author: SHAPIRO, District Judge.

text:
    CENTRA, INC., Central Cartage Company, Central Transport, Inc., CC Eastern, Inc. v. Peter W. HIRSCH, Regional Director Region Four, National Labor Relations Board and National Labor Relations Board.
    Civ. A. No. 85-1661.
    United States District Court, E.D. Pennsylvania.
    April 11, 1985.

      David E. Rosenbaum, Philadelphia, Pa., for petitioners.
    Arleen A. Armstrong, N.L.R.B., Washington, D.C., Leonard Leventhal, Philadelphia, Pa., for respondents.
   MEMORANDUM OF DECISION

SHAPIRO, District Judge.

Petitioners, Centra, Inc., Central Cartage Company, Central Transport, Inc., and CC Eastern, Inc. (“Centra”), sought injunctive relief to compel respondents Peter Hirsch and the National Labor Relations Board (“NLRB”) to postpone the date of an unfair labor practice hearing before an Administrative Law Judge in Case No. 4-CA-14701, now pending before the NLRB, Region Four, from April 15, 1985 to any date after June 1,1985 and to desist from filing, threatening to file or prosecuting a preliminary injunction under Section 10(j) of the National Labor Relations Act (“NLRA”). Jurisdiction was invoked under 28 U.S.C. § 1331, 29 U.S.C. § 141 et seq., the NLRA and under 28 U.S.C. § 1361, the Mandamus Act.

Following a hearing on April 1, 1985, for reasons stated from the bench, the court denied petitioners preliminary injunctive relief and dismissed their complaint in mandamus for lack of jurisdiction. This Memorandum is a further articulation of the reasons stated from the bench as the court’s findings of fact and conclusions of law.

On November 7, 1984, Highway Truck Drivers and Helpers Local Union No. 107 (“Local 107”) filed an unfair labor practice charge with the NLRB, Region Four, against petitioner Central Cartage Company for discrimination against its employees in changing its form of operation from company-employed drivers to owner/operators in violation of §§ 8(a)(1) and 8(a)(3) of the NLRA. On November 9, 1984, Local 107 amended its charge by adding an allegation that petitioner had refused to bargain with the union in violation of § 8(a)(5) of the NLRA. On November 15, 1984, Board Agent Joan F. Homer advised counsel for petitioner Central Cartage Company that the NLRB was considering seeking temporary relief under Section 10® of the NLRA pending the outcome of the unfair labor practice hearing.

On February 22, 1985, counsel for the NLRB issued a complaint charging unfair labor practices against petitioners Central Cartage Company, Central Transport, Inc. and CC Eastern, Inc. The complaint alleged that all four petitioners constituted a “single employer” and that CC Eastern, Inc. was an “alter ego” of petitioner Central Cartage Company. A hearing was scheduled for March 18, 1985. On February 25, 1985, petitioners claimed that they were unable to prepare adequately for that hearing. Because of (a) the inability of counsel to investigate and prepare a defense with respect to allegations concerning the “single employer” and “alter ego” issues in time to try the case on March 18, 1985; (b) the inability of counsel to prepare adequately a defense with respect to a nationwide program of converting employees to independent owners; and (c) the unavailability of counsel during the first three weeks of March, petitioners requested that the hearing not be held before June 1, 1985.

On February 28,1985, counsel claimed as an additional ground for postponing the hearing date that the unavailability of critical witnesses and officers of the petitioners (who were participating in collective bargaining negotiations with the International Brotherhood of Teamsters concerning the National Master Freight Agreement) impeded their preparation of an answer. On March 5, 1985 the NLRB rescheduled the hearing from March 18, 1985 to April 15, 1985. Petitioners then filed with the Executive Secretary of the NLRB a request for permission to appeal the Regional Director’s ruling; the request was denied on March 27, 1985. On March 24, 1985, the Board filed a petition under Section 10® of the NLRA in the district in which the alleged unfair labor practices occurred, the United States District Court for the District of New Jersey, to obtain a temporary order directing the abolition of a discriminatorily-motivated independent contractor system and the reinstatement of drivers as employees pending the outcome of the unfair labor practice hearing. Centra filed the instant action on March 27, 1985. On April 1, 1985, respondents filed a motion to dismiss the complaint for lack of jurisdiction.

Centra’s complaint in mandamus claims that the NLRB’s failure to grant petitioners postponement of the hearing date until June 1, 1985 or thereafter denies them their constitutional right to due process of law. They also claim that the NLRB retaliated against them in seeking injunctive relief pending the hearing. They request that this court direct the NLRB to order the hearing postponed until after June 1, 1985 and that it direct the NLRB to cease and desist from filing a preliminary injunction under Section 10® of the NLRA.

JURISDICTION

Before reviewing the merits of petitioners’ motion for a temporary restraining order, this court must first determine whether it has jurisdiction. When the jurisdiction of a federal court is questioned, the court has power to determine the jurisdictional issue. United States v. United Mine Workers, 330 U.S. 238, 67 S.Ct. 742, 91 L.Ed. 868 (1947). Petitioners allege several bases for jurisdiction. They claim that because their due process rights have been violated under the Constitution of the United States, this court has jurisdiction under 28 U.S.C. § 1331. However, by statutory design, Congress has vested exclusive review of final NLRB orders with the courts of appeals. Furthermore, 28 U.S.C. § 1331(a) does not authorize a district court to intervene in administrative proceedings whenever an issue is raised which bears on the Constitution. Instead, a party to an administrative proceeding is precluded from seeking judicial review until the party has exhausted administrative remedies. See McKart v. United States, 395 U.S. 185, 193-94, 89 S.Ct. 1657, 1662-63, 23 L.Ed.2d 194 (1969). Where Congress has determined that an agency possesses certain exclusive powers, a court is obliged to respect the autonomy of the agency and its discretion within the bounds established by Congress. The courts must refrain from premature interference in the administrative process. Petitioners in this case seek to have the court interfere with the administrative process prior to the unfair labor practice hearing and statutorily provided appeal procedures. This court cannot exercise jurisdiction under 28 U.S.C. § 1331(a) in these circumstances.

Centra further contends that jurisdiction lies under 29 U.S.C. § 141 et seq., the National Labor Relations Act. However, Section 10(f) of the NLRA specifically provides that a person aggrieved by a final order of the Board may obtain a review of such an order in a court of appeals. As stated by the Supreme Court in Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938), direct review in the court of appeals is the exclusive means of judicial review and such review is available in the court of appeals only after the Board has issued a final order. The Court held that the federal district courts are without jurisdiction to enjoin or restrain the NLRB or its agents during the course of an unfair labor practice proceeding. 303 U.S. at 48, 58 S.Ct. at 462. Even an “allegation of unconstitutional harm is insufficient to warrant equitable intervention [by a district court] where pursuit of administrative remedies might ultimately render judicial disposition of such issues unnecessary.” Chicago Automobile Trade Association v. Madden, 328 F.2d 766, 769 (7th Cir.1964). Thus, this court does not have jurisdiction to enjoin the Board under the NLRA.

Finally, Centra asserts the Mandamus Act, 28 U.S.C. § 1361 as the basis for jurisdiction. Title 28 U.S.C. § 1361 provides:

The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

In order for jurisdiction to lie in mandamus, a plaintiff must allege that the defendant owes a clear, ministerial and non-discretionary duty. “[A]n act is ministerial only when its performance is positively commanded and so plainly prescribed as to be free from doubt.” Richardson v. United States, 465 F.2d 844, 849 (3d Cir.1972), rev’d on other grounds, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974). See also Mattern v. Weinberger, 519 F.2d 150, 156 (3d Cir.1975). “Constitutional obligations as well as statutory duties are included within the perimeters of 28 U.S.C. § 1361.” Holmes v. United States Board of Parole, 541 F.2d 1243, 1249 (7th Cir.1976). Centra contends that the NLRB owes a duty to provide due process and that this duty was violated by the NLRB’s failure to postpone the date of the unfair labor practice hearing until after June 1, 1985. In order for Centra to prevail, the NLRB must have been required by the Constitution to change the date of a hearing. The court would have to find that holding the hearing on April 15th is a clear violation of due process of law guaranteed by the Constitution.

In Mattern v. Weinberger, 519 F.2d 150 (3d Cir.1975), the Third Circuit held that in certain instances where the due process clause imposes an obligation on an officer to provide a hearing, or perform some other act, the court has jurisdiction to consider the merits of the claim under the Mandamus Act. However, the court cautioned that such jurisdiction lies only when a plaintiff alleges a clear constitutional duty and only when the duty involves no element of discretion or judgment. 519 F.2d at 156.

This is clearly not such a case. The regulations issued pursuant to the NLRA provide for a hearing that may be fixed in the discretion of the Board at any time not less than ten days after service of the complaint. 29 C.F.R. § 102.15. The Regional Director may extend the date of a hearing at the request of the parties, but such a decision is discretionary. 29 C.F.R. § 102.16. So that even if a duty to provide a hearing is constitutionally required, see Mattern, there is no correlative duty to hold the hearing at the convenience of the petitioner. Failure to delay a hearing cannot be equated with failure to hold a hearing and does not rise to the level of a constitutional violation on the record before this court.

Where a discretionary act such as setting a hearing date is involved, a court may exercise its power to issue a mandamus only when official conduct has gone far beyond any rational exercise of discretion. See, e.g., Miller v. Ackerman, 488 F.2d 920 (8th Cir.1973). In this instance, the NLRB’s action cannot be characterized as arbitrary or capricious; it can only be characterized as reasonable. Time is often a critical factor in labor disputes, especially in a case where the Board seeks preliminary injunctive relief. The April 15th hearing date, two months after the Board filed its complaint, provided more than enough time to prepare a defense. Furthermore, a one-month extension has already been granted. Although the extension was not as long as Centra requested, courts and hearing officers often are unable to grant extensions requested by parties. Counsel often ask for extensions to prepare for hearing or trial that the court or hearing officer deem unreasonable and refuse; denial of a request for continuance is rarely reversible error. On the record before the court, the Regional Director’s grant of a one-month rather than a three-month extension was not arbitrary and capricious and did not violate the Constitution.

A further requirement for the exercise of mandamus jurisdiction by a district court is that the petitioner exhaust any other available remedies. See Richardson, 465 F.2d at 849. Here, it is obvious that administrative remedies have not been exhausted. Cehtra has sought relief before a hearing has even taken place. The Board may find at the hearing that there has been an inadequate opportunity to present a full record and grant a further continuance or find no unfair labor practice on the record presented. Even if the Board finds an unfair labor practice, there is a clear avenue of appeal. Certainly, an adequate opportunity to assert any alleged constitutional violation exists by means of full appellate review of the final order of the Board.

Mandamus may not be used as a substitute for the appeal procedure prescribed by statute. Because Centra has not exhausted administrative remedies and has not sought judicial review through the means prescribed by the NLRA, this court has no jurisdiction under the Mandamus Act. Centra’s complaint must be dismissed for lack of jurisdiction.

THE MERITS

Even if this court were of the view that it had jurisdiction of this matter, Centra would have to establish a substantial likelihood of success on the merits to obtain injunctive relief. On the record before this court, Centra has failed to demonstrate such likelihood of success. A hearing date set two months after the filing of an unfair labor practice charge affords counsel more than enough time to prepare adequately for a hearing. Counsel for Centra, David Rosenbaum, Esquire, stated in a letter dated February 25, 1985 requesting a postponement of the hearing date, that both he and his co-counsel Allan Dabrow, Esquire were committed for substantial periods of time in March and April, 1985. However, at the hearing held on April 1, 1985, Mr. Rosenbaum did not state that he would be unavailable to prepare for the hearing. Rosenbaum did reassert the averments of his affidavit that his co-counsel Allan Dabrow would not be available because of preparations for a civil trial in the Eastern District of Pennsylvania and an oral argument in the District of Wyoming. However, counsel for Centra provided no evidentiary substantiation of these facts and Mr. Rosenbaum had neither personal nor specific knowledge of the time demands of these cases. If counsel has such inadequate time to prepare for the NLRB hearing, one must wonder why this limited time was diverted to a time-consuming effort for relief rarely granted.

Counsel have also contended that the primary witnesses and officers of Centra would be unavailable because of their participation in collective bargaining negotiations for a National Master Freight Agreement with the Internationa] Brotherhood of Teamsters. Although an agreement was reached immediately after petitioners filed this motion, counsel for Centra stated that their witnesses would nevertheless be unavailable because of key officer involvement in follow-up negotiations. No witnesses so stated under oath. The court is not persuaded on the record before it that no officers with knowledge of these unfair labor practice charges would be available to assist counsel in the time remaining pri- or to the scheduled hearing date. The reasons provided by counsel for their alleged inadequacy to prepare for this hearing have not been adequately substantiated.

In addition to seeking a postponement of the hearing date, Centra requests this court to direct the NLRB to cease and desist from filing or threatening to retaliate for Centra’s exercise of their due process rights by filing for temporary injunctive relief under Section 10(j) of the Act. Centra presented no evidence that the NLRB seeks injunctive relief only in retaliation. Even if there were such evidence, there is no reason to believe that the District Court in New Jersey, where the proceeding is now pending will not consider such a defense to the Board’s requested injunctive relief. The hearing that will be afforded in the New Jersey District Court is fully adequate and an exclusive remedy in the circumstances. If Centra is subsequently aggrieved by the district court’s grant of injunctive relief, an appeal may be taken to the United States Court of Appeals. This court finds no reason to enjoin the NLRB from exercising its statutory authority to proceed in another district court.

The flimsiness of the reasons offered by counsel for their inability to prepare for the hearing scheduled by the NLRB coupled with the obvious lack of merit in the claim for mandamus and injunctive relief convinces the court that this action has been filed to harass the NLRB and achieve delay not otherwise obtainable rather than to assert a constitutional claim- in good faith. Therefore, Centra’s motion for a temporary restraining order is denied and the complaint is dismissed for lack of jurisdiction.

The court’s view that Centra has attempted to harass the NLRB by this motion is confirmed by the nature of the subpoenas duces tecum served upon the Board’s Director for Region Four, Peter Hirsch and upon the Custodian of Records. The subpoena addressed to Director Hirsch requires him to testify on behalf of Centra at a hearing on this mandamus action and to bring with him, inter alia, the following documents: 1) each and every unfair labor practice complaint issued by Region Four of the NLRB during the twelve-month period preceding February 20, 1985 and any and all extensions or postponements of the hearing date set forth in each and every such unfair labor practice; 2) each and every memorandum, note page, handwritten note, telephone slip and other document which relates to Centra’s request for a postponement of the hearing date or to the request by the Board for authorization to seek relief under Section 10(j) of the NLRA. This demand for documents is extremely broad and burdensome; however, the disposition of this case renders moot the NLRB’s motion to quash.

Consideration of respondents’ request for attorneys’ fees under Rule 11 (or in the alternative under 28 U.S.C. § 1927) is deferred to allow petitioners the maximum time to prepare for the unfair labor practice hearing scheduled to begin on April 15.


source: Caselaw Access Project

author: TELESCA, District Judge.

license: Public Domain

text:
    Doris J. BRITT; Robert F. and Marjorie L. Gascon; Carl E. and Thelma V. Schenk; Ryal and Alice DeVost; Gilbert Knapp; Nan Moody; Medicab of Rochester, Inc.; Yic & Irv’s Refreshment, Inc.; and Alberta Enterprises, Inc., d/b/a Bill Gray’s Family Restaurant, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS; John O. Marsh, Secretary of the Army; Lt. Gen. E.R. Heiberg, III; Chief of Engineers; United States Army Corps of Engineers; and United States of America, Defendants.
    No. CIV-84-1152T.
    United States District Court, W.D. New York.
    April 12, 1985.

      Robert C. Napier, Rochester, N.Y., for plaintiffs.
    Salvatore R. Martoche, U.S. Atty., Rochester, N.Y. (Jonathan W. Feldman, U.S. Atty., Rochester, N.Y., of counsel), for defendants.
   DECISION and ORDER

TELESCA, District Judge.

INTRODUCTION

Plaintiffs in this case have challenged on various grounds the United States Army Corps of Engineers project to open Irondequoit Bay by the construction of jetties into Lake Ontario, the enlargement of the channel from the Bay into the Lake, and the (at least temporary) removal of the bridge which presently spans the channel. Pending before me is plaintiffs’ motion for a preliminary injunction on the grounds that (1) the project does not comply with Public Law 85-500, the Congressional enabling legislation for the project, and (2) the Environmental Impact Statement (EIS) for the project inadequately discusses the traffic and other impacts of severing the existing bridge. For the reasons set forth below, plaintiffs’ motion for preliminary injunction is granted.

FACTS

By Public Law 85-500, known as the “River and Harbor Act of 1958”, enacted on July 3, 1958, Congress authorized the enlargement of the existing channel connecting Irondequoit Bay to Lake Ontario by the U.S. Army Corps of Engineers. The project was to be completed in accordance with the plans and subject to the conditions recommended by the Chief of Engineers in House Document (HD) 332, para. 74, which contained the following recommendation:

That the [project] be subject to the condition that responsible local agencies give assurances satisfactory to the Secretary of the Army that without cost to the United States they will * * * * * *
(f) Replace and relocate the existing highway bridge with a new structure providing a vertical clearance of 40 feet above low-water datum in a location consistent with the recommended plan of improvement, in accordance with plans approved by the Chief of Engineers.

As noted in paragraph 72 of HD 332, the project as authorized was to be constructed “in general accordance with plan A shown on the map accompanying this report with such modifications as in the opinion of the Chief of Engineers may be desirable”. Plan A itself indicates that the bridge was to be constructed by “local interests”, not by the Corps of Engineers, at a site different from the current location of the channel.

In 1960, the New York State Department of Public Works was looking at the feasibility of a high-level bridge across the middle of Irondequoit Bay for New York State Route 104. On June 7, 1960, Henry Ten Hagen, Chief Engineer for the Department of Public Works, wrote to Col. Earle B. Butler, then District Engineer of the U.S. Army Engineer District in Buffalo, New York, proposing to construct such a bridge “and to abandon present Route 18 along the shore of Lake Ontario as a State highway route in accordance with the proposal previously submitted to you”. This proposal apparently found its way to the Chief of Engineers for the Corps in Washington, and on February 1, 1962, the Chief of Engineers notified the North Central Division Engineer in Chicago that “the proposed deviations from the project document plan [were] satisfactory____”

In March, 1976, the Corps held a public hearing on the project, and subsequently created the Irondequoit Bay Opening Policy Committee to represent State and local interests concerned with the project. In December, 1979, the Corps published its Draft Phase I General Design Memorandum and Draft Environmental Impact Statement (DEIS), and circulated it for public review and comment. In July, 1980, the Corps conducted a hearing under Section 404 of the Clean Water Act, 33 U.S.C. Section 1344. In October, 1980, the Corps published its Phase I General Design Memorandum and Environmental Impact Statement: Final (FEIS).

On June 5, 1981, Brigadier General Scott B. Smith, North Central Division Engineer, issued a “record of decision” which recommended the construction of the project using the current location of the channel between the Lake and the Bay, with a movable bridge to be constructed by “local interests” such as New York State. In April, 1982, the Corps issued a Phase II General Design Memorandum (GDM) addressing the final design of the project. On April 14, 1983, a “Local Cooperation Agreement” was signed by the United States of America and Commissioner Orin Lehman of the New York State Office of Parks, Recreation and Historic Preservation on behalf of New York State, in which New York State agreed to construct and maintain any replacement highway bridge across the channel.

The Corps awarded a contract to Luedtke Engineering Company on June 6, 1984 for the construction of a small boat harbor at Irondequoit Bay. Of the contract price of $3,260,000, $1,060,462 has already been paid to the contractor. Although the bridge has not been removed, work under the contract is approximately 35% complete, and is scheduled to be totally completed by September 16, 1985.

On October 11, 1984, plaintiffs filed a 22-count complaint in this action, alleging violations of Public Law 85-500, the National Environmental Policy Act (NEPA), 42 U.S.C. Section 4321 et seq., and other .laws protecting the environment, historic sites, and endangered species. On March 28, 1985, plaintiffs filed the instant motion for a preliminary injunction, based solely upon their arguments that the project did not comply with Public Law 85-500 and the EIS did not take a “hard look” at the effects of severing the Route 18 bridge. Defendants have opposed the motion, arguing that (1) the Corps, as authorized by PL 85-500 has modified the project to allow the severance of the bridge, (2) plaintiffs are guilty of laches in waiting until the present to seek a preliminary injunction, and (3) the plaintiffs have not met the standards for a preliminary injunction in the Second Circuit.

DISCUSSION

Laches is a doctrine of equity that is only rarely invoked in environmental cases because of the strong public interest in effecting compliance with NEPA. Steubing v. Brinegar, 511 F.2d 489, 495 (2d Cir.1975); but see, City of Rochester v. U.S. Postal Service, 541 F.2d 967, 977 (2d Cir.1976). I decline to invoke the laches doctrine against the plaintiffs in this case. Plaintiffs can hardly be charged with sitting on their rights when the Corps has for years recommended the very outcome which plaintiffs now seek. The Corps only reached agreement with New York State to replace the bridge in April, 1983, and it only recently has become apparent that the existing bridge will be removed with no guarantee of replacement.

For a preliminary injunction motion to be granted, plaintiffs must demonstrate (a) irreparable injury, and (b) either (1) a likelihood of success on the merits, or (2) sufficiently serious questions going to the merits to make them fair ground for litigation and a balance of hardships tipping decidedly in their favor. Jackson Dairy Inc. v. HP. Hood and Sons Inc., 596 F.2d 70, 72 (2d Cir.1979). I believe that plaintiffs have demonstrated that immediate, irreparable harm will befall them if an injunction is not granted. The current Route 18 bridge must be severed, if only temporarily, in order that the Corps can complete the dredging of the channel. Yet once the bridge is severed, there is no guarantee that a replacement bridge will be built. Until there is such a guarantee, that is, until the New York State Legislature (or the County of Monroe) actually appropriates funds for a replacement bridge, the harm that the plaintiffs would suffer would continue. Plaintiffs will have to journey long distances to get from one side of the channel to the other, their various businesses would suffer, and emergency access to their properties would be curtailed.

In addition, I am convinced that plaintiffs have a likelihood of success on the merits of their action. PL 85-500, which authorized the Corps to complete the project with a bridge to be constructed by local interests, also authorized the Corps to make modifications in the project as described in HD 332. However, as set forth below', that authority to modify was exceeded when the Corps agreed to accept the new Route 104 bridge as a substitute for the bridge over the inlet.

Plaintiffs argue that this Court can order the enforcement of the Local Cooperation Agreement between the Corps and New York State, because such agreements are enforceable by this Court under 42 U.S.C. Section 1962d-5b. The Local Cooperation Agreement incorporates the language of HD 332 which requires construction of a 40-foot-high bridge over the channel. Defendants respond that the December 22, 1982 cover letter for the Local Cooperation Agreement contains the following statements by the Corps District Engineer:

Please be advised that in view of the approved Phase II General Design Memoranda (GDM), Item (f) of the enclosed Agreement concerning bridge construction is totally a non-Federal responsibility. I emphasize this point because the decision to construct a movable bridge across the proposed channel is a local one. The actual navigation improvements are identical for severance or the movable bridge plan at the existing outlet to Irondequoit Bay. There has been opposition to severance of Route 18 due to disruption of local traffic. However, we believe that the opposition has come from a relatively local few. In the intervening year or two since our intensive public participation during development of the Phase I GDM, the local Governments have developed a land use and development plan for the project area. In view of this effort opposition to severance may have subsided and the ramp option (Paragraph 3, “Local Cooperation,” pp. 3 and 4 of Phase II GDM) may be more acceptable. In any event, the Corps would accept either option since either would give unlimited clearance for navigation.

Defendants argue that this letter further reflects the understanding of the parties to the Agreement that the project had been modified during the early 1960’s such that replacement of the bridge over the inlet was no longer required. Defendants argue that, because this is the intent of the parties to the Agreement, plaintiffs, who should not be considered third-party beneficiaries to the Agreement, cannot be heard to argue that the Agreement should be enforced so as to require the construction of a bridge.

I am convinced that there has been a modification of the project as described in HD 332, of such serious dimensions that it amounts to an abandonment of the original purpose. The project as described in HD 332 clearly included a roadway bridge over the newly-dredged channel, and the construction of the Route 104 bridge IV2 miles to the south is no substitute for such a bridge; it carries the through traffic, and the ever-increasing local traffic still relies on the Route 18 bridge. To hold otherwise would be to allow would-be users of the bridge to become casualties of bureaucratic excessiveness — by condoning decisions which completely departed from original Congressional intentions. Creppel v. U.S. Army Corps of Engineers, 670 F.2d 564, 572 (5th Cir.1982). I hold that the Agreement between the Corps and the State is void and unenforceable since it undermines the intent expressed by Congress in P.L. 85-500. It is unnecessary to reach today the very troubling question whether this Court could actually enforce the Agreement against New York State under 42 U.S.C. Section 1962d-5b(c) if the Corps so desired. See, Edelman v. Jordan, 415 U.S. 651, 663, 666-67, 94 S.Ct. 1347, 1357, 39 L.Ed.2d 662 (1974). I hold today only that the Corps, having modified the project in violation of Congressional intent and having not complied with NEPA, cannot continue with its own project until those deficiencies are corrected.

After a thorough, probing, in-depth review, I am also convinced that the EIS prepared by the Corps is insufficient under NEPA. Citizens to Preserve Overton Park Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Once an agency has made a decision subject to NEPA’s procedural requirements, the only role for a Court is to insure that the agency has considered the environmental consequences; it cannot interject itself within the area of discretion of the executive as to the choice of the action to be taken. Strycker’s Bay Neighborhood Council Inc. v. Karlen, 444 U.S. 223, 227-28, 100 S.Ct. 497, 500, 62 L.Ed.2d 433 (1980). The flaw in the Corps decision-making process, however, is a procedural flaw, not an incorrect choice of alternatives. It has failed to analyze the impact of the severance alternative in anywhere near the level of detail with which it analyzed the alternatives of “no action”, “construction of a fixed bridge”, or “construction of a moveable bridge”.

Alternative 3 considered by the Corps was the alternative of dredging the channel and severing Route 18. In the DEIS, it was presented on an equal footing with the other alternatives. Yet commenting on the DEIS, the Federal Highway Administration (FHWA) noted in an October 29, 1979 letter that:

... The costs to the traveling public of severence [sic] of the highway are not included for Alternative 3. These would include longer distance travel and delays. That alternative would also have some effects on community and Regional growth, tax revenue,, and property value and those effects should be tabulated in pages 70-93. Emergency vehicle access limitation due to severence [sic] should also be discussed.

DEIS Appendix C, Section C2. This response evidently was passed along to the New York State Department of Transportation (NYSDOT), which attempted to respond in an August 13, 1980 letter. FEIS p. C2-41-1 et seq. The NYSDOT response thoroughly addressed the impacts of no action, a fixed bridge, and a moveable bridge, but did not address the impact of severance. Yet the Corps relied upon the NYSDOT letter as being responsive to some FHWA concerns which were later articulated in a June 18, 1980 letter. FEIS p. C6-5-2. The FEIS does not address the concerns of the FHWA’s October 29, 1979 letter in its Comment/Response section (Appendix C6), nor were pages 70-93 of the DEIS revised in the FEIS (pp. 64-94) as the FHWA had recommended. In short, the FEIS suffers from the procedural flaw that it does not:

set[]forth sufficient information to enable the decision-maker to consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the environment against the benefits to be derived from the proposed action, as well as to make a reasoned choice between alternatives.

County of Suffolk v. Secretary of the Interior, 562 F.2d 1368, 1375 (2d Cir.1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978). Nowhere in the FEIS is the decision-maker advised of the environmental impacts which will occur if the bridge is severed and never replaced.

CONCLUSION

The Corps is enjoined from removing the bridge across the inlet (Route 18) until assurances are received from “local interests” that it will be replaced as originally provided in Public Law 85-500. This does not mean that the Corps cannot do any of the other work involved such as dredging, etc. The Corps may remove the bridge however if it posts a bond in the amount of $5,000,000 to cover the replacement cost of a bridge over the inlet, pending any appeal of this decision so that the work may move along.

SO ORDERED.


author: LEIGHTON, District Judge.

text:
    FEDERAL ELECTION COMMISSION, Plaintiff, v. GUS SAVAGE FOR CONGRESS ’82 COMMITTEE and Thomas J. Savage, Treasurer, Defendants.
    No. 84 C 1076.
    United States District Court, N.D. Illinois, E.D.
    April 12, 1985.

      Robert E. Pease, Federal Election Com’n, Richard B. Bader, Charles N. Steele, Washington, D.C., for plaintiff.
    Robert C. Howard, Robert M. Weissbourd, Hartunian, Futterman & Howard, Chicago, 111., for defendants.
   MEMORANDUM

LEIGHTON, District Judge.

This is a Rule on defendants Gus Savage for Congress '82 Committee (“Committee”) and Thomas J. Savage, as Treasurer, to show cause why they should not be held in civil and criminal contempt for violating an order of this court. On June 8, 1984, a default judgment was entered against defendants, directing them to file all outstanding reports required by the Federal Election Campaign Act of 1971, as amended, 2 U.S.C. § 431 et seq. (the “Act”), and to pay a civil penalty of $5,000. When defendants failed to comply with the order, plaintiff Federal Election Commission (“FEC”) moved for the Rule; it relied on the enforcement section of the Act, which provides in pertinent part:

If the Commission determines after an investigation that any person has violated an order of the court ... it may petition the court for an order to hold such person in civil contempt, but if it believes the violation to be knowing and willful it may petition the court for an order to hold such person in criminal contempt.

2 U.S.C. § 437g(a)(ll).

The Rule was issued on September 12, 1984; defendants were not present, but on September 21, they appeared and responded. Plaintiff was directed to file a traverse to defendants’ response, focusing on legal and factual issues before the court. Both parties were allowed to submit legal memoranda addressing issues thus presented, including whether the sanction of contempt should be imposed.

. ; An additional hearing was held on October 19, 1984. Mr. Savage informed the court that defendants were in full compliance with the default judgment order; thus, under the circumstances, they believed further sanctions were unnecessary. The FEC did not dispute this but argued that the delay in compliance had caused substantial harm and warranted a finding of contempt. The court was told that there was no decided case under the contempt provisions of the Act, and that this was the first time the FEC had sought such a sanction for recordkeeping violations of the federal election laws.

Evidence has been presented, arguments having been made, oral and written presentations have been submitted to the court; the only issue to be resolved is whether defendants’ conduct merits a finding of contempt in this case. That issue arises out of the following facts.

I

U.S. Rep. Gus Savage (D., Chicago) is a member of the United States House of Representatives from the Second Congressional District in Illinois. In 1982, after becoming a candidate for that office, he designated a political committee to serve as his principal campaign committee, the Gus Savage for Congress ’82 Committee, as required by the Act, 2 U.S.C. § 432(e)(1). The Act also requires that every political committee shall have a treasurer. 2 U.S.C. § 432(a). Political committees and treasurers are liable for reporting requirements under the Act. 2 U.S.C. § 434. Gus Savage’s son, Thomas J. Savage, was asked to serve as treasurer of his father’s committee. Thomas J. Savage is neither lawyer nor accountant. By his own account, he had little familiarity with the pertinent accounting principles and practices, or with the complex reporting provisions of the Act; he had no legal expertise, and had a poor understanding of what his obligations as treasurer of a major political campaign committee would entail. Nonetheless, he consented to act in that capacity for his father.

After the 1982 election, it came to the attention of the PEC that certain irregularities existed with regard to the Committee’s and treasurer Savage’s responsibilities under the Act. The agency therefore began an investigation of the matter. Under provisions of the statute, the FEC must follow certain steps when it instigates an investigative procedure. These include:

1. a determination that it has reason to believe a violation has occurred or is about to occur, and the provision of notice and an opportunity to comment to the respondent, 2 U.S.C. § 437g(a)(2);
2. an investigation of the allegations by the FEC, id.;
3. a determination that there is probable cause to believe that a violation has occurred or is about to occur after receiving a brief from the general counsel and a response from the alleged violator, 2 U.S.C. § 437g(a)(3); and
4. an attempt for at least 30 days to correct or prevent the alleged violations by informal means of conference, conciliation, and persuasion, 2 U.S.C. 437g(a)(4)(A)(i).

Only after the FEC exhausts these steps and affirmatively votes, by at least 4 of its members, may it institute a civil action for relief, including an application to a federal court for a permanent or temporary injunction, restraining or any other appropriate order. 2 U.S.C. § 437g(a)(6)(A). See Federal Election Commission v. National Rifle Association of America, 553 F.Supp. 1331, 1332-33 (D.D.C.1983).

The FEC appears to have followed required procedure before instituting suit in this case. On April 21, 1983, it opened a Matter Under Review (MUR) against the Committee and its treasurer. (MUR is the FEC designation for a Commission investigation of possible violations under the Act.) On June 14, 1983, it found “reason to believe” that defendants had violated the Act by not filing the July '82 Quarterly Report, the October ’82 Quarterly Report, the 12 Day Pre-General Election Report, the 30 Day Post-General Election Report, and the 1982 Year End Report, as required by 2 U.S.C. § 434. Defendants were notified by mail of the FEC’s findings.

On October 18, 1983, after the FEC had received no response from the Committee or its treasurer, it found “probable cause” to believe that defendants had violated 2 U.S.C. § 434(a)(2) by failing to file the required reports. This finding was mailed to defendants, as was the FEC’s proposed conciliation agreement. That agreement, dated October 21, 1983, and addressed to Thomas J. Savage, proposed a settlement of the matter if Savage would agree to file the reports in question, and to pay a civil penalty of $2,500.

After 30 days when this “informal attempt” at conciliation failed to elicit a response, the FEC, on February 2,1984, instituted civil suit against defendants, pursuant to 2 U.S.C. § 437g(a)(6)(A). The suit sought injunctive relief and a declaratory judgment to the effect that the Committee and Thomas J. Savage, as Treasurer, had violated the recordkeeping provisions of the Act. Defendants were served with a summons and complaint on March 28, 1984, and April 3, 1984.

On March 9, 1984 (subsequent to the filing of the complaint, but prior to service), defendants filed a Termination Report with the FEC, itemizing lists of receipts, disbursements, loans, and other obligations for the period from July, 1981, through March, 1983. The 30-page report, filled out in longhand and signed by Thomas J. Savage, included eight pages of itemized receipts detailing over 90 contributions from persons other than political committees; six pages of itemized receipts from other political committees; one page of itemized receipts from political party committees; a page of itemized receipts detailing loans made or guaranteed by the candidate; and nine pages of itemized disbursements representing operating expenditures for the period 1981-83. Subsequent correspondence from the FEC identified inaecuracies in this Report, and directed defendants to file an amendment to the Report correcting these problems.

In the meantime, defendants failed to file a timely answer to the complaint; and on May 15, 1984, the FEC moved for a default judgment. The motion was heard by the court on May 25, 1984; defendant Thomas J. Savage, unrepresented by counsel, appeared on behalf of himself and the Committee. Mr. Savage explained that the reason he had not answered was his having filed the Termination Report which he believed satisfied his and the Committee’s obligations under the Act. This court explained to Mr. Savage that, without regard to what he had filed with the FEC, he had a legal obligation to file an answer to the complaint. The court then asked Mr. Savage if he understood, and he stated that he did. The hearing was continued until June 8, 1984, to provide defendants with an additional 10 days to answer the complaint.

While the court had sought to explain to Mr. Savage that the filing of reports with the FEC in no way satisfied defendants’ obligations to file an answer in this lawsuit, it soon became clear that those words had fallen on deaf ears. On May 28, 1984, during the 10 day period in which they were to answer the FEC’s complaint, defendants instead presented the FEC with their 16 page Amended Report of Receipts and Disbursements of the Committee. The report responded to deficiencies cited by the FEC in the original report, and included an itemized list of receipts and disbursements covering the Committee’s activities for the period July, 1981, through December, 1981.

No answer to the complaint in this court was filed, however. Accordingly, when the FEC renewed its motion for default judgment on June 8, 1984, the court granted it, ordering defendants to file, within 30 days, the required reports, and to pay a civil penalty of $5,000. Defendant Thomas J. Savage was not present on that date. At the expiration of the 30 days, when neither reports had been filed, nor fine paid, the FEC informed defendants that in the absence of immediate compliance, it would seek criminal and civil sanctions against them in this court. When the FEC received no reply to this communication, it moved for the Rule to Show Cause why defendants should not be held in civil and criminal contempt, pursuant to Fed.R. Civ.P. 70 and 2 U.S.C. § 437g(a)(ll), for violating an order of this court. On September 12, 1984, the court granted the motion, ordering defendants to appear on September 21 and respond to the Rule.

When he appeared before the court, defendant Savage apologized; he said that when the Rule issued, he became “paralyzed,” and recognized for the first time, that he was “in over his head.” He sought the representation of counsel who informed him that the reports he submitted to the FEC were inadequate; that his failure to respond to the court’s order was inexcusable; and that he must immediately comply with the court’s order. Toward that end, Mr. Savage obtained the services of a professional accountant, recommended by counsel, familiar with the preparation of reports required under the Act, to ensure that complete and accurate accounts would be filed. The court was informed that the Committee was approximately $12,000 in debt, and therefore, the responsibility of paying the penalty would fall to its treasurer, Thomas J. Savage. While Mr. Savage frankly admitted he had no substantial assets and only a modest salary, he intended to pay the fine imposed by the default judgment order. He tendered a check for $1,500 as proof of his good faith in this regard, stating that was all the money he had, and proposed a schedule for full satisfaction of the penalty through deductions from his earnings.

On October 19, 1984, the parties came before the court for a final time. It was stated on behalf of defendants that all required reports had been filed, and the FEC stated that these submissions were substantially in compliance with the Act’s requirements. Further, the FEC attested that it had examined the reports and found no evidence of underlying campaign finance improprieties or previously hidden misconduct. Defendants contended then, and in later written submissions, that their actions since responding to the Rule placed them in compliance with the court’s order, and that no purpose would be served by the imposition of further sanctions. The FEC argued, and has since insisted, that a contempt adjudication was appropriate because harm had been caused by the delay in compliance.

II

The Federal Election Campaign Act of 1971 is an intricate statutory scheme adopted by Congress to regulate federal election campaigns through restrictions on political contributions and expenditures. Buckley v. Valeo, 424 U.S. 1, 13-14, 96 S.Ct. 612, 631-632, 46 L.Ed.2d 659 (1976). At the heart of the Act are its disclosure provisions which impose reporting obligations on political committees and treasurers. Important government interests are sought to be vindicated by these disclosure requirements.

First, disclosure provides the electorate with information as to where political campaign money comes from and how it is spent by the candidate in order to aid the voters in evaluating those who seek federal office ...
Second, disclosure requirements deter actual corruption by exposing large contributions and expenditures to the light of publicity ...
Third, and not least significant, record-keeping, reporting and disclosure requirements are an essential means of gathering the data necessary to detect violations of the contributions limitations described above.

Id. at 67-69, 96 S.Ct. at 657-658.

The Act’s sponsors envisaged that the concept of voluntary compliance was written into the law. In fact, no enforcement mechanism existed until 1974 when the FEC was established as an independent body to monitor the election law. Up to that time, the law was haphazardly administered by the Secretary of the Senate, the Clerk of the House, the General Accounting Office, and the Justice Department. It was hoped that creation of the FEC would insure independent, impartial enforcement of the election laws, and achieve more efficient management than had occurred when the four separate entities had concurrent responsibilities. See Application & Administration of the Federal Campaign Act of 1971, As Amended, Hearings Before the Committee on Rules & Administration, United States Senate, 97th Cong., 1st Sess., (1981) (“Hearings”), Prepared Statement of John Warren McGarry, Chairman, Federal Election Commission, p. 49.

Following the enactment of election reform legislation, Congress has reviewed FEC’s enforcement activities. At the hearings conducted by the Committee on Rules & Administration of the United States Senate, criticism surfaced regarding the FEC’s strict interpretation and enforcement of the election laws. Many regarded the FEC’s litigation practices as merely efforts to “nitpick,” rather than to fairly and effectively administer the Act. Among the alleged ridiculous examples cited was the case of FEC v. John Adams where a Mr. Adams ran for Congress in New Hampshire in 1976 and lost. He came to the attention of the FEC because he had failed to file the correct forms for his candidacy, despite numerous requests from the Commission to do so. The FEC sent one of its top litigators to New Hampshire to prosecute Mr. Adams. A federal district court defaulted him, ordered him to file required reports, and pay a fine. It was later learned that Mr. Adams was an elderly man who had not been able to attend the court hearing, was sick at an old soldiers and sailors home, and that he had failed to file because he had no finances to report. He did not even have the price of a stamp to respond to the FEC’s warnings. See, Hearings, Prepared Statement of Paul D. Kamenar, Washington Legal Foundation, p. 86; Supplementary Material, pp. 165, 242.

In addition to appraising enforcement efforts, Congress has re-examined the construction of the law itself. At the Senate hearings, the Rules & Administration Committee took testimony concerning the burdens of complying with what was generally perceived as an overly complex law. The Act was described by many as “The Lawyers and Accountants Act,” because the reporting requirements demand a technical specialization in order to campaign. John Sears, former campaign manager for Ronald Reagan, was quoted as saying that “in the old days, the first person you would hire was a good speech writer. Now the first guy you hire is a good lawyer, the second is a good accountant.” See Hearings, Supplementary Material, Loren C. Bruce (Republican Study Committee) “Federal Election Commission — How Election Reform Backfired,” p. 261.

The instant case presents a microcosm of both enforcement and structural deficiencies in the Act cited at the Senate hearings. But it also illuminates a more troubling aspect of the law, not previously cited. It is the fact that candidates for federal offices are completely shielded from liability for their own campaign’s recordkeeping transgressions. This is so despite the fact that the candidate himself plays an important role in soliciting campaign finances. Congress has set up an artful scheme whereby all of the financial activities of a campaign are controlled and reported by the candidate’s authorized committee. The candidate is free to receive contributions and make expenditures, but he does so only as an agent of the authorized campaign committee. 2 U.S.C. § 432(e)(2); 1979 U.S. Code Cong. & Ad.News 2860, 2861. In other words, the statute enables candidates to solicit campaign funds, without being held responsible for any irregularities in reporting such funds, even though the irregularities are engaged in for the benefit of the candidate. Liability, instead, filters through the candidate to his amorphous campaign committee, or, more precisely, to the committee’s treasurer, who is legally responsible for any violations of the Act. It is the treasurer, and not the candidate, who becomes the named defendant in federal court, and subjected to the imposition of penalties ranging from substantial fines to imprisonment. 2 U.S.C. § 437g(d). It occurs to the court that in this regard, the Act is perhaps the most ingeniously unfair piece of legislation ever enacted by Congress.

At the court’s session of September 21, 1984, counsel for the FEC was asked to address this question of candidate liability under the reporting requirements of the Act. Counsel stated that it was Congress’ determination, right or wrong, that the treasurer of a political committee is liable for the reporting requirement, and that anyone who accepts the position of treasurer is “put on notice” of his potential liability under the Act. The court finds this an unsatisfactory answer because there exists no specific mechanism of notification by which we can be assured that treasurers understand their responsibilities. Furthermore, the FEC’s response serves to underscore the court’s belief that Congress has enacted this legislation to protect itself, and not the electorate. While the FEC is nominally empowered to administer the election laws, it is Congress which retains ultimate authority to snuff out regulations which might have the effect of limiting candidates’ or incumbents’ activities in the election arena. See 2 U.S.C. § 437c(b)(2) which was drafted to provide:

Nothing in this Act shall be construed to limit, restrict, or diminish any investigatory, informational, oversight, supervisory, or disciplinary authority or function of Congress or any committee of the Congress with respect to elections for Federal office.

Ill

It is against this background that the FEC seeks to have the court hold these defendants in civil and criminal contempt. Civil contempt is remedial and coercive in nature, and is intended to secure compliance with lawful judicial decisions. In re Irving, 600 F.2d 1027, 1037 (2d Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 137, 62 L.Ed.2d 89 (1979). Defendants have now fully complied with the court’s order by filing all required reports, and by paying part of the fine imposed and proposing a schedule for the remainder. In such an instance, the coercive purposes of civil contempt are inapplicable, and would not be served by imposition of sanctions on defendants.

The FEC urges, however, that a secondary purpose of civil contempt is to compensate the opposing party for damages suffered. Compensation may be provided for actual damages. United States v. United Mine Workers, 330 U.S. 258, 304, 67 S.Ct. 677, 701, 91 L.Ed. 884 (1947). While the FEC seeks an additional fine of $5,000, there is no evidence of actual damages beyond the $5,000 fine already imposed, which defendants do not contest, and which adequately compensates the FEC, including its costs of pursuing this proceeding. Nor does the court find that the FEC has substantiated its claim that the public suffered quantifiable damage by virtue of defendants’ delay in compliance. The court therefore rejects this alternative ground for imposition of civil contempt sanctions.

The FEC would also have the court hold defendants in criminal contempt. A person may be held in criminal contempt under the Act if his violation of the court’s order was “knowing and willful.” 2 U.S.C. § 437g(a)(ll). There is no evidence here that defendants knowingly and willfully violated the default judgment order. If anything, the opposite is true. Once before the court in response to the Rule, and apprised by counsel of his responsibilities, Thomas J. Savage, on behalf of himself and the Committee, made every effort to comply with the court’s order. That compliance came at great personal cost to Mr. Savage: he was forced to hire a lawyer and an accountant, and to shoulder alone the burden of a heavy civil penalty he could ill afford. These obligations were foisted upon him by a self-serving and inequitable federal law which protects a candidate from liability for recordkeeping violations, while leaving his underlings (here, a son) to pay the piper. We know from the Scriptures that the iniquities of the father are visited upon the children unto the third and fourth generation. Exodus 20:5. In this ease, it appears that the sins of the father are burdening the first generation alone.

Having reviewed Mr. Savage’s actions which led to imposition of the default order, the court is satisfied that his failings as treasurer of his father’s campaign flowed largely from the fact that he was unsophisticated in the ways of reporting under the Act, and was “the wrong man for the job.” As the affidavit of Wayne Parsons, Mr. Savage’s accountant, attests: “Mr. Savage was intimidated by communications which he received from the Federal Election Commission in response to his reports. I believe, based upon my experience with Mr. Savage, that his failures reflect fear and incapacity, and not bad faith.” The court agrees. At no time did Mr. Savage’s conduct rise to a contumacious level which would warrant a finding of contempt.

Under such circumstances, it is clear that there are no grounds for imposing civil or criminal sanctions upon defendants, and that their actions taken since September 17, 1984, have purged their pri- or noncompliance with this court’s order. See 17 C.J.S. Contempt § 105 (1963); In re Farkas, 204 Fed. 343 (E.D.N.Y.1913); Ryan v. Superior Court of California in and for Sacramento County, 49 Cal.App. 71, 192 P. 1036 (1920). This court therefore declines to set precedent and impose civil and criminal contempt citations on the Committee and its treasurer, Thomas J. Savage. Accordingly, the Rule to Show Cause, issued September 12, 1984, is hereby discharged.

So ordered.

      . The Act defines “person” as including “an individual, partnership, committee, association, corporation, labor organization or any other organization or group of persons but such term does not include the Federal Government or any au- . thority of the Federal Government." 2 U.S.C. § 431(11).

      . Rep. Savage was first elected to the House in 1982; he was re-elected on November 6, 1984 by a wide margin. The present action is inapplicable to his 1984 campaign, for which Thomas J. Savage did not serve as treasurer.

      . Defendants evidently had complied with the Act’s recordkeeping provisions until July, 1982; it was their failure to file reports after that date which became the subject of the FEC’s investigation.

      . This includes previously identified reports plus the 1983 Mid-Year Report.

      . An earlier summons and complaint was sent to the wrong address and had to be re-sent to defendants at their correct addresses.

      . It appears that the FEC could have accepted the submission as evidencing Thomas J. Savage’s “best efforts” at compliance, and dropped its lawsuit at this point. See 2 U.S.C. § 432(i) which provides, in pertinent part:
      When the treasurer of a political committee shows that best efforts have been used to obtain, maintain, and submit the information required by this Act for the political committee, any report or any records of such committee shall be considered in compliance with this Act ...

      . Although there is no record of defendants receiving a formal response from the FEC as to this submission, the court has been apprised that "defendants filed an inadequate, amended report with the Commission." (FEC Reply to Defendants' Response to the Rule to Show Cause, #4.)

      . Supplemental monthly payments of $200 for the months of October, November, December, 1984, and January, February, and March, 1985 have been made. As of this date, therefore, defendant Savage is current in his financial obligation.

      . It is, however, unlawful for a candidate, Senator or Representative, or person who receives salary or compensation from money derived from the Treasury of the United States to solicit contributions from other officers or employees of the government. 18 U.S.C. § 602.

      . As an example of the self-serving nature of election legislation, see 2 U.S.C. § 439(a) which provides, inter alia, that in the case of an individual who is a Senator or Representative excess campaign funds and funds donated may be converted for any personal use.

      . In fact, prior to the 1979 Amendments, candidates were also responsible for reporting requirements under the Act. The ostensible purpose of the Amendments was "to simplify recordkeeping and reporting provisions.” 1979 U.S.Code Cong. & Ad.News at 2861.

      . According to the FEC, it incurred $3,297.62 in attorney’s fees and costs in prosecuting this action.

      . The public does not evince much interest in examining candidates’ campaign reports. According to John W. McGarry, Chairman of the FEC, 13,000 people visited the FEC in 1980 to examine documents. When asked by the Committee on Rules & Administration of the United States Senate what sort of people made up the visitors’ list, Chairman McGarry replied that the press accounted for a major amount of this activity. Another very important group was the candidates and their staffs. "Candidates watch one another very closely; they bird dog one another’s campaign reports,” McGarry reported. The Chairman said that he would list third, the academic interest, "which is fairly sizable,” and beyond that, "my observation is that there really is not wide, general public interest____” See Hearings, Statement of John W. McGarry, Chairman, FEC, p. 46.
      In the instant case, Rep. Savage’s overwhelming victory in November, 1984, indicates that his constituency solidly supports his candidacy, and would not subscribe to the concept that it had been harmed by a delay in disclosure regarding 1982 campaign finances. It is important to remember that the reports of that campaign, once filed, did not show any underlying campaign improprieties or hidden misconduct. Had improprieties been discovered, there might be cause for a finding of harm to the public through delay in disclosure.


author: MILES W. LORD, Chief Judge.

text:
    Lorraine POLASKI, et al., Plaintiffs, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. No. 4-84-64.
    United States District Court, D. Minnesota, Fourth Division.
    April 12, 1985.
    Mary G. Grau, Legal Aid Society of Minneapolis, Inc., Minneapolis, Minn., for plaintiffs.
    James M. Rosenbaum, U.S. Atty. by Paul W. Day, Asst. U.S. Atty., Minneapolis, Minn.,' for defendant.
   ORDER

MILES W. LORD, Chief Judge.

This matter comes before the court upon the order of remand issued by the United States Court of Appeals for the Eighth Circuit, Polaski v. Heckler, 751 F.2d 943 (1984) remanding 585 F.Supp. 1004. In that opinion, the Court of Appeals dismissed plaintiffs’ class action concerning the Secretary’s termination of disability benefits, but upheld this court’s order in favor of plaintiffs whose applications for benefits had been denied because of the Secretary’s misapplication of agency regulations concerning proof of pain and other subjective complaints. In compliance with the Eighth Circuit’s order, therefore,

IT IS HEREBY ORDERED

1. That the class members who are entitled to the relief described herein include:

all persons (1) residing in Minnesota, North Dakota, South Dakota, Nebraska, Iowa or Arkansas, (2) who have applied for Title II or Title XVI benefits, (3) who allege that they are unable to work in whole or in part as a result of pain or other subjective complaints, and (4) who have received an adverse administrative decision on their claims for benefits as described below:
a) in Minnesota, North Dakota, South Dakota, and Nebraska, those persons who received an adverse decision on their claims, at any level of the administrative review process, between January 30, 1984 and July 17, 1984, inclusive;
b) in Arkansas, those persons who received an adverse decision on their claims at the Administrative Law Judge or Appeals Council levels between February 20, 1984 and July 17, 1984, inclusive;
c) in Iowa, those persons who received an adverse decision on their claims at any level of the administrative review process between November 26, 1983 and July 17, 1984, inclusive;

2. That, within a reasonable time, the Secretary shall issue the attached written notice to each class member with a copy to his or her legal representative, if any, which:

a) informs each class member of the proper standard for the administrative appraisal of allegations of pain or other subjective complaints;
b) asks each class member whether he or she alleges an inability to work, in whole or in part, because of pain or other subjective complaints;
c) states that each class member has the option and the right to have his or her claim reconsidered under the proper pain standard;
d) informs each class member that the request for reconsideration must be submitted within time limits established by the Secretary;
e) informs each class member of his or her right to submit additional evidence within time limits established by the Secretary;
f) contains information concerning the availability under the Social Security Act of attorneys to assist claimants in their efforts to obtain disability benefits.

3. That upon receiving a written request for reconsideration, the Secretary shall consider the application under the proper pain standard, and shall issue a written decision within a reasonable time;

4. That the claims of class members who request reconsideration shall be evaluated by the Disability Determination Services in their respective states. The decision of the Disability Determination Services upon reconsideration shall be regarded as a new decision and shall be subject to the regular appeal procedures of agency adjudication.

5. That the Secretary shall timely provide to the court and plaintiffs’ counsel copies of the Secretary’s teletype transmitting the notice and instructing adjudicative components of the Social Security Administration as to its proper use. Further, the Secretary shall prepare and maintain monthly statistical reports showing the number of people notified and the number of people responding to the notices. The Secretary shall timely provide to the court and plaintiffs’ counsel copies of these reports.

6. That as used herein, the “proper pain standard” is as follows:

A claimant has the burden of proving the disability results from a medically determinable physical or mental impairment. Symptoms such as pain, shortness of breath, weakness, or nervousness are the individual’s own perceptions of the effects of a physical or mental impairment(s). Because of their subjective characteristics and the absence of any reliable techniques for measurement, symptoms (especially pain) are difficult to prove, disprove, or quantify. As a result of this difficulty, some adjudicators have misinterpreted the Secretary’s policies as enunciated in SSR-82-58.
In particular, some adjudicators may have misinterpreted Example No. 2 in SSR-82-58 to allow allegations of pain to be disregarded solely because the allegations are not fully corroborated by objective medical findings typically associated with pain. The example should not be construed to be inconsistent with the text of SSR-82-58 which states in part:
The effects of symptoms must be considered in terms of any additional physical or mental restrictions They may impose beyond those clearly demonstrated by the objective physical manifestations of disorders. Symptoms can sometimes suggest a greater severity of impairment than is demonstrated by objective and medical findings alone.
While the claimant has the burden of proving that the disability results from a medically determinable physical or mental impairment, direct medical evidence of the cause and effect relationship between the impairment and the degree of claimant’s subjective complaints need not be produced. The adjudicator may not disregard a claimant’s subjective complaints solely because the objective medical evidence does not fully support them.
The absence of an objective medical basis which supports the degree of severity of subjective complaints alleged is just one factor to be considered in evaluating the credibility of the testimony and complaints. The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant’s prior work record, and observations by third parties and treating and examining physicians relating to such matters as:
1. the claimant’s daily activities;
2. the duration, frequency and intensity of the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of medication;
5. functional restrictions.
The adjudicator is not free to accept or reject the claimant’s subjective complaints solely on the basis of personal observations. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole.

7. That the Secretary shall send to class members and their representatives, if any, copies of the notice in the form appended hereto.

APPENDIX

NOTICE

Our records show that you might be able to receive disability benefits because of a recent court case about the Social Security law. In Polaski v. Heckler, the United States Court of Appeals for the Eighth Circuit ruled that we, the Social Security Administration, may have used the wrong legal standard for considering the pain or other subjective complaints of people who have applied for disability benefits. By the term “other subjective complaints”, we mean things like numbness, dizziness, nervousness, and other problems that do not show up in x-rays, blood tests, or the like.

The court ordered us to consider pain or other subjective complaints under the “pain standard” (copy enclosed) when we are deciding whether people who apply for disability benefits are disabled. Under the “pain standard”, people can be found eligible for disability benefits, even though objective medical evidence may not entirely support the applicant’s claim of disability caused by pain or other subjective complaints.

IMPORTANT RIGHTS

You applied for disability benefits and your application was denied. You now have the chance to renew your application. If you claim that you are unable to work either solely or partly because of pain or some other subjective complaint, you have the right to have your claim considered under the “pain standard.” Our new consideration of your claim under the “pain standard” might result in an award of disability benefits to you. You will also have the chance to present new evidence to prove that you are disabled.

If you request reconsideration, your claim will be evaluated by the Disability Determination Service in your state. The decision on reconsideration will be a new decision, and you will have the right to file an appeal if you don’t agree with it.

You have the right to represent yourself in any new proceedings, or to be represented by an attorney or any other qualified person. Contact your local Social Security office or legal services program for the names of the organizations or individuals who can help you.

WHAT YOU MUST DO

If you want us to reconsider your claim for disability benefits, you must return the attached request form to us within 30 days of the date you receive this notice. We will not review your case unless you ask us to do so. If you wish to present new evidence of your condition, be sure to check off the blank on the enclosed return form. You will have 60 days from your receipt of this notice in which to send us new evidence.

PAIN STANDARD

While the claimant has the burden of proving that the disability results from a medically determinable physical or mental impairment, direct medical evidence of the cause and effect relationship between the impairment and the degree of claimant’s subjective complaints need not be produced. The adjudicator may not disregard a claimant’s subjective complaints solely because the objective medical evidence does not fully support them.

The absence of an objective medical basis which supports the degree of severity of subjective complaints alleged is just one factor to be considered in evaluating the credibility of the testimony and complaints. The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant’s prior work record, and observations by third parties and treating and examining physicians relating to such matters as

1. the claimant’s daily activities;
2. the duration, frequency and intensity of the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of medication;
5. functional restrictions.

The adjudicator is not free to accept or reject the claimant’s subjective complaints solely on the basis of personal observations. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole.

REQUEST FORM

I believe that I am unable to work in whole or in part because of pain or some other subjective complaint.' I would like the Social Security Administration to reconsider my application for disability benefits using the correct pain standard.

Check One:

I wish to submit additional evidence.

I do not wish to submit additional evidence.

Dated:_Name:_

Social Security No:

REMEMBER, IF YOU WANT US TO RECONSIDER YOUR CLAIM, YOU MUST RETURN THIS FORM TO US WITHIN 30 DAYS. ANY ADDITIONAL EVIDENCE MUST BE SUBMITTED WITHIN 60 DAYS.


author: REYNOLDS, Chief Judge.

text:
    Ralph BARNETT, Plaintiff, v. Alan GESLER, Defendant.
    Civ. A. No. 83-C-129.
    United States District Court, E.D. Wisconsin.
    April 12, 1985.
    Mark J. Rogers, Milwaukee, Wis., and Elizabeth Davis, Chicago, 111., for plaintiff.
    L. William Staudenmaier and Brian C. Tyndall, Milwaukee, Wis., for defendant; Cook & Franke S.C., Milwaukee, Wis., of counsel.
   ORDER

REYNOLDS, Chief Judge.

The issue before the Court is the defendant’s motion for permission to interview the jurors who heard evidence in this case for two days in February before a mistrial was declared. Local Rule 8.06 prohibits contact with jurors except on leave of court granted upon notice to opposing counsel and upon good cause shown. Defense counsel would like to interview the jurors to assist them in further preparing and defending this case. The plaintiff does not oppose this motion.

In deciding whether to permit juror interviews pursuant to Local Rule 8.06, the primary focus is on whether the movant has shown good cause for the request. The fact that opposing counsel does not object carries little weight since the rule is intended to safeguard the integrity of the jury before and during the trial and to protect juror privacy after the trial.

In support of the motion, defense counsel indicates only that juror interviews would be useful in preparing for this case, and that measures would be taken to minimize annoyance to the jurors. The good cause provision in Local Rule 8.06 requires more than a mere showing of usefulness, since juror interviews may always be deemed useful in preparing for further proceedings or appeal, or even in preparing for a different jury trial. Any contact with jurors is an intrusion on their private lives, and absent a more particularized showing of good cause, such intrusion is unwarranted.

IT IS THEREFORE ORDERED that the defendant’s motion for permission to interview jurors is denied.


author: CURTIN, Chief Judge.

text:
    WOW & FLUTTER MUSIC, HIDEOUT RECORDS AND DISTRIBUTORS, INC., Pop N’ Roll Music and Stygian Songs, Plaintiffs, v. LEN’S TOM JONES TAVERN, INC., and Len Cipriana, Defendants.
    No. Civ-82-33C.
    United States District Court, W.D. New York.
    April 12, 1985.
    Hancock & Estabrook, Syracuse, N.Y., for plaintiffs; David E. Peebles, Syracuse, N.Y., of counsel.
    Villani and Grow, Lyons, N.Y., for defendants; Anthony J. Villani, Lyons, N.Y., of counsel.
   CURTIN, Chief Judge.

Plaintiffs, the proprietors of copyrights of musical compositions, seek summary judgment on four claims of copyright infringement. They request an injunction prohibiting further infringement, as well as statutory damages and costs, including reasonable attorney’s fees.

Defendant Len Cipriana was the owner of Len’s Tom Jones Tavern, Inc., in 1981, the year in which the claimed infringements occurred. In the summer of 1983, the corporation was dissolved, and ownership of the tavern, now the Tom Jones, was transferred to his two daughters. Plaintiffs in this action are each members of the American Society of Composers, Authors and Publishers [ASCAP], to which they have granted a non-exclusive right to license non-dramatie public performances of their copyrighted musical compositions.

Liability

Plaintiffs have submitted affidavits and exhibits sufficient to support their claim of proprietorship of the copyrights involved in this action. Copyright registration certificates provide prima facie evidence of the truth of the facts therein. 17 U.S.C. § 410(c). Defendants offer no evidence to dispute plaintiffs’ ownership of the copyrights or their validity.

Defendants also offer no evidence to dispute plaintiffs’ proof of public performance of the musical compositions in question.

Plaintiffs offer the affidavit of ASCAP representative, William J. Campbell III, establishing that the compositions, “Ride Like the Wind,” and “Too Much Time on my Hands,” were publicly performed at the Tom Jones Tavern on the night of September 4-5, 1981. On that night, a disc jockey played recorded music over a sound system.

To establish public performance of the other compositions in question, plaintiffs offer the affidavits of Heather Haven and Norman Michaels, also ASCAP representatives. Their affidavits indicate that the songs, “All Night Long,” and “Betty Lou’s Getting Out Tonight,” were performed at the tavern on June 20, 1981. Although a band was playing that evening, it appears from the investigators’ notes that both compositions were played on the juke box during band intermissions.

Defendant Cipriana concedes that he has no knowledge of whether these compositions were performed on these evenings (Item 25, p. 45 and 46). All ASCAP representatives stated that they have musical backgrounds, are familiar with the compositions in question, and heard them performed at the tavern (Item 26). Defendants offer nothing to rebut this.

Defendants did suggest that they might wish to bring in two bands as third-party defendants and obtain their testimony as to infringement (Item 17). However, as has been noted, the compositions were performed by means of a juke box or records played by a disc jockey, not live bands. Nonetheless, the court gave defendants time to bring in a third-party defendant, which was never done (Item 19).

In view of the lack of evidence to the contrary, the court finds the compositions were publicly performed by defendants.

Finally, Mr. Cipriana admits that he did not have permission to perform the compositions. Since he was the manager of the day-to-day activities of the tavern, defendant Cipriana is individually liable for the copyright infringements. Boz Scaggs Music v. KND Corp., 491 F.Supp. 908, 913 (D.Conn.1980). Summary judgment is granted on the issue of liability.

Remedies

A. Injunction

Defendants are permanently enjoined from infringing on plaintiffs’ copyrights in any manner. 17 U.S.C. § 502. While defendant Cipriana no longer owns the tavern and claimed at his deposition that he does not manage it, he still works there part-time. (Item 25, p. 56.) He is enjoined from causing or permitting the infringement of plaintiffs’ copyrights through public performance or in any other fashion.

B. Damages

Plaintiffs also seek damages under 17 U.S.C. § 504. Plaintiffs have elected to forego actual damages and to recover statutory damages instead. 17 U.S.C. § 504(c).

Under section 504(c)(1), plaintiffs would be entitled to damages ranging from $250 to $10,000 simply upon a showing of infringement. But plaintiffs are proceeding under section 504(c)(2) and have sustained the burden of proving that the infringement was committed willfully. Proof of this would raise the ceiling on plaintiffs’ damages to $50,000. Plaintiffs have requested the court to award $2,000 for each infringement (Item 26, Peebles affidavit).

Defendants’ sole response to plaintiffs’ motion for summary judgment has been an affidavit of defendant Cipriana (Item 29). Through this affidavit, defendants seek to escape summary judgment on the issue of willful infringement by putting Mr. Cipriana’s state of mind in issue. The Second Circuit has cautioned against disposition on summary judgment when mental state is at issue. (See Katz v. Goodyear Tire and Rubber Company, 737 F.2d 238 (2d Cir.1984.) However, for the reasons discussed below, the court believes there are sufficient undisputed material facts on the record to make this issue appropriate for summary judgment.

For the purposes of the copyright statute, “willfully” means with knowledge. 3 Nimmer on Copyright, § 14.04[B][3] (1984).

The question is posed as to what “willfully” means in this context. In other contexts it might simply mean an intent to copy without necessarily an intent to infringe. It seems clear that as here used “willfully” means with knowledge that the defendant’s conduct constitutes copyright infringement.' Otherwise there would be no point in providing specially for the reduction of minimum awards in the case of innocent infringement since any infringement which was nonwillful would necessarily be innocent. This seems mean, then, that one who has been notified that his conduct constitutes copyright infringement, but who reasonably and in good faith believes the contrary, is not “willful” for these purposes.

Id. at 14-28 (footnotes omitted).

The treatise cites two cases in which, even in the absence of proof of actual knowledge, willfulness was found. In Fallad v. New Gazette Corp., 568 F.Supp. 1172 (S.D.N.Y.1983), it was found that defendant, a publisher of a copyrighted newspaper, “was or should have been aware” that its conduct was infringing. Id. at 1173. In Lauratex Textile Corp. v. Allton Knitting Mills, 519 F.Supp. 730 (S.D.N.Y.1981), the court found that under the circumstances in that case, in which there was no specific proof of actual knowledge, “at the very least, [defendant] acted with a reckless disregard for the rights plaintiff had in the design.” Id. at 733. This interpretation of “willfully” seems to the court to be sound.

The burden of showing “willfulness” is with plaintiffs. For the reasons discussed above, this burden can be met by showing that defendants should have known their conduct was infringing or acted in reckless disregard of plaintiffs’ rights.

In his affidavit in opposition to plaintiffs’ motion for summary judgment, Mr. Cipriana states that he believed the copyright laws involved only public performances by live bands, not records or juke boxes (Item 29).

Plaintiffs produced documents covering a span of nine years, which demonstrates that ASCAP repeatedly attempted to contact defendant Cipriana in person at the tavern or by letter. ASCAP doggedly sought to inform Mr. Cipriana that his tavern was infringing the copyrights of its members and continually requested that he sign a licensing agreement.

Mr. Cipriana does not dispute receiving letters, visits, or phone calls from ASCAP. At his deposition of July 11, 1984, defendant said that he did not remember receiving specific letters from ASCAP but does recall seeing mailings from the Society over the years.

Mr. Cipriana: I never opened any of them things, I just threw them away.
Mr. Peebles: That go for all of your mail or just some mail in particular?
Mr. Cipriana: If it had ASCAP on it I just discarded it.

Item 25, p. 72.

Mr. Cipriana reacted similarly to visits and telephone calls from ASCAP representatives:

Mr. Peebles: Did any ASCAP representatives ever ask you if you would be licensed with ASCAP?
Mr. Cipriana: I don’t believe I even talked to any of them that long. They come in and said they are from AS-CAP, I just told them to leave. $ * Sjt 5jC $ S)8
Mr. Peebles: Do you remember hanging up on any after they told you they were from ASCAP?
Mr. Cipriana: I would have if they told me it was ASCAP. I wouldn’t have even talked to them.

Id. at 76-77, 79.

In one of the letters sent to Mr. Cipriana dated April 13, 1977, he was told that the licensing fee would be based on several factors, including an orchestra three nights per week and “Mechanical-Records-S nights per week.” (Item 26, Exh. 15.) This letter was sent by certified mail, and Mr. Cipriana signed the return (Item 25, p. 74).

In another letter, also sent by certified mail and dated March 21, 1975, the factors identified for a licensing fee were, among others, “Orchestra & Mechanical (juke box).” (Item 26, Exh. 11.)

This is not the first time these defendants have appeared before this court in a copyright infringement action. In Bruce Springsteen, et al. v. Len’s Tom Jones Tavern, Inc., and Len Cipriana, CIV-79543C, plaintiffs, also ASCAP members, alleged five instances of infringement of musical compositions (not the same as those at issue in the instant case). That case was filed on July 11, 1979, approximately two years before the dates of infringement in the current action: June 20 and September 4-5, 1981.

In an order dated March 18, 1983, this court determined that defendants had committed five instances of copyright infringement and assessed the statutory minimum, $250, per infringement under 17 U.S.C. § 504(c)(1). The Springsteen case differs from the instant action, in that the public performance was by means of a live band.

However, that suit should have put plaintiff on notice that “public performance” applied to records and juke boxes, and not simply live performances. Defendants were represented by the same attorney, Anthony J. Villani, in both actions. Defendants filed interrogatories in the Springsteen action on September 25, 1979, again well before the dates of the infringements in the instant action. Interrogatory 6 asked plaintiffs to state whether the said performance was live. In Interrogatory 6(B), defendants asked:

B. If not a live performance:
(1) Describe the “public performance.”
(2) Describe the instrument which gave the “public performance.”

{See Item 31, p. 2).

At his deposition of July 11, 1984, Mr. Cipriana affirmed that he discussed the Springsteen suit with Mr. Villani who, based on the above interrogatory, was obviously aware that “public performance” encompassed more than live performances (Item 25, p. 59).

The court finds that the above amply demonstrates Mr. Cipriana’s reckless disregard of plaintiffs’ rights. It is also clear that if Mr. Cipriana did not actually know of the applicability of the copyright laws to non-live performances, he certainly should have known. Based upon the undisputed facts outlined above, the court concludes that defendants willfully infringed plaintiffs’ copyrights and so are entitled to damages under 17 U.S.C. § 504(c)(2).

While plaintiffs can now receive a maximum of $50,000 per infringement, they request $2,000. After taking into account the willful nature of the infringement, the court has determined that plaintiffs are entitled to damages in the amount of $750 per infringement.

C. Costs and Attorney’s Fees

Under 17 U.S.C. § 505, the court may allow for full recovery of costs by any party. Plaintiffs have requested $76.80 to cover the filing fee and fee for service. Plaintiffs are awarded these costs.

Plaintiffs have also moved for attorney’s fees. Under section 505, the court, in its discretion, can provide reasonable attorney’s fees as part of the costs. Plaintiffs claim a total of 41.25 hours, at a rate of $80 per hour. Neither the amount of time nor the rate is unreasonable.

In view of the long history preceding this action and defendants’ willful infringement, plaintiffs are awarded $3,300 in attorney’s fees.

Plaintiffs’ motion for summary judgment is granted. Defendants committed four instances of willful copyright infringement. Defendants are permanently enjoined from infringing all plaintiffs’ copyrights in any manner.

Plaintiffs are awarded $750 per violation, for a total of $3,000. 17 U.S.C. § 504(c)(2). Plaintiffs are awarded $76.80 in costs and $3,300 in attorney’s fees.

So ordered.