author: STAPLETON, Chief Judge:

text:
    HARVEY & HARVEY, INC., and Delaware Transfer Corp., Plaintiffs, v. DELAWARE SOLID WASTE AUTHORITY, a Delaware State Agency, and N.C. Vasuki, General Manager of the Delaware Solid Waste Authority, Defendants.
    Civ. A. No. 84-292-WKS.
    United States District Court, D. Delaware.
    Jan. 7, 1985.

      James McC. Geddes, Alicia B. Howard, Ashby, McKelvie & Geddes, Wilmington, Del., for plaintiffs.
    F. Michael Parkowski, John W. Noble, Parkowski, Noble & Guerke, Dover, Del., for defendants.
   OPINION

STAPLETON, Chief Judge:

On May 23, 1984, Harvey & Harvey, Inc. (“Harvey & Harvey”) and Delaware Transfer Corporation (“Transfer”) initiated this declaratory judgment action against the Delaware Solid Waste Authority (“Authority”) seeking to permanently enjoin the enforcement of certain portions of the proposed Delaware Solid Waste Authority Solid Waste Licensing and Disposal Regulations (“Regulations”) governing solid waste disposal in the State of Delaware. Plaintiffs claim that the Regulations violate both the Commerce Clause and the Equal Protection Clause of the United States Constitution. The Authority has moved to dismiss on grounds that (1) the Eleventh Amendment insulates the Authority from suit, (2) this action is barred by the Tax Injunction Act, 28 U.S.C. § 1341, and (3) the complaint fails to state a claim upon which relief can be granted. In addition, the Authority has applied for a stay of this case pending resolution of parallel state proceedings.

I. THE FACTS

A. The Parties

Harvey & Harvey and Transfer are both Delaware corporations engaged in the business of transporting solid waste. Harvey & Harvey hauls commercial and industrial solid waste from various sites in New Castle County to disposal sites located both inside and outside the State of Delaware, as well as to a transfer station located at Newport, Delaware, which it has owned and operated since May, 1982. The transfer station allows Harvey & Harvey to consolidate solid waste which it has collected for transportation to disposal sites, primarily out-of-state. Harvey and Harvey claims that additional benefits from utilizing the transfer station are that (1) it can take advantage of the longer operating hours at out-of-state disposal sites thereby increasing the volume of solid waste and the number of customers that it handles, and (2) it is better able to take advantage of the lower dumping fees at out-of-state disposal sites.

Transfer owns and operates a group of vehicles which are used to transport solid waste from the transfer station to both in-state and out-of-state disposal sites. Plaintiffs indicate that approximately 50% of Transfer’s revenues come from fees charged to Harvey & Harvey for the transportation of solid waste, 95% of which is disposed of out-of-state. In addition, Transfer directly leases a large portion of its equipment to Harvey & Harvey.

The Authority is an agency created by the State of Delaware. It was established in 1975 pursuant to the adoption of the Delaware Solid Waste Authority Act (“Act”), 7 Del.C. §§ 6401, et seq. (1983). The Delaware General Assembly adopted the Act in response to growing concern over environmental degradation resulting from prevailing solid waste disposal practices and in recognition of the need for state-wide planning and coordination to aid in the resolution of this solid waste disposal problem. 7 Del.C. § 6401(a) (1983).

The Act directs that the Authority shall develop a statewide solid waste management plan. In addition, it is charged with responsibility for the planning, design, management, ownership, and operation of solid waste disposal and resource recovery facilities and for the provision of solid waste management services. Since 1982, the Authority has had the power to control the flow of industrial and commercial solid waste. 7 Del.C. § 6406(a)(31) (1983) (as amended by 63 Del.Laws, c. 372 (1982)). Section 6422(b) of the Act provides that the Authority “may by regulation require the owners or occupants of all lands, buildings and premises therein to use the services and facilities of the Authority under such rules and regulations as the Authority shall fix and establish.”

N.C. Vasuki is the general manager of the Authority having responsibility for the execution and enforcement of the Regulations which are in question in this action.

B. The Regulations

As provided for by Section 6403(Z) of the Act, after notice and a public hearing, the Authority may adopt “rules and regulations to effectuate the powers, policies, purposes and functions” set forth in the Act. Pursuant to this power, the Authority has adopted solid waste- licensing and disposal regulations. Although the Regulations are quite extensive, plaintiffs’ challenges are limited to two narrow areas. Specifically, the portions of the Regulations under attack are Sections 4.01, 5.03, 9.01, 9.02, and 9.03.

Sections 4.01, 5.03, 9.02, and 9.03 generally require that all solid waste generated within the State of Delaware be disposed of at a “solid waste facility.” That term is defined by the Regulations as “any landfill, recycling project, collection station, transfer station, or other solid waste processing or disposal facility or project operated by, on behalf of, or under contract with the Authority.” The impact of this requirement is to force solid waste originating in Delaware to be disposed of in Delaware. These sections of the Regulations are the target of plaintiffs’ Commerce Clause arguments. Section 9.01 requires a transfer station operator to document the source and final disposition of all solid waste processed by the transfer station. Plaintiffs challenge this provision as a violation of the Equal Protection Clause.

II. ELEVENTH AMENDMENT IMMUNITY

The Authority contends that plaintiffs’ claims for declaratory and injunctive relief must be dismissed as to the Authority since the Eleventh Amendment prohibits the federal courts from entertaining suits by private parties against states and their agencies absent consent. Plaintiffs do not dispute this general proposition but rather argue that the Delaware General Assembly has clearly waived any immunity which the Eleventh Amendment might have conferred on the Authority and, in the alternative, that the Authority is not the alter ego of the State of Delaware for purposes of Eleventh Amendment immunity.

It is clear that a state may waive its immunity under the Eleventh Amendment. See, e.g., Pennhurst State School & Hosp. v. Halderman, — U.S. -, 104 S.Ct. 900, 907 (1984); Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275, 276, 79 S.Ct. 785, 787, 3 L.Ed.2d 804 (1959); Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 882-83, 27 L.Ed. 780 (1883). However, “[t]he conclusion that there has been a waiver of immunity will not be lightly inferred.” Petty v. Tennessee-Missouri Bridge Commission, supra, 359 U.S. at 276, 79 S.Ct. at 787. Stated differently, “[i]n deciding whether a State has waived its constitutional protection under the Eleventh Amendment, [a court] will find waiver only where stated ‘by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.’ ” Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662 (1974) (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742 (1909)). See also Pennhurst State School & Hosp. v. Halderman, supra, — U.S. - at -, 104 S.Ct. at 907 (a state’s consent to suit against it in federal court must be “unequivocally expressed”).

Here, plaintiffs assert that Section 6406(a)(5) of the Act constitutes Delaware’s consent to the filing of suits in federal court against the Authority. That section states that “the Authority shall have the power to sue and be sued.”

In Florida Dept. of Health v. Florida Nursing Home Assn., 450 U.S. 147, 150, 101 S.Ct. 1032, 1034, 67 L.Ed.2d 132 (1981) (per curiam), the Court held that a Florida statute providing that the Florida Department of Health and Rehabilitative Services had the capacity “to sue and be sued” was insufficient to constitute a waiver of Eleventh Amendment immunity. In discussing the rationale underlying this decision, the Supreme Court recently commented:

Our reluctance to infer that a State’s immunity from suit in the federal courts has been negated stems from recognition of the vital role of the doctrine of sovereign immunity in our federal system. A State’s constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued.

Pennhurst State Hosp. v. Halderman, supra, — U.S. at -, 104 S.Ct. at 907.

Similarly, since Section 6406(a)(5) of the Act can be read as consent to state court suits only, it does not provide the required unequivocal indicia of a legislative intent to waive Eleventh Amendment immunity. Consequently, if the Authority is found to be an arm or alter ego of the State of Delaware, it may not be sued in this Court.

The ultimate issue in deciding if a public instrumentality, such as the Authority, is an arm or alter ego of the state for Eleventh Amendment purposes is whether the state is the real party in interest. Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945); Blake v. Kline, 612 F.2d 718, 721 (3d Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1112 (1980); Urbano v. Board of Managers of New Jersey State Prison, 415 F.2d 247, 250 (3d Cir.1969), cert. denied, 397 U.S. 948, 90 S.Ct. 967, 25 L.Ed.2d 129 (1970); Gann v. Delaware State Hospital, 543 F.Supp. 268, 270 (D.Del.1982). Resolution of this issue requires an examination of a number of factors including:

state law defining the relationship between the agency and the state; whether any judgment would have to be paid out of the state treasury; whether the agency is performing a governmental or proprietary function; whether it has been separately incorporated; whether it has autonomy over its operations; whether it has the power to sue and be sued and to enter into contracts; whether its property is immune from state taxation; and whether the State had immunized itself from responsibility for the agency’s operations.

Gann v. Delaware State Hospital, 543 F.Supp. at 270. See Blake v. Kline, 612 F.2d at 722-26; Urbano v. Board of Managers, 415 F.2d at 250-51; Smith v. New Castle County Vo-Tech School District, 574 F.Supp. 813, 817 (D.Del.1983). Although none of these factors is controlling, “[t]he most important factor in the determination of Eleventh Amendment immunity is whether judgment will have to be paid from the state treasury.” Blake v. Kline, 612 F.2d at 723. See Urbano v. Board of Managers, 415 F.2d at 251; Gibson-Homans Co. v. New Jersey Transit Corp., 560 F.Supp. 110, 112 (D.N.J.1982). The degree of autonomy that an agency exercises .over its operations is also a factor of critical importance. Blake v. Kline, 612 F.2d at 725; Gibson-Homans Co. v. New Jersey Transit Corp., 560 F.Supp. at 112.

Delaware’s General Assembly created the Authority as a separate and autonomous “body ... corporate” with broad powers. Its policies are determined and its affairs conducted by a board of seven directors who serve three year terms. 7 Del.C. § 6403 (1983). The Authority’s powers include the authority to raise its own funds through the collection of user fees and the issuance of bonds. 7 Del.C. §§ 6406, 6407 (1983). It is also authorized to enter all kinds of contracts and may “sue or be sued.” 7 Del.C. § 6406 (1983). Most importantly, Section 6413 of the Act provides that “the Authority shall have no power to pledge the credit or to create any debt or liability of the State....”

While all of the directors of the Authority are appointed by the Governor with the advice and consent of the Senate, the Authority is required to report annually to the General Assembly, and the General Assembly has expressly recognized “its responsibility to monitor and supervise the activities and operations of ... the Authority”, 7 Del.C. § 6401(a) (1983), the freedom given to the Authority to run its own affairs and the fact that it is financially independent of the State, at least on the face of the statute, foreclose a dismissal of the Authority on the present record.

The Authority asserts that, given the critical governmental function performed by it, if it were to fail or suffer some crippling adverse judgment, the State would necessarily have to come to its aid with the infusion of public funds. While it may be that a record could be developed which would make this assertion an important factor in the decision as to whether the Authority is an arm of the State, I currently have nothing before me but the language of the Act. See Blake v. Kline, 612 F.2d 718 (3d Cir.1979).

III. THE TAX INJUNCTION ACT

The Tax Injunction Act, 28 U.S.C. § 1341, provides:

The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such state.

The Authority and Vasuki assert that by attacking the requirement that all solid waste produced in Delaware be disposed of in Delaware, plaintiffs are acting to restrain the collection of user fees charged by the Authority thereby interfering with the “collection” of a “tax” as those terms are defined by the Tax Injunction Act. Defendants further contend that, as a result, this Court is without jurisdiction to entertain plaintiffs’ Commerce Clause arguments.

By way of background, the Tax Injunction Act reflects Congressional recognition that “the autonomy and fiscal stability of the States survive best when state tax systems are not subject to scrutiny in federal courts.” Fair Assessment in Real Estate Ass’n. v. McNary, 454 U.S. 100, 102-103, 102 S.Ct. 177, 179, 70 L.Ed.2d 271 (1981). While the Tax Injunction Act embodies the “fundamental principle of comity between federal courts and state governments that is essential to ‘Our Federalism’, particularly in the area of state taxation”, Id. at 103, 102 S.Ct. at 179-80, the statute was directed at several specific concerns which had arisen in the wake of the Supreme Court’s landmark decision of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Garrett v. Bamford, 538 F.2d 63, 66 (3d Cir.), cert. denied, 429 U.S. 977, 97 S.Ct. 485, 50 L.Ed.2d 585 (1976). As the Third Circuit delineated in Garrett v. Bamford, 538 F.2d at 66, Congress intended to eliminate (1) the practice of large out-of-state corporations using diversity jurisdiction to litigate the validity of state taxes in federal courts thereby gaining an advantage over state citizens who generally had to pay the tax and then sue for a refund in state court, and (2) the ability of foreign corporations to utilize litigation in the federal courts to interminably withhold payment of local taxes and to disrupt local financing. Our Court of Appeals also noted that Congress was cognizant of the fact that federal litigation was time consuming and costly, allowing wealthy foreign corporations to financially wear down state and local taxing authorities until they could attain extremely favorable settlements. Id. See also Capitol Industries-EMI, Inc. v. Bennett, 681 F.2d 1107, 1112, n. 12 (9th Cir.), cert. denied, 455 U.S. 943, 102 S.Ct. 1438, 71 L.Ed.2d 655 (1982); Robinson Protective Alarm Co. v. City of Philadelphia, 581 F.2d 371, 375 (3d Cir.1978). Moreover, although the question remained open for a number of years, it recently has been determined that the Tax Injunction Act applies to actions seeking declaratory as well as injunctive relief. California v. Grace Brethren Church, 457 U.S. 393, 411, 102 S.Ct. 2498, 2509, 73 L.Ed.2d 93 (1982); Exxon Corp. v. Hunt, 683 F.2d 69, 72 (3d Cir.1982), cert. denied, 459 U.S. 1104, 103 S.Ct. 727, 74 L.Ed.2d 952 (1983).

Turning to the language of the Tax Injunction Act itself, the statute specifically sets forth several requirements which must be satisfied before federal jurisdiction is revoked. First, there must be a “tax” under state law at issue. However, whether an assessment is a “tax” for purposes of the Tax Injunction Act is a question of federal, not state, law. Robinson Protective Alarm Co. v. City of Philadelphia, supra, 581 F.2d at 374. Second, the suit must be one seeking to “enjoin, suspend or restrain” the “assessment, levy or collection” of a tax. Finally, there must not be “a plain, speedy and efficient” remedy available in state court.

Analyzing the case at bar with this background in mind, I find that plaintiffs’ Commerce Clause arguments do not involve a challenge to the “assessment, levy or collection” of a tax, and hence, that the Tax Injunction Act is inapplicable. Defendants correctly note that plaintiffs’ second amended complaint includes the contention that plaintiffs will suffer economic injury if the Regulations prohibiting the disposal of Delaware generated solid waste outside the state are upheld since plaintiffs will be unable to take advantage of the lower out-of-state tipping fees. Nevertheless, plaintiffs have not directly challenged the Authority’s power to charge fees or the amount of those fees. Rather, plaintiffs have attacked the requirement that they use only the Authority’s facilities to dispose of solid waste generated within the state.

It seems beyond question that a decision concerning the challenged portions of the Regulations will have some impact on the financial affairs of the Authority. If the challenged Regulations are declared unconstitutional, the Authority might lose revenue which would have to be made up from other sources. However, the Tax Injunction Act does not preclude the federal courts from hearing all cases in which the outcome will have a secondary effect on the financial affairs of a state or an agency thereof.

For example, in McKay v. Horn, 529 F.Supp. 847 (D.N.J.1981), the court held that a challenge to the constitutionality of amendments to the Federal Unemployment Tax Act, 26 U.S.C. § 3301, et seq. and the New Jersey Unemployment Compensation Law, N.J.S.A. 43:21-1 et seq., reducing unemployment insurance benefits payable to individuals simultaneously receiving pension benefits, social security retirement benefits, or other periodic payments attributable to previous work history was not barred by the Tax Injunction Act. The court rejected the argument that the challenged amendments necessarily affected the calculation of New Jersey employers’ payroll taxes thereby impermissibly interfering with the assessment of a state tax, noting that “[sjimply because a federal court order would affect the amount of taxes collected by the state pursuant to a particular program does not mean that the court thereby interferes with the state’s tax-gathering function.” 529 F.Supp. at 858 (emphasis in original). Finding that at no time was the validity of the unemployment tax itself brought into question, Id., the court went on to discuss the issue in more general terms, as follows:

The federal courts routinely entertain challenges to state laws, policies, practices and procedures which, if successful, would require the state to make additional expenditures and, in the long run, to raise additional revenues in order to fund those expenditures____ If the Tax Injunction Act were deemed to bar such actions simply because a successful outcome might result in an increase in taxes collected by the state, the federal courts’ role as a forum for the vindication of federal statutory and constitutional rights would be largely gutted. Where, as here, no challenge is made to the validity of the tax itself, and a decision favorable to plaintiffs would have only a tangential effect upon the state’s revenue-gathering function, it is clear that the Tax Injunction Act does not apply.

Id. at 859.

Similarly, in Superior Oil Co. v. City of Port Arthur, 535 F.Supp. 916 (E.D.Tex.1982), the court held that the Tax Injunction Act did not bar Superior Oil’s challenge to a series of annexations by Port Arthur. As a result of these annexations, the city’s boundaries were moved to include a strip of submerged territory in the Gulf of Mexico comprised in part by property owned by Superior. The court found that the suit was not one challenging a tax law, but instead, one attacking the validity of a municipal annexation which brought Superior’s property within the ambit of the municipal ad valorem tax ordinance. The court concluded:

Because Port Arthur’s ad valorem ordinance is not being questioned, there is no danger of disruption to the City’s taxing scheme. Equitable relief for Superior Oil, in this instance, would not intrude on the enforcement of the City’s taxing system. The principle of comity and the purposes of the Tax Injunction Act are not at stake here, and, consequently, federal jurisdiction is intact.

Id. at 919. See also Mobil Oil Corp. v. Tally, 639 F.2d 912, 917-18 (2d Cir.1981), cert. denied, 452 U.S. 967, 101 S.Ct. 3123, 69 L.Ed.2d 981 (1981) (Tax Injunction Act did not prohibit entertaining suit attacking anti-passthrough provision of statute imposing 2% tax on gross receipts of oil companies doing business in New York since the provision was not an exercise of the state’s taxing powers to assess, levy, or collect taxes but rather an exercise of the state’s police powers to control prices); Mobil Oil Corp. v. Dubno, 639 F.2d 919, 922 (2d Cir.1981), cert. denied, 452 U.S. 967, 101 S.Ct. 3122, 69 L.Ed.2d 980 (1981) (following Mobil Oil Corp. v. Tully, in upholding Connecticut’s anti-passthrough provision); Rivero v. Patino, 524 F.Supp. 136, 142-43 (N.D.Cal.1981) (suit not barred by Tax Injunction Act where decision in favor of plaintiff would have had effect of increasing state unemployment taxes rather than decreasing state tax revenues).

Here, the secondary effects of plaintiffs’ Commerce Clause contentions on the Authority’s powers to collect disposal fees are simply too attenuated to constitute a challenge to the “assessment, levy or collection” of a tax. Thus, the Tax Injunction Act does not provide an impediment to the exercise of jurisdiction in this case.

IV. STAY PENDING RESOLUTION OF THE STATE PROCEEDINGS

Vasuki and the Authority urge that this Court should exercise its discretion to stay these proceedings since plaintiffs, on July 25, 1984, instituted parallel proceedings in state court. Plaintiffs respond that since Section 6412 of the Act requires parties challenging regulations adopted by the Authority to file suit within thirty days of their promulgation, the state court action was filed merely as a way to preserve their rights under state law. They also point to the fact that a stipulation has been filed staying the state court action pending the outcome of these proceedings.

The power to stay or dismiss federal proceedings pending the resolution of parallel state proceedings resides in the sound discretion of the trial court. However, that power is to be exercised only under exceptional circumstances. Moses H. Cone Hospital v. Mercury Construction Corp., 460 U.S. 1, 13-19, 103 S.Ct. 927, 935-939, 74 L.Ed.2d 765 (1983); Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). The Supreme Court has identified a number of factors which must be examined and balanced to determine whether the exceptional circumstances test is satisfied including: (1) the inconvenience of the federal forum, (2) the desirability of avoiding piecemeal litigation, (3) the order in which the proceedings were initiated, and (4) the presence of a res or property over which jurisdiction has been asserted. Moses H. Cone Hospital v. Mercury Construction Corp., 460 U.S. at 15-16, 103 S.Ct. at 937, Colorado River Water Conservation District v. United States, 424 U.S. at 818-19, 96 S.Ct. at 1246-47. Additional factors to be examined include (1) whether federal law provides the rule of decision on the merits, Moses H. Cone Hospital v. Mercury Construction Corp., 460 U.S. at 23, 103 S.Ct. at 941, (2) the identity of issues in the two forums or lack thereof, Gilbane Building Co. v. Nemours Foundation, 568 F.Supp. 1085, 1089 (D.Del.1983), and (3) the existence of a federal policy militating either in favor or against a stay. Id. However, the Supreme Court has cautioned that “the decision whether to dismiss a federal action because of parallel state-court litigation does not rest on a mechanical checklist, but on a careful balancing of the important factors as they apply in a given case, with the balance heavily weighted in favor of the exercise of jurisdiction.” Moses H. Cone Hospital v. Mercury Construction Corp., 460 U.S. at 16, 108 S.Ct. at 937.

Vasuki and the Authority concede that many of the factors favoring the continued exercise of federal jurisdiction are present in the case at hand. For example, the federal court is a convenient forum, this action was filed before the state proceedings were instituted, and plaintiffs’ claims are based on the United States Constitution not state law. However, Vasuki and the Authority argue that a stay is appropriate because of a strong federal policy favoring deference to state courts in matters concerning state revenue collection efforts and because of considerations of judicial efficiency and economy. I do not agree.

With respect to the federal policy favoring deference to state courts in matters concerning state revenue collection efforts, the Authority and Vasuki have correctly identified the policy but have failed to show its applicability to plaintiffs’ claims. As has already been discussed in reference to the Tax Injunction Act issue, plaintiffs have not challenged the Authority’s right to collect disposal fees or the amount of those fees but instead have attacked the requirement that Delaware generated solid waste be disposed of at the Authority’s facilities. The secondary effects that this attack might have on the amount of fees collected by the Authority is simply not sufficient to transform this case into one in which a state’s revenue collection efforts are being challenged. Hence, the policy identified by the defendants does not compel the issuance of a stay under these circumstances.

With respect to considerations of judicial efficiency and economy, Vasuki and the Authority argue that by instituting legal proceedings in both state and federal court, plaintiffs have imposed burdens on both the courts and defendants that neither should have to bear. However, given the fact that plaintiffs instituted the state court proceedings only to preserve their rights and have stipulated that those proceedings will not go forward as long as these proceedings continue, no significant burdens have been imposed on the defendants and this factor alone clearly does not make this action an exceptional case. Defendants’ application for a stay will be denied.

V. THE COMMERCE CLAUSE

When Delaware’s General Assembly adopted the Act, it made the following findings of fact:

Findings. — The General Assembly finds and declares that the people of the State have the right to a clean and wholesome environment; that prevailing solid waste disposal practices generally, throughout the State, result in unnecessary environmental damage, substantially degrade surface and groundwater, waste valuable land and other resources and constitute a continuing hazard to the health and welfare of the people of the State; that local governments responsible for waste disposal services are becoming hard pressed to provide adequate services at reasonable costs, without damage or hazard to the environment and the loss of useful resources; that as a result of inadequate solid waste collection and disposal systems rural areas of the State are particularly subjected to esthetic degradation because of litter; that locally organized voluntary recycling programs have shown that solid wastes produced in the State contain recoverable resources; that technology and methods now exist to dispose of solid wastes and recover resources with commensurate environmental benefits; that coordinated large-scale processing of solid wastes may be necessary in order to achieve maximum environmental and economic benefits for the people of the State; that the amounts of solid waste being produced within the State are adequate to sustain such large-scale processing; that the geography and population density of the State are such as to enable and facilitate the effective and economic regional accumulation of solid wastes; that the development of systems and facilities and the use of the technology necessary to initiate large-scale processing of solid wastes have become logical and necessary functions to be assumed by state government; that the provision of solid waste disposal services to local governments at reasonable cost, through the use of state governmental powers and capabilities, would supply valuable assistance to such local governments; and, that, because of the foregoing, the provision of statutory authorization for the necessary state structure, which can take initiative and appropriate action to provide the necessary systems, facilities, technology and services for solid waste management and resources recovery is a matter of important public interest____

7 Del.C. § 6401(a) (1983).

Based on these findings, the General Assembly declared the following to be the purposes of the Act:

Purpose. — The General Assembly declares the following to be the purpose of this chapter:
(1) That a statewide comprehensive program for management, storage, collection, transportation, utilization, processing and disposal of solid waste be established.
(2) That a program for the maximum recovery and reuse of materials and energy resources derived from solid wastes be established.
(3) That a program for protecting the land, air, surface and groundwater resources of the State from depletion and degradation caused by improper disposal of solid waste be established.
(4) That a program in cooperation with the United States Environmental Protection Agency, or other federal and state agencies, for the demonstration of systems and techniques of materials recovery, market development and reuse be established.
(5) That a statewide solid waste management plan be developed and implemented by the Authority.

7 Del.C. § 6401(c) (1983).

In furtherance of these purposes, the General Assembly bestowed upon the Authority the power to “control, through regulation or otherwise, the collection, transportation, storage and disposal of solid waste, including the diversion of solid waste within specified geographic areas to facilities owned, operated or controlled by the Authority....” 7 Del.C. § 6406(31) (1983). As earlier noted, the authority thus conferred has been exercised through the promulgation of regulations which require that solid waste collected in any of Delaware’s counties must be disposed of at a facility run by the Authority in that county.

The threshold inquiry posed by plaintiffs’ Commerce Clause challenge is whether the primary purpose or effect of the Act and the implementing Regulations is to favor in-state economic interests or to burden out-of-state economic interests. City of Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978). See also Bacchus Imports, Ltd. v. Dias, — U.S. -, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981); Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 100 S.Ct. 2009, 64 L.Ed.2d 702 (1980). I conclude that such “protectionism” is neither the primary purpose nor the primary effect of the challenged State action.

On their face, the Act and the Regulations appear to be an attempt by the State of Delaware to deal effectively with a Delaware health and environmental problem at the expense of the residents of Delaware. They apply, without relevant exception, to all generators and to all collectors of solid waste in any one of Delaware’s three counties. Those who collect such solid waste— whether they be from that county, from another county, or from out-of-state — must utilize the designated disposal site or sites in the county of origin. Similarly, the Act and the Regulations do not discriminate between in-state and out-of-state disposal facilities. The distinction drawn is between Authority run facilities and all other facilities wherever located; Delaware generated solid waste may be disposed of at the former and not at the latter.

The plaintiffs do not allege that the purpose of the Act and the Regulations is economic protectionism. They do, however, allege that the effect is to draw a distinction between solid waste depending on its geographic point of origin and to halt the flow of solid waste generated in Delaware into neighboring states. Since solid waste was held by the Supreme Court in City of Philadelphia v. New Jersey, supra, 437 U.S. at 621-23, 98 S.Ct. at 2534-35, to constitute as item of “interstate commerce”, plaintiffs maintain that these effects are sufficient to invalidate the challenged portions of the Regulations. Plaintiffs ignore the fact, however, that the virtual per se rule of invalidity upon which they rely is not woodenly applied and is directed only to state regulation whose primary effect is to confer a significant benefit on in-state economic interests or to impose a significant burden on out-of-state economic interests. Accordingly, the question is not merely whether a distinction is drawn but whether there is significant discrimination against out-of-state economic interests.

While the practical effect of the Act and the Regulations is to draw a distinction between solid waste generated in Delaware and solid waste generated elsewhere, there is no discrimination against out-of-state solid waste. A material restriction is placed on the disposal of Delaware generated solid waste; no such restriction is placed on other solid waste. This case is thus unlike City of Philadelphia v. New Jersey, supra, in which the State of New Jersey prohibited the disposal of all out-of-state solid waste at New Jersey landfill sites with the practical effect of “imposing] on out-of-state commercial interests the full burden of conserving the State’s remaining landfill space.” 437 U.S. at 628, 98 S.Ct. at 2537.

While it is also true that the Regulations may stop the interstate transportation of Delaware generated solid waste to out-of-state disposal sites, there is nothing in the complaint or in the record before me which suggests that this will impose a significant economic burden on out-of-state economic interests. Indeed, the record affirmatively indicates that solid waste of the kind to which the Regulations apply has a negative value; both within Delaware and beyond one must pay a fee to induce someone to dispose of it.

I recognize, as does the Act, that solid waste has some reclamation value and that, in some situations, it may even be in demand. This is not a situation, however, where the existence of a significant burden on out-of-state economic interests is apparent enough that it may be assumed without empirical evidence. Indeed, I do not understand plaintiffs to allege that there is a substantial demand among out-of-state disposal site operators for Delaware generated solid waste. The only significant economic burden emphasized in the complaint and the briefing is a burden on in-state collectors, like the plaintiffs, who will be required to pay higher disposal fees for the disposal services which Delaware’s General Assembly has found to be essential to the health and well being of Delaware residents.

In short, this is not a typical case of economic protectionism to which a virtual per se rule of invalidity is applicable. Rather, this is a case involving a state regulation which is purportedly directed to an important state health and environmental concern, which does not appear to materially favor in-state economic interests, but which may have some incidental impact on commerce between the states. In such circumstances, the role of a reviewing court is quite limited. It may ask only whether the purported state concern is a pretext, Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 101 S.Ct. 1309, 67 L.Ed.2d 580 (1981), and, if not, whether the impact upon interstate commerce is “clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970).

The complaint in this case alleges only that the challenged Regulations “discriminate against” and “burden” interstate commerce. It does not allege that the purported public health objectives of the Act and the Regulations are pretexts or specify an economic burden on out-of-state interests which is claimed to be clearly excessive when contrasted to the benefits sought by the General Assembly. Moreover, plaintiffs’ brief makes no such claims. Plaintiffs’ brief asserts only that the Authority has not come forward with evidence to demonstrate that a “resource recovery facility will only be viable if all industrial and commercial wastes are brought to that facility” or that “other nondiscriminatory alternatives [do not] exist.” Plaintiffs’ Answering Brief, p. 33.

I believe the plaintiffs are mistaken as to which side has the burden of going forward with evidence in a situation of this kind. The findings of the General Assembly are due more deference than plaintiffs would accord them. If plaintiffs wish to challenge those findings, they must first allege and then come forward with evidence to show that the claimed benefits are illusory. If they do not challenge those findings, they must allege and prove that the burden on interstate commerce is clearly excessive. Shapiro v. Cooke, 552 F.Supp. 581, 588 (N.D.N.Y.1982), aff'd, 702 F.2d 46 (2d Cir. 1983); Tobacco Road v. City of Novi, 490 F.Supp. 537, 544 (E.D.Mich.1980). Since plaintiffs have failed to so allege, their present complaint fails to state a claim upon which relief can be granted. However, given the fact that plaintiffs have apparently misperceived their burden, they should be afforded an opportunity to amend their complaint and shoulder their burden if they wish to do so. Defendants’ motion to dismiss plaintiffs’ claim under the Commerce Clause will be dismissed twenty days from the date of this Opinion unless an appropriate amendment is filed.

VI. THE EQUAL PROTECTION CLAIM

In addition to their Commerce Clause contentions, plaintiffs assert that Section 9.01 of the Regulations violates the Equal Protection Clause. Section 9.01 provides generally that transfer station operators must maintain daily records showing both the source and final disposition of all solid waste handled by the transfer facility. Plaintiffs argue that this provision impermissibly distinguishes between transfer station operators and operators of solid waste collection vehicles who are not required to maintain the same records. This distinction is alleged to be without a rational basis.

In order to withstand plaintiffs’ constitutional challenge, Section 9.01 must satisfy the “lenient” requirements of the rational basis test. Exxon Corp. v. Eagerton, 462 U.S. 176, 195-196, 103 S.Ct. 2296, 2308, 76 L.Ed.2d 497 (1983). “Under that standard a statute [or regulation] will be sustained if the legislature , could have reasonably concluded that the challenged classification would promote a legitimate state purpose.” Id. See also Schweiker v. Wilson, 450 U.S. 221, 230, 101 S.Ct. 1074, 1080, 67 L.Ed.2d 186 (1981); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 461-70, 101 S.Ct. 715, 722-27, 66 L.Ed.2d 659 (1981); City of New Orleans v. Dukes, 427 U.S. 297, 303-305, 96 S.Ct. 2513, 2516-17, 49 L.Ed.2d 511 (1976).

The transfer station reporting requirements of the Regulations are rationally related to at least three legitimate goals of the Authority. First, a principal responsibility of the Authority is to monitor and plan for solid waste disposal. To that end, it is important that the Authority know the quantities and general sources of the solid waste which it must dispose of in an environmentally sound manner. The records to be maintained by transfer station operators will materially aid in accomplishing this function. Unlike solid waste collectors which are required to include generally the sources and quantities of solid waste which they collect in information that they must submit to the Authority as part of the licensing procedures, such information is not readily available from transfer station operators. The reporting requirements of the Regulations help alleviate this informational gap.

Second, transfer stations have the potential for seriously impairing the Authority’s ability to enforce its flow control regulations. When solid waste from another state is brought to a Delaware transfer station, it can be mixed with solid waste from Delaware. Under such circumstances, the commingled solid waste is subject to the flow control sections of the Regulations and must be disposed of at Authority run sites. The reporting requirements make monitoring of the transfer station's activities with regard to solid waste generated in Delaware possible. Enforcement of a solid waste collector’s obligation under the flow control portions of the Regulations, on the other hand, while not easy, is substantially less complicated than against a transfer station operator. A collection vehicle, for example, can be observed collecting the solid waste and then disposing of it at some unauthorized location. It is more difficult to detect a transfer station operator who illegally disposes of in-state waste by commingling it with out-of-state waste and then hauls the mixed waste to out-of-state disposal sites.

Third, when solid waste hauling vehicles arrive at an Authority disposal or recycling facility, prohibited substances, such as hazardous wastes may be discovered. The collection vehicle operator will know, at least generally, where he or she has collected the load containing the prohibited substance. The operator of a vehicle from a transfer station will not have such information unless records of the nature required by the Regulations are maintained.

In short, solid waste transfer station operations are significantly different from solid waste collection operations and the reporting requirements are rationally related to proper public objectives. Consequently, Section 9.01 of the Regulations does not offend the Equal Protection Clause.

While it might be that the imposition of similar reporting requirements on solid waste collectors would likewise advance the goals of the Authority to some degree, the Equal Protection Clause does not require that the state “strike at all evils at the same time or in the same way.” Minnesota v. Clover Leaf Creamery Co., supra, 449 U.S. at 466, 101 S.Ct. at 725 (quoting Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 610, 55 S.Ct. 570, 571, 79 L.Ed. 1086 (1935)). The state may “implement [its] program step by step, ... adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the evil to future regulations.” City of New Orleans v. Dukes, supra, 427 U.S. at 303, 96 S.Ct. at 2516-17. The Authority has adopted Section 9.01 of the Regulations as one step in its efforts to monitor and control the disposal of solid waste. This step does not violate the Equal Protection Clause.

VII. CONCLUSION

Defendants’ motion to dismiss based upon the Eleventh Amendment and the Tax Injunction Act and their application for a stay will be denied. They are, however, entitled to have plaintiffs’ claims under the Equal Protection Clause dismissed pursuant to Rule 12(b)(6). Finally, plaintiffs’ claims under the Commerce Clause will be dismissed in twenty days unless an amended complaint is filed which states a claim upon which relief can be granted.

      . On June 21, 1984, the Authority adopted the proposed Regulations which became effective August 1, 1984.

      . On July 24, 1984, plaintiffs filed an amended complaint adding as a defendant, N.C. Vasuki (“Vasuki"), the general manager of the Authority. The Authority's motion to dismiss has been filed on behalf of both Vasuki and the Authority-

      . A transfer station is simply a facility used for consolidating waste collected from various sources for transport to disposal sites.

      . As originally adopted, the Act did not give the Authority control over the collection, transportation, storage, or transfer of garbage or refuse originating from residential, commercial, or industrial establishments. In 1977, the Authority was given the power to control the flow of residential solid waste. See 7 Del.C. § 6406(a)(31) (as amended by 61 Del.Laws, c. 132 (1977).

      . The Regulations in question provide in part as follows:
      4.01 a. Except as otherwise provided in this Article:
      (1) All solid waste generated within the State of Delaware shall be delivered to and disposed of at a Solid Waste Facility;
      (2) The owners and occupants of all lands, buildings, and premises located within the State of Delaware, and all those persons acting for them or under contract with them, shall use only Solid Waste Facilities for the disposal of solid waste generated within the State of Delaware.
      b. Subject to the provisions of Sections 3.02 and 3.19 of these Regulations, solid waste generated within the State of Delaware shall be delivered to the following Solid Waste Facilities:
      Site of Generation Disposal Facility
      (i) New Castle County Northern Solid Waste Facility Pigeon Point Lambson's Lane New Castle, Delaware
      (ii) Kent County Central Solid Waste Facility Del. Rt. 10 Sandtown, Delaware
      (iii) Sussex County Southern Solid Waste Facility Del. Rt. 20 Laurel, Delaware
      c. Persons delivering solid waste to a Solid Waste Facility shall pay to the Authority the applicable disposal fees and charges.
      ******
      9.01 Any person operating a transfer station for solid waste within the State of Delaware, shall:
      a. prepare daily and maintain (for a minimum period of three years after preparation) records of the solid waste handled at the transfer facility showing the source and the final disposition of such waste after removal from transfer station, including address of such final disposition. The records to be maintained shall be adequate to provide all information required by the Transfer Station Monthly Solid Waste Report, annexed hereto as Exhibit B;
      b. submit the report required by paragraph 9.01(a) of these Regulations and verify the accuracy thereof to the Authority on or before the twentieth (20th) day of the month following the month for which the report is compiled. The report shall be in the form of the Transfer Station Monthly Solid Waste Report, annexed hereto as Exhibit B;
      c. make the records required to be maintained and preserved by paragraph 9.01(a) of these Regulations available for inspection by representatives of the Authority during normal business hours.

      . The Eleventh Amendment provides:
      The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

      . There is no contention that the Eleventh Amendment immunizes Vasuki from plaintiffs’ claims. See Pennhurst State School & Hosp. v. Halderman, — U.S. -, -, 104 S.Ct. 900, 909-10, 79 L.Ed.2d 67 (1984); Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Spicer v. Hilton, 618 F.2d 232, 236 (3d Cir.1980).

       —For this reason, the Court consistently has held that a State’s waiver of sovereign immunity in its own courts is not a waiver of the Eleventh Amendment immunity in the federal courts.

      . Plaintiffs advance the additional argument that the Authority has sufficient contacts with’ the federal government to constitute a waiver of Eleventh Amendment immunity including, inter alia, cooperation with the United States Environmental Protection Agency in carrying out federal environmental programs and the receipt of federal loans and grants. In light of Edelman v. Jordan, supra, and Florida Department of Health v. Florida Nursing Home Assn., supra, this argument is unpersuasive.

      . The question of whether an agency is the alter ego of a state and thereby immune from federal jurisdiction under the Eleventh Amendment is a question of federal, not state, law. Blake v. Kline, 612 F.2d at 722.

      . Contrary to the Authority’s suggestion, I am not persuaded that the Governor, the Secretary of State, and the State Treasurer have veto powers over the Authority’s power to issue bonds. Section 7402 of Title 29 of the Delaware Code appears to apply only to bonds "the payment of which the State has pledged its full faith and credit.” 29 Del.C. § 7401(3) (1979).

      . The Authority also stresses that the State has agreed to indemnify its directors up to a limit of $3,000,000. While this factor is entitled to some weight, it does not make this situation like one in which judgments against a public corporation are payable by the State.

        . Plaintiffs have raised as additional grounds for avoiding the jurisdictional bar contained in the Tax Injunction Act, the contentions (1) that the disposal fees charged by the Authority are not taxes within the meaning of the statute and (2) that the state remedies are wholly inadequate with respect to the "plain, speedy and efficient” remedy requirement. Since I conclude that plaintiffs do not here challenge the "assessment, levy or collection” of a tax, there is no need to address these contentions.

      . Specifically, defendants asserted that since New Jersey’s payroll taxes were calculated on the basis of the employer’s "experience rating” (the ratio of the employer’s state unemployment fund contributions to the benefits paid from the fund), any successful challenge to the amendments would result in greater benefits being paid with a corresponding drop in the employer’s experience rating and higher payroll tax assessments.

      . The defendants do not contend that this is an appropriate case for application of the doctrine of abstention. It is not suggested, for example, that there is any unclear question of state law the determination of which might obviate or materially alter a constitutional issue.

      . It is of significance, for example, that the plaintiffs represent in-state rather than out-of-state economic interests. As the Supreme Court has noted, “the existence of major in-state interests adversely affected by the Act is a powerful safeguard against legislative abuse." Minnesota v. Clover Leaf Creamery Co., supra, 449 U.S. at 473, n. 17, 101 S.Ct. at 728 n. 17.

      . The Supreme Court has expressly recognized resource conservation and environmental protection to be areas of legitimate local concern, Minnesota v. Clover Leaf Creamery, supra, 449 U.S. at 471, 101 S.Ct. at 727, and has found that “a State's power to regulate commerce is never greater than in matters traditionally of local concern.” Kassel v. Consolidated Freightways Corp., supra, 450 U.S. at 670, 101 S.Ct. at 1316. See also Sporhase v. Nebraska ex rel Douglas, 458 U.S. 941, 956, 102 S.Ct. 3456, 3464, 73 L.Ed.2d 1254 (1982) ("For Commerce Clause purposes, we have long recognized a difference between economic protectionism, on the one hand, and health and safety regulations, on the other.”).

      . The text of Section 9.01 is set forth in its entirety, supra. See note 5.

      . Strict scrutiny is not required since plaintiffs’ claim does not involve either a fundamental interest or a suspect classification. Exxon Corp. v. Eagerton, 462 U.S. 176, 195-196, 103 S.Ct. 2296, 2308 (1983).


source: Caselaw Access Project

author: SHADUR, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. VARIOUS ARTICLES OF MERCHANDISE, SEIZURE NO. 148, Defendant. UNITED STATES of America, Plaintiff, v. VARIOUS ARTICLES OF MERCHANDISE, SEIZURE NO. 150, Defendant. UNITED STATES of America, Plaintiff, v. VARIOUS ARTICLES OF MERCHANDISE, SEIZURE NO. 151, Defendant.
    Nos. 84 C 7997, 84 C 8129 and 84 C 8611.
    United States District Court, N.D. Illinois, E.D.
    Jan. 7, 1985.
    Patrice Scully, Asst. U.S. Atty., Chicago, Ill., for plaintiff.
   MEMORANDUM OPINION AND ORDER

(INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW)

SHADUR, District Judge.

These in rem actions have been brought by the United States for forfeiture and destruction of allegedly obscene imported material seized from the United States mails by the Customs Service. For the reasons stated in this opinion’s findings of fact and conclusions of law, issued as mandated by United States v. Various Articles of Merchandise, Seizure No. 170, 750 F.2d 596 (7th Cir.1984), this Court concludes all the seized materials are obscene and shall therefore be forfeited and destroyed.

This Court’s Mandate Under Seizure No. 170

In a different context this Court has had occasion to state its invariable procedure of conducting a personal review of all materials tendered in obscenity forfeiture proceedings. United States v. Miscellaneous Pornographic Magazines, 526 F.Supp. 460, 467-68 (N.D.Ill.1981) (hereinafter cited “YourStyle,” after the name of the publisher plaintiff in the consolidated action that triggered all the substantive discussion in that opinion). It may be that our Court of Appeals’ decision in Seizure No. 170 was motivated at least in part by its concern lest District Courts might slight— or perhaps even eschew — the distasteful, though constitutionally mandated, task of personal review (thus Seizure No. 170, at 599, referred to the need “to provoke care on the part of the district judge”).

All the same, this Court’s own experience indicates the commendable desire of our Court of Appeals (“So that review in these cases will not be illusory ... and to bring some rationality into these proceedings,” Seizure No. 170, at 598), when translated into practice, most frequently proves unrealistic. Almost all the materials tendered to this Court in such proceedings over the years have been what might be termed Jacobellian — bringing into play the truly inspired observation (though its overuse has tended to make it commonplace) by Justice Stewart, concurring in Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 (1964):.

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

Whenever a case is an obvious “I know it when I see it” candidate, with the seized material compelling an equally obvious affirmative conclusion as to obscenity, it is extraordinarily difficult if not impossible to articulate any meaningful findings of fact of a kind that would ease the task of appellate review. As the Supreme Court Justices themselves have found in obscenity cases, there is no substitute for their viewing the offending materials and reaching their own conclusions as to “patent offensiveness.” And that problem is really at the hard core of the conclusion recently expressed by the Second Circuit in United States v. Various Articles of Obscene Merchandise, Schedule No. 2102, 709 F.2d 132, 136 (2d Cir.1983) (a conclusion rejected and impliedly criticized by our own Court of Appeals in Seizure No. 170, at 598):

Although appellate courts are required to exercise de novo review as to the preliminary substantive requirement that the material be “hard core” pornographic in nature, Jenkins v. Georgia, supra, 418 U.S. [153] at 160-61, 94 S.Ct. [2750] at 2754-55 [41 L.Ed.2d 642], the trier’s finding that the material is non-obscene is virtually shielded from appellate scrutiny, at least absent evidence that it is so clearly unreasonable as to amount to abuse of discretion.

One other factor that impelled our Court of Appeals to adopt its requirement for “explicit findings and conclusions” (Seizure No. 170, at 599) does not withstand analysis: its citation of United States v. Various Articles of Obscene Merchandise, Schedule No. 2098, 536 F.Supp. 50, 53 (S.D.N.Y.1981) for the proposition that “a finding of obscenity as to an article would be res judicata (in the same community, presumably) for subsequent importations of that same article” {Seizure No. 170, at 599). Even a brief rehearsal of the concept of res judicata or claim preclusion — which bars subsequent litigation between the same parties to the prior litigation — makes the suggested application of that concept to Section 1305(a) forfeitures bizarre indeed. It must be remembered the producer or distributor of the publication receives no notice of the Section 1305(a) proceedings— only the addressee of the seized copy does. Obvious due process infirmities would attach to a conclusive determination of obscenity of a publication, made binding on the real party in interest who has had no notice or opportunity to litigate, with the determination having been rendered in a proceeding in which an addressee of a copy was the only party notified. In fact the same due process concerns should apply even to a later proceeding involving a different addressee of the same publication, who also has not had his or her day in court.

Merely labeling the proceeding “in rem” does not alter matters, for the subject of in rem proceedings — the property subject to destruction — is only a particular item of property (in this case a copy of a publication), not the generic class of which that item of property may be a part. That is the established wisdom in the res judicata field — or more accurately, the field of collateral estoppel or issue preclusion, for the problem with which our Court of Appeals was rightly concerned in Seizure No. 170 was the prospect of binding a different litigant in a future lawsuit involving the same publication. We need look no farther than the Restatement of Judgments to show that the unsupported “res judicata” statement in Schedule No. 2098 (referred to with apparent approval in Seizure No. 170, at 599) is not only unsupported but unsupportable in law as well as in logic.

This is not to minimize the practical (as distinct from legal) effect of a court’s declaration that a copy of a publication is obscene. Such a prior determination may well have a precedential influence on another District Judge who is later called upon to consider forfeiture of another copy of the same publication. But that prospect is totally distinct from a res judicata determination that would foreclose such later review. And even the practical persuasiveness of an earlier declaration of obscenity is necessarily diminished if the earlier forfeiture is one that went by default, without the usual testing in the crucible of the adversary process.

Despite the somewhat questionable underpinnings discussed in this section, this Court will of course essay the task presented by Seizure No. 170 in every Section 1305 case delivered to its calendar under this District Court’s random assignment system. Its analysis of the materials in issue in these cases follows.

Application of the Standards in These Actions

Seizure No. 170, at 597 paraphrased the familiar constitutional test of Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973) this way:

To determine whether a particular item is obscene, we apply a three-part test: first, the work, taken as a whole, must appeal to prurient interests; second, the work must portray sexual conduct in a patently offensive way; and third, the work, taken as a whole, must lack serious literary, artistic, political or scientific value.

As in Seizure No. 170, the works at issue here unquestionably fall comfortably within the first and third criteria. Observation demonstrates that result without the need for any discussion, and this Court so finds. That leaves only the issue of patent offensiveness for resolution.

Both the District Court and the Court of Appeals in Seizure No. 170 looked to the “average person in the relevant community” for that determination. There is no doubt the graphic depiction of sexual matters has undergone a dramatic revolution in taste in a single generation. In 1963 (if recollection does not play false) this Court and its then partners in the law practice defended Hugh Hefner against a City of Chicago obscenity charge stemming from photographs in an issue of Playboy magazine. One of those offending photos showed actress Jayne Mansfield (a “sex symbol” of that era) in bed and apparently unclothed (though she was substantially covered by the bedsheets, and no genitalia were at all visible in the photographs), with a male actor sitting fully clothed (indeed maybe even wearing a fedora, again if recollection is not playing tricks) on the same bed. Other photos showed Ms. Mansfield in other situations, but none depicted any sexual activity or any frontal nudity that included genitalia. Of course those pictures were not obscene, but the very fact they could then stimulate an obscenity prosecution (while today they would not stimulate sale of a magazine, let alone much if any prurient interest) suggests how and to what extent other times have produced other mores.

At the same time this Court cannot permit the mere fact that some commercial market now exists for a product to compel a negative decision as to its patent offensiveness, for the ultimate result of that kind of analysis (or lack of it) would compel judicial denial of every forfeiture where the addressee is a consumer who has ordered the merchandise. “Contemporary community standards,” for patent offensiveness purposes, must look to the judgment of the “average person in the community, rather than the most prudish or the most tolerant,” Smith v. United States, 431 U.S. 291, 304, 97 S.Ct. 1756, 1765, 52 L.Ed.2d 324 (1977). As Seizure No. 170, at 600 put it:

We have already noted that availability [in the relevant community of similar materials] is not simply to be equated with acceptability, although there is, of course, an obvious linkage.

Contrast the differing decisions by the Court of Appeals for the Second Circuit in Schedule No. 2102, 709 F.2d at 134-37 (and Judge Meskill’s concurrence, id. at 137-38), on the one hand, with Schedule No. 2127, 705 F.2d 41, 43-44 (2d Cir.1983) and the earlier decision in Schedule No. 2102, 678 F.2d 433, 435 (2d Cir.1982), on the other.

This opinion will turn then to the materials seized in these actions. All the following individual findings will simply classify the kinds of activities depicted, as a consequence of which this Court has found both the kind of activity and the blatant method of its depiction in each of the seized materials clearly “portray sexual conduct in a patently offensive way” — doing violence to contemporary community standards.

Seizure No. 170, at 599 (citations omitted) identified one risk-fraught government alternative in these cases:

The government, of course, is under no constitutional obligation to provide evidence of community standards— The material, if hard core, may be left to speak for itself____ If the government does not present evidence, however, it must be prepared to have the district court declare that, by its lights, the material is not self-evidently offensive to the community____

That is the course the United States has pursued here. As it develops, the risk has not materialized. This Court has in turn determined (expressing “its own sense of what the standards of the relevant community are,” id., at 601) that the purveying of “dirt for dirt’s sake” in the manner represented by each of the seized materials is “self-evidently offensive to the community” (id., at 599). It may be that our society (or at least the Chicago area, the “relevant community” in this case) will some day decline to the level at which such blatant portrays of sexual conduct are not “patently offensive” — but in this Court’s view it requires no more evidence than a direct review of the materials themselves to find that day has not yet arrived for the materials seized in these cases.

It should be underscored that this has been an individualized determination, not one predicated on lumping the seizures together. Responsive to our Court of Appeals’ directive, a brief summary of the materials follows:

1. Seizure No. 148

Item 1 — “Sex Inspiration No. 7” is a magazine containing still photographs depicting persons engaged in cunnilingus, fellatio, mutual and self-masturbation (including the use of dildos) and genital intercourse, with graphic exposure of genitalia throughout the photos and an occasional view of ejaculated semen.

Item 2 — Each of “Top Porno,” “Venus Studio,” “Top Sex No. 2,” “Super Porno” and “Club Tabu 1” has contents of the same description as Item 1, except that the last two magazines include several innocuous introductory photos before getting down to their principal business.

Items 3-10 — Each of these consists of advertising materials for like magazines and comparable films. Their advertisements contain graphic descriptions of all conceivable variants of sexual activity, together with sample depictions of each of the advertised publications showing the sexual activity itself.'

Item 11 —“Joyboy 32” is a magazine devoted to photographs depicting young boys engaged in fellatio, mutual and self-masturbation and anal intercourse, with some of the photographs showing ejaculated semen.

Item 12 — “DeVaar BV Nr. 8” is a book-sized glossy catalogue of magazines and video cassettes depicting all the kinds of sexual activity referred to throughout these findings, again together with a graphic sample depiction from each of the advertised materials.

Item 13 — “Sex Bizarre 32” is a later edition of the publication of the same name described in Seizure No. 170, at 597, with content conforming to the Court of Appeals’ description.

Item 14 —“Dream Boy 7” is a later edition of the publication described in Seizure No. 170, at 600-601, and it too includes the showing of ejaculated semen from the adolescent boys depicted in the publication.

Item 15 —“Animal Orgy 12” is a magazine showing lesbian cunnilingus, then a series of graphic photographs of a variety of sex acts with animals (“bestiality,” in the literal sexual sense), with human fellatio and genital intercourse interspersed.

Items 16-18 — “Lesbian Quintet” is a film devoted entirely to women engaging in cunnilingus, mutual and self-masturbation and the extensive use of dildos for simulated genital intercourse.

2. Seizure No. 150

Items 1-4 —These are advertising materials identical to Items 3-10 of Seizure 148.

Item 5 — “Sex Bizarre 30” is an earlier edition of Item 13 of Seizure 148, showing identical kinds of activity.

Item 6 — “Sweet Little 16” is a more than 70-page glossy-photograph magazine, beginning with a one-paragraph “Editorial” that recites some homilies and concludes by saying:

There are so many things to make this life worth living, one of them could be this magazine.

What follows is an uninterrupted series of photographs of sexual manipulation, fellatio, genital intercourse, cunnilingus, masturbation and anal intercourse, some of the photographs again including ejaculated semen. Finally the “Readers Corner” contains letters about and pictures of like activities from correspondents. Though the magazine even contains a centerfold, its differences from such magazines as Playboy and Penthouse enormously outweigh the similarities — it is no better than an obscene parody.

Item 7 — “Pony Party” is a film showing cunnilingus and then bestiality (the latter involving the “hero” identified in the film’s caption).

3. Seizure No. 151

Items 1, 2 and 5 —These are advertising circulars for films portraying substantially all the activities described in these findings, again including graphic picture portrayals as well as descriptions.

Item 3 — “Anal Sex 50” is a magazine showing not only an extensive gallery of acts conforming to the magazine title but also cunnilingus, fellatio, genital intercourse and female masturbation through use of dildos, with some of the photos once again depicting ejaculated semen.

Item 4 — “Anal Sex Nr. 4” — This item fits the same description.

Item 6 — This untitled 8 mm. film contains (after a fleeting innocuous introductory scene) a graphic and continuous depiction of active male homosexual conduct of the kinds shown in still photographs in Item 11 of Seizure No. 148 — except that young men rather than young boys are engaged in the activity.

Item 7 — “Video Index 84” is a perhaps 100-page glossy color index of films depicting all the kinds of activities described in these findings, once again with a graphic and salacious description of the contents of those films.

Items 8-11 —“Horny Massage” is a film depicting fellatio, genital intercourse, cunnilingus (including lesbian cunnilingus) and masturbation. Once again there are depictions of ejaculated semen, this time on film.

Items 12-13 — These items have been destroyed pursuant to consent of the addressees obtained administratively.

Item 14 —This comprises seven long-play video cassettes (all directed to the same addressee), each containing three or four full-length films (it appears the cassettes are the conventional six-hour size). In several instances the cassettes include conventional motion pictures (e.g., Charles Bronson in “Death Wish II” and Clint Eastwood in “Sudden Impact”). But even those cassettes have one or more films (and the other cassettes have each of their films) devoted entirely — except for some purported excuse for a story line — to activities of the nature described in these findings. Because of the video cassette medium, the films are enabled to have sound tracks that, by recording the sounds of the sexual activities, add to the pornographic character of the pictures. All of the sex-related films are thus plainly obscene. And this Court will not do what the distributor has not chosen to do: separate the fractional legitimate content from the obscene. All the tapes will be destroyed.

Items 15-17 — “Toy 37” is a magazine targeted to homosexuals who are “into” leather, rubber and uniforms. It both describes and depicts not only male genitalia, in close-up as well as longer-range shots, but also anal intercourse.

Conclusion

All the materials that are the subject matters of these actions are obscene under the controlling legal tests. All are declared forfeited and shall be destroyed.

Appendix

Even a brief review of the basic principles of claim preclusion and issue preclusion, as applicable to in rem proceedings, demonstrates the unsoundness of the District Court’s statement in Schedule No. 2098, 536 F.Supp. at 53. Restatement (Second) of Judgments 2d § 30 (adopted and promulgated June 12, 1980) provides (emphasis added):

A valid and final judgment in an action based only on jurisdiction to determine interests in a thing:
(1) Is conclusive as to those interests with regard to all persons, if the judgment purports to have that effect (traditionally described as “in rem”), or with regard to the named parties, if the judgment purports to have that effect (traditionally described as “quasi in rem”); and
(2) Does not bind anyone with respect to a personal liability; and
(3) Is conclusive between parties, in accordance with the rules of issue preclusion, as to any issues actually litigated by them and determined in the action.

One of the listed examples of actions covered by that principle is “actions by the government to forfeit a thing used in violation of the revenue or other laws” (id. Comment a) — a definition clearly broad enough to embrace forfeitures under Section 1305(a). Comment a teaches that in such actions “a court may enter a final judgment purporting to bind all persons in the world with respect to interests in the property (traditionally described as a judgment ‘in rem’ ” and that “interests in the thing are conclusively determined even as to parties who default,” but (emphasis added):

The foregoing effects of a judgment with respect to interests in a thing must be distinguished from the effects as to issue preclusion — collateral and direct estoppel — discussed in Comment d, below. There can be no such preclusion except as between parties appearing and litigating particular issues.

Comment d in turn repeats the classic rules of issue preclusion (no emphasis is added, because every sentence (and nearly every phrase) puts another nail in the coffin entombing any idea of res judicata on the issue of obscenity):

A valid judgment based only on jurisdiction over a thing is conclusive as to interests in the thing, even as to nonappearing parties (see Comment a). Such a judgment has no further conclusive effect except in accordance with the rules of issue preclusion set forth in §§ 27, 28. Under those rules, parties who have appeared in the action and litigated an issue as adversaries will normally be precluded from relitigating that issue if its determination was essential to the judgment.

And the Reporter’s Note on Comment d states (citations omitted):

That there are no estoppel effects if the adverse claimant does not appear, even though the judgment is conclusive in fixing the interests in the thing, is shown by the following cases.

It follows a fortiori from the quoted principles that a non-party to the first action suffers no estoppel effects (most notably on the key issue of obscenity). And though that is more obviously so if the addressee in the first case did not choose to appear in the proceedings, it is equally true even if that first addressee — not authorized to represent the non-party (such as a second addressee or the publisher or distributor)— did appear in the first case.

      . Both the seizure and these actions have been undertaken pursuant to Tariff Act of 1930 § 305(a) as amended, 19 U.S.C. § 1305(a) ("Section 1305(a)”).

      . In material part YourStyle dealt with some of the intriguing questions posed by the importation of foreign-language magazines containing photographs that, viewed alone, would appear obscene. For example, the obscenity vel non of the "work as a whole" might arguably be different for an audience of non-speakers of the foreign language (to whom the "work" is entirely pictorial) than for an audience able to read the text as well as look at the pictures. YourStyle, 526 F.Supp. at 465-67. Yet in conceptual terms obscenity is supposed to be an objective standard, and it is supposed to be the work as a whole that is judged objectively. In that respect this Court notes parenthetically that as a result of the YourStyle decision, the Customs Service changed its procedures nationally to conform to the directive in Part 2 of that opinion. In any case, only two of the current materials even potentially pose the problem dealt with in YourStyle (in each of those two instances the text accompanying the photographs is entirely in another language), but in each instance the content of the photos is such that the “work as a whole” is necessarily obscene for any audience of “average persons in the relevant community.”

      . Seizure No. 170, at 598 cited United States v. Various Articles of Obscene Merchandise, Schedule No. 2127, 705 F.2d 41, 44 (2d Cir.1983) for the proposition represented by the quotation in the text. However, this Court’s examination of Schedule No. 2127 disclosed neither any such quoted language nor any such holding in that case. Though this is necessarily only a guess, it does appear Schedule No. 2102 was really the case meant to be referred to in Seizure No. 170.

      . Even that addressee (absent his or her voluntary general appearance for that purpose, which is unnecessary to permit the addressee to contest the forfeiture) is not subject to jurisdiction over his or her person in the forfeiture proceedings. Section 1305(a), involving as it does only an in rem determination as to the seized material, does not require service of process on the addressee. Indeed the addressee is often not even subject to service of process, for the statute requires that the proceedings be brought in the district housing the customs office where the seizure took place — not the district of residence of the addressee. Only a mailed notice of the seizure and the proceedings is typically given the addressee. See the Appendix for a broader exposition of the non-res-judicata effects of such in rem proceedings.

      . See Appendix.

        . Both because all such cases share the problems already identified in the text, and because (judging by this Court’s experience to date) in almost none of such cases will the requirement of detailed findings (let alone the possible appointment of an amicus, Seizure No. 170, at 599) add anything constructive to the proceedings, this opinion’s discussion will be made a part of every future set of findings and conclusions to which it is relevant. There is after all the exam-pie set by Cato in his repetition of the same refrain at the end of every speech (on any subject) on the floor of the Roman Senate: Delenda est Carthago (Carthage must be destroyed).

      . That finding as to each of the seized materials is also implicit in their description, found later in this opinion.

      . Research into the use of the Restatement in the courts requires special care, because of the shifts in section numbering between the original Restatement and the most recent version (referred to in this Appendix). Current Section 30 carries forward the same subject matter that appeared in Sections 73 and 75 of the first Restatement. Indeed, even in the Tentative Drafts that led to the current version, present Section 30 still appeared as Section 73.


author: HUDSPETH, District Judge.

text:
    Jose Luis GONZALEZ and Francisco Gonzalez, Plaintiffs, v. UNITED STATES of America, Defendant.
    No. EP-84-CA-21.
    United States District Court, W.D. Texas, El Paso Division.
    Jan. 8, 1985.

      Walter L. Boyaki, El Paso, Tex., for plaintiffs.
    Mark Greenberg, Asst. U.S. Atty., El Paso, Tex., for defendant.
   MEMORANDUM OPINION AND ORDER

HUDSPETH, District Judge.

This is an action for damages under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. This Court has jurisdiction under the provisions of 28 U.S.C. § 1346(b). A non-jury trial was held on December 20 and 21, 1984. The Court’s findings of fact and conclusions of Law are incorporated in this memorandum opinion.

Plaintiff Jose Luis Gonzalez is the son of Francisco and Margarita Solis Gonzalez. At the time of the transactions made the basis of this suit, he was 18 years of age and lived in his parents’ home at 269 Pasodale, in the Lower Valley area of El Paso, Texas. Jose Luis was enrolled in a technical school, and also worked an evening shift at Azar Nut Company where he was employed as a nut roaster. His father, Plaintiff Francisco Gonzalez, was retired from the United States Air Force, and he and his dependents were entitled to receive medical services from the army hospital known as William Beaumont Army Medical Center.

Sometime in the morning of May 27, 1982, Plaintiff Jose Luis Gonzalez began feeling pain in his abdominal area. As the day went on, the pain grew worse. Sometime in the afternoon or evening, the Plaintiff took two Pepto Bismol tablets, but they did not afford relief. Plaintiff apparently went to work at Azar, and worked his full evening shift. After work, he went home and went to bed. About 4:00 a.m., he awoke feeling severe pain. He awoke his mother, and requested that she take him to the hospital. Mrs. Gonzalez dressed herself and drove Jose Luis to the emergency room of William Beaumont Army Medical Center. According to the emergency room records, (Def. Ex. B), Jose Luis arrived at the emergency room at 4:50 a.m. on May 28, 1982.

According to records prepared by the emergency room personnel, Jose Luis complained at the time of his admission of abdominal pain since nine o’clock the previous morning. He specifically complained of pain in the right lower quadrant of his abdominal area. He stated that eating made the pain worse, and that nothing he had tried had made it better. He also stated that his last bowel movement had occurred a few hours before. He was conscious and alert, his pulse rate was 78, and his blood pressure, temperature, and respiration were all within normal limits. The emergency room physician who examined the Plaintiff was an intern named Edwina J. Popeck. Dr. Popeck made a complete physical examination in an effort to diagnose the Plaintiff’s condition. She observed that Jose Luis did not appear to be severely ill. He moved around the examination room without apparent difficulty; his skin did not appear to be flushed or clammy, and his eyes were not glazed. He was not moaning or groaning spontaneously. He gave a history of pain in the right lower quadrant of his abdomen. He did not complain of nausea, diarrhea or vomiting. He stated that his last bowel movement had occurred a few hours before. There was no distention or discoloration of the abdomen and no abnormalities visible. Gurgling noises in the bowel could be detected with the stethoscope, indicating that the intestine was at work. Palpation of the abdomen resulted in a finding of tenderness in the right upper quadrant of the abdomen. No tenderness was detected in the right lower quadrant. There was no rebounding, and guarding was minimal. Such guarding as Dr. Popeck did detect was localized in the right upper quadrant. She found no guarding in the right lower quadrant area. She conducted some leg manipulation tests, which were also negative. Rectal examination for tenderness, masses, and blood in the stool also proved negative. When Jose Luis was asked to jump up and down on the floor of the examining room, he did so without any apparent increase in pain. Dr. Popeck then ordered x-rays and laboratory tests. The only positive finding on the x-ray was the appearance of two opaque tablets in the Plaintiff’s ascending colon, which apparently were the undissolved Pepto Bismol tablets taken by the Plaintiff approximately twelve hours earlier. The blood test revealed an elevated white count of approximately 16,600, but the laboratory breakdown of the different kinds of white cells found failed to indicate the presence of an acute infection. After considering all of her findings, Dr. Popeck ruled out a diagnosis of appendicitis and diagnosed the Plaintiff’s condition as gastritis. She instructed him to go home and take analgesics for the pain, to continue his regular diet, and to return to the emergency room if the pain worsened during the day. Jose Luis was discharged from the emergency room at approximately 6:15 a.m.

Plaintiff Jose Luis Gonzalez did not attempt to go to school or work on May 28; he rested at home all day. The pain continued without noticeable abatement. About four o’clock in the afternoon, Jose Luis advised his mother that the pain had worsened. At that time, Mrs. Gonzalez was busy preparing dinner, and she did not immediately take Jose Luis to a doctor or hospital. When Jose Luis’ complaints continued and escalated, Mrs. Gonzalez telephoned the emergency room at William Beaumont at about 6:30 or 7:00 p.m. She was instructed to bring Jose Luis back to the hospital. Instead of taking Jose Luis immediately, however, Mrs. Gonzalez proceeded to attempt to locate her husband, Plaintiff Francisco Gonzalez, who was in a bar somewhere. By the time Mr. Gonzalez was located, it was approximately 9:00 p.m. Mr. and Mrs. Gonzalez then proceeded to drive Jose Luis back to William Beaumont Army Medical Center, arriving at the emergency room at about 9:15 p.m.

While Mr. Gonzalez parked the car, Mrs. Gonzalez assisted Jose Luis into the emergency room. She told the person at the desk that she had telephoned earlier, and had been instructed to bring Jose Luis to the emergency room. Jose Luis was told to proceed to the records office, and obtain his medical records before returning to the emergency room. On the way to the records office, Jose Luis’ pain became so severe that he was unable to walk. His mother obtained a wheel chair for him, and wheeled him to the records office and back to the emergency room where his medical records were given to the receptionist. According to the undisputed testimony, Jose Luis and his parents proceeded to wait approximately an hour to an hour and fifteen minutes without being seen by any emergency room personnel. During this period, Jose Luis was doubled over with pain and holding his abdomen. At approximately 10:30 p.m., Francisco Gonzalez inquired as to when Jose Luis would be seen by a doctor. The receptionist told him that the doctors were all busy, and that quicker service might be obtained by going to another hospital. His parents then helped Jose Luis out to the car and drove him to Sierra Medical Center, a private hospital in El Paso, Texas located fairly near William Beaumont Army Medical Center. The drive to Sierra took ten to fifteen minutes. Jose Luis was seen in the Sierra emergency room at approximately 10:45 p.m. The diagnosis was acute appendicitis with possible rupture of the appendix and peritonitis. He was admitted to the hospital immediately and a surgeon was contacted. Less than two hours later, surgery was performed by Dr. Ruben Ramirez. Surgery disclosed a ruptured appendix with contamination in the abdominal cavity and peritonitis.

Jose Luis Gonzalez remained in Sierra Medical Center for approximately thirteen days. He was in considerable pain at times, and Demerol and Dilaudid were prescribed. He recovered well except for an abscess in the surgical incision, which had to be drained. He was later seen by Dr. Ramirez in office visits, and on July 12, 1982, was pronounced completely recovered. According to Dr. Ramirez, in reasonable medical probability Jose Luis will suffer no permanent disability. His father, Plaintiff Francisco Gonzalez, paid the hospital bill and the fees of the surgeon, the anesthetist, the radiologist, and a consulting physician. These medical and hospital bills totaled $10,644.50.

Under the Federal Tort Claims Act, the Government is liable in damages to an injured party for injuries arising from a negligent act or omission by its employees if a private person would be liable under the same circumstances under the law of the state where the act or omission occurred. 28 U.S.C. § 1346(b), 2674. In a suit for medical malpractice, the Plaintiff has the burden of proving that the treatment complained of was negligent, and that such negligence was a proximate cause of the injury. Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949). In the instant case, Plaintiffs contend that two negligent acts or omissions on the part of Defendant’s medical personnel proximately caused injury to Jose Luis Gonzalez: (1) the negligent failure to diagnose his condition as acute appendicitis during his emergency room visit at 4:50 a.m., on May 28, 1982, and (2) failure to admit him to the hospital for surgery at the time of his second visit to the emergency room at 9:15 p.m., on May 28.

With respect to the Plaintiffs’ claim of negligent failure to diagnose, it is well settled that a physician or other health care provider owes a duty to his patient to exercise that degree of skill and care ordinarily employed under the same or similar circumstances by other practitioners in the field in the same or similar communities. Bowles v. Bourdon, supra; Speer v. United States, 512 F.Supp. 670, 677 (N.D.Tex.1981), aff'd 675 F.2d 100 (5th Cir.1982). The burden is on the plaintiff to establish by expert medical testimony that the act or omission of the accused physician fell below the community standard of care and was negligent. Bowles v. Bourdon, supra; Eckert v. Smith, 589 S.W.2d 533, 536 (Tex.Civ.App.—Amarillo 1979, writ ref. n.r.e.). In this case, the Plaintiffs have failed to sustain their burden of proving by a preponderance of the evidence that Dr. Popeck was negligent in failing to diagnose acute appendicitis on Jose Luis’ first visit to the William Beaumont emergency room. In terms of signs and symptoms, his was a very atypical case of appendicitis. Although he complained initially of right lower quadrant pain, the physical examination conducted by Dr. Popeck detected tenderness only in the right upper quadrant. Guarding and rebounding were nonexistent or minimal. Jose Luis did not complain of anorexia, which means loss or absence of appetite; on the contrary, he indicated that he had been hungry and had tried to eat. Nothing else in the extensive physical examination conducted by Dr. Popeck indicated the presence of appendicitis. The only thing in the x-rays and laboratory examinations consistent with appendicitis was the elevated count of white cells. Even there, the types of white cells found by laboratory analysis to be present were not consistent with appendicitis. On the whole, at 4:50 a.m. on May 28, Jose Luis presented a very confusing set of symptoms. It did not fall below the standard of care in El Paso County, Texas to send him home to rest under his parents’ supervision, with instructions that he return to the emergency room if the pain worsened during the day.

On the other hand, the Plaintiffs have sustained their burden of proving by a preponderance of the evidence that the care, or lack thereof, furnished to Jose Luis Gonzalez on his second visit to the emergency room fell far below the standard of care. The evidence as a whole establishes that, in reasonable medical probability, Jose Luis’ appendix ruptured at approximately 4:00 p.m. on May 28. By the time he appeared at the William Beaumont emergency room between nine and nine-thirty that evening, he was almost certainly suffering from peritonitis in addition to the appendicitis. It is well settled in Texas that liability on the part of a hospital may be predicated on the refusal of service to a patient in the case of an unmistakable emergency. Valdez v. Lyman-Roberts Hospital, Inc., 638 S.W.2d 111, 114 (Tex.App.—Corpus Christi 1982, writ ref. n.r.e.). The conduct of Defendant’s emergency room personnel in this case amounted to a constructive refusal of service to the Plaintiff. Jose Luis Gonzalez was in obvious acute distress. His medical records, which were available to Defendant’s emergency room personnel, reflected that he had been examined in the same emergency room some fifteen hours before, complaining of abdominal pain. Approximately two hours before, his mother had telephoned the emergency room, and had been instructed to bring her son. One of the Defendant’s medical experts, Dr. Samuel Coleridge, testified that the standard of care applicable to hospital emergency rooms required that an incoming patient be screened in some fashion within no more than thirty minutes after his arrival. In the instant case, Plaintiff Jose Luis Gonzalez waited one hour and fifteen minutes, and was never examined or screened in any way by the emergency room personnel. Defendant is clearly liable for the negligence of its emergency room personnel in failing to examine and treat Plaintiff Jose Luis Gonzalez on his second visit to the emergency room.

It next must be determined whether Defendant’s negligence in connection with the second visit proximately caused .any injury to the Plaintiff. The Court finds that it did proximately cause such injury in two respects: (1) it caused the Plaintiff, Jose Luis Gonzalez, at least an additional hour of severe pain, suffering, and mental anguish, and (2) it caused the Plaintiff to incur substantial charges for his treatment by private physicians and hospitals.

With respect to the first point, Jose Luis Gonzalez should have been seen almost immediately upon his second presentation to the emergency room. His medical records showed that he had been seen that very morning by Defendant’s emergency room personnel, and that they had instructed him to return if the pain increased. His mother had telephoned the emergency room two hours before, and had been verbally instructed to bring Jose Luis to the emergency room for examination. Those facts, coupled with his obvious appearance of distress upon his arrival, should have resulted in the immediate examination of Jose Luis Gonzalez. Instead, he was required to wait more than an hour, and was never examined at all. The Court finds that for the pain, suffering, and mental anguish experienced by Plaintiff Jose Luis Gonzalez between 9:15 p.m. and 10:30 p.m. on May 28, 1982, he is entitled to an award in the amount of $2,500.00.

With respect to the second point, it seems clear that, but for the negligence of Defendant’s emergency room personnel, the Plaintiff would have been admitted to William Beaumont Army Medical Center on the evening of May 28, 1982 for an appendectomy. According to the trial testimony, his hospitalization at William Beaumont would have cost him a grand total of $3.00 a day. Assuming that his hospital stay would have been thirteen days, the same length of time he spent in Sierra Medical Center, the hospital and medical services would have cost him a total of $39.00. Since he was not admitted to William Beaumont, the Plaintiff incurred reasonable and necessary hospital expenses in the amount of $8,730.50 and reasonable and necessary medical and surgical expenses in the amount of $1,914.00, for a total of $10,-644.50. His measure of damages is the difference between the costs actually incurred, and the costs which would have been incurred had he been duly admitted to William Beaumont. The Court finds this sum to be $10,605.50.

The Court finds that the Plaintiff is not entitled to recover with respect to any other elements of damages. There is no impairment of future earning capacity; Jose Luis has made a complete recovery and has incurred no permanent disability. His claims of lost wages, damage to credit, property repossessed and debts incurred do not relate to the Defendant’s negligence found by the Court in this case. There is no claim that the Defendant caused the appendicitis of Jose Luis Gonzalez. The Court has previously found that the failure to diagnose Plaintiff’s' condition as appendicitis in the early morning visit of May 28 was not negligent. The medical evidence establishes that perforation of the Plaintiff’s appendix probably occurred at approximately 4:00 p.m. on May 28. The peritonitis was caused by the rupture or perforation of the appendix. Therefore, had the Plaintiff been admitted to the hospital and treated immediately at William Beaumont Army Medical Center at 9:15 p.m. on May 28, he still would have experienced the lengthy hospitalization and period of recovery which he claims caused his loss of employment and other damages. Therefore, he has failed to establish by a preponderance of the evidence that the acts or omissions of the Defendant proximately caused these injuries.

The father of Jose Luis Gonzalez, Francisco Gonzalez, also purports to be a Plaintiff in this case. Defendant contends that he has no standing to be a plaintiff. The Court agrees. Although it is true that Mr. Gonzalez paid the hospital and medical bills for his son, he was under no legal obligation to do so. On May 28, 1982, Jose Luis Gonzalez was 18 years of age. Under Texas law, his father no longer owed him a legal duty of support. See Tex.Rev.Civ. Stat.Ann., Family Code, Sections 4.02, 12.-04. In paying the bills for Jose Luis, therefore, Francisco Gonzalez was a mere volunteer, and he has no legal standing to recover these sums from the Defendant. However, this in no way prevents or hampers the right of Plaintiff Jose Luis Gonzalez to recover from the Defendant his reasonable and necessary medical and hospital expenses incurred as the proximate result of the Defendant’s negligence. The Court has already found that he is entitled to recover in this respect.

Francisco Gonzalez also seeks to recover damages from the Defendant for his own emotional distress which he claims was proximately caused by the Defendant’s negligent failure to treat his son. See Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983) (allowing parents’ recovery for mental anguish caused by wrongful death of minor child). The problem with Mr. Gonzalez’ separate and independent claim for emotional distress is that it was neither pled in the Plaintiffs’ complaint nor included in Francisco Gonzalez’ administrative claim to the Department of the Army. Both in the administrative claim and in the original complaint filed in this case, Francisco Gonzalez claimed the right to recover damages only with respect to the medical bills he paid for his son. It is well settled law that the administrative claim procedure described in the Federal Tort Claims Act, specifically 28 U.S.C. § 2675(a), is jurisdictional, and that only those claims presented to the appropriate administrative agency are cognizable in a tort action in this Court. Molinar v. United States, 515 F.2d 246, 249 (5th Cir.1975); Bush v. United States, 703 F.2d 491, 494 (11th Cir.1983). In the instant case, Francisco Gonzalez has neither pled nor proved that he submitted to the Army any notice that he was claiming damages for his own emotional distress arising from the maltreatment of his son. Therefore, Francisco Gonzalez is not entitled to recover damages in this case.

In light of the foregoing discussion, the following orders should be entered.

It is ORDERED that Plaintiff Jose Luis Gonzalez do have and recover of and from the Defendant, United States of America, judgment in the amount of $13,105.50, with interest thereon at the legal rate as provided by law.

It is further ORDERED that Plaintiff Francisco Gonzalez take nothing by his suit, and that judgment be entered in favor of the Defendant, United States of America, with respect to the claims of Francisco Gonzalez.

It is further ORDERED that the Defendant pay the costs of suit herein incurred.