author: H. FRANKLIN WATERS, Chief Judge.

text:
    GARLAND COAL & MINING COMPANY, Plaintiff, v. UNITED MINE WORKERS OF AMERICA; District 21, UMWA; Local 1285, UMWA; Local 1329, UMWA; Local 2071, UMWA; Local 2428, UMWA, Defendants.
    Civ. No. 83-2188.
    United States District Court, W.D. Arkansas, Fort Smith Division.
    Oct. 10, 1984.

      William C. Nulton, Richard W. Noble, Shughart, Thomson & Kilroy, Kansas City, Mo., and J. Michael Shaw, Shaw & Ledbetter, Fort Smith, Ark., for plaintiff.
    Michael Holland, Willard P. Owens, A. Randall Vehar, United Mine Workers of America, Washington, D.C., and Betsy Hall, Hardin, Jesson & Dawson, Fort Smith, Ark., for defendants.
   MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

This case results from a long, drawn-out, unfortunate, and sometimes violent dispute between Garland Coal & Mining Company and the United Mine Workers of America and various of its affiliated locals. The specific portion of the dispute involved in this case seems to be merely a small “crumb” of a much larger dispute that has been going on since early 1981, resulting in several lawsuits in various federal courts and multiple disputes pending before the National Labor Relations Board. The court has jurisdiction of the subject matter under the provisions of 29 U.S.C. § 185 and 28 U.S.C. § 2201.

As the court stated to the lawyers on the record during the trial of this case, like the overall dispute between the parties, this case seems to have “gotten out of hand.” Perhaps this is the fault of the court in not taking control of the case early on as contemplated by Rule 16(c), but, for whatever reason, the court is convinced that the attorneys in this case have “built a file” which far exceeds what would be justified by the issues. The “papers filed” are included in a court file that is approximately two feet thick, and during the course of the trial, the parties constantly had conflicts relative to very extensive discovery that was engaged in. These conflicts cause the court to wonder if the parties were proceeding in the manner in which Professor Arthur Miller describes the present state of federal discovery. At an address at the Workshop for Judges of the Eighth and Tenth Circuits in Phoenix, Arizona, on January 20, 1984, Professor Miller described federal discovery engaged in by many attorneys to be like an oldtime dance contest (as in the movie “They Shoot Horses Don’t They?”) in which the object is to go on the dance floor with your partner and wander about the floor, swaying aimlessly to the music, until you and your partner (your client) are the last couple left standing. When that occurs, you win.

As indicated, the court will take the blame for the matter “getting out of hand,” because one of its jobs is to prevent that from occurring, but feels that it is appropriate for it to express its concern about the procedures followed in this case in the hope that it might help prevent this from occurring in the future. The court will certainly attempt to keep it from occurring again.

Although it takes a considerable length of time to sift through the papers to determine that this is the case, this is simply a declaratory judgment action filed by Garland pursuant to the provisions of 28 U.S.C. § 2201 asking that the court declare that it is not obligated to arbitrate certain grievances specified in the complaint, and seeking an injunction against the defendants enjoining them from taking any action to require the plaintiff to arbitrate the grievances. In its initial complaint, it attached seven grievances which it claims arose after the expiration of the collective bargaining agreement between the parties, and it sought only a declaratory judgment by the court that it was not obligated to arbitrate these grievances. After numerous motions were filed and disposed of, among which was the Union’s contention that Garland had not sued all of the real parties in interest, Garland, after obtaining leave of the court, amended its complaint bringing into the lawsuit five specified local affiliates of the UMWA. Attached to the amended complaint were eleven grievances about which it sought a declaratory judgment, including the seven attached to its initial complaint and four additional ones. In Count I of the amended complaint, it requested that the court enter a declaratory judgment that it was not obligated to arbitrate the eleven grievances which it claims arose after the expiration of the collective bargaining agreement, and again prayed for an injunction in this respect. Unlike Count I which requested the court act only in relation to specified grievances, Count II asks the court to declare “that Plaintiff is not obligated to arbitrate grievances after the expiration of the said agreement” and for an injunction prohibiting the Union from taking action, apparently in any forum, to require arbitration of such grievances.

After the amended complaint was filed, the Union responded and, without leave of the court, filed a counterclaim against Garland Coal & Mining Company, and third-party complaints against two additional companies, Toltec Coal Company and Great Western Enterprises, Inc., to which it claimed Garland had sold certain of its assets, claiming that Garland, Great Western and Toltec “constitute a single integrated business enterprise as a ‘single employer,’ as that term is understood under the federal labor laws.” The counterclaim and third-party complaint add substantial additional issues to the lawsuit, and the court, by telephone conference, advised that the pleading would not be allowed because leave of the court had not been obtained, because it would substantially change the nature of the lawsuit and because the issues contained in it were not timely raised since the matter was on the trial docket and scheduled for trial at the time. Apparently the court inadvertently failed to enter a written order to that effect at that time.

After numerous motions, briefs, responses, responses to responses, replies, replies to replies, and a myriad of filings in relation to discovery disputes had been filed by the parties, and after the discovery disputes had been referred to Magistrate Ned A. Stewart, Jr., for disposition, the case was tried to the court on September 17 and 18, 1984.

From the evidence received at the trial, it is clear that Garland, with its principal offices in Fort Smith, Arkansas, was, at least prior to the dispute which resulted in this lawsuit and other lawsuits occurred, in the business of mining coal at four locations in Western Arkansas and Eastern Oklahoma. While this matter was pending, a petition was filed by the Trustees of the “United Mine Workers of America 1950 Benefit Plan and Trust” seeking an order placing Garland in involuntary bankruptcy. A stay order was entered, and all parties agree that such stay would prohibit the parties from pursuing the counterclaim (and, in fact, the third-party complaints) so long as it is in effect, even if they had been permitted.

The evidence is clear that although it was not technically a signatory to the National Bituminous Coal Wage Agreement of 1978 negotiated by the UMWA and the Bituminous Coal Operators’ Association, it executed an identical agreement with the UMWA and the various locals representing the workers employed by it.

The agreement became effective on March 27, 1978, and was for a period of three years from the effective date. Article XXIX provided that either of the parties could terminate the agreement on or after March 27, 1981, by giving at least 60 days written notice to the other party of such desired termination date. On January 12, 1981, the UMWA, by mailgram dated that date, notified Garland that “pursuant to Section 8(d) of the National Labor Relations Act and Article XXIX of the National Bituminous Coal Wage Agreement of 1978, the United Mine Workers of America hereby formally notifies you of our intention to terminate this agreement effective March 27, 1981.” Garland also received a “Memorandum,” signed by President Sam Church, Jr., to that effect. This letter was received as Plaintiff’s Exhibit B.

The court finds that it would serve no useful purpose to delineate in any detail the “labor strife” that has evolved as a result of the dispute between the parties. Suffice it to say that, while the parties attempted to negotiate a new contract for several months after the termination of the 1978 agreement, no agreement was reached and the plaintiff’s employees, represented by the UMWA, immediately struck and picketed plaintiff’s establishments. Plaintiff hired replacement workers, which resulted in a considerable amount of strife, resulting in one or more bombings or other acts of vandalism by unknown persons. In fact, the workers at the Tamaha mine in Oklahoma engaged in a wildcat strike beginning on March 21, 1981, six days before the contract terminated, and were “fired” by management on March 26, 1981. Since that time, numerous confrontations have occurred between representatives of management and of the UMWA and no progress has been made toward a settlement during the more than three years since termination of the collective bargaining agreement. As indicated, the file indicates that numerous lawsuits have been filed by the parties in various courts, and the dispute has resulted in the filing of various charges with the National Labor Relations Board. The disputes which exist in this lawsuit as well as numerous other ones involving other disputes between the parties are now pending in NLRB Consolidated Case Nos. 16-CA-9839 and 16-CA-10442.

Since that is the case, and since the court, as indicated, is convinced that this case involves only a very small portion of the dispute between the parties, and will, in reality, settle little if anything, the court is sorely tempted to exercise the discretion granted to it by 28 U.S.C. § 2201 and Rule 57 of the Federal Rules of Civil Procedure, and decline to enter any judgment in this case. The court is convinced that anything that it does in this case will not end the strife and get the mines back in operation and the workers back to work and will not, to any degree whatsoever, bring the parties any closer to an agreement and all of this any closer to an end.

Irrespective of how the court rules, the mines will, more than likely, continue to be inoperable because of the strife, the workers will still be on strike, and the parties will continue to litigate this matter in numerous forums. If the court decides this small part of the controversy, the losing side will undoubtedly appeal to the Court of Appeals, the bankruptcy petition will still be pending, and, at best, a great deal of the controversy will still have to be resolved before the NLRB. The court and, indeed, the parties will appear to have accomplished little, if anything. The large attorneys’ fees and other expenses that seem to have been generated in this case will undoubtedly continue in other forums, and what the court does in this case would seem to have little chance of stemming, to any substantial degree, the tide that appears to endlessly roll on.

As the discussion in Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2759 at 646, points out, courts are given a great deal of discretion in determining when to exercise the declaratory judgment jurisdiction granted by 28 U.S.C. § 2201. That article, and the numerous cases cited in it, indicate that a court should generally decline to exercise its jurisdiction to grant declaratory judgments if it will serve no purpose and will not settle the differences between the parties.

The court, as indicated, simply does not believe that it will accomplish much, if anything, by rendering a decision in this case. However, even though it is sorely tempted to leave the parties where it finds them, it simply cannot bring itself to do so in this case, in view of the substantial expenses that have obviously been involved and the great deal of time already expended by the parties, their attorneys, and the court and its staff. The court recognizes that a great deal of the expense incurred would, undoubtedly, have been incurred anyway because of the controversies pending in other forums. In other words, the court believes that some of the discovery and other “attorney work product” was developed because of the overall controversy, and not simply in an attempt to litigate the claims in this case.

Be that as it may, the court feels compelled to give the parties and the public “something for their money” even if it will quite obviously not be worth what it costs.’

As indicated, the amended complaint filed in this case by Garland asks the court to enter a declaratory judgment in relation to certain grievances filed by or in behalf of its former employees. The complaint breaks these grievances into two types. The first type, set forth in Count I of the amended complaint, is those grievances which are over disputes and differences which arose after March 27, 1981, the date of termination of the contract, and which were not filed until after that date. These grievances were attached as exhibits to the amended complaint and were received in evidence as Plaintiff’s Exhibits L, M, N, R, S, T, Y, W, X and Y. The remaining grievances which the plaintiff attempted to cover in Count II of its amended complaint are either those which were caused by disputes or differences which arose before March 27, 1981, and which were filed before that date (Plaintiff’s Ex. D — K) or those which arose before March 27, 1981, but were not filed until after that date (Plaintiff’s Ex. 0 — Q and Ex. U). The court has concluded that, for the reasons set forth below, it will grant the relief requested in Count I of the amended complaint, and deny that requested in Count II.

Both parties recognize that this case is controlled by the holding of the United States Supreme Court in Nolde Bros., Inc. v. Local No. 358, Bakery & Confectionery Workers, 430 U.S. 243, 97 S.Ct. 1067, 51 L.Ed.2d 300 (1977). However, saying that does not, by any means, settle the question. Shortly after Nolde was handed down, University of Kansas Professor of Law Raymond Getts, writing in 63 Va.L.Rev. 693 (June 1977), attempted to explain what the court said in Nolde in some 37 pages, and largely concluded that it was difficult to say what Nolde means. In spite of this, the court will apply Nolde, supra, as it understands it, because it is unquestionably its duty to do so.

GRIEVANCES ARISING AFTER MARCH 27, 1981

The court concludes that the employer has no contractual duty to arbitrate those grievances which arose and were filed after March 27, 1981, the date of termination of the contract. In Nolde, supra, the Supreme Court was faced with the question of whether the employer in that case was obligated to arbitrate grievances involving a severance pay claim which arose under the terms of the contract, but which was not filed until after it had terminated. The employer argued, as does the employer in this case, that the duty to arbitrate arises solely by contract, and that once the contract has terminated there can naturally be no duty to arbitrate since the parties are no longer bound by the contract which set up the arbitration procedure. While logic seems, at least on the surface, to dictate this result, that is not necessarily the result that Nolde reached. The Court recognized that, as the employer argued, “Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1980); e.g., Gateway Coal Co. v. Mineworkers, 414 U.S. 368, 374, 94 S.Ct. 629, 635, 38 L.Ed.2d 583 (1974); John Wiley & Sons v. Livingston, 376 U.S. 543, 547, 84 S.Ct. 909, 913, 11 L.Ed.2d 898 (1964); and Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 1320, 8 L.Ed.2d 462 (1962).

The Court then goes on to say:

Our prior decisions have indeed held that the arbitration duty is a creature of the collective-bargaining agreement and that a party cannot be compelled to arbitrate any matter in the absence of a contractual obligation to do so. Adherence to these principles, however, does not require us to hold that termination of a collective-bargaining agreement automatically extinguishes a party’s duty to arbitrate grievances arising under the contract. 430 U.S. at 250, 97 S.Ct. at 1071.

The Court then goes on to say that the parties could have intended that the arbitration procedure developed in the contract would survive its termination, and, based upon the contract before it, there was no indication that this is not what the parties intended. The Court said:

However, even though the parties could have so provided, there is nothing in the arbitration clause that expressly excludes from its operation a dispute which arises under the contract, but which is based on events that occur after its termination. 430 U.S., at 253, 97 S.Ct. at 1072-1073.

The Court then discusses the policy created by federal labor law favoring arbitration, and cases such as Warrior & Gulf, supra, enforcing this policy, and concludes:

In short, where the dispute is over a provision of the expired agreement, the presumption favoring arbitrability must be negated expressly or by clear implication. 430 U.S. at 255, 97 S.Ct. at 1074.

Thus, it appears clear that before this court can declare that any of the grievances which are the subject matter of this dispute are not arbitrable, it must find from the contract and the actions of the parties that arbitrability is “negated expressly or by clear implication.” Although the court admits that this is a difficult burden, it finds that the presumption created by Nolde is, by the action of the parties and the contents of the contract, negated by clear implication.

The 1978 National Bituminous Coal Wage Agreement is but one of a succession of agreements that have been entered into by the UMWA and employers engaged in the mining industry. The parties introduced the 1974 agreement as Joint Exhibit 5. Many provisions of these two agreements are almost identical, including those establishing a grievance procedure. The grievance procedure is established in both documents by the provisions of Article XXIII, Section (c), and both apply only to “disputes arising under this Agreement.” However, unlike the 1974 agreement, the drafters of the 1978 agreement recognized the need for a provision providing for the handling of grievances which occurred during the term of the 1974 agreement, but which had not been resolved by the time that the 1978 agreement took effect. Article XXIII, Section (k), of the 1978 agreement provides:

Any dispute and/or difference which as of the effective date of this Agreement is in the process of adjustment under the Settlement of Disputes section of the prior Agreement or any dispute and/or difference presented on or after the effective date of this Agreement which is based on the occurrence or nonoccurrence of an event which arose pri- or to the effective date of this Agreement shall be processed under the procedural provisions of this Agreement and shall be resolved under the applicable provisions of the prior Agreement. Decisions reached under this provision shall be final and binding and not subject to appeal to the Arbitration Review Board. Cases appealed under the provisions of the National Bituminous Coal Wage Agreement of 1974, resolved by the Arbitration Review Board after the expiration of that Agreement, shall not constitute a precedent under this Agreement.

One of the bases for the holding in Nolde, supra, was that the Court deemed that the parties must have been conscious of the national policy favoring arbitration and

[consequently, the parties’ failure to exclude from arbitrability contract disputes arising after termination, far from manifesting an intent to have arbitration obligations cease with the agreement, affords a basis for concluding that they intended to arbitrate all grievances arising out of the contractual relationship.

That inference is not present in this case. In drafting the 1978 agreement, the parties did not simply ignore the possibility that there would be grievances which arose under the prior agreement which would not have become effective by the time that it terminated. Instead, they placed in the agreement Article XXIII, Section (k), which specifically provided how grievances arising under the 1974 contract would be handled. In the court’s view, there could have been no other reason for the inclusion of this provision other than that the parties recognized and, in effect, agreed, that the obligation to arbitrate ended with the termination of the 1974 agreement. They specifically agreed that even though that was the case, the duty to arbitrate would not end, and they provided for it. This, in the court’s view, certainly is an indication that the parties, by clear implication, recognized that the termination of a National Bituminous Coal Wage Agreement terminated the obligations of the parties to arbitrate grievances arising under the old agreement. What other purpose could Article XXIII, Section (k), have had?

The evidence in this case shows, almost without contradiction, that not only had the parties negotiated this provision in the 1978 agreement, the parties attempted to negotiate a new agreement, and the Union insisted that a provision like that contained in Article XXIII, Section (k), of the 1978 agreement be included in the new agreement. During these negotiations, the Union submitted a proposal for a provision in the new contract which would have been identical to this provision of the 1978 agreement. Again, since that is true, what other purpose could that have had other than to attempt to take care of grievance matters which the parties recognized were not covered under the 1978 agreement after it expired? The fact that this provision was submitted for negotiation and apparently discussed by the parties, is further evidence, in the court’s view, that both of the parties recognized and understood the duty to arbitrate ceased upon expiration of the 1978 agreement.

Further, Article XXIII, Section (b)(1), of the 1978 agreement provides that the arbitrators “shall serve for the duration of this agreement____” Again, the court believes that this is ample evidence that the parties believed and intended that the term of the arbitrators would cease upon the expiration of the agreement. Since that is true, it appears to be clear that the parties must have also intended that the obligation to arbitrate ceased with the termination of the agreement since they did not provide for arbitrators after that date. The National Labor Relations Board, the body that has been designated by Congress to apply the national labor laws, has, in an almost identical situation, so held. In S & W Motor Lines, Inc., 236 N.L.R.B. 938, 949-50 (1978), the board found that the Nolde Bros, presumption was negated because of a provision in the collective bargaining agreement which appointed the arbitration committee to serve “during the term of this contract agreement.”

Just as it had done in relation to Article XXIII, Section (k), the Union, during negotiations for a new contract submitted a proposal, Article XXIII, Section (b), which would have provided: “Arbitrators appointed under the prior agreement shall serve as district arbitrators until arbitrators can be selected.” Again, the court finds the implication to be clear. The Union recognized that there was no contractual authority for the arbitrators to serve after the expiration of the agreement. The Union obviously believed that, when the old contract expired, there was no provision for arbitrators, and they sought to negotiate such a provision, but such negotiation effort was not accomplished.

A provision contained in Article XXIX of the 1978 agreement shows, unequivocally, that, when the parties intended for a provision of the contract to survive its termination, they said so. In that article, in relation to employees’ health and insurance coverage, the parties agreed: “This paragraph shall survive the termination of the remainder of this Agreement and shall continue in effect until the purpose for which it was established is satisfied.” Since the parties obviously knew what they were doing, if they intended for Article XXIII to survive, why didn’t they say so? The court finds that they did not say so because that was not the intention. Instead, by clear implication, the court finds that the parties knew what they were doing when they drafted the arbitration provisions of the 1978 agreement and the provisions and negotiations discussed above clearly show to this court that they did not simply forget to provide whether the arbitration provisions would survive the termination of the contract, but clearly indicated that they did not intend for them to do so. Thus, the court finds, as Nolde, supra, requires, that the presumption favoring arbitrability is “negated expressly or by clear implication.”

The court will enter judgment declaring that the plaintiff has no contractual duty to arbitrate those grievances arising and filed after the termination of the 1978 agreement on March 27,1981, and will enjoin the UMWA from seeking to enforce the arbitration of these grievances as a matter of contract. Since there appears to be a serious question about whether this court has in personam jurisdiction of the other defendants, and since an injunction in respect to them would not appear to be necessary in view of the fact that the UMWA has, throughout this matter, clearly acted for them, the injunction will not be applicable to defendants other than the United Mine Workers of America. In addition, the court has expressly refrained from making any judgment in respect to the arbitrability of these grievances other than on a contractual basis and the holding is limited in that respect. The court does not believe that it is permitted to rule in relation to the claim that the National Labor Relations Act, and the duties imposed by it, require arbitration of these grievances, and that a failure to do so is a “unilateral change” prohibited by 29 U.S.C. § 158(a)(5). There is presently a charge before the NLRB encompassing, among other things, this contention, and the court is convinced that Congress has provided that the NLRB is the proper forum, and the only proper forum, to resolve such disputes.

GRIEVANCES ARISING BEFORE MARCH 27, 1981

The court recognizes that the reasoning set forth above would seem to automatically indicate that once the contract setting up the grievance procedure and the grievance board has expired, the duty to arbitrate also should expire. Logical as that may be, that does not seem to be what the cases hold. Even before Nolde, the United States Supreme Court, and other courts, did not seem to have any difficulty in holding that, when a dispute arose during the life of the contract but arbitration proceedings had not begun before termination, the expiration of the contract did not terminate the parties’ contractual obligation to resolve the disputes by arbitration. See John Wiley & Sons v. Livingston, supra; Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); Machine Workers v. Oxco Brush Div., 517 F.2d 239 (6th Cir. 1975); and Procter & Gamble Ind. Union v. Procter & Gamble Mfg. Co., 312 F.2d 181 (2d Cir.1962).

In fact, the Court in Nolde seemed to indicate that that result was a foregone conclusion. In dealing with the employer’s argument in that case that' the termination of the collective bargaining agreement automatically extinguishes a party’s duty to arbitrate grievances, the Court said:

Carried to its logical conclusion that argument would preclude the entry of a post-contract arbitration order even when the dispute arose during the life of the contract but arbitration proceedings had not begun before termination. The same would be true if arbitration processes began but were not completed, during the contract’s term. Yet it could not seriously be contended in either instance that the expiration of the contract would terminate the parties’ contractual obligation to resolve such a dispute in an arbitral, rather than a judicial forum, (citing the cases cited above.)

Thus, on whatever basis, the law appears to be well settled that disputes arising during the life of the contract, but for which arbitration proceedings had not begun or had not been completed by the time of termination of the agreement, continue to be arbitrable even after termination of the agreement. Thus, because of what it perceives to be the law in this respect, the court has no alternative but to find that the plaintiff’s request for a declaratory judgment contained in Count II of its amended complaint shall not be granted.

The court recognizes that the grievances in respect to discharges at Rose Hill, Charleston and Bokoshe were not filed until May of 1982, long after the termination took place in March of 1981, and that it took under advisement plaintiff’s motion for partial summary judgment raising a “laches”’ defense. It is clear from the evidence in this case that Garland took the position from a date soon after the termination of the contract until well past March of 1982 that it would not process grievances filed. Thus, it appears clear that it would have been futile for the grievances to have been earlier filed, and the court does not believe that the law requires prospective grievants to perform an act which would clearly be futile in order to preserve their claim. For this reason, the court hereby overrules the motion for partial summary judgment and, as indicated, declines to make any declaration, one way or the other, as to the arbitrability of these claims and, in fact, all of the grievances which were intended to be encompassed by Count II of plaintiff’s amended complaint.

COUNTERCLAIM AND THIRD-PARTY COMPLAINT OF UMWA

As indicated, after the Union had raised the question of whether the plaintiff had sued all of the real parties in interest, and whether certain locals of the Union were necessary parties, plaintiff sought leave of the court to add these parties and to amend its complaint. Leave was granted by order dated December 15, 1983, after the court determined that the amendment would not substantially change the nature of the lawsuit and would not delay the trial of the case, then set for March 25, 1984. The amended complaint was filed on December 16, 1983, and, upon request of defendant UMWA, filed on December 28, 1983, the court, by order dated the same date, granted the defendants until January 10, 1984, to respond to the amended complaint. On that date, an answer was filed which was largely a general denial, although the pleading denied that the court had personal and subject matter jurisdiction in relation to some of the defendants.

In the intervening two months, although the Unions filed multiple pleadings in relation to discovery and a myriad of other issues, including a two-page motion and six-page brief seeking a continuance of the trial from the scheduled March 25, 1984, date, without even requesting leave of the court, they filed, on March 21, 1984, a document which they entitled “Supplemental Answer To The Amended Complaint For Declaratory Judgment and Third-Party Complaint.” This document purported to bring into the lawsuit, without the consent of the court, two third-party defendants, Great Western Enterprises, Inc., and Toltec Coal Company. In addition, they purported, again without the consent of the court, to counterclaim against the plaintiff bringing into the lawsuit for the very first time, almost a year after the case was filed, and five days before the date that the case was then scheduled for trial, issues which totally changed the nature of the lawsuit. Up to this point, it had been a relatively simple (although the file would not bear this out) declaratory judgment action involving the arbitrability of grievances. The new pleading filed by the Unions claimed that Garland, Great Western and Toltec constitute “alter egos with each other, as that term is understood under the federal labor laws,” and sought to have the court determine the Unions’ right “(a) as a contractual obligation, (b) as a statutory obligation under 29 U.S.C. § 158(a)(5), (c) as a constitutional obligation under Article 9, section 42 of the Oklahoma Constitution, and/or (d) as an obligation under a settlement agreement between the Employer and the National Labor Relations Board executed in NLRB Case No. 16-CA-9839.”

Thus, it is obvious from a mere reading of this pleading that not only was it filed without consent of the court or, in fact, even any notice that it was to be filed, more importantly, it drastically and completely changed the nature of the lawsuit and the parties to it. At the time that this pleading was filed, the court, in a telephone conversation, advised the attorneys for the parties that the filing would not be permitted, but, unfortunately, an order was not entered at that time, a fact that was not discovered in all the morass of “papers” generated in this file until the matter was being prepared for trial. In any event, the attorneys for the parties were aware that those issues could not be tried, because of the stay order in the bankruptcy proceeding, even if the counterclaim and third-party complaint had been permitted, so no prejudice resulted from the failure to enter a formal order at the time of the court’s ruling.

In short, there appears to be little question but that the court was correct at the time in ruling that the pleading would not be permitted, and the court now finds that a formal order should be entered dismissing the counterclaim and third-party complaint.

CONCLUSION

In short, as the court indicated, it is doubtful that all of this has accomplished very much. The court specifically finds that there was a controversy for which this court has jurisdiction in respect to the grievances which arose after March 27, 1981, because the Union did, in the past, through word and deed, indicate that it contended that the employer had a contractual duty to arbitrate the grievances. The court has simply ruled that no such contractual duty exists in relation to these grievances. Since the Union now appears to argue that it has never contended that such a contractual obligation exists, but, instead, believes that a duty is imposed by the provisions of the National Labor Relations Act, the parties seem to be very nearly in the same position as they were prior to the court ruling.

In respect to the other grievances, the court simply rules that the request for a declaratory judgment in relation to them will not be granted. Thus, in short, the Union is only precluded from contending that the employer has a contractual obligation to arbitrate the grievances which arose after March 27, 1981. This should not effect the matters pending before the National Labor Relations Board except to the extent that the Union will not be permitted in that forum or any other forum to contend that the obligation to arbitrate is a contractual one. The court urges the parties to discontinue the obviously expensive “piecemeal litigation” of the controversies between them and to either settle their differences by negotiation or by placing “the whole ball of wax” before some body which has the authority and jurisdiction to settle the entire matter.


source: Caselaw Access Project

author: VAN PELT, Senior District Judge.

license: Public Domain

text:
    Wallace GANT, Jr., Plaintiff, v. Edward C. BINDER, Adjutant General, Nebraska Army-Air National Guard; State of Nebraska; Robert Kerrey, Governor of Nebraska; Lloyd Johnson, Brig. General, Chief of Staff NEANG; Richard Bertrand, Colonel and Commander, NEANG; James F. McMurray, Major, Base Services Officer, NEANG; Richard Wade, Executive Support Staff Officer, NEANG; and James F. Bryant, Vincent D. Brown, Robert M. Courtney, Mary J. Kight, Lowell D. Closner, Randolph M. Scott, Kenneth W. Orr, Jerome E. Dickey, Members of the Nebraska Enlisted Selective Retention Appeals Board; individually and in their official capacities, Defendants.
    Civ. No. 83-L-194.
    United States District Court, D. Nebraska.
    Oct. 12, 1984.

      Clyde A. Christian, Christian, Krieger & Swihart, Omaha, Neb., for plaintiff Gant.
    Paul W. Madgett, Asst. U.S. Atty., Omaha, Neb., and Bernard L. Packett, Asst. Atty. Gen., Lincoln, Neb., for defendants Binder, et al.
   MEMORANDUM OPINION

VAN PELT, Senior District Judge.

FINDING OF FACTS

Plaintiff, Wallace Gant, Jr., filed this Complaint in April, 1983, under 42 U.S.C. §§ 1981, 1982, and 1983; 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C. §§ 2000d and 2000e and the Fourteenth Amendment, alleging that this separation from the Nebraska Army-Air National Guard (NEANG) was the result of a discriminatory atmosphere within NEANG and personal discrimination directed toward the plaintiff, specifically by the principal defendants, officers in command of NEANG. Plaintiff is black. He was employed by NEANG as lead recruiter and held the rank of Senior Master Sergeant, E-8. Plaintiff requested relief in the form of temporary and permanent injunctions enjoining defendants from terminating his employment with NEANG and monetary awards for damages, back pay, attorney’s fees and costs.

The principal defendants are the State of Nebraska, and its Governor, Robert Kerrey, in his capacity as commander-in-chief of the Nebraska National Guard; Major General Edward C. Binder, (since retired), Adjutant General of NEANG; Brigadier General Lloyd L. Johnson, Chief of Staff; Colonel Richard E. Bertrand, Commander; Lt. Colonel James F. McMurray, Base Services Officer, and Lt. Colonel Richard Wade, Executive Support Staff Officer. Eight additional defendants were members of the Nebraska Enlisted Selective Retention Appeals Review Board for August, 1982: CM Sgt. James F. Bryant, Lt. Colonel Vincent D. Brown, Lt. Colonel Lowell D. Closner, CM Sgt. Robert M. Courtney, Master Sgt. Jerome E. Dickey, Captain Mary L. Kight, CM Sgt. Kenneth W. Orr, First Lt. Randolph M. Scott.

Prior to October 1, 1981, SMS Gant reported to Lt. Col. McMurray, who in turn as senior recruiter reported to Col. Bertrand. After October 1, 1981, plaintiff reported to Lt. Col. Wade, who reported to BGen. Johnson.

Plaintiff alleges that the acts of discrimination against him commenced in 1975 when he applied for and was denied a lieutenant’s commission in the Air Force. At that point, he had been a member of NEANG since 1970. Despite Sgt. Gant’s low scores on the AFO Qualifying Test, BGen. Johnson did everything he could to promote plaintiff’s commission. However, the denial of this commission arose at the national level and was in part based upon plaintiff’s prior record during his active service in the Air Force. Plaintiff was promoted to E-8, Senior Master Sergeant in 1976, the highest level authorized for the recruiting division in a State National Guard unit. By 1978, SMS Gant was senior recruiter in a supervisory capacity over the recruiting office. However, evidence shows that he was unable to handle this responsibility effectively. He was placed on work probation for 90 days during the summer of 1978. During this probationary period, Col. Bertrand scheduled several counseling meetings with plaintiff in order to help him improve his management of time and personnel. Gant did manage to improve his performance and was removed from probation in September, 1978.

However, sometime during 1979, Gant was relieved of his management duties and MS Brooks (E-7) became supervisor of the recruiting office. This rank inversion was objected to by plaintiff, who filed a discrimination complaint with National Guard Headquarters in Washington, D.C. To eliminate this rank inversion, SMS Gant was shifted to an office at ANG State Headquarters and given the title of Recruiting Liaison NCO with the specific responsibility for minority recruitments. In a letter dated June 3, 1980, by SMS Gant, responding to a verbal discussion with Lt. Col. Wade, plaintiff stated that he “was looking forward to working with you in this new role.” Lt. Col. Wade’s confirmation letter dated June 10, 1980, emphasized that the move was considered to be a step up for Gant and that his responsibilities would not be less — only different.

Gant’s personnel management problems were not yet solved. In September, 1980, Gant engaged in a loud confrontation with another recruiter in front of other staff and civilians. As a result, both Gant and the other recruiter were given reprimands.

Plaintiff maintains that he was an “outstanding recruiter” and that these personnel problems were the result of everyone else’s racial biases. The record reflects a much different picture. From 1979-1982, Plaintiff had consistently recruited less than half the number of recruits of the next lowest recruiter and only one-third to one-fourth the number of the most productive recruiter. A national level recruiting officer, Major Thomas L. Daniels, who had been in charge of minority recruiting nation-wide from 1978-1980 and was chief recruiter from 1980 to 1981, stated that his experience showed a capable lead recruiter should be able to produce about two-thirds the recruits of a full-time production recruiter. In addition to Gant’s poor recruiting record, his reports often contained errors or incomplete information which made it necessary for others to correct them before further processing. As a result of his poor performance, BGen. Johnson recommended that plaintiff “not be retained” when his term of enlistment was due to expire.

Plaintiff’s enlistment term would have expired on January 19, 1983. However, because he was not fully eligible on that date for full retirement benefits based upon total years of active service, his term was extended until April 16, 1983, to give him a total service time of 28 years, one month, and eight days. MGen. Binder testified that he personally, and on his own initiative, requested the extension for SMS Gant from the National Guard Bureau.

Plaintiff’s separation was considered under Air National Guard Regulation 39-06, which originally provided that all senior master sergeants with over 28 years of service were to be reviewed. Paragraph (2)(a)(2). Paragraph (2)(b) allowed Adjutants to adjust downward the number of years of satisfactory service required before separation as might be necessary to accommodate their State’s personnel plan. Pursuant to this option, in January, 1982, MGen. Binder issued an amendment to Paragraph 2(a)(1) and (2) which reduced the years of satisfactory service chief master sergeants and senior master sergeants should serve prior to being reviewed for retention to 26. Separations under 39-06 are to be identified as “other than for cause.” Major Daniels described regulation 39-06 as a management tool to be used to remove personnel who had reached the retirement level based on length of service.

SMS Gant was notified that he would be reviewed by the Selective Retention Board which met in April, 1982, to review all persons whose enlistments expired in 1983. There were a total of 26 individuals who were considered by this board. The Review Board had a summary record of plaintiff’s performance and BGen. Johnson’s recommendation. The Board voted to “non-retain” Gant and he appealed. His appeal was reviewed by the Selective Retention Appeals Review Board consisting of eight of the defendants in August, 1982. There was a white appellant in addition to SMS Gant. Both appellants were denied retention. MGen. Binder affirmed the Board’s decision.

Plaintiff then waited until April, 1983, when he filed his complaint in Federal District Court for the State of Nebraska. A hearing was had in May, 1983, to determine whether or not a preliminary injunction should be granted. In an opinion issued July 22, 1983, the preliminary injunction was denied. A trial on the merits was then had May 7, 1984. This opinion follows.

CONCLUSIONS OF LAW

Jurisdiction

Plaintiff, SMS Gant, has alleged that his non-retention as lead recruiter in the Nebraska Army-Air National Guard was the culmination of a series of discriminatory acts based upon his race. Sgt. Gant is black. Thus, he has met the first hurdle in establishing a case under 42 U.S.C. §§ 1981, 1982, and 1983, and 42 U.S.C. §§ 2000d and 2000e. Defendants argue that this case cannot be brought in Federal District Court under Section 1983 because the action complained of, the non-retention of Gant, was done under the authority of Air National Guard Regulation 39-06, a regulation promulgated by the National Guard Bureau. As a result, the action taken was federal, not state, and only state action is covered by Section 1983.

In addition, defendants contend that this action was not reviewable because it involved the military, not just any federal agency. Absent extraordinary circumstances, courts have been extremely reluctant to review military decision. Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953); Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973). However, in holding that there was no justiciable controversy present in Gilligan, the Supreme Court said,

[I]t should be clear that we neither hold nor imply that the conduct of the National Guard is always beyond judicial review or that there may not be accountability in a judicial forum for violations of law or for specific unlawful conduct by military personnel,____

Gilligan at 11-12, 93 S.Ct. at 2446.

Two exceptions to the no-review-of-military-decisions rule are cases which contain allegations that military procedures violated the constitution or that the military has violated its own regulations. Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971); Evan v. National Guard Bureau, unpublished, Civil No. 82-71970 (ED Mich., March 29, 1983) affm w/o opinion, 732 F.2d 154 (6th Cir.1984).

Racial discrimination, if present, is a serious violation of an individual’s constitutional rights. In addition, plaintiff has alleged violations of his right to Due Process under the Fourteenth Amendment in connection with the procedures followed by NEANG to effect his non-retention and his appeal of that order. The seriousness of these allegations is sufficient to warrant a review of the actions of NEANG on a constitutional basis alone. The military, while entitled to special consideration as a result of its unique position within our government, is not exempt from constitutional mandates. Alvarez v. Wilson, 431 F.Supp. 136, (ND Ill.1977); Bollen v. National Guard Bureau, 449 F.Supp. 343 (WD Penn.1978). Furthermore, this is not a situation in which the Court is asked to review purely military matters of training and strategy as in Gilligan. Plaintiff’s allegations of denial of due process go to the application of the regulations and are in the nature of a request to require the military to abide by the procedures which it set for itself to follow in reviewing personnel reenlistments. Rucker v. Sec. of Army, 702 F.2d 966 (11th Cir.1983); Bluth v. Laird, 435 F.2d 1065 (4th Cir.1970).

Defendants are correct that state action is required to bring a case in federal court under 1983, and that 1983 cannot be invoked to right wrongs which have been committed purely under the authority of Federal law. Williams v. Rogers, 449 F.2d 513 (8th Cir.1971) cert. denied, 405 U.S. 926, 92 S.Ct. 976, 30 L.Ed.2d 799 (1972). The analysis becomes more complex, however, when the entity or individuals alleged to have violated federal rights represent an integration of federal, state, and/or private authority. As to an integration between private action and state action, the United States Supreme Court has said, “[T]he inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity, so that the action of the latter may be fairly treated as that of the State itself.” Jackson v. Metropolitan Edison Company, 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974). Similar tests have been applied by the federal courts to the federal/state action dichotomy. Junior Chamber of Commerce of Rochester, Inc., Rochester N.Y. v. U.S. Jaycees, Tulsa, Okla. 495 F.2d 883, 887-88 (10th Cir.1974), cert. denied 419 U.S. 1026, 95 S.Ct. 505, 42 L.Ed.2d 301 (1974). Thus, Federal Courts, when confronted with somewhat analogous cases brought against state national guard units, have generally found the nexus test, and thus the state action element of Section 1983, to be satisfied. See: NeSmith v. Fulton, 615 F.2d 196 (5th Cir.1980); Rowe v. Tennessee, 609 F.2d 259 (6th Cir.1979); Bollen, supra.

In addition, it has also been held that, because of the historical context of the Fourteenth Amendment and the Civil Rights Acts, a lesser showing of State involvement will be accepted where a case involves allegations of racial discrimination. See: Jackson v. Statler Foundation, 496 F.2d 623 (2d Cir.1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975); Wagner v. Sheltz, 471 F.Supp. 903 (D.Conn.1979).

The fact that Gant’s non-retention was accomplished under the guidance of a federal regulation is not sufficient to shift the balance toward a finding of federal action.

First, one of the named defendants is Robert Kerrey, Governor of Nebraska. As such, he is also the commander-in-chief of the state militia which includes the Nebraska Air National Guard. See: The Constitution of Nebraska, Article IV, Section 14; Neb.Rev.Stat. Section 55-105 (Reissue 1978); Neb.Rev.Stat. Section 55-115 (Reissue 1978).

Second, Defendant General Edward Binder, Adjutant General, Nebraska Army-Air National Guard, was appointed by the Governor and, until his recent retirement, served as a type of state agency head.

Third, the remaining defendants are all members of the NEANG and, as such, are part of the Nebraska militia. Neb.Rev. Stat. Id.

Fourth, the Nebraska Legislature has set up an extensive statutory scheme to organize and regulate the NEANG. Neb.Rev. Stat. Sections 55-101 et seq. (Reissue 1978). Among these statutes is Neb.Rev. Stat. Section 55-102 (Reissue 1978) which gives the Governor the power to adopt rules and regulations promulgated by Congress for the administration and organization of armed forces of the United States as rules and regulations for the operation “of the military forces and militia of the state____” When so adopted, such federal regulations could be considered part of the body of state law.

Finally, ANGR 39-06 appears to be limited in effect in that it presents a statement of policy to guide the state national guard commanders in maintaining a viable force. As pointed out by defendants on page 40 of their post trial brief:

And, it is further obvious that ANGR 39-06 procedures were not intended to usurp the unit commander’s decision in denying reenlistment. As indicated in the purpose of ANGR 39-06, paragraph 1, “Nothing in this regulation in any way restricts the authority of unit commanders to deny reenlistment.” Similarly, in paragraph 2 to the change to ANGR 39-06, message 061900Z, March 1981, “(w)e wish to emphasize that there is no intent to usurp the authority of our unit commanders in the selective retention process.”

Thus, by defendants’ own admission, ANGR 39-06 can be viewed as less than exclusive authority in that it does not divest the officers of the Nebraska militia of any state authority they may hold. This is not the stuff of which federal action is made.

In sum, the Court finds sufficient state involvement in the non-retention of Gant to conclude that this case was properly brought under Section 1983.

Defendants sought a summary judgment based on the existence of absolute or qualified immunity as to defendants Binder, Johnson, Bertrand, McMurray, Wade and the members of the Enlisted Selective Retention Appeals Board. The State of Nebraska and Governor Kerrey were not included in this motion. Defendants further argued that plaintiff was precluded from suing his superior officers because of the Feres Doctrine. Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).

The latest statement of the doctrine is found in Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). In Chappell, the respondents, five enlisted Navy personnel, brought action against their superior officers, seeking damages, declaratory judgment, and injunctive relief alleging that they were discriminated against on the basis of race. The Court noted the need to avoid disrupting the order of military hierarchy and held that “enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations.” Id. at-, 103 S.Ct. at 2367-68 (emphasis added). Implicit in both Feres and Chappell is the notion that a military officer, in making a decision, should not be forced to first hesitate and consider whether his order will subject him to liability. This logic certainly applies to both orders made on the battlefield and in the daily course of military affairs.

However, in the ease at hand, plaintiffs complaint dealt with the administrative process which determined the future of his career at NEANG. The review of such a process is not the type of intrusion into military affairs that Feres and Chappell sought to prevent. Therefore, this Court concludes that Chappell only applies to this case in that it prohibits plaintiff from recovering monetary damages from the named members of NEANG.

In denying the motion for summary judgment, the Court noted that defendants were only entitled to qualified immunity, dependent upon a showing that defendants’ “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). If the plaintiff had demonstrated in the course of the proceedings that defendants’ actions were racially motivated, defendants would not have been able to claim the protection of this immunity. Saldana v. Garza, 684 F.2d 1159 (5th Cir. 1982), cert. denied, 460 U.S. 1012, 103 S.Ct. 1253, 75 L.Ed.2d 481 (1983). In addition, it should be understood that qualified immunity only protects against personal liability and does not extend to injunctive relief.

MERITS

When the Court denied plaintiff’s request for a preliminary injunction, the Court found no evidence that SMS Gant was the victim of racial discrimination, either in the terms and conditions of his employment or in his separation from NEANG. During the trial on the merits of plaintiff’s complaint, he was unable to produce any additional evidence to support his claims.

In order to prove a claim of discriminatory treatment, the plaintiff must prove purposeful discrimination by a preponderance of the evidence. It is up to the defendant to “articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Washington v. Davis, 426 U.S. 229, 239-241, 96 S.Ct. 2040, 2047-48, 48 L.Ed.2d 597 (1976); White v. Vathally, 732 F.2d 1037, 1039-1040 (1st Cir.1984). However, the ultimate burden of persuasion lies with the plaintiff to rebut defendants’ legitimate non-discriminatory reasons for their actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); White at 1040.

Plaintiff first sought to show that the prevailing atmosphere in NEANG was discriminatory to blacks in general and, as a result, to himself specifically. His evidence sought to show that there were few black officers and an under-representation of blacks in the total NEANG population. Plaintiff further tried to establish the discriminatory atmosphere by showing attitudes of hostility towards blacks through the use of racial slurs and jokes by officers and enlisted men.

Gant places a great deal of reliance upon a report made by Major Ivan Kelley, Chief of Social Action, National Guard Bureau, Washington, D.C. In his official capacity, Major Kelley had conducted a compliance review of NEANG in 1979 and a staff assistance visitation in 1981. The compliance review was conducted to determine how well the Social Action Program of the state was progressing and how minorities were being treated. The staff assistance visitation was made at the request of the Adjutant General (Major General Binder) for the purpose of locating weaknesses in the program and recommending improvements.

Major Kelley stated that, while there were still improvements which should be made in 1981, the Nebraska National Guard was much more in compliance by 1981 than in 1979. He went on to say that Nebraska’s compliance level was about average when compared to other states’ programs. Major Kelley admitted that he had interviewed SMS Gant in 1981 about Gant’s complaints of racial discrimination, but denied that these complaints had prompted his visit. The 1981 visit was the result of a request by MGen. Binder, while the 1979 visit had been a routine stop in a series of state visits.

Neither 42 U.S.C. § 1983 nor the Fourteenth Amendment requires an employer to institute an affirmative action program. Burdine at 259, 101 S.Ct. at 1096; Craik v. Minnesota State University Board, 731 F.2d 465, 472 (8th Cir.1984). But, evidence that an employer has failed to live up to an affirmative action plan is relevant to the question of discriminatory intent. Craik at 472.

During the period about which plaintiff is complaining, NEANG had been undergoing some major adjustments in its management, and the main focus of the recruiting program was not on increasing minorities until 1981. Col. Bertrand testified that when he first arrived in Nebraska in 1976, NEANG was in serious trouble, having failed several national inspections. He found hostility and lack of cooperation between sections and, as a result, declining strength in technical areas. His first priority was to restore teamwork in order to pass an impending inspection. The next priority was to begin a recruiting program to rebuild personnel strength in critical, technical areas. At this time, Sgt. Gant was the only recruiter and should have played a key role in the rebuilding process. However, a number of recruiters hired while plaintiff was responsible for the management of the recruiting office only stayed for short periods. Col. Bertrand had several counseling sessions with plaintiff, but eventually had to place another person in charge of the recruiting office. This individual held an E-7 rank which caused Sgt. Gant to send his complaint about the rank inversion to National Headquarters, claiming it was motivated by race discrimination. This complaint did cause Major Daniels to send a two-man team to check the situation. On the basis of their report, he expressed concern about the rank inversion, but did not consider it the result of any form of racial discrimination. The fact of the matter was, Sgt. Brooks was a better manager than the plaintiff and got along better with the rest of the staff. No recruiters have left since 1979 when Sgt. Brooks replaced plaintiff as supervisor.

Only after the manpower crisis was stabilized was an affirmative action plan actively pursued. A plan was received from the National Guard Bureau in October, 1981, and MGen. Binder immediately encouraged its implementation. Captain Ronald Martin, Chief of Social Actions, testified that the initial goal of the Affirmative Action Program was to have a minority population in NEANG at least equal to that of the general population within a 50-mile radius of state headquarters. This radius includes Lincoln and Omaha which have the highest population of blacks in Nebraska. Defendants’ evidence showed that by 1983 the total population in this area based on the 1980 census was 96.7 percent white, 1.6 percent black, and 1.8 percent other racial minorities. The population of NEANG personnel was comprised of 96.3 percent white, 3.89 percent black, and 1.6 percent other. Figures for the composition of the officers showed 96.3 percent white and 2.94 percent black. This can be compared to a 1975 survey which showed no black officers and a total personnel population of 97.22 percent white, and 2.57 percent black. It is clear that the present population of NEANG reflects the population of the target area and represents a reasonable distribution of blacks among officers and enlisted personnel. The encouragement Lt. Col. Wade gave plaintiff, to focus his recruiting skills in the black areas of Omaha, also supports the defendants’ positive approach to affirmative action. In addition, an organizational climate survey prepared by the Air Force Manpower and Personnel Center, Randolph AFB, Texas, was taken of NEANG personnel in 1981. The survey results showed that 40 percent of the black personnel compared to only 12 percent of the white, strongly agreed that the management and supervisors respected them as individuals. NEANG black personnel rated their overall job satisfaction at 20.6 (28 highest possible rating). This compares most favorably with a national Air Force average rating by blacks placing their job satisfaction at 17.63.

Plaintiff’s reliance on the “Kelley Report” of 1981 to demonstrate a discriminatory atmosphere is similarly misplaced. Major Kelley’s figures were based upon the 1970 census and he was unaware of the black officers presently serving. Even so, Major Kelley found the racial atmosphere of NEANG had improved between 1979 and 1981. He did not find any discrimination directed toward plaintiff personally.

Plaintiff further tried to demonstrate an invidiously discriminating atmosphere by presenting evidence of racial slurs and derogatory comments. He was able to point to only three incidents which occurred at widely spaced intervals and involved three different individuals. In only one of these situations was the comment directed at the plaintiff personally. In that instance, the term “jokers” or “clowns” was used and included plaintiff and another individual. The term, while not respectful, is not an obvious racial slur and was used by the speaker in a casual, teasing manner. Neither of the two clearly racially derogatory comments were uttered in the presence of the plaintiff. In both of these instances, the officers who made the comments issued public apologies.

While it is clearly possible for derogatory comments to be so pervasive and opprobrious or threatening as to constitute an unlawful employment practice, Taylor v. Jones, 653 F.2d 1193 (8th Cir.1981), it is also apparent that the level of racially oriented comments in the present situation was neither pervasive nor so derogatory as to rise to the level necessary to constitute a violation of plaintiff’s right to a non-discriminatory work environment. See: Cariddi v. Kansas City Chiefs Football Club, 568 F.2d 87, 88 (8th Cir.1977); Bundy v. Jackson, 641 F.2d 934, 944 (DC Cir.1981).

Nor are plaintiff’s complaints of personally directed discriminatory actions any stronger. SMS Gant’s efforts to obtain an officer’s commission in 1974 were encouraged and supported by the NEANG command. The commission was denied at the national level and based on information not known to the defendants. Even assuming his discrimination complaint was valid at the time, the incident is too old to be used to support plaintiff’s present case. Nebr. Rev.Stat. 25-219 (Reissue 1979), places a three-year statute of limitations on actions brought under federal statutes which do not specify a time limit. See: Chambers v. Omaha Public School Dist., 536 F.2d 222 (8th Cir.1976).

Plaintiff alleges that TAG-NE Supp. 1 (1982) was promulgated by MGen. Binder for the sole discriminatory purpose of removing plaintiff from his position as lead recruiter from NEANG.

The retention process is based on regulations and policy set down by the Department of the United States Air Force through its National Guard Bureau. Each state guard unit is allocated a specific size of membership and specific ranks to be filled. A low-ranking member, despite the quality of his performance, cannot advance if the upper ranks are already filled. In order to maintain force vitality, the National Guard Bureau established a policy of reviewing enlisted personnel for retention after they have completed a specific number of years of service.

Defendants maintain that NEANG is now 100 percent staffed. Many of these individuals are long term personnel, and, in order to promote younger, competent individuals, these long term people must be removed by attrition. TAG-NE Supp. 1 was issued to increase upward mobility by decreasing the number of years of service required before mandatory review. The regulation itself provides for this contingency. ANG Reg. 39-06(2)(b). In addition, the regulation provides that it “in no way restricts the authority of unit commanders to deny reenlistment or extension of enlistment.” ANG Reg. 39-06(1).

MGen. Binder testified that he felt it was necessary to lower from 28 to 26 the years of satisfactory service required before review of chief master sergeants and senior master sergeants in order to encourage the retention and promotion of capable, younger individuals. TAG-NE Supp. 1 was issued for the purpose of maintaining the vitality and high skill level of NEANG which had been rebuilt since 1976. As in all situations of this kind, there is always someone going to be caught by a policy change. Plaintiff happened to be one such person.

However, plaintiff has advanced no evidence to rebut defendants’ argument that this regulation change was anything other than a legitimate move on the part of NEANG command to continue their efforts to upgrade the quality of the Nebraska National Guard. This “up and out” principle has been upheld numerous times as one of those functions necessary for senior officers to exercise in the proper management of their commands. See: Tennessee v. Dunlap, 426 U.S. 312, 96 S.Ct. 2099, 48 L.Ed.2d 660 (1975); Pauls v. Sec. of Air Force, 457 F.2d 294 (1st Cir.1972); Turner v. Egan, 358 F.Supp. 560, 564 (D.Ala.1973) aff. 414 U.S. 1105, 94 S.Ct. 831, 38 L.Ed.2d 733 (1973); NeSmith v. Fulton, 443 F.Supp. 411 (MD GA 1978) aff. 615 F.2d 196 (5th Cir.1980); Lane v. Sec. of Army, 504 F.Supp. 39 (DCMD 1980) aff. w/o opinion 639 F.2d 780 (4th Cir.1980); Graham v. 3 or More Members of the 6 Member Army Reserve Gen. Officer Selection Bd. 556 F.Supp. 669 (SD Tex.1983).

The next issue is Gant’s claim that he was denied due process by the retention boards. Specifically, plaintiff claims that the retention process was constitutionally infirm in that he was not provided with reasons for his non-retention or separation from the NEANG. Plaintiff goes on to state that his efforts to appeal the decisions of the Selective Retention Board, as affirmed by the Appeals Board and MGen. Binder, were frustrated by this failure of the defendant to specify a reason for his non-retention. Thus, plaintiff concludes he was denied a fair appeal hearing since he was unable to counter the recommendation to not retain him due to lack of appropriate information.

Gant possesses no interest protected by due process in the continuation of his job with NEANG. “[Njational Guard officers and enlisted men do not have an interest protected by the due process clause.” MacFarlane v. Grasso, 696 F.2d 217, 222 (2nd Cir.1982). Procedural due process requirements apply only where there has been a deprivation of a liberty or property interest protected by the Fourteenth Amendment. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In order for an individual to have a property interest in a government position, he must have more than a unilateral expectation; he must have a legitimate claim of entitlement to it. Id. at 577, 92 S.Ct. at 2709. An entitlement arises from a specific source, the terms of the contract, a statute or regulation governing the position sought, well established procedures, etc. The applicable ANG regulations are definite in rejecting such a claim: “Nothing in this regulation ... in any way restricts the authority of unit commanders to deny reenlistment or extension of enlistment.” ANG Reg. 39-06(1). Gant has no property right in continued military employment. See: Sims v. Fox, 505 F.2d 857, 861-862 (5th Cir.1974), cert. denied 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 678 (1975); MacFarlane at 222; Walker v. Alexander, 569 F.2d 291, 293-294 (5th Cir.1978); Lane at 42.

Furthermore, it is well established that there is no right to enlist in this country’s armed forces. West v. Brown, 558 F.2d 757 (5th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 520 (1978); Lindenau v. Alexander, 663 F.2d 68, 72 (10th Cir.1981); Nieszner v. Mark, 684 F.2d 562 (8th Cir.1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1273, 75 L.Ed.2d 494, sub. nom. Nieszner v. Orr. This principle also applies to reenlistment. The fact that a soldier might be able to reenlist does not, by itself, create a protected expectation or entitlement. “Decisions to reenlist more properly fall within the categories of ‘at will’ decisions as opposed to terminations ‘for cause’.” Williams v. United States, 541 F.Supp. 1187, 1192 (ED NC, 1982), and, in fact, ANG Reg 39-06(2)(b) specifically states that separations under this regulation “will be identified as ‘other than for cause’.” As such, considering that no due process interest is triggered, military decisions not to reenlist a soldier are considered beyond the scope of judicial review. NeSmith, 443 F.Supp. at 413.

“[T]he forced retirement after 27 years of service under honorable conditions is a situation easily distinguished from outright discharge before 20 years of service have been accrued or in cases where the discharge is less than honorable. Had either of these two variables been involved, plaintiff’s case for review might well have had greater convincing force.” Turner at 563.

As with the plaintiff in Turner, Sgt. Gant was accorded all the due process to which he was entitled. Gant’s term of service was extended from January to April expressly to qualify him for full retirement benefits, and he was given an honorable discharge. Simple denial of reenlistment carries no stigma which might act to foreclose any future job opportunities or impair his status in the community. The procedure followed by the Selective Retention Board is set out in ANG Reg 39-06. Persons to be reviewed may submit letters to the board “inviting attention to any matter of record that they feel is important in the review of their record.” ANG Reg. 39-06(6)(c)(l). Gant was so notified and he did respond. The Board had before it an abbreviated version of Gant’s record and the recommendation of the Unit commander. There is no provision in these regulations that reasons be given to the reviewee as to how or why the Board arrived at its final recommendation.

Similar complaints were raised by plaintiffs in Graham at 669 and O’Mara v. Zebrowski, 447 F.2d 1085 (3rd Cir.1971). Graham had been denied a promotion and O’Mara had been ordered to active duty from his reserve status to satisfy a Ready Reserve Service obligation. In both situations, the courts found the applicable regulations adequately provided for due process where the reviewing boards satisfied the procedure set forth in the regulation. So too in the present case, the testimony demonstrates that both the Selective Retention Board and the Appeals Board met the requirements of ANG 39-06.

Therefore, it is apparent that Gant was not denied due process by the failure of the board to state explicit reasons for his non-retention. Furthermore, there was testimony revealing that the final authority for retention decisions is with the unit commander and that the purpose of the review by the Selective Retention Board is to ensure that guard members are not separated before their retirement interests vest.

As pointed out in O’Mara:

[T]he procedure of [the regulations] unquestionably could be improved. Determinations of a rather summary character which substantially affect individuals are, however, an every day occurrence in the military. It is not our func-' tion to decide what is best for enlisted reservists ____ Given the factual context in which this procedure operates, and the presumption of constitutionality that attaches to this statutorily authorized procedure, we are unable to conclude that the procedure is constitutionally defective.

O’Mara at 1090.

Plaintiff further claims that his right to due process was also violated because NEANG used the wrong regulation as a basis for his removal, if, in fact, the reason for his non-retention was actually due to his poor performance record. He notes that ANG Reg. 39-06(2)(b), states that “Any separations resulting from application of this regulation will be identified as ‘other than for cause.’ ” He argues that separations based upon poor performance cannot be achieved under this regulation and claims such separations must instead be sought under ANG Reg. 33-02 which provides a process to remove poor performing recruiters.

The Court concludes that Gant reads too much into ANG Reg. 39-06. The language he relies upon is simply meant to ensure that a stigma of non-performance or misbehavior is not attached to non-retention. The regulation is meant to protect the guard member but is not intended to limit the type of situation in which a guard member may be denied reenlistment. ANG Reg. 33-02, on the other hand, is a more drastic method meant to allow the removal of a non-performing guard member before s/he has completed his/her term of enlistment. ANG Reg. 33-02 termination carries a stigma. Therefore, such terminations require the application of the normal rules of due process. See: Rucker at 941; Neal v. Secretary of Navy, 639 F.2d 1029 (3rd Cir.1981).

In his fourth claim, Gant argues that the supplement, TAG-NE Supplement 1, which amended ANG Reg. 39-06 by lowering the years of service required before a senior master sergeant can be reviewed by the retention board, is void' for vagueness. The Court finds no merit in this contention. As mentioned above, ANG Reg. 39-06 gives adjutant generals the authority to “adjust downward the number of years of satisfactory service to accommodate their individual State’s personnel plan.” The amendment of January 15, 1982, is perfectly clear and within MGen. Binder’s authority.

After hearing all the evidence in this case and reviewing the applicable law, the Court finds that plaintiff, Wallace Gant, Jr., has advanced no compelling proof that he was discriminated against on the basis of his race, nor was he denied any due process by the procedure utilized to deny his request for reenlistment in the Nebraska Army-Air National Guard.

Plaintiff’s request for a permanent injunction is denied.


author: KANE, District Judge.

text:
    James P. JOHNSON, as Equity Receiver for the Chilcott Futures Fund, Plaintiff, v. Alan R. MILLER and Alan R. Miller, P.C., Defendants.
    Civ. A. No. 84-K-961.
    United States District Court, D. Colorado.
    Oct. 12, 1984.

      Kenneth C. Groves, Denver, Colo., Rodney R. Patula, Elaine A. Menter, Friedrick C. Haines, Pryor, Carney & Johnson, P.C., Englewood, Colo., for plaintiff.
    Gary E. Parish, R. Daniel Scheid, Pop-ham, Haik, Schnobrich, Kaufman & Doty, Ltd., Denver, Colo., for defendants.
   MEMORANDUM OPINION AND ORDER

KANE, District Judge.

This case arises out of the illicit financial activities conducted by Thomas D. Chilcott from the mid-1970’s through June 1981. Many of Chilcott’s investment schemes were conducted through an entity called Chilcott Futures Fund. The plaintiff, Johnson, now represents the fund. Chilcott’s activities relating to the fund have been detailed in several opinions in related cases and need not be repeated here. See Commodity Futures Trading Comm’n v. Chilcott Portfolio Management, Inc., No. 81-F-99, Slip Op. (D.Colo. August 30, 1982) (Finesilver, J.), affd in part and rev’d in part, 713 F.2d 1477 (10th Cir.1983); Johnson v. Chilcott, 590 F.Supp. 204 (D.Colo. 1984) (Carrigan, J.); Niagra Fire Insurance v. Johnson,.No. 84-A-746, Slip Op. (D.Colo. August 2, 1984) (Arraj, J.).

Johnson’s claims arise out of alleged negligence, legal malpractice and breach of fiduciary duty committed by Miller and his firm during 1980 and 1981 in the representation of the Chilcott Futures Fund and its predecessor in interest. Johnson was appointed receiver for the Chilcott Futures Fund by Chief Judge Finesilver in the course of his presiding over the primary suit involving the activities of Chilcott. See Commodity Futures Trading Comm’n v. Chilcott Portfolio Management Inc., No. 81-F-999, Slip Op’s. (D.Colo. June 25,1981 and March 29,1982).

The case is now before me on defendants’ motion to dismiss pursuant to Rule 12(b) Fed.R.Civ.P. Miller argues that the case should be dismissed because of the absence of subject matter jurisdiction and standing on the part of Johnson and for failure to state a claim upon which relief can be granted. Alternatively, Miller seeks a more definite statement of the specific acts of conduct upon which Johnson’s claims rest.

JURISDICTION

The claims asserted here are all based upon state law. There are no federal issues to confer jurisdiction upon this court. If the case were tried before Chief Judge Finesilver, jurisdiction could be ancillary to the principal suit in which the receiver was appointed. There are, however, no federal claims before me upon which jurisdiction can be pegged. The appointment of an equity receiver in one federal court does not necessarily imbue that receiver with jurisdiction to pursue all actions in other federal courts. A federal court’s jurisdiction is not general but is specifically circumscribed by the dictates of the Constitution and the Congress. See generally United States v. Franklin National Bank, 512 F.2d 245 (2d Cir.1975). I do not retain jurisdiction based upon 28 U.S.C. § 1331 or ancillary to jurisdiction in other courts.

I do, however, retain jurisdiction over this suit because of the diversity of citizenship of the parties and the amount in controversy exceeding ten thousand dollars. 28 U.S.C. § 1332. Miller is a citizen of Michigan and Johnson is a citizen of Colorado. Case law clearly provides that the citizenship of the equity receiver governs for determining diversity jurisdiction. See Federal Deposit Ins. Corp. v. Sumner Financial Corp., 602 F.2d 670, 677 n. 10 (5th Cir.1979).

STANDING

Standing to assert a claim in this, or any other, federal court is constrained by constitutional and prudential dictates to insure that federal courts do not exceed their proper limited role in a democratic society. In this way issues presented before federal courts are sharply defined for judicial resolution. Courts will not intrude into the province of another branch of government. See generally Warth v. Seldin, 422 U.S. 490, 498-502, 95 S.Ct. 2197, 2204-07, 45 L.Ed.2d 343 (1975). While standing does not depend upon the merits of the plaintiff’s case, “it often turns on the nature and source of the claim asserted.” Id. 422 U.S. at 500, 95 S.Ct. at 2206. As with other motions to dismiss, with a motion to dismiss for lack of standing I must accept as true all the material allegations of the complaint and construe that complaint in favor of the plaintiff. If necessary, however, I may require the plaintiff to supply further particularized allegations of fact which support his claim of standing. Id. at 501-502, 95 S.Ct. at 2206-2207.

The Tenth Circuit has examined Johnson’s standing in review of Chief Judge Finesilver’s order staying all other suits against various securities brokerage firms also being sued by the receiver. Commodity Futures Trading Comm’n v. Chilcott Portfolio Management, Inc., 713 F.2d 1477 (10th Cir.1983). The court of appeals held that Johnson had standing to seek the injunctive orders in that action, but might not have standing to pursue other ancillary suits such as this. The court left such factual inquiry to the discretion of the trial judge. The court thus stated:

In sum, we sustain the rulings of the District Court that, on the initial showing by the pleadings and exhibits, the Receiver had the capacity to bring the Receiver’s action and was the proper real party in interest to bring that suit. We do not, however, reach or decide the standing question, with its special considerations, which was not decided by the District Court. That question will remain for consideration by Judge Carrigan in the Receiver’s action and by other Judges presiding in other suits brought by the Receiver.!! ... [I]n those actions brought by the Receiver, if evidence produced does not support the capacity to sue and the real party in interest rulings, they may be redetermined in those actions.

Id. at 1483.

The court of appeals delimited the factual inquiry concerning standing to two questions: does the receiver have the capacity to initiate this action and is the receiver the real party in interest to maintain the suit. The first question requires an examination of whether the Chilcott Futures Fund which Johnson represents ever legally existed as an entity capable of bringing suit and whether the claims asserted by the Fund are really those of the Fund or those of investors properly asserted by the investors individually on their own behalf.

I find that the Chilcott Futures Fund is an entity capable of bringing this lawsuit. My inquiry does not start from a tabula rasa. The Tenth Circuit examined both aspects of the first standing question and I must follow the dictates of the court of appeals unless the facts in this case materially differ from the case involving the stay. There are no material differences. Although the claims herein are asserted under state rather than federal law, I find no basis to differ with the Tenth Circuit’s judgment that the Chilcott Futures Fund was “an unincorporated association which may sue for the purpose of enforcing for itself substantive rights____” Id. at 1482. Alternatively, the Tenth Circuit held that the Chilcott Futures Fund was a commodity pool cognizable as a separate legal entity. Id. This interpretation could also apply here. Moreover, interpreting the facts in the light most favorable to Johnson, the Fund can be viewed as a partnership under Colorado law.

As to the second attribute of the receiver’s capacity to bring this suit, Miller argues that Johnson is really asserting claims of investors, not of the fund, which would preclude Johnson’s standing under Caplin v. Marine Midland Grace Trust Co., 406 U.S. 416, 92 S.Ct. 1678, 32 L.Ed.2d 195 (1972). Judge Carrigan dismissed Johnson’s claims of fraud under the Commodity Exchange Act and the Securities Exchange Act of 1934 based upon the logic of Caplin. Judge Carrigan held that while the alleged actions may show a fraud upon individual investors such actions did not show damage to the Fund. If anything Chilcott’s fraudulent activities benefited the Fund. Thus under Caplin, the Fund was not an entity damaged by Chilcott’s fraudulent behavior. The Fund was thus without standing to assert the fraud claims. See Johnson v. Chilcott, 590 F.Supp. 204 at pp. 207-210 (D.Colo.1984) (Carrigan, J.).

Judge Carrigan did, however, recognize that under Caplin, the receiver could still assert claims which belong to the Fund as a corporate entity and not to individual investors. Id. at p. 210. Here, as in the case before the court of appeals, the allegations suggest wrongs committed against the Fund as an entity distinct from individual investors. Commodity Futures Trading Comm’n, 713 F.2d at 1482. Johnson alleges damages to the Fund arising out of Miller’s improper behavior in his representation of the Fund. This case does not deal with the legal representation of individual investors. Thus, the Fund is, in this context, an entity distinct from investors and capable of bringing suit in this court.

Examination of the second question in the standing inquiry requires analysis different from that undertaken by the court of appeals. Resolution of this question depends upon the particular facts underlying the claims. Nevertheless, I find that the plaintiff is a real party in interest who possesses standing. Miller argues that he represented only Chilcott and not the Fund. Thus, Miller asserts that he owed no duty to the Fund and any claims for malpractice could be asserted only by Chilcott. Miller points to the letter which he sent to Chilcott acknowledging his retainer as evidence of his exclusive representation of Chilcott. Yet, under Colorado law a contract creating an attorney client relationship between Miller and the Fund need not be express but can be implied from the conduct of the parties. See People v. Razatos, 636 P.2d 666, 671 (Colo. 1981), appeal dismissed, 455 U.S. 930, 102 S.Ct. 1415, 71 L.Ed.2d 639 (1982). Johnson argues that Chilcott’s testimony in a deposition and Miller’s own billing format indicate that Miller represented both Chilcott and the Fund. See Plaintiff’s Memorandum in Opposition to Motion to Dismiss or, in the Alternative, for More Definite Statement, filed August 1, 1984, exhibit 6 at pp. 104-5 and exhibit 4. Evaluating the facts in the light most favorable to the plaintiff, I find that Miller did represent the Fund. Thus the Fund through Johnson is a real party in interest with standing.

MOTION FOR SUMMARY JUDGMENT

Although Miller argues that Johnson’s claim should be dismissed for failure to state a claim upon which relief can be granted, both parties rely upon factual information outside the pleadings. The motion will be treated as one for summary judgment and disposed of pursuant to Rule 56, Fed.R.Civ.P. As with the determination of standing, pleadings and factual inferences tending to show issues of material fact should be viewed in the light most favorable to the party opposing summary judgment. Unless the moving party can demonstrate its entitlement beyond a reasonable doubt, summary judgment must be denied. See Norton v. Liddel, 620 F.2d 1375, 1381 (10th Cir.1980).

As grounds for his motion for summary judgment, Miller argues that he owed no duty as an attorney to the Fund, that his actions did not proximately cause any loss to the Fund, and that damages are so speculative as to preclude judgment. As discussed above, Johnson has adequately demonstrated that Miller was acting as attorney for the Fund so as to overcome the motion for summary judgment. The other elements of the motion for summary judgment require further elaboration.

Miller argues that any dissipation of Fund assets were caused by the actions of Chilcott and did not in any way involve Miller’s legal representation. Thus, Miller claims that Chilcott’s actions were superseding causes of the Fund’s injuries. As an attorney, Miller’s duty to his client may have entailed anticipating Chilcott’s illicit plans and giving the Fund adequate warnings of Chilcott’s actions or structuring the legal activities of the Fund in such a way as to prevent Chilcott’s actions from dissipating the Fund’s resources. Miller fails to demonstrate that his actions were free from causing the plaintiff’s loss so as to sustain a motion for summary judgment. See Ekberg v. Greene, 196 Colo. 494, 588 P.2d 375, 377 (1978); Bonhiver v. Graff, 311 Minn. 111, 248 N.W.2d 291, 301-04 (1976) ; Central Alarm of Tucson v. Ganem, 116 Ariz. 74, 567 P.2d 1203, 1206 (1977) ; W. Prosser, Handbook of the Law of Torts, § 44 at pp. 274-75 (4th Ed.1971).

Finally, Miller argues that the damages in this case are so speculative as to preclude recovery. The case authority relied upon by Miller does not stand for this proposition. See Lee v. Durango Music Co., 144 Colo. 270, 278, 355 P.2d 1083, 1087 (1960); Carriage Bags, Ltd. v. Aerolinas Argentinas, 521 F.Supp. 1363, 1367 (D.Colo.1981). Rather, Colorado law provides that uncertainty as to the amount of damages does not bar recovery so long as the existence of damage is factually established. See Peterson v. Colorado Potato Flake & Mfg. Co., 164 Colo. 304, 435 P.2d 237, 239 (1967); Great West Food Packers v. Longmont Foods Co., 636 P.2d 1331, 1333 (Colo.App.1981).

MORE DEFINITE STATEMENT

In the alternative, Miller argues that the plaintiff need plead allegations of duty, breach and resulting damages with particularity. In support of this motion for a more definite statement he alludes to the Rule 9(b) Fed.R.Civ.P. requirement that fraud be pled with particularity. Miller cites no authority in support of this proposition. Miller gives no reason to abandon the general rule of notice pleading. Plaintiff alleges no fraud or other special matter within the ambit of Rule 9. Defendants, in fact, argue that “there are no allegations of fraud or malice ... in the Complaint.” Memorandum Brief in Support of Motion to Dismiss or For a More Particular Statement, filed July 17, 1984 at p. 10. There is no basis to support defendants’ motion for a more particular statement.

IT IS THEREFORE ORDERED that:

1. Defendants’ motion to dismiss for lack of subject matter jurisdiction is denied;

2. Defendants' motion to dismiss for lack of standing is denied;

3. Defendants’ motion to dismiss for failure to state a claim upon which relief can be granted or motion for summary judgment is denied;

4. Defendants’ motion for a more particular statement is denied;

5. The stay on discovery is withdrawn; and

6. Defendants shall have fifteen (15) days from the date of this order in which to file an answer.

      . Defendants have requested that this matter be set for oral argument and that a magistrate be appointed for the purpose of determining whether an evidentiary hearing on the matters herein would be appropriate. The parties have extensively briefed all of the issues and I find that oral argument would not add to the deliniation of the issues. Because the standard for review of standing issues set in Warth v. Seldin, 422 U.S. at 501-02, 95 S.Ct. at 2206-07, requires that the complaint be construed in favor of the plaintiff, I find that a hearing to evaluate the evidence would be superfluous. The Supreme Court did recognize that it might at times be appropriate to,
      require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiffs standing.

        Id. at 501, 95 S.Ct. at 2206. As I have noted, however, the plaintiffs allegations sufficiently allege facts to support a finding that he has standing.

      . Judge Carrigan was faced with standing questions similar to those herein in Johnson v. Chilcott, Case No. 82-C-889. Without conducting separate evidentiary hearings, he dismissed some of the claims for lack of standing by an order dated July 10, 1984. On other issues of standing he held evidentiary hearings and an order is pending. Defendants argue that Judge Carrigan’s ruling following the evidentiary hearings might have collateral estoppel effect. This argument is premature.