due to her difficulty adjusting to peers and the possibility of experiencing dysautonomie episodes. Five years later, the New York team stated that small community based residential programs could be appropriate for Ms. Levine if there was regular medical monitoring as well as a hospital staff able to treat her during a dysautonomie episode. The appeals council thus had a substantial basis for stating, “In consideration of [Ms. Levine’s] improved overall functioning, including a significant reduction in the frequency of the ‘seizures,’ the tightly structured and controlled environment of Elwyn no longer appears necessary to an adequate adjustment of the claimant to daily living.” Levine at 15. After July 1981, the Elwyn facility was not so far superior to appropriate available facilities in New York as to make Ms. Levine’s removal from Elwyn an “undue hardship.” Ms. Levine does not challenge this finding in any event.

III. Conclusion

There is substantial evidence to support the findings of the appeals council. The motion to reject those findings is denied. The clerk will enter judgment for the plaintiffs for all sums due and owing them under the appeals council’s decision.

SO ORDERED.

      . That testimony was made part of the hearing record herein.

      . Although state witnesses admitted that they would need additional information to ensure that a specific placement was available or appropriate, their opinions are not properly characterized as "inital and tentative at best." See Declaration of Murray B. Schnepps, Esq. at 7. We can never be sure that placement is appropriate until that placement actually occurs. Therefore, we must rely upon these expert opinions to evaluate the appropriateness and availability of a specific placement.

      . The plaintiffs do not challenge the appeals council’s findings that neither plaintiff was receiving medical care and services within the meaning of the Social Security Act when institutionalized out-of-state. Moreover, these findings appear correct.


source: Caselaw Access Project

author: GOETTEL, District Judge.

license: Public Domain

text:
    Edgar BAGAROZY; “Reality Inc.”, (Unincorporated); Individually and as Prochein Ami, [sic] In Interest for First Amendment Rights of, D.M. (14), M.O. (14), L.R. (14), A.J. (11), and for All Pubertal Aged Youth; Mrs. N.J., Individually and for M.J. (Son); M.J. (13) Individually; Mrs. J.S., Individually and for T.S. (Son); T.S. (13) Individually; R.M. (16), Individually; R.R., Plaintiffs, v. Robert MAGINNIS, P.O.; John Doe, P.O. on Arrest; Capt. Digregorio, Commander 49th Prec.; Benjamin Ward, Police Comm.; Edward I. Koch, Mayor; Mary Ann Jennings, Ada Bronx; Mitch Garber, Ada Bronx; Charles Siegel, Ada Bronx; Mario Merola, Dist. Atty. Bronx; Bronx County; Ms. K. Small, Soc.. Work.; James Lockley, Supv. Soc. Work.; Edna Davis, Dir. Soc. Serv. N.Y.C.; George Gross, Comm. Soc. Serv. N.Y.C.; Ceasar Perales, State Comm. Soc. Serv.; Mario Cuomo, Governor, N.Y.; Robert Abrams, Atty. Gen. N.Y.; Gordon M. Ambach, Comm. Education N.Y., Defendants.
    No. 85 Civ. 2312 (GLG).
    United States District Court, S.D. New York.
    Oct. 1, 1985.

      Edgar Bagarozy, pro se.
    Ed Federowicz, Reality Inc., Rahway, N.J., pro se.
    Frederick A.O. Schwarz, Jr., Corp. Counsel of the City of New York, New York City (Jean L’Allier, Asst. Corp. Counsel, New York City), of counsel, for Municipal defendants.
    Robert Abrams, Atty. Gen. of the State of N.Y., New York City (Evelyn Tenenbaum, Randolph Volkell, New York City, of counsel), for defendant State of N.Y.
   OPINION

GOETTEL, District Judge.

The defendants in this action, various state and municipal officials and employees, have moved to dismiss the action. The action itself is unique and a bit difficult to describe.

The lead plaintiff, Edgar Bagarozy, describes himself as “an activist for the full legal recognition of the constitutional rights- of same gender oriented persons and specifically for the recognition of the rights of self-aware pubertal aged same gender dispositioned youth.” It seems that Mr. Bagarozy has been arrested and indicted for second degree sodomy involving young boys in the New York State Courts in Bronx County. (He has previously been convicted of such an offense.) He is joined in this action by an organization, “Reality Inc.,” and by a number of male juveniles and several of their mothers. He also attempts to appear as the representative of “all pubertal aged youth”.

The complaint seeks to restrain his criminal prosecution in the New York state courts. Specifically, the complaint maintains that the state criminal laws (as well as related domestic relation laws) are “both unconstitutional and being used in bad faith, malicious, invidious animus manner by members of their heterosexual/JudeoChristian class____” Complaint at 20. It also seeks to enjoin the various defendants from harassing the plaintiff in obtaining evidence involving Bagarozy’s alleged criminal sexual acts with the children.

In addition, it is alleged that the various defendants are involved

with a conspiracy with other members of [their] heterosexual/J udeo-Christian class, to prevent and deprive all youth of the State of a full and complete education on the positives of same gender orientation and of the benefits to the individual and society, so as to promote their religious and class status view while using the power and authority of the State to discriminate against a legal class of citizen.

Complaint at 29. It is contended that this conspiracy is intended to persecute young pubertal aged males “by the employment of unlawful criminal statutes, to deprive them from choosing and developing into well developed same gender oriented citizens.” Complaint at 24. The complaint maintains that homosexuality “is a natural behavior found throughout the animal kingdom in virtually every species, and practiced in two thirds of the known cultures of the world, these being those untouched by the evils of the Judeo-Christian religions.” Id. Mr. Bagarozy (appearing pro se) states that “the delusional god of the Judeo-Christians ... has since permeated and controlled the populace through laws designed on that religions [sic] tenets.” Plaintiffs’ Brief in Support of Motions for TRO and Protective Order at 4. He argues that the Constitution prohibits this, and that it was the purpose of the Constitution to free us of Judeo-Christian concepts.

Defendants and their heterosexual Judeo-Christian class have continually maladministrated the law and deprived sgo youth of equal protections of the laws and have driven them to develop an immoral, promiscuous lifestyle by depriving them of viable, legal avenues of expression when nature dictates that expression is warranted. This with a religious founded bias.

Plaintiff’s Brief in Response to Municipal Defendants’ Motion to Dismiss at 86.

The plaintiffs’ papers trace the Christian development of beliefs on homosexuality and contend that those beliefs have the “single purpose of controlling mankind and turning them into automaton breeding factories to generate further power and wealth for those in control of the religions” and that this “imposes unjustified torment on youth that results in negatives to society as a whole.” Plaintiffs’ Brief in Support of Motions for TRO and Protective Order at 7. One of these negatives is purportedly the placing of “the state in a position of coercing a youth into marriage or to impregnating a young female, thereby destroying both their lives.” Id. at 17. Since it is contended that laws forbidding homosexual behavior further a private religious purpose, their application is said to deny the plaintiffs equal protection of the laws.

Bagarozy represents himself as a crusader against these societal wrongs. He states,

I present myself to youth as a same gender oriented role model of high personal self-esteem for those that may have a self-recognized natural same gender oriented disposition.
I am a member of “Reality Inc.”, an unincorporated organization of responsible, empathetic same gender oriented persons and others, who, because of being persecuted without legal recourse as youths themselves, are dedicated to promoting educational campaigns with the media to raise consciousness of the fact that many same gender oriented youth take this recognition before and with the on set of puberty and that many are driven to suicide, and drug and alcohol abuse, because of persecution, and to bring legal actions in the courts to create responsible statutes that provide a valid and legal avenue of emotional/sexual expression for self-recognized same gender oriented youth at the time of the onset of puberty.
At my home, youth seek me out to assist them with schoolwork and are permitted to frequent my home, as long as they have their parent’s permission to do so. They enjoy watching VCR movies (popular hits such as James Bond, &c.) and playing video games, and generally socializing. Occasionally I treat a group of youths to a recreation trip, as a positive reinforcement for them not being involved in delinquent behavior.

Affidavit in Support of Motion for TRO at 3-4.

With respect to the criminal prosecution, it is contended:

The facts before the Court evince that plaintiff Bagarozy and all the other named plaintiffs are currently the “VICTIMS” of a criminal conspiracy instituted by the Bronx District Attorney’s Office, and police and others named in the Complaint.
This action seeks to redress the wrongs committed against innocent persons by a conspiracy of homophobic heterosexual Judeo-Christian individuals to persecute a legal class of citizens who do not conform to the mandates of the private parties religious tenents trough [sic] the use of the secular authority of the State to enforce their religious beliefs upon all citizens.

Plaintiffs’ Brief in Response to Municipal Defendants’ Motion to Dismiss at 4.

We note that Bagarozy has presented himself as a role model for young homosexuals. (How he was selected for this position is perhaps irrelevant.) We are puzzled as to how he determines that these children, who are at most going through puberty, are potential homosexuals in need of such a role model. However, it is unnecessary to consider the ramifications of Mr. Bagarozy’s activities as he construes them since that is simply not the substance of the criminal prosecution which he seeks to enjoin.

The state and municipal defendants have responded to the plaintiffs’ unique and broad allegations with motions addressed to a variety of technical and legal defenses. It is pointed out, for example, that certain of the defendants are not alleged to have had any personal involvement in the contested prosecution (rather, they have supervisory responsibility). The defendants also argue that, to some extent, the Eleventh Amendment immunizes them from liability. They also argue that the principle of good faith immunity protects certain of the defendants from liability and that any claim for malicious prosecution is premature since the criminal prosecution has not been resolved. Finally, they assert that the pleadings in some respects lack specificity.

Undoubtedly all of these defenses have some merit, but their only effect is to dismiss portions of the complaint or certain of the defendants. The only argument asserted which, if accepted, would result in the dismissal of the entire complaint is the contention that the Court should apply the Younger abstention doctrine and abstain from hearing this case to avoid interfering with state criminal proceedings.

This well-established doctrine permits state courts to try criminal cases free from federal interference. The doctrine rests on notions of comity. As the Supreme Court wrote in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971),

This doctrine ... prevents] erosion of the role of the jury and avoid[s] a duplication of legal proceedings and legal sanctions where a single suit would be adequate to protect the rights asserted. This underlying reason for restraining courts of equity from interfering with criminal prosecutions is reinforced by an even more vital consideration, the notion of “comity,” that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.

Id. at 44, 91 S.Ct. at 750.

There are, however, extraordinary circumstances in which this doctrine is not applied. Thus, when the danger of irreparable injury is both great and immediate and cannot be eliminated by the defendant in his own criminal prosecution, the federal courts will not abstain. Id. at 45, 91 S.Ct. at 751. Also excepted are cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction. Perez v. Ledesma, 401 U.S. 82, 85, 91 S.Ct. 674, 677, 27 L.Ed. 701 (1971).

In support of their claim that Bagarozy and the other plaintiffs fit within these exceptions, the plaintiffs argue that scientists have established that sexual abuse of children “is [the] province of heterosexual conditioned individuals, and that the majority of this abuse is effected by immediate family members.” Plaintiffs’ Brief in Support of Motions for TRO and Protective Order at 15. The plaintiffs contend further that the federal courts and the New York state courts have determined that there is a constitutional right to homosexual behavior. They cite New York v. Uplinger, 467 U.S. 246, 104 S.Ct. 2332, 81 L.Ed.2d 201 (1984); People of New York v. Onofre, 51 N.Y.2d 476, 415 N.E.2d 936, 434 N.Y.S.2d 947 (1980), cert. denied, 451 U.S. 987, 101 S.Ct. 2323, 68 L.Ed.2d 845 (1981), for this proposition.

We agree that if the allegations of the complaint are established (and for purposes of a motion to dismiss they must be accepted), the plaintiffs could fall into one of the Younger exceptions. We do not believe that either federal or state cases have defined a constitutional right to homosexual activities. See Baker v. Wade, 769 F.2d 289 (5th Cir.1985) (holding that Texas statute forbidding homosexuals from engaging in intimate sexual activities with each other did not violate the Constitution). We do not, however, find it necessary to explore these issues within the limited framework of this case. Even if this Court were to recognize a constitutional right to engage in homosexual behavior, Mr. Bagarozy could not state a constitutional claim.

Mr. Bagarozy has been indicted for having sexual relations with young children. The children are of the same sex as Mr. Bagarozy, but that is a secondary aspect of the charge. Sexual relations between adults and children even within a heterosexual mode are illegal. N.Y. Penal Law §§ 130.25(2), 130.30, 130.35(3), 130.55, 130.65(3) (McKinney 1975). “It is evident beyond the need for elaboration that a State’s interest in ‘safeguarding the physical and psychological well-being of a minor’ is ‘compelling’.” New York v. Ferber, 458 U.S. 747, 756-57, 102 S.Ct. 3348, 3354-55, 73 L.Ed.2d 1113 (1982) (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248 (1982). Criminal statutes prohibiting adult-child sexual relations serve that interest. Therefore, if the plaintiff is found to have indulged in sexual acts with the minors, his constitutional claims would be devoid of merit. Even an acquittal would not establish a civil rights violation unless he can demonstrate that the prosecution was instituted in bad faith, without hope of obtaining a conviction, for the purpose of harassing the plaintiffs. Until his criminal ease has been tried, a verdict rendered and any possible appeal resolved, there is no basis for entertaining this complaint. The motions to dismiss are therefore granted. The clerk will enter judgment for the defendants.

SO ORDERED.

      . Mr. Bagarozy apparently prefers the phrase "same gender oriented” (sometimes abbreviated "sgo”) to the traditional word homosexual. While the phrase is undoubtedly more accurate than the currently popular word "gay," it has no advantages over the older expression homosexual which will be employed throughout this opinion.

      . Despite its name, Reality, Inc. is not a corporation.

      . No mention is made of the boys’ fathers.

      . ■ He suggests that a number of the framers were themselves homosexuals.

      . The defendants’ challenge the plaintiffs’ standing to attack the constitutionality of the statute under which Mr. Bagarozy is being prosecuted. In order to have standing to maintain an action seeking declaratory and injunctive relief from the enforcement of state statutes, a plaintiff must assert (1) that he has suffered or is threatened with a "distinct and palpable injury,” Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), (2) that the injury is “fairly traceable” to the actions of the defendants which are alleged to be illegal, Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 261, 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977), and (3) that "the exercise of the Court's remedial powers would redress the claimed injuries,” Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 74, 98 S.Ct. 2620, 2631, 57 L.Ed.2d 595 (1978). The claim of plaintiff Bagarozy, himself the subject of a criminal prosecution, cannot be attacked on these grounds.

      . The Uplinger case merely dismissed as improvidently granted a petition for certiorari. The Onofre case holds that certain statutes directed at homosexual activities can impair the constitutional right of free speech. To hold a statute's constitutional reach overbroad does not connote a constitutional right to perform the activities against which the statute was perhaps directed.

      . The same is true concerning the claimed harassment of victims and witnesses. These are matter properly considered within the framework of the state criminal prosecution. There is no reason for this Court to intervene in those processes when the state remedies have not been exhausted or, so far as we are aware, employed.


author: GERALD J. WEBER, District Judge.

text:
    Charles A. SEBER, Jr., Plaintiff, v. DANIELS TRANSFER COMPANY, a corporation, Robert Mervine and Charles Mervine, Defendants.
    Civ. A. No. 84-104 ERIE.
    United States District Court, W.D. Pennsylvania.
    Oct. 1, 1985.

      Nancy Schultz, Oil City, Pa., for plaintiff.
    John W. Beatty, Erie, Pa., for defendants.
   OPINION

GERALD J. WEBER, District Judge.

Plaintiff filed this action in March 1984. The case was fraught with discovery disputes, but eventually came to trial by jury in late January and February 1985. Plaintiff alleged two causes of action: age discrimination under the Age Discrimination in Employment Act (“ADEA”) 29 U.S.C. § 621 et seq., and wrongful discharge in that plaintiff was discharged from employment for reasons contrary to public policy. The jury returned a verdict for plaintiff only on the wrongful discharge count and awarded him $19,000 in compensatory damages and $16,250 in punitive damages.

Defendants have filed a motion for judgment notwithstanding the verdict on three grounds. First, Charles Mervine and Robert Mervine claim that plaintiff’s action is barred against them as individuals by Pennsylvania’s two-year statute of limitations for tort actions. Second, all defendants seek to have plaintiff’s unemployment compensation set off against his award for compensatory damages. Third, defendant Daniels Transfer Company seeks to have the punitive damages award set aside for lack of evidence of outrageous conduct. Defendants also have filed a bill of costs, or alternatively, ask that each side be required to bear its own costs. Plaintiff has responded to defendants’ motions and bill of costs and filed his own bill of costs.

I. DEFENDANTS’ MOTION FOR JUDGMENT N.O.V.

Defendants first obstacle in moving for judgment N.O.V., as plaintiff notes in his opposing brief, is to satisfy the requirements of Fed.R.Civ.P. 50. Section (b) provides that the moving party must have moved for a directed verdict at the close of all evidence before the court can entertain a motion for judgment N.O.V. See Mallick v. International Brotherhood of Electrical Workers, 644 F.2d 228 (3d Cir.1981). Defendants did orally move to dismiss at the close of their case on January 31, 1985. We granted the motion as to all defendants except Daniels Transfer Company, Robert Mervine and Charles Mervine. We therefore find that defendants have properly preserved the merits of the statute of limitations argument raised in their motion for judgment N.O.V., to which we now turn.

A. THE STATUTE OF LIMITATIONS

Charles Mervine and Robert Mervine contend that the action against them is barred by the Pennsylvania two-year statute of limitations for tort injuries. On its surface their argument has merit. Plaintiff filed his original complaint on March 30, 1984, concerning a job termination occurring April 1, 1982, barely within the limitations period. This complaint names only Daniels Transfer Company and plaintiffs Teamsters Local. The Mervines were not named until plaintiff filed a motion to join parties and Second Amended Complaint on August 6, 1984. Soon afterward plaintiff moved to join another defendant and filed a Third Amended Complaint. Defendants raised their statute of limitations defense generally in their answer to this last amended complaint.

While we have no doubt that the Mervines were named beyond the two year deadline, we find that the statute does not bar their liability. Plaintiff may take advantage of Fed.R.Civ.P. 15 allowing relation back of amendments under certain conditions. Section (a) of Rule 15 requires us to freely grant amendments to serve justice. Rule 15(c) states:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

Plaintiff thus is entitled to have his August 6, 1984 second amended complaint relate back to his first, timely complaint if he shows both that the Mervines received some formal or informal notice of the suit by April 1, 1984 and that holding them liable is not otherwise prejudicial. The existence of prejudice is largely determined by two findings: whether the original party and the party added by amendment share an identity of interest, and whether the amendment was not unduly delayed. See generally, Skehan v. Board of Trustees of Bloomsburg State College, 590 F.2d 470, 492 (3d Cir.1978); Clark v. Universal Builders, Inc., 501 F.2d 324 (7th Cir.1974), cert. denied 419 U.S. 1070, 95 S.Ct. 657, 42 L.Ed.2d 666 (1974) (amendment to add officers, directors, and shareholders permitted when they were active participants in events alleged as basis of suit and had constructive notice).

Daniels Transfer is a closely held corporation. Robert Mervine owns 100% of the stock and is an officer and director. Charles Mervine is Daniels’ vice-president and chief operating officer and runs the day-to-day business. In the pleadings and testimony, nothing was as clear as the Mervines’ control over all aspects of Daniels Transfer and related companies. Each must necessarily have had a role in either making or approving the decision to close Daniels repair garage and lay off its employees, including plaintiff. When plaintiff sued Daniels within the limitations period, the Mervines certainly had constructive, if not actual, notice of his claim. This identity of interest is further supported by the fact that the same attorney represented all defendants; he accepted service for the later named defendants, including the Mervines. Wong v. Calvin, 87 F.R.D. 145, 150 (N.D.Fla.1980). Finally, we recognize that counsel underwent a contentious period of discovery during which it may have been difficult to identify all responsible parties and their positions. For reasons that should by now be obvious, plaintiffs should never wait until the eve of the limitations deadline to file suit. But plaintiff here may take advantage of a rule designed to prevent overly technical applications of the statute of limitations where it appears that responsible parties will not be unfairly prejudiced in defending against an otherwise untimely lawsuit.

B. SETOFF OF UNEMPLOYMENT COMPENSATION.

Before reaching the merits of this issue, we must decide whether defendants properly preserved their right to file post-trial motions under Rule 50. Rule 50(a) requires specificity in motions for directed verdict, but failure to recite a classic motion for directed verdict is not instantly fatal to success in seeking judgment N.O.V. The rigidity of Rule 50 has been tempered by fairly liberal construction. When evaluating the sufficiency of language that by itself does not qualify as a valid prerequisite to a motion for judgment N.O.V., “the communicative content, ‘specificity’ and notice-giving function of an assertion should be judged in context.” Acosta v. Honda Motor Company, Ltd., 717 F.2d 828, 832 (3d Cir.1983). One important consideration is whether the court and opposing counsel are alerted in some way to the grounds of counsel’s objections. Abraham v. Pekarski, 728 F.2d 167, 171 (3d Cir.1984).

Defendant’s counsel did not specifically move for directed verdict on the issue of whether unemployment compensation should be set off against the damage award. Following our jury charge on damages, however, he did object to our decision not to address the issue in our charge. Prior to this objection, the court conducted three conferences concerning the damage phase of the trial: On January 31, 1985 immediately after the verdict on liability; on February 1, prior to taking testimony on damages; and on February 1 following testimony on damages and prior to the jury charge. Throughout these discussions the court repeatedly raised the issue of setoff of unemployment compensation. Transcript at 2, 7, 24, 31, 55, and 61. Because neither party provided us with conclusive authority at that time, we decided that any objections to our determinations should be addressed by post-trial motions. Transcript at 42, 44, and 48. We are certain that counsel for both parties knew the details of the dispute over this issue and the likelihood that post-trial action would be necessary to settle it. In this context, we find that defendants’ objection to our jury charge adequately preserved his right to move for judgment N.O.V., despite his failure to move with specificity for directed verdict.

Defendants argue that we should set off from plaintiff’s award the unemployment compensation he received between the time of his layoff and the date he began his new job in Florida. Defendants refer us to ADEA cases, arguing by analogy that these cases govern our decision here. Plaintiff similarly attempts to argue by analogy. He cites an informative Title VII opinion which illustrates the recency and difficulty of this issue. Craig v. Y & Y Snacks, Inc., 721 F.2d 77 (3d Cir.1983) offered the first opportunity for the Court of Appeals for the Third Circuit to address the set off of unemployment benefits from Title VII back pay awards. The majority acknowledged a split among the Circuits on the issue, which it described as “extremely close and one over which reasonable persons could differ.” 721 F.2d 82. Relying heavily on statutory language, the majority decided that the trial court’s setoff was improper. Judge Seitz would have held to the contrary, explaining his position in a well-reasoned dissent.

We have found these references enlightening but not controlling. For while plaintiff initially relied on a federal statute to invoke this court’s jurisdiction, he of course prevailed only on the state law claim of wrongful discharge. Pennsylvania law thus governs our decision.

We find this question particularly difficult because it calls into play two competing principles of tort recovery, mitigation of damages and the collateral source rule. According to the collateral source rule, a tort victim is entitled to damages caused by a tortfeasor regardless of compensation the victim receives from other sources. Boudwin v. Yellow Cab Co., 410 Pa. 31, 188 A.2d 259 (1963). The rule typically operates to block introduction of evidence that a plaintiff has received insurance benefits which a defendant will argue compensate him for his injuries. On the other hand, a plaintiff cannot recover for damages which he reasonably could have avoided. We think this rule applies particularly to wrongful discharge suits because a reasonable course of mitigation is easier to ascertain than in a case where the plaintiff suffers physical injury. There is no question of judgments of physicians or conflicting medical evidence; plaintiff here simply must diligently look for work. Furthermore, the lure of a guaranteed stream of unemployment benefits may invite a plaintiff to purposely delay his job search until his benefits expire.

Our preliminary inquiry produced three Commonwealth Court decisions which specifically permit the setoff of unemployment compensation from back pay awards. Bellefonte Area School District v. Lipner, 81 Pa.Cmwlth. 334, 473 A.2d 741 (1984); Pennsylvania Labor Relations Board v. Stairways, Inc., 56 Pa.Cmwlth. 462, 425 A.2d 1172 (1981); Shearer v. Pennsylvania Secretary of Education, 57 Pa. Cmwlth. 266, 424 A.2d 633 (1981). These cases are distinguishable, however, in that they involve statutory or contractual damage provisions.

We believe that the controlling precedent is Lobalzo v. Varoli, 409 Pa. 15, 185 A.2d 557 (1962). In Lobalzo, the plaintiff was injured in a truck accident. At trial, defense counsel made known to the jury that the plaintiff had collected workmen’s compensation and unemployment compensation. The Pennsylvania Supreme Court reversed and granted a new trial for this error. See also, Feeley v. United States, 337 F.2d 924 (3d Cir.1964). Defendants thus are not entitled to a setoff of plaintiff’s unemployment compensation from his damage award.

C. PUNITIVE DAMAGES

Defendants moved for judgment N.O.V. on the punitive damage award alleging that plaintiff offered no proof of outrageous conduct. While we found that defendants’ other argument qualified for a narrow exception to Rule 50(b), this one does not. The topic of punitive damages was raised repeatedly during the three conferences of counsel during the damage phase of trial. Defendants’ counsel never specifically objected to our decision to charge on punitive damages. See Transcript at 42, 53, 60, and 62. His few remarks suggest that he accepted our decision. See Bonjorno v. Kaiser Aluminum & Chemical Corporation, 752 F.2d 802, 815 (3d Cir.1984). In addition, while he did specifically object at the conclusion of our jury charge to our failure to charge on the two issues discussed above, he made no reference to punitive damages. Finally, neither of his two supporting briefs address the topic. He did raise the issue in his points for charge on damages. But unlike the issues above, the context of our discussion with counsel over the question does not raise it to the level where it would qualify as a substitute for a motion for directed verdict.

II. COSTS

Under Fed.R.Civ.P. 54(d) “costs shall be allowed as of course to the prevailing party unless the court otherwise directs.” The dispute here is over which party prevailed. Each side has filed a bill of costs. Defendants argue that plaintiff could not have sued in federal court but for the federal age discrimination claim on which most of the effort in preparing for trial was expended. Since the jury found for defendants on this claim, they contend that they have prevailed.

This argument is factually and legally unsupported. Plaintiff amended his complaint on January 24,1985 to allege diversity jurisdiction. His right to sue in this court did not rest entirely on the federal question presented by the ADEA count.

Even though plaintiff was unsuccesful in pursuing the ADEA claim, this would not establish defendants as the prevailing parties for the purposes of awarding costs. This trial was not complex; it involved two counts. Plaintiff succeeded on one of the two counts and was awarded $19,000 in compensatory damages and $16,250 in punitive damages. Defendants received no award. While our research did not reveal any direct authority from the Court of Appeals for the Third Circuit, we have little hesitation in holding that plaintiff need not succeed on every count to be considered the prevailing party in this case. See Hines v. Perez, 242 F.2d 459, 466 (9th Cir.1957); see generally, Lacovara v. Merrill Lynch Pierce Fenner & Smith, 102 F.R.D. 959 (E.D.Pa.1984). Having settled this question, actual taxation of costs shall be referred as always to the Clerk.

ORDER

In accordance with the foregoing Opinion, Defendants’ motion for judgment N.O.V. is DENIED. Costs shall be awarded to plaintiff and denied as to defendants.

      . The Union was voluntarily dismissed on July 16, 1984.


author: COBB, District Judge.

text:
    TEXAS EMPLOYERS INSURANCE ASSOCIATION v. Leroy JACKSON.
    Civ. A. No. B-85-776-CA.
    United States District Court, E.D. Texas, Beaumont Division.
    Oct. 1, 1985.

      Royce Till/Reagan Simpson, Fulbright & Jaworski, Houston, Tex., for plaintiff.
    Richard Scheehter, Schechter, Eisenman & Solar, Houston, Tex., for defendant.
   MEMORANDUM OPINION

COBB, District Judge.

In this action, the plaintiff, Texas Employer Insurance Association (TEIA) seeks a declaratory judgment and a permanent injunction against the defendant, Leroy Jackson (Jackson) from continuing to assert and prosecute his suit against TEIA in the District Court of Jefferson County. For the reasons explained herein, plaintiffs Motion for Injunctive Relief is GRANTED.

The plaintiff was the insurance carrier for Gulfport Shipbuilding Company, and provided coverage against liability arising from claims filed under the Longshore and Harbor Workers’ Compensation Act (referred to as the “LHWCA” or the “Act.”), 33 U.S.C. 901 et seq. At all times material to this action, Gulfport Shipbuilding Company was Jackson’s employer subject to the terms of the LHWCA, but it is not a party in the instant litigation.

On July 13, 1978, Leroy Jackson, the defendant, was injured in the course and scope of his employment with Gulfport when he fell while working on a barge located in navigable waters. Jackson properly notified his employer of his injury and the plaintiff initiated payments of temporary total disability benefits. Jackson filed a formal claim for LHWCA compensation in July 1983, at which time the plaintiff controverted the claim. The plaintiff stopped paying compensation benefits in April 1983. After an informal conference with a representative of the Department of Labor, TEIA resumed compensation payments in July 1983. The plaintiff again terminated compensation payments in September 1983 after the defendant was examined by a physician of his own choice.

On May 3, 1984, the claim came on for formal hearing before the Honorable Ellin M. O’Shea, Administrative Law Judge. On September 14, 1984, Judge O’Shea issued a decision and order awarding the defendant compensation for temporary total disability, total permanent disability, attorney’s fees and interest on all past unpaid amounts. The decision was not appealed and therefore became final.

The defendant filed an action in the District Court of Jefferson County, Texas, on June 7, 1984, asserting seven causes of action arising from the plaintiff’s alleged bad faith handling and termination of the LHWCA compensation payments. The causes of action alleged by Jackson are: (1) violation of the Texas Insurance Code; (2) violation of the Texas Business and Commercial Code; (3) bad faith claims practices under Texas state law; (4) fraud under Texas state law; (5) intentional infliction of emotional distress; (6) negligent infliction of emotional distress; and (7) wilful and wanton disregard for the health, safety and welfare of others.

Plaintiff has brought this action pursuant to the Declaratory Judgment Act, seeking a determination that the manner in which a LHWCA claim is handled is exclusively controlled by the LHWCA, that the exclusive jurisdiction of all such claims is vested in the United States Department of Labor and in the United States federal court system, and that the award issued by Judge O’Shea is res judicata as to such claims. In addition to seeking a declaratory judgment to such effect, plaintiff further prays for an injunction to enjoin the defendant Jackson from pursuing the state court action.

The defendant contends that the LHWCA has not pre-empted Texas law in this area, that the doctrine of res judicata is inapplicable, that an injunction would not comply with the Anti-Injunction Act, and that this court should abstain from ruling on plaintiff’s motions.

This court, after hearing the parties’ arguments and carefully considering the law and evidence of this case, has concluded that plaintiffs motion for injunctive relief should be granted and that the defendant should be permanently enjoined from proceeding with his action in state court.

I. PRE-EMPTION OF STATE LAW

This court adopts the position that the LHWCA has pre-empted state law regarding actions for bad faith handling of LHWCA claims. It is well established that Congress may pre-empt an area of law under the Supremacy Clause of the U.S. Constitution. Pre-emption may be express or implied, and “is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 64 (1977). Absent explicit pre-emptive language, Congress’ intent to supercede state law may be inferred when the scheme of federal regulation is “so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Even where Congress has not completely displaced state regulation in a specific area, state law is nullified to the extent that it actually conflicts with federal law. Such a conflict arises when state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). This court concludes that the Act would pre-empt Texas law in this case on any of these three bases.

Section 5 of the LHWCA provides that the exclusive liability of an employer covered by the Act is the payment of the benefits, costs and penalties provided for therein. Section 35 of the Act places an insurance carrier in the same position as the employer. While there is no provision which states, “This Act pre-empts all state law in this area,” these provisions are nevertheless adequate to find that Congress expressly pre-empted the field by providing the exclusive remedy against employers and carriers as to actions arising under the LHWCA. The language providing that the Act is the exclusive remedy against an employer or carrier is a sufficiently explicit basis to pre-empt conflicting state law.

Even if Congress had not explicitly expressed its intent to pre-empt the area of compensation for these employees, the Congressional scheme of federal regulation is so pervasive as to warrant the inference that Congress intended to supercede state law in this area. This intent is discernible from the comprehensive federal nature of the provisions of the Act. Section 39 of the LHWCA places the primary duty of administering the Act on the Secretary of Labor. Appeals of compensation orders are handled by the Benefits Review Board of the Department of Labor and then by the Court of Appeals of the United States. The United States District Courts are the exclusive agent to enforce final orders. There are no provisions which allow state intervention at any stage of the process. It is clear from the terms of the Act that the sole cause of action in these cases is federal in nature and allows for no state supervision.

It is also clear that regulation by the State of Texas which the defendant seeks would be an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. One of the apparent objectives of Congress in enacting the LHWCA was to provide uniform protection to certain classes of employees. This purpose would be hampered if every state were able to freely amend the Act and require varying standards of conduct by the parties.

Another apparent objective of Congress was to provide an expedited procedure to enabled the covered employees to recover adequate compensation with minimal legal entanglements. The employee has an easier burden of proof to establish liability, and the employer and its carrier are protected from actions brought from outside the scope of the LHWCA. The protection of each party would be lost if they had to contemplate posturing for advantageous positions in later law suits which might arise from the handling of such claims.

It is apparent that under any of the three tests for pre-emption set out above, Congress intended that the LHWCA super-cede any conflicting state law regarding the handling of claims and payments under the Act. The LHWCA does provide remedies for late payment and non-payment of installments, but does not distinguish between good faith and bad faith non-payment. The only allowable justification for non-payment of an installment is that there is no liability. Judge O’Shea was apparently aware of the remedies for non-payment in that she applied the penalties provided in the Act, in essence, ruling that the plaintiff wrongfully withheld the payment of the compensation. A carrier’s good faith belief that it is not liable under the LHWCA is not sufficient grounds to protect it from the penalties provided for if liability is later found. The Act also provides no requirement that good faith be exercised controverting a claim or delaying payment thereon. Good faith simply does not play a part in the LHWCA scheme as far as the controverting of claims. In pre-empting state law in this area, Congress has set aside state causes of action for bad faith claims handling.

This court’s conclusion is reinforced by the Supreme Court’s ruling in Allis-Chalmers Corp. v. Lueck, — U.S. -, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). In Lueck, the Supreme Court was extremely hesitant to allow a state court to decide the scope of federally created rights and obligations. The Court held that a state law requirement of good faith in payments of compensation may not be used to expand the applicable labor relations law governing contracts and that the state law was preempted by federal law. The basis of this opinion was that the tort was rooted in contract law. In the present case, the violations alleged are rooted in federal compensation law. But for the federal compensation law, there could be no mishandling of the claim since there could be no claim.

That the LHWCA pre-empts state law is further supported by the Supreme Court’s ruling in Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983), wherein the Court held that New York’s Human Rights Law was pre-empted to the extent that it prohibited practices that were lawful under federal law. The only limitations the Court placed on preemption in that case were due to the fact that the federal statute in question was self-limiting and contemplated inclusion of state programs. In the present case, the federal statute is neither self-limiting or dependent upon state support in order to effectuate its goals.

An action in the state courts of Texas in this case would necessarily and improperly limit the scope of the LHWCA, The Act makes no reference to incorporating any Texas insurance standards. To require a standard of good faith would be to substitute a higher standard than that set out in the Act itself. As mentioned, the federal standard of conduct in an LHWCA claim does not include good faith but the Act does provide penalties for the wrongful withholding of compensation. A state court should not be allowed unilaterally to amend the Act in ways that Congress did not intend. This is so because the conduct complained of arises from the alleged mishandling of a federally created right, as opposed to a state statutory or common law right. There can be no escaping the conclusion that except for the federally created rights and duties there could be no mishandling of compensation. Since the right to compensation comes from the LHWCA, the right to damages for mishandling the compensation also arises from the Act.

The defendant asserts that under the McCarran Act, the regulation of the insurance business is to be left to the states. Further, the McCarran Act provides that no Act of Congress shall be construed to invalidate, impair or super-cede any law enacted by any State for the purpose of regulating the business of insurance unless such Act specifically relates to the business of insurance. This court holds that for the purposes of the McCarran Act, the LHWCA specifically relates to the business of insurance and may therefore supercede any Texas regulation of the insurance industry contrary to the terms of the act. The carrier is subject to the same duties and liabilities as the employer, which amounts to detailed and pervasive regulation. Additionally, the carrier must meet further requirements in its policies and contracts. One is forced to conclude that the LHWCA does govern the actions and responsibilities of insurance carriers to such a degree that it specifically relates to the business of insurance.

The defendant also asserts the proposition that Allis-Chalmers Corp. v. Lueck, supra, does not apply to the facts of this litigation. While that case is not in all ways directly in point, the facts in Lueck and this case are similar and the rationale in Lueck is enlightening. The question in both cases is whether state law may require good faith handling of compensation claims when the right to compensation is federally created. Having disposed of the issuq^as to whether the LHWCA regulates the business of insurance, the court turns to the contention that Lueck should not apply to a state imposed duty as opposed to a contractually imposed duty. While the Supreme Court expressly reserved judgment on that very issue, the argument for preemption appears even stronger than in Lueck. In that ease, the state tort action involved interpretation of a private contract, the particulars of which were not prescribed by federal law. In the present action, the proposed tort claim would require the State of Texas to go to determine what “good faith” and “bad faith” mean in the context of an LHWCA claim. In essence, this means that Texas would determine what are the obligations of a carrier or employer under the Act. This could very well result in a misapplication of LHWCA standards, either by making additional requirements not found in the Act or by diluting the standards which the Act requires.

The defendant holds out the case Martin v. Travelers Insurance Company, 497 F.2d 329 (1st Cir.1974), as support for his contention that he should be able to file a lawsuit in state court for the carrier’s alleged bad faith conduct in administering LHWCA compensation payments. This court does not find Martin persuasive on several grounds. That case appears to be alone in its conclusion as to the pre-emptive effect of the LHWCA. Not only is there no authority in the text of the opinion which supports the conclusion, but the case appears not to have been cited as authority by any other federal court. Perhaps more tellingly, it is noted that since Martin has been decided, the Supreme Court has issued Lueck and other cases which strongly indicate Martin may have been decided differently today.

Moreover, it is noted that the action in Martin was commenced in federal district court as opposed to state court. Further, the action appears to have been predicated on the LHWCA with only the remedy to come from state law. In the instant case the defendant wishes to proceed in state court with causes of action arising from state statutory or common law and with state remedies interspersed and intermingled with LHWCA causes of action. These differences in approach remove the present case from the Martin holding, however authoritative it might be.

Having weighed the arguments of counsel and considered the effects and implications of its ruling, this court is persuaded that Congress did indeed intend for the LHWCA to pre-empt any state causes of action arising from the handling of compensation payments under the Acts. Therefore, the recovery of the defendant against the carrier is limited to that provided for by the Act itself.

II. RES JUDICATA

The defendant raises the issue as to whether the award given to the defendant by the AU is res judicata, preventing the claimant from pursuing an additional award for the alleged mishandling of compensation payments. An examination of the relevant law convinces this court the earlier award is res judicata as to issues which were or could have been litigated at the formal LWHA hearing.

Though proceedings under workmen’s compensation statutes are generally informal, and procedural rules governing them should be liberal, a final award is generally ‘res judicata’ except as the statute otherwise provides.

Stansfield v. Lykes Bros. S.S. Co., 124 F.2d 999, 1004 (5th Cir.1942). There is no evidence that the statute itself provides for less than full res judicata effect, so this general rule will be applied barring unusual circumstances.

Jackson asserts there should be no res judicata from the previous ruling because he has not had the opportunity to litigate the disputed issues of fact, in effect contending that this is an unusual circumstance which removes the case from the statement of the law set out above. However, Jackson had the opportunity and did fully litigate the disputed issues of fact. After hearing the argument of counsel, the AU awarded the defendant compensation, attorney’s fees and interest. These benefits and penalties are only available if the plaintiff wrongfully withheld payment of the benefits. 33 U.S.C. § 938(a) and (b). Having ruled that the plaintiff was wrong in withholding benefits, res judicata precludes a trial based on the same issue. The fact that the defendant did not and possibly could not assert the various theories and request the remedies which he now propounds in state court does not alter the fact that he has already fully litigated the issue of wrongful withholding of compensation payments, nor that he received a judgment for damages based on that very issue.

The court recognizes that the doctrine of res judicata does not apply to issues that were decided but were not properly within the jurisdiction of the administrive agency. United States v. Radio Corporation of America, 358 U.S. 334, 79 S.Ct. 457, 3 L.Ed.2d 354 (1959). However, under § 38 of the LHWCA, the matter of the wrongfulness of the plaintiff’s withholding of benefits was properly before the AU, and was within her jurisdiction.

The defendant contends that Martin v. Travelers Insurance Co., supra, implicitly holds that a cause of action for mishandling compensation payments is not available under the LHWCA. This court reads that case to stand for the opposite conclusion. In Martin the cause of action arose under the Act, and only an independent remedy was allowed. Since this matter was properly before the AU and was fully litigated and properly decided, the award precludes relitigation of that same issue in state court, even if the theories of recovery asserted and remedies sought are different.

III. THE INJUNCTION

The Anti-Injunction statute states that a court of the United States “may not grant an injunction to stay proceedings in a State court except when expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” A federal court may not enjoin state court proceedings merely because those proceedings interfere with a protected federal right or invade an area pre-empted by federal law. Atlantic Coast Line Railroad Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 294, 90 S.Ct. 1739, 1746, 26 L.Ed.2d 234 (1970). However, a federal court may enjoin state proceedings which are precluded under the doctrine of res judicata. Donelon v. New Orleans Terminal Company 474 F.2d 1108, 1114 (5th Cir.1973). The relitigation exception also permits a federal court to enjoin relitigation in a state court of issues already decided in federal litigation. Mitchum v. Foster, 407 U.S. 225, 235, 92 S.Ct. 2151, 2158, 32 L.Ed.2d 705 (1972). For the purposes of this action, a determination by the AU is a final decision resulting from federal litigation.

Not only does this case fall under the “necessary to protect or effectuate judgment” clause as discussed above, but it also is within the “expressly authorized” exception to the anti-injunction statute. In Mitchum v. Foster, supra, the Supreme Court ruled that in order to qualify for this exception, a federal law need neither contain an express reference to the statute nor expressly authorize an injunction of the state proceeding. The law, however, must create “a specific and uniquely federal right or remedy enforceable in a federal court of equity, that could be frustrated if the federal court were not empowered to enjoin a state proceeding.

§ 21(d) of the LHWCA shows that the federal rights and remedies contained in the Act are enforceable in a federal court of equity. The issue then becomes whether the federal rights and remedies can be given their intended scope only if a federal court has the power to stay state proceedings. This court has already discussed how Congress intended to mandate expedited recovery with minimal legal entanglements when it enacted the LHWCA, and how the Act was to provide a uniform compensation scheme for protected employees. Both these purposes could be frustrated if the federal courts could not enjoin state proceedings. But the most convincing support for allowing a federal court to stay such proceedings is found in § 5 of the Act. The LHWCA could hardly be considered the exclusive remedy for covered employees if the employee is free to pursue other remedies in state court for denial of the same federally granted rights. It is apparent that the LHWCA can be given its intended scope only if a federal court has the power under the Act to enjoin state proceedings.

The defendant finally urges the court to exercise its discretion and abstain from interfering with the state proceedings. Though federal courts are, reluctant to use their injunctive power to stay state proceedings, they certainly have the power to do so. In Wall v. American Optometric Association, Inc., 379 F.Supp. 175, 183-83 (N.D.Ga.1974), aff’d 419 U.S. 888, 95 S.Ct. 166, 42 L.Ed.2d 134 (1974), it was held that “abstention ... is left in the discretion of the district court ... and should be exercised only in those rare cases in which the district court believes it would further the goals of federalism without interfering with Congress’ intention to provide a federal forum for the vindication of federal rights.” Under this formulation, abstention is not proper in this case because by abstaining this court would be ceding exclusive federal jurisdiction to a state court. This would in no way further federalism in that the deliberate delineation of federal and state powers would be breached with no commensurate benefits. To abstain would certainly interfere. with Congress’ intent to have a federal forum decide controversies concerning federal rights.

Accordingly, this court holds that Congress has pre-empted the entire field of compensation awarded under the LHWCA, that the award granted by the AU is res judicata as to the issue of wrongful handling of compensation benefits, that the defendant is permanently enjoined from proceeding on these matters in state court, and that federal abstention is not proper in this case.

IT IS SO ORDERED.

      . 28 U.S.C. 2201, 2202.

      . 28 U.S.C. 2283.

      . 33 U.S.C. § 905.

      . 33 U.S.C. § 935.

      . 33 U.S.C. § 939.

      . 33 U.S.C. § 921.

      . 33 U.S.C. §§ 918 and 921(d).

      . 33 U.S.C. §§ 914 and 938(b).

      . It is worth noting that in the 1984 amendments to the LHWCA, Pub.L. 98-426, 98 Stat. 1639, Congress added a bad faith clause to the act, § 31[c], but left the penalty provisions for late payment and non-payment of installments as they were. While the amendments are not applicable in the present case, they are indicative that Congress was aware of bad faith actions by the parties and intended to control them through the LHWCA. See also § 38(b).

      . 15 U.S.C. §§ 1011-1015.

      . 15 U.S.C. § 1012(a).

      . 15 U.S.C. § 1012(b).

      . 33 U.S.C. § 935.

      . 33 U.S.C. § 936.

      . The very first sentence of Martin sets forth this premise in as many words. Additionally, that court stated "whether the insurer’s actions, if proven, give rise to a separate cause of action under state law, or upon some other theory, against the insurer is not a question we presently can answer.” This statement does little to support defendant’s contention that the cause of action in tort arose under state law.

      . 28 U.S.C. § 2283.

      . Mitchum v. Foster, supra, pp. 237-38, 92 S.Ct. pp. 2159-60.