author: HOLDEN, Senior District Judge.

text:
    Elizabeth DERBY v. TOWN OF HARTFORD.
    Civ. No. 83-107.
    United States District Court, D. Vermont.
    Nov. 20, 1984.
    Elliot M. Burg, South Royalton Legal Clinic, South Royalton, Vt., for plaintiff.
    Anthony B. Lamb, Paul, Frank & Collins, Inc., Burlington, Vt., for defendant.
   MEMORANDUM OF DECISION

HOLDEN, Senior District Judge.

The plaintiff, Elizabeth Derby, has released her claim for compensatory damages but continues her action against the defendant, Town of Hartford, Vermont, pursuant to 42 U.S.C. § 1983 (“Section 1983”) seeking a declaratory judgment that the Town of Hartford’s loitering ordinance is unconstitutional both on its face and as applied to the plaintiff.

Both sides have moved for summary judgment on the constitutionality of the ordinance. For the reasons which follow, the court grants the plaintiff’s motion for summary judgment. The defendant’s motion for summary judgment must be denied.

Background Facts

On May 18, 1982, the Town of Hartford’s Board of Selectmen enacted a loitering ordinance, which is reproduced in the margin.

It appears in the record that the Hartford ordinance was enacted to combat the problem of people “lingering” in front of downtown business establishments, causing store owners to complain. Deposition of Ralph W. Lehman, Town Manager, at 4-5. Police officers deposed in connection with this litigation reported complaints voiced by downtown merchants of abusive language, blocked sidewalks and scuffling, obscene language and littering, drug use, and loud music after dark. Deposition of Michael Griffis, at 3-4; deposition of Henry Dupuis, at 7; deposition of Stephen Mairs, at 3. Yet the appearance, of the troublemakers was of concern of the Selectmen as well.

An attempt to relocate these “lingerers” was unsuccessful, and complaints continued to mount. Finally, the challenged ordinance was adopted, aimed at the people that the downtown merchants disliked. Deposition of Jerome Gunsalus, at 56.

On the night of July 13, 1982, plaintiff left her apartment in White River Junction, Vermont to take a walk. Her doctor had recommended that she walk frequently as therapy for a health condition. On her walks, plaintiff would often stop to rest on account of shortness of breath and pain stemming from a hip injury. Early in the morning on July 14, 1982, plaintiff was resting on the steps of the First Interstate Bank in White River Junction.

Hartford Police Officer Jerome Gunsalus observed the plaintiff as she sat on the bank’s steps. The officer considered the plaintiff to be violating the law because “[s]he remained in one place, was what she was doing. That constituted loitering.” Deposition of Jerome Gunsalus, at 20. When Officer Gunsalus instructed the plaintiff to move on, she refused. At this point, Gunsalus radioed his shift supervisor, Sergeant Rielly. On his arrival, Officer Rielly warned plaintiff that “if she didn’t move along she would be cited for loitering.” Id. at 21. Again, plaintiff refused to move and was taken to the local police station. Id. at 21-22.

At defendant’s police station, plaintiff was booked for loitering and was issued a citation. Subsequently, the charges against plaintiff were dropped by order of the Hartford Police Chief Guarino because the 60-day waiting period had not passed before the ordinance became effective. Upon being advised that the citation was defective, Officer Gunsalus went to the plaintiff’s residence, retrieved the citation and destroyed it. Id. at 39.

Discussion

Subject Matter Jurisdiction

Although neither party questions the court’s jurisdiction to grant declaratory relief concerning the constitutionality of a local, ordinance in the face of a stipulation of dismissal of plaintiff’s claim for money damages, it is the court’s duty to determine whether subject matter jurisdiction exists. City of Kenosha v. Bruno, 412 U.S. 507, 511, 93 S.Ct. 2222, 2225, 37 L.Ed.2d 109 (1973), citing Louisville & Nashville Railroad Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908).

Plaintiff brings this action pursuant to 42 U.S.C. § 1983, which provides a remedy in law or equity for deprivations of “any rights, privileges, or immunities secured by the Constitution and laws.” In 1978, the United States Supreme Court held that local governing bodies can be sued directly under Section 1983 for monetary, declaratory, or injunctive relief where “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” Monell v. Department of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978).

Pursuant to Article III of the U.S. Constitution, the jurisdictional issue to be decided is whether an actual case or controversy exists sufficient to confer subject matter jurisdiction on this court. More specifically, the issue is whether a genuine threat of enforcement exists under the loitering ordinance in question. The court finds some guidance in the case of Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). There, the complainant and others were warned to stop distributing handbills on the sidewalk of a shopping center protesting American involvement in Vietnam. The complainant departed to avoid arrest. However, his companion continued and was arrested and charged with criminal trespass. The plaintiff and others instituted suit under Section 1983 for declaratory and injunctive relief claiming that Georgia’s criminal trespass statute was being applied in violation of their constitutional rights. The district court dismissed the action finding no actual controversy. The United States Court of Appeals for the Fifth Circuit affirmed.

The Supreme Court reversed and remanded, holding that the case did present an actual controversy under Article III of the Constitution and under the Federal Declaratory Judgment Act. The Court found that the alleged threats of prosecution were not imaginary or speculative and that petitioner was not required to expose himself to actual arrest or prosecution in order to present a constitutional challenge to an enactment which he contends deters the exercise of his constitutional rights. Steffel v. Thompson, supra, 415 U.S. at 458-460, 94 S.Ct. at 1215-16. The Court remanded the case for consideration of whether the controversy remained substantial in light of the country’s reduced involvement in the Vietnam War, which had been the target of the petitioners’ handbills.

The Court’s concluding statements are instructive:

The solitary individual who suffers a deprivation of his constitutional rights is no less deserving of redress than one who suffers together with others.
We therefore hold that, regardless of whether injunctive relief may be appropriate, federal declaratory relief is not precluded when no state prosecution is pending and a federal plaintiff demonstrates a genuine threat of enforcement of a disputed state criminal statute, whether an attack is made on the constitutionality of the statute on its face or as applied.

Id. at 474-75, 94 S.Ct. at 1223-24 (footnotes omitted). See also Ellis v. Dyson, 421 U.S. 426, 434, 95 S.Ct. 1691, 1696, 44 L.Ed.2d 274 (1975) (“A genuine threat must be demonstrated if a case or controversy, within the meaning of Art. Ill of the Constitution and of the Declaratory Judgment Act, may be said to exist”).

The United States Supreme Court'has frequently reiterated the basic test for determining the existence of an actual controversy sufficient to support the exercise of federal jurisdiction.

Basically, the question in each case is whether ... there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.

Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941). See also Lake Carriers’ Assn. v. MacMullan, 406 U.S. 498, 506, 92 S.Ct. 1749, 1755, 32 L.Ed.2d 257 (1972); Evers v. Dwyer, 358 U.S. 202, 203, 79 S.Ct. 178, 179, 3 L.Ed.2d 222 (1958) (per curiam).

Applying these principles to the Derby case leads to the conclusion that the court has jurisdiction to reach the merits of the plaintiff’s complaint for declaratory relief. Plaintiff’s affidavit in support of summary judgment states that since her arrest, she has been afraid to go out for walks for fear of being arrested or harassed by the police. Affidavit of Elizabeth Derby, at 1. The plaintiff asserts that she takes fewer walks, does not walk after dark, moves on if an officer comes by when she is resting, and otherwise attempts to seek rest when she is in the company of friends. Id. at 1-2. Plaintiff further asserts that in the future, she intends to engage in the conduct for which she was arrested on July 14, 1982 and for which she would have been prosecuted had there not been a technical defect in the loitering ordinance.

The' court finds that the plaintiff has altered her behavior due to the existence of the defendant’s loitering ordinance out of fear of future arrests. It was not disputed at oral argument on the pending motions that the Hartford Police Department intends to enforce the loitering ordinance should the court rule in the defendant's favor. The court holds that an actual controversy exists sufficient to confer subject matter jurisdiction on the court. Accordingly, the constitutionality of the challenged ordinance must be confronted by the court.

Merits

By motion filed July 11, 1984, the plaintiff has moved the court for summary judgment on the grounds that the Hartford loitering ordinance challenged in this lawsuit is unconstitutionally vague and over-broad. Plaintiff requests that the court declare the ordinance unconstitutional and void.

In opposition, the defendant moves for summary judgment in its favor on the issue of facial constitutionality. In addition, defendant asserts that the issue of whether the ordinance was constitutionally applied presents a genuine issue of material fact which cannot be resolved by summary judgment.

The court begins from the basic premise that a legislative enactment is entitled to the presumption of constitutionality unless such an interpretation is plainly foreclosed by the language itself. E.g., United States v. National Dairy Products Corp., et al, 372 U.S. 29, 33, 83 S.Ct. 594, 598, 9 L.Ed.2d 561 reh’g denied, 372 U.S. 961, 83 S.Ct. 1011, 10 L.Ed.2d 13 (1963); State v. Pray, 133 Vt. 537, 541, 346 A.2d 227 (1975); State v. Douglas, 117 Vt. 484, 489, 94 A.2d 403 (1953). The courts are called upon to seek an interpretation which supports the constitutionality of legislation. United States v. National Dairy Products Corp., et al., supra; State v. Bartlett, 128 Vt. 618, 621, 270 A.2d 168 (1970).

Plaintiff correctly asserts that courts generally impose a two-part test to determine whether a penal statute or ordinance withstands a vagueness challenge. The enactment must both “define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender, et al. v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983).

In Kolender, the United States Supreme Court struck down, as unconstitutionally vague on its face, a California statute which required persons who loiter or wander to provide “credible and reliable” identification and to account for their presence when requested by a peace officer. In discussing the broad discretion invested in police officers under the California statute, Justice O’Connor wrote:

An individual, whom police may think is suspicious but do not have probable cause to believe has committed a crime, is entitled to continue to walk the public streets ‘only at the whim of any police officer’ who happens to stop that individual under [the statute] (quoting Shuttlesworth v. City of Birmingham, 382 U.S. 87, 90 [86 S.Ct. 211, 213, 15 L.Ed.2d 176] (1965)). Our concern here is based upon the ‘potential for arbitrarily suppressing First Amendment liberties____’ Id., at 91 [86 S.Ct. at 213]. In addition, [the statute] implicates consideration of the constitutional right of freedom of movement.

Id., 103 S.Ct. at 1859.

Commenting further on the element of police discretion, Justice O’Connor wrote:

It is clear that the full discretion accorded the police to determine whether the suspect has provided a “credible and reliable” identification necessarily “entrusts lawmaking to the moment-to-moment judgment of the policemen on the beat” (quoting Gregory v. City of Chicago, 394 U.S. 111, 120 [89 S.Ct. 946, 951, 22 L.Ed.2d 134] (1969) (Black, J., concurring) ). [The statute] “furnishes a convenient tool for harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure” (quoting Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-42, 84 L.Ed. 1093 (1940)), and ‘confers on police a virtually unrestrained power to arrest and charge persons with a violation’ (quoting Lewis v. City of New Orleans, 415 U.S. 130, 135, 94 S.Ct. 970, 973, 39 L.Ed.2d 214 (1974) (Powell, J., concurring)).

Id.

While sympathetic to law enforcement’s desire to curb crime, the Court cautioned:

As weighty as this concern is, however, it cannot justify legislation that would otherwise fail to meet constitutional standards for definiteness and clarity.

Id.

Similarly, the defendant’s ordinance suffers from the same infirmities struck down in Kolender. The language of the ordinance is so indefinite that persons “of common intelligence must necessarily guess at its meaning and differ as to its application.” Connolly v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926).

This indefiniteness runs afoul of due process concepts which require that persons be given fair notice of what to avoid, and that the discretion of law enforcement officials, with the attendant dangers of arbitrary and discriminatory enforcement, be limited by explicit legislative standards.

L. Tribe, American Constitutional Law § 12-28, at 718 (1978) (footnotes omitted).

The case of Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (1972), provides guiding principles for sources to be consulted by courts faced with a vagueness challenge. The court may consider: 1) the words of the ordinance itself, 2) interpretations the court has given to analogous statutes, and perhaps to some'degree, 3) interpretations given the statute by those charged with enforcing it.

The defendant maintains that when the ordinance is read as a whole, the vagueness problem is cured. In this regard, defendant asserts that violation of the ordinance requires three things:

1) an obstruction in a public place;
2) a police warning; and
3) a subsequent failure to refrain from obstructing.

Plaintiff further challenges the language of Sections 3(a)(1) and (2), which criminalizes “hindering or impeding or tending to hinder or impede the free and uninterrupted passage of vehicles, traffic, or pedistrians [sic].”

Plaintiff’s reliance on United States Ex. Rel. Newsome v. Malcolm, 492 F.2d 1166 (2d Cir.1974), aff'd sub nom. Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975), is well placed. In that case, the United States Court of Appeals for the Second Circuit discussed the constitutionality of New York’s loitering statute.

On its face, the statute discloses that “loiter[ing]” “remain[ing]” or “wander[ing]” in an unspecified place for an unspecified period of time without apparent reason can establish the first element of the offense. Surely a citizen who sought to conform his conduct to this provision would be unable to discern whether he risked criminal responsibility by taking a leisurely stroll, by sitting briefly on a park bench, or by seeking shelter from the elements in the doorway of a building.

Id. at 1172-73.

Similarly, the defendant’s loitering ordinance possesses an uncertain time element. The court finds inherent vagueness in that there is no indication as to how long one can remain “idle in essentially one locátion” before that conduct constitutes loitering. Mere standing in one place for a matter of seconds would fall within the ordinance’s broad terms. Defendant’s assertion that the ordinance proscribes only obstructive conduct is belied by the language of the ordinance. Persons can be stopped for remaining idly in one place and, if they refuse to move along after a police warning, they can be arrested for loitering. The similarities between the defective New York statute discussed above and defendant’s ordinance are striking. As in New-some and its predecessor, Baggett v. Bullitt, 377 U.S. 360, 373, 84 S.Ct. 1316, 1323, 12 L.Ed.2d 377 (1964), the challenged ordinance presents the “hazard of being prosecuted for knowing but guiltless behavior.” The court is persuaded that the Hartford ordinance is unconstitutionally vague.

Finally, through deposition testimony of the enforcing officers, plaintiff demonstrates the large measure of discretion involved in the enforcement of this ordinance due to the lack of standards and guidelines in the ordinance. The confusion and wide divergence of opinion as to definitions of-key terms in the Hartford ordinance by the enforcing officers make it abundantly clear that the ordinance fails to give adequate notice of proscribed conduct. Unguided discretion is entrusted to enforcing officers to decide whether a person is engaged in criminal conduct under the ordinance. Such discretion necessarily invites arbitrary and discriminatory treatment that cuts across established due process precepts. L. Tribe, supra, at 718.

Conclusion

The plaintiff's motion for summary judgment will be granted. The Town of Hartford’s loitering ordinance must be declared unconstitutionally void for vagueness. The defendant’s motion for summary judgment is denied.

It is SO ORDERED.

      . Plaintiffs claims for injunctive relief and for monetary damages to redress her injuries allegedly • caused by false arrest have been removed from the case.
      On August 1, 1983, the parties filed a stipulation of dismissal of plaintiff’s claims for money damages. This stipulation reads:
      Counsel for the respective parties stipulate and agree that all plaintiff's claims for money damages based upon any of the legal theories set forth in her Complaint dated March 9, 1983, may be ‘dismissed with prejudice’, but without prejudice to the right of the plaintiff to pursue any remaining claims pertaining to the constitutionality of the Town of Hartford ‘loitering’ ordinance as such claim may be alleged by the aforementioned Complaint.
      On August 3, 1983, the Honorable Jerome J. Niedermeier, United States Magistrate, recommended that the stipulation be approved. The court adopted the magistrate’s recommendation on August 19, 1983.
      At oral argument before the court on the cross-motions for summary judgment, counsel for plaintiff indicated that the claim for injunctive relief was no longer being pursued.

      . TOWN OF HARTFORD LOITERING ORDINANCE
      BE IT ORDAINED by the Board of Selectmen of the Town of Hartford as follows:
      SECTION 1. Loitering constitutes a public nuisance.
      SECTION 2. Definitions. As used in this Ordinance:
      (a) "Loitering” shall mean remaining idle in essentially one location and shall include the concept of spending time idly; to be dilatory; to linger; to stay; to saunter; to delay; to stand around and shall also include the colloquial expression "hanging around.”
      (b) “Public Place” shall mean any place to which the general public has access and a right to resort for business, entertainment, or other lawful purpose, but does not necessarily mean a place devoted solely to the uses of the public. It shall also include the front or immediate area of any store, shop, restaurant, tavern or other place of business and also public grounds, areas or parks.
      SECTION 3. Loitering — Police order to disperse — Penalty.
      (a) It shall be unlawful for any person to loiter, loaf, wander, stand or remain idle either alone and/or in consort with others in a public place in such manner so as to:
      (1) Obstruct any public street, public highway, public sidewalk or any other public place or building by hindering or impeding or tending to hinder or impede the free and uninterrupted passage of vehicles, traffic or pedistrians [sic].
      (2) Commit in or upon any public street, public highway, public sidewalk or any other public place or building any act or thing which is an obstruction or interference to the free and uninterrupted use of property or with any business lawfully conducted by anyone in or upon or facing or fronting on any such public street, public highway, public sidewalk or any other public place or building, all of which prevents the free and uninterrupted ingress, egress, and regress, therein, thereon and thereto.
      (b) When any person causes or commits any of the conditions enumerated in Subsection (a) herein, a police officer or any law enforcement officer shall order that person to stop causing or committing such conditions and to move on and disperse. Any person who fails or refuses to obey such orders shall be guilty of a violation of the Ordinance.
      (c) Any person who violates any of the provisions of this Ordinance shall be subject to a fine not exceeding 500.00 dollars or by imprisonment not exceeding 6 months. Any such violation shall constitute a separate offense on each successive day continued.
      /signed/
      BOARD OF SELECTMEN
      TOWN OF HARTFORD, VERMONT
      Adopted this 18th day of May, 1982, at Hartford, County of Windsor, State of Vermont.
      Filed and recorded in the Office of the Town Clerk of Hartford, on May 20, 1982 at 9:45 a.m., Town Records, Volume 23, Page 297.

      . The jurisdictional counterpart of 42 U.S.C. § 1983 is 28 U.S.C. § 1343. The applicable provision, § 1343(a)(3), is reproduced below.
      The district court shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
      * * * * * *
      (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States____

      . Because the court finds the ordinance unconstitutionally vague on its face, the court finds it unnecessary to reach the plaintiffs other challenges to the ordinance.


source: Caselaw Access Project

author: HUYETT, District Judge.

license: Public Domain

text:
    Marjorie TYSON, Louise Davis and Gladys Babcock v. SUN REFINING AND MARKETING COMPANY.
    Civ. A. No. 82-4994.
    United States District Court, E.D. Pennsylvania.
    Nov. 21, 1984.

      Joseph R. McFadden, Jr., Media, Pa., for plaintiffs.
    Lynne Delanty Spencer, Philadelphia, Pa., for defendant.
   MEMORANDUM AND ORDER

HUYETT, District Judge.

Presently before me is defendant Sun Refining and Marketing Company’s (“Sun”) motion for reconsideration or clarification of the May 15, 1984 order of this court which denied its motion for summary judgment. Although I find no reason to reconsider that decision, I will use this opportunity to set forth a more complete analysis of the issues presented by defendant’s summary judgment motion.

Plaintiffs in this employment discrimination case allege that they were the victims of sex discrimination while employed at the Sun Marcus Hook refinery. All of the plaintiffs are long-term employees of that facility. They allege that they were denied promotion to the positions of permanent shift foremen and temporary shift foremen, and were denied overtime pay as a result of the discriminatory practices of Sun. In its motion for summary judgment, Sun argued on a number of grounds that plaintiffs could not prevail. It argued that plaintiffs were time barred from asserting claims based on a number of the alleged acts of discrimination. Sun also contended that there exist no genuine issue of material fact with regard to the merits of plaintiffs’ claims. For the reasons set forth below, I find that there is no reason to reconsider my rejection of these arguments.

Timeliness

Defendant alleges that plaintiffs’ claims are at least partly time barred. Plaintiffs filed charges with the Equal Employment Opportunity Commission (“EEOC”) in March, 1978. They rely in their complaint on incidents that occurred as far back as 1966. Defendant asserts that all reliance on events occurring more than 180 days prior to the filing of the charges is time barred. See Bronze Shields, Inc. v. New Jersey Dep’t of Civil Serv., 667 F.2d 1074, 1080 n. 14 (3d Cir.1981) (180 day statute of limitations applies in Title VII case where charges first brought to EEOC). Plaintiffs contend that their reliance on events occurring before 180 days before March, 1978 is appropriate under a “continuing violation” theory.

It is axiomatic that in order to state a claim under Title VII, a plaintiff must first file timely charges of discrimination. Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). Under 42 U.S.C. § 2000e-5(e), charges must be filed within 180 days after the allegedly unlawful employment practice took place. The courts have, however, long recognized an exception to this rule in cases in which the plaintiff has alleged a “continuing violation” of the Act. To proceed under this theory, plaintiffs must show “a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the [limitation] period.” Valentino v. United States Postal Service, 674 F.2d 56, 65 (D.C.Cir.1982) (quoting B. Schlei & P. Grossman, Employment Discrimination Law 232 (Supp.1979).

In determining the timeliness of plaintiffs’ claims I must first identify the “unlawful employment practice” of which plaintiffs complain. Delaware State College v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 503, 66 L.Ed.2d 498 (1980); Bronze Shields at 1083. Read in the light most favorable to plaintiffs, their claim is that Sun engaged in a systematic practice of denying promotion opportunities and other benefits of employment to plaintiffs because of their sex. They have identified a number of specific manifestations of this pattern in their complaint. These include the denial of the opportunity to be promoted to the position of permanent shift foremen, the denial of the opportunity of becoming temporary shift foremen, and the discriminatory administration of overtime benefits.

Defendant claims that plaintiff cannot, given the facts of this case, proceed under a continuing violation theory. Sun makes this argument by dividing plaintiffs’ entire case into three related cases: one challenging the selection of permanent shift foremen, the second challenging the selection of temporary shift foremen, and the third challenging the administration of overtime pay at the Marcus Hook refinery. If one accepts this initial assumption, then Sun’s arguments do indeed appear to be substantial. I think, however, that it is incorrect to take that first step.

In general, courts have been more receptive to claims of continuing violations when advanced in connection with denials of promotions or transfers than in many other contexts. See, e.g., Patterson v. American Tobacco Co., 586 F.2d 300 (4th Cir.1978); Muka v. Nicolet Paper Co., 20 Empl.Prac. Dec. (CCH) ¶ 30, 265 (E.D.Wis.1979); Jacobs v. Bd. of Regents, 473 F.Supp. 663, 668 (S.D.Fla.1979); Miller v. Miami Prefabricators, 438 F.Supp. 176 (S.D.Fla.1977); Corbin v. Pan American World Airways, 432 F.Supp. 939 (N.D.Cal.1977).

In Serpe v. Four-Phase Systems, Inc., 718 F.2d 935, 937 (9th Cir.1983), the court, in discussing the plaintiffs attempt to assert a continuing violation theory in a case involving refusal to transfer stated:

But, where there is a systematic policy of discrimination, the rule, with respect to employees who remain employed but claim that their status has been adversely affected by the discriminatory policy, is as follows:
An employer charged with maintaining an unlawful transfer system, for example, may argue that the plaintiff did not apply for a transfer within the statutory time limits preceding the filing and therefore has no cause for complaint. This issue is often resolved by theorizing that a challenge to systematic discrimination is always timely if brought by a present employee, for the existence of the system deters the employee from seeking his full employment rights or threatens to adversely affect him in the future.

Elliott v. Sperry Rand Corp., 79 F.R.D. 580, 586 (D.Minn.1978) (emphasis added).

In the instant case, plaintiffs have argued that there exists a broad policy of discrimination at the Sun Marcus Hook refinery. They allege that they have been denied promotions repeatedly, partly as a direct result of the maintenance of a discriminatory testing system, and partly as a result of a “sequential, connected course of activity designed to promote and maintain an employment atmosphere in which the male employees were given preferential economic treatment through overtime assignments and job promotion.” Plaintiffs’ brief in opposition to defendant’s motion for summary judgment at 11. Plaintiffs argue that the facts of this case will demonstrate that discrimination against women was a “standard operating procedure.” See Jewett v. International Telephone Corp., 653 F.2d 89, 91-92 (3d Cir.), cert. denied, 454 U.S. 969, 102 S.Ct. 515, 70 L.Ed.2d 386 (1981).

In Cedeck v. Hamiltonian Fed. Sav. & L. Ass’n, 551 F.2d 1136 (8th Cir.1977), the court was faced with a situation similar to the one presented by the instant case. The plaintiff therein sued her employer alleging sex discrimination in her failure to be promoted and in her eventual discharge. The defendant argued that plaintiff’s charge was not timely in that it had not been filed within 180 days of the date on which a male had been promoted to a position for which plaintiff had applied. The district court agreed. In reversing this decision, the Eighth Circuit refused to characterize plaintiff’s claim as a challenge to a failure to promote plaintiff to one “particular job at a particular time.” Id. at 1137. Rather, the court cast the plaintiff’s claim as one “concerned not only with her failure to be promoted to the manager’s position but also with her overall upward mobility in the Hamiltonian organization. In this light, the alleged unlawful employment practice was a continuing one____” Id. See also Held v. Gulf Oil Co., 684 F.2d 427, 432 (6th Cir.1982) (court upholds use of continuing violation theory in case involving differential workload allegedly evidence of sex discrimination).

Valentino v. United States Postal Service, 674 F.2d 56 (D.C.Cir.1982) cited by Sun is not inconsistent with the conclusion that plaintiffs have asserted a valid continuing violation argument. In that case, plaintiff was the ostensible representative of a class. She alleged that the defendant had maintained a discriminatory promotion policy that had denied women promotions. The policy had been changed by the defendant before the 180 day period began to run, and plaintiff conceded that the new policy was nondiscriminatory. The court in Valentino found that under the circumstances of that case, plaintiff could not proceed on a continuing violation theory in order to reach out to events that took place under the replaced promotion policy. Valentino is readily distinguished from the instant case. It was a class action challenging the allegedly discriminatory promotion practices and policies of the defendant. These practices 'ceased entirely when the new system was adopted. In the instant case, individual plaintiffs challenge not only promotion decisions, but also the maintenance of allegedly discriminatory overtime policies as manifestations of a larger system of discrimination. Even if, as defendant argues, the policy regarding the method by which promotions to the position of permanent shift supervisor was changed in 1973, there were other ongoing acts of discrimination alleged by plaintiffs which have taken place during the entire time period in question.

Closer to the present case than Valentino is Reed v. Lockheed Aircraft Corp., 613 F.2d 757 (9th Cir.1980). In that case, the plaintiff challenged the promotion practices of her employer. The district court had found that she was time barred from asserting claims based on promotion decisions made more than 180 days before she filed EEOC charges. In reversing this determination, the Ninth Circuit stated:

The complaint should not be read so narrowly. Her allegations included a sweeping attack on Lockheed’s systems of promotion, compensation and training. She alleged that the violations took place throughout her service at Lockheed and until the day she filed her complaint.
Reed alleges, for example, that under Lockheed’s promotion practice the company approached worthy candidates to ask them if they wished promotion. The employee need not seek it. If true, (and there is at least a genuine issue of fact as to the truth of this claim) and if it is also true that Reed was not promoted for 25 years, then each day without promotion constituted a new violation of Title VII, assuming that similarly situated males were promoted with more regularity-
The fact that Reed sought to establish her case by listing specific incidents antedating the limitations periods is irrelevant. The 1963, 1969 and 1972 events are not the basis of her charge of discrimination. They are but evidence that a policy of discrimination pervaded Lockheed’s personnel decisions. The violations of which she complains occurred each day of her employment, including the days within the appropriate limitations period.

Id. at 759-60.

I believe that in the present case, plaintiffs have alleged a systematic policy of sex discrimination and claims related to incidents which occurred more than 180 days before the filing of EEOC charges in 1978 are not time barred.

Issues of Fact

Defendant alleges that plaintiffs are unable to meet their burden of establishing a prima facie case of discrimination under either a disparate impact or a disparate treatment theory with regard to their theories of discrimination in promotion or overtime pay assignments. Once again, I conclude that there is no reason to reconsider my rejection of defendant’s arguments.

Under Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981) and McDonnel Douglas v. Green, 411 U.S. 792, 803-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), in order to proceed under a disparate treatment theory plaintiff must be able to establish four elements:

1. she is a member of a protected group under Title VII;

2. she was qualified and applied for the promotion in question;

3. although a promotion vacancy existed she was not promoted; and

4. similarly situated males with comparable qualifications were promoted at the time her request for promotion was denied. There is obviously no dispute as to the first element. The defendant contends, however, that plaintiffs cannot meet their burden under the remaining elements.

It is not my place to decide the merits of this case in the context of deciding a motion for summary judgment. My inquiry is limited to the determination whether there exist any genuine issues of material fact. I have reviewed the memoranda of law and the affidavits and other material submitted by the parties in connection with the motion for summary judgment. I conclude that there do exist genuine issues of material fact with regard to whether or not plaintiff can prevail under a disparate treatment theory. I think that under the circumstances of this case and its present procedural posture, it would be inappropriate to grant summary judgment. An appropriate order follows.

      . The Serpe court was discussing a claim involving discrimination in transfer decisions. It found those decisions indistinguishable from decisions regarding promotions and therefore felt free to apply caselaw developed in the promotion context. See Serpe at 938.

      . Defendant contends that plaintiffs’ claims based on pre-February 1978 temporary shift foremen promotions are also time barred because plaintiffs should have been aware that they were not on eligibility lists submitted to their union pursuant to the terms of the applicable collective bargaining agreement. This argument is also without merit. Plaintiffs have not been shown to have actual knowledge of the fact that their names were not on those lists and have not even been shown to have known that these lists existed. Bronze Shields is therefore inapposite, see 667 F.2d at 1083 n. 23, as is Hood v. New Jersey Dep’t of Civil Serv., 680 F.2d 955, 958-59 (3d Cir.1982).

      . I have examined plaintiffs’ claims with a great deal of care and I must agree with defendant’s argument that plaintiffs have failed to assert a disparate impact claim. In the case of both permanent shift foremen and temporary shift foremen, plaintiffs, as I understand their complaint, do not allege that they have been discriminated against as a result of the operation of facially neutral objective criteria. Rather, they contend that they were denied the opportunity to participate in the objective system in the first instance. See B. Schlei & P. Grossman, Employment Discrimination Law 2, 80-190 (1983).


author: BARRINGTON D. PARKER, District Judge:

text:
    Lyda Belle GOINS, Executrix of the estate and surviving spouse of Huston Goins, Deceased, Individually and on behalf of all others similarly situated, Plaintiff, v. TEAMSTERS LOCAL 639—EMPLOYERS HEALTH AND PENSION TRUST, et al., Defendants.
    Civ. A. No. 83-2811.
    United States District Court, District of Columbia.
    Nov. 27, 1984.

      Burton D. Fretz, National Senior Citizens Law Center, Washington, D.C., Charles Sabatino, Esquire Legal Services of Northern Virginia, Arlington, Va., Neal S. Dudovitz, National Senior Citizens Law Center, Los Angeles, Cal., for plaintiff.
    Charles R. Both, Yablonski, Both & Edelman, Washington, D.C., for defendants.
   MEMORANDUM OPINION

BARRINGTON D. PARKER, District Judge:

This matter comes before the Court on the parties’ cross motions for summary judgment on the question of whether the defendants, the Teamsters Local 639 — Employers Health and Pension Trust (“Trust”) and its Trustees, violated their fiduciary duty to Huston Goins, a now-deceased beneficiary of the disability Pension Plan (“Plan”) administered by the Trust. The plaintiff is Lyda Belle Goins, the surviving spouse of Huston Goins, and the executor of his estate. She charges that the defendants acted in an arbitrary and capricious manner in amending the Plan’s criteria for monthly disability benefits, which deprived her deceased husband of disability coverage. She brings this action on behalf of her husband’s estate and on behalf of other similarly situated individuals.

The first count of the complaint alleges that the defendants have violated section 404(a)(1) of ERISA, 29 U.S.C. § 1104(a)(1) and section 302(c)(5) of the Labor Management Relations Act (“Taft-Hartley Act”), 29 U.S.C. § 186(c)(5). For the reasons set forth below, the Court determines that the plaintiff is entitled to summary judgment on this count.

FACTUAL BACKGROUND

The material facts in this case are undisputed. In 1953, Huston Goins began work as a machinist for the Virginia Concrete Company in Springfield, Virginia. He became a participant in the Plan in 1972. At that time, the Plan afforded a number of employee benefits, including a monthly disability pension. Article V of the Plan stated that:

[a]n Employee shall be eligible for a disability benefit when he is a Participant in the Trust at the time of disability; has completed 5 continuous consecutive years of participation in the Trust; has been totally disabled for at least 6 months; has submitted proof of disability and has been judged by the Trustees to be totally and permanently disabled.

Ex. A at 13-14, attached to Declaration of Simone Ornold (Vice President, Carday Associates, Trust Administrator), filed July 25, 1984.

The continuous participation requirement, otherwise known as the credited service requirement, presents the central issue in this case. As of 1977, Mr. Goins had obtained five years of credited service under the Plan. However, when he applied for disability benefits in 1980, he no longer satisfied the service requirement because the Trustees had amended the Plan to increase the credited service requirement from five to ten years. This change occurred in conjunction with various other revisions, not material to this case, when the Plan was amended to comply with ERI-SA. The background of the Trustees’ adoption of the credited service requirement is described below.

It is undisputed that an actuarial valuation of the Plan provided the initial impetus for the new credited service requirement. The Minnesota Mutual Life Insurance Company, the Trust’s actuary, prepared this valuation report as of January 1, 1977, and submitted it to the Trustees. According to the report, “[disability experience under this plan has proven to be much heavier than we expected____ Moreover, it appears that this high level of disability incidence has been present in prior years also. We have changed our disability rate assumption to reflect the higher rates.” Ex. C at 13-14, Ornold Dec. In the transmittal letter of June 9, 1977, the actuary expressed concern about the current Plan’s “provisions [for] full benefits to short-service employees.” Id. Nevertheless, the actuary did not recommend any changes in the pension eligibility requirements.

Next, the record reflects that the Trustees adopted the credited service amendment, in addition to other changes, at a special meeting held on March 9,1978. Ex. C, Connors Dec. The purpose of the meeting was to consider revisions to the Plan, and submit a final Plan to the Internal Revenue Service. Consultants from the Martin E. Segal Company attended the meeting. The Trustees hired the consultants to assist them in revising the Plan. At the meeting, the company’s representatives brought the increased requirement of credited service to the attention of the Trustees, and stated that the new criteria made the Plan’s disability requirements commensurate with those of other plans. Id. at 2.

Although the Trustees did not issue a contemporaneous statement describing the purpose of the amendment, the minutes of the meeting, coupled with the actuarial report, show that the amendment was in part approved as a cost-saving measure. The Trustees were concerned that disability benefits in general were more expensive than they had originally anticipated, and they were informed that the credited service requirements of other pension plans were more stringent. In addition, the defendants have also suggested that the amendment was designed to bring disability benefits in line with retirement benefits, which could only be awarded after a minimum of ten years of service. Connors Dec. at ¶ 9.

The record also shows that the Trustees firmly intended the amendment to become effective three months after its adoption, without regard to the number of years of credited service already obtained by a pension applicant when the amendment was adopted. They have acknowledged that they did not calculate the number of individuals, like Mr. Goins, who had obtained at least five years of service under the terms of the previous plan. Defendants’ (Trust and Trustees) Answers to Plaintiff’s First Set of Interrogatories, No. 19, filed March 2, 1984. Nor did they specifically consider the alternative of excluding such individuals from the reach of the amendment. Id., Interrogatory No. 9.

This conclusion is also supported by the information contained in the 1977 actuarial plan on which the disability revision was based. The actuarial report contained information about the number of individuals who submitted disability claims, categorized by age. The report did not categorize these claims on the basis of number of years of service. A 1979 actuarial report, prepared by the Martin E. Segal Company after the Trustees adopted the amendment, was the first to provide a breakdown of participants by age and years of service. Supplemental Ornold Dec. at ¶ 3, filed Oct. 30, 1984.

On July 3,1980, two years after the Plan was amended, Mr. Goins applied for a disability pension benefit. At that time, he had accumulated 7.4 years of credited service. One month later, the Trustees denied his application solely because he had not accumulated ten years of credited service. It is undisputed that Mr. Goins was disabled within the meaning of the Plan and would have received benefits under the credited service provisions of the previous plan.

Although the Trustees declared that Goins was ineligible for monthly disability benefits, they awarded him a lump sum benefit of $622. He immediately pursued an appeal of the denial of monthly benefits, which was rejected on September 22, 1980. He died on September 19, 1983, and this litigation ensued on September 22, 1983.

LEGAL ANALYSIS

The legal standard for review of the Trustees’ denial of benefits to Mr. Goins is whether their action is “arbitrary and capricious” within the meaning of section 404(a)(1) of ERISA, 29 U.S.C. § 1104(a)(1) and section 302(c)(5) of the Taft-Hartley Act, 29 U.S.C. § 186(c)(5). As this Circuit has stated:

trustees [are permitted] broad discretion to choose among rational alternatives in setting eligibility standards for beneficiaries ... [but] there are substantive limitations on the range of eligibility rules trustees may devise to govern benefit entitlement.

Saunders v. Teamsters Local 639, Employees Pension Trust, 667 F.2d 146, 148 (D.C.Cir.1981) (interpreting 29 U.S.C. § 186(c)). In short, these eligibility criteria “must be justified by some rational nexus with the fund’s purpose.” Id.

The specific issue presented for the-Court’s consideration in this case is a narrow one: whether it was unreasonable for the Trustees’ to apply the disability amendment to all participants in the Plan, without regard to whether they had already satisfied the credited service requirement of the previous Plan. The question is not whether the rule is per se arbitrary or unreasonable. See Saunders, 667 F.2d at 149; Lavella v. Boyle, 444 F.2d 910, 912 (D.C.Cir.), cert. denied, 404 U.S. 850, 92 S.Ct. 84, 30 L.Ed.2d 89 (1971). Nor need the Court address whether the Trustees could have applied the rule to Plan participants who had achieved five years of credited service, if they had explained their reasons for applying the rule in this fashion. Instead, the Court need only examine whether Mr. Goins had an interest in the receipt of disability benefits under the Plan which was deserving of protection, and if so, consider the sufficiency of the Trustees’ justification for applying the amendment to Mr. Goins and others like him. See Saunders, 667 F.2d at 148-49. The Court examines each of these considerations in turn.

A.

The Protectible Interest of Plan Beneficiaries

A number of decisions from this Circuit have evaluated the interests of pension plan participants who were refused benefits because of changes in the criteria for benefits. See e.g., Stacey v. Combs, 671 F.2d 602 (D.C.Cir.1982); Saunders, supra; Lavella, supra. In general, courts have found that beneficiaries have interests deserving of protection if they have already satisfied previous benefit criteria. For instance, in Saunders, 667 F.2d at 147, the Court found a protectible pension interest for a plaintiff who involuntarily retired from employment due to ill health, and who met all but one of the requirements for benefits at the time he retired. See Stacey, 671 F.2d at 603-04.

In holding that the application of the changed eligibility requirements to the plaintiff was arbitrary and capricious, Saunders focused on two major factors in the plaintiffs employment status: the fact that he had involuntarily left the industry, id. at 150, and the fact that he met all of the outstanding eligibility requirements— except age — at the time the criteria were changed. Id. at 151. Specifically, the plan in question required that the plaintiff reach the age of 60 before he was eligible for benefits. Although the plaintiff was not yet 60 when he retired, if he had lived to age 60 and the rule had remained the same, he would have received benefits. Before he reached the age of 60, however, the plan was amended so that he no longer satisfied the requirements for benefits.

The facts of Mr. Goins’ employment history suggest that he fits squarely within the relevant factors identified in Saunders. First, he met all but one of the Plan’s eligibility requirements at the time it was amended. He lost something of value when the Trustees changed the eligibility rule for monthly disability pensions. Before the rule was changed, he met all of the requirements for a pension. If he had become disabled prior to the amendment, he would have been entitled to a valuable benefit in the form of a monthly disability pension.

Second, Mr. Goins left employment because he was disabled, a condition which was totally beyond his control. The scope of the amendment does not come under the narrow permissible exception for rules which deter voluntary departures from employment. A revised rule may pass muster if it “discourages workers from taking voluntary action that shifts the burden of supporting the [fjund to other employees, for instance by retiring early, by leaving the industry, or by working for noncontributing employers.” Saunders, 667 F.2d at 150-51 (citing Robinson v. UMW Health and Retirement Funds, 640 F.2d 416, 421 (D.C.Cir.1980) (emphasis in original), rev’d on other grounds, 455 U.S. 562, 102 S.Ct. 1226, 71 L.Ed.2d 419 (1982)). Here, Mr. Goins retired involuntarily, and possessed a protectible interest which could not be summarily revoked by the Trustees without an adequate explanation.

The finding that Mr. Goins possessed an interest deserving of protection is not undercut by several minor differences between his employment situation and the facts of other decisions involving the propriety of changes in employee benefit criteria. First, the defendants argue that the Trustees properly applied the amendment to Mr. Goins because unlike the pension plan revisions in previous cases, the amendment did not involve an age requirement. Second, they argue that the nature of the benefits in question — disability benefits— are distinguishable from retirement benefits which have been examined in earlier case law. They suggest that disability pension benefits may be altered unilaterally because such benefits are not vested — or nonforfeitable — rights within the meaning of ERISA. Taken to its logical conclusion, this second argument amounts to an assertion that amendments to disability plans, unlike retirement plans, are immune from meaningful judicial review.

Neither of these assertions withstands analysis. The extent to which a pension plan participant has satisfied the benefit criteria bears on the degree of deference which should be paid to a decision to revise those criteria. See Short v. United Mine Workers of America 1950 Pension Trust, 728 F.2d 528, 538 (D.C.Cir.1984). Mr. Goins, like the plaintiffs in other decisions reviewing the reasonableness of pension plan revisions, met all but one of the requirements for receiving benefits under the Plan. The fact that he failed to satisfy the disability requirement prior to the revision, rather than an age requirement, does not alter the conclusion that he had a protectible interest.

Furthermore, the type of pension right asserted in this case does not insulate the Trustees’ decision from judicial review. Review of pension fund revisions is not limited to changes which affect vested or nonforfeitable pension rights. As noted in Short, 728 F.2d at 538, “[i]n no sense do [our previous] opinions purport to apply a concept of ‘vesting’ (or nonforfeitability) as embodied in ERISA.” Rather, the relevant inquiry is whether the change affects an employee’s right to mature his pension eligibility, in other words, the opportunity to apply for and receive pension benefits. Short, 728 F.2d at 538 (citing Lavella, 444 F.2d at 912 n. 3). Here, the eligibility revision had an impact on Mr. Goins’ opportunity to meet the pension criteria, and the propriety of the revision may be considered by the Court.

Lastly, the amendment not only deprived Mr. Goins of an expected benefit, it indiscriminately denied benefits to all individuals who had obtained more than five years of service and less than ten years of service prior to the change. The wide scope of the amendment is illustrated by the fact that it was intended to reach even individuals with nine years of credited service, as long as those individuals became disabled more than three months after the amendment was adopted. Such a result would be unconscionable.

B.

Sufficiency of the Justification for the 1978 Amendment

Once a beneficiary acquires a protectible interest, the Trustees must offer an explanation for any revision which deprives him of that interest. At a minimum, their justification must describe how the application of the revised eligibility standards to the interested beneficiaries advances a rational purpose of the pension fund. Saunders, 667 F.2d at 148. See Elser v. IAM National Pension Fund, 684 F.2d 648, 655-57 (9th Cir.1982), cert. denied, — U.S. -, 104 S.Ct. 67, 78 L.Ed.2d 82 (1983).

Here, the record reflects two concerns on the part of the Trustees. First, the record shows that they were apprehensive about the rising cost of disability benefits in general, based on the unexpected number of applications for benefits which they had received in recent years. Second, the Trustees attempted to make the Plans’ disability benefit criteria commensurate with the Plan’s requirements for retirement benefits and the criteria of other similar plans. They understood that other plans required participants to acquire at least ten years of credited service before qualifying for disability or retirement benefits.

The amendment to the Plan was undoubtedly intended to resolve these concerns. The increase in the numbers of years of credited service obviously made the disability criteria commensurate with the retirement criteria. Moreover, the fiscal purpose was furthered by the amendment because applications for disability benefits would obviously decrease under its more stringent provisions.

The Trustees, however, did not explain why they applied the more stringent criteria to individuals with more than five years of credited service, or how the inclusion of these individuals advanced the purpose of the fund. In fact, the defendants have admitted that they possessed no data concerning the number of individuals with at least five years of service, or the number of disability claims filed by such individuals. These figures were necessary in order to determine whether the new criteria should be applied to individuals like Mr. Goins.

The Trust’s current records indicate that since the amendment was adopted, approximately nine individuals with more than five years of credited service have been denied benefits for failure to satisfy the credited service requirement. Affidavit of Simone Ornold, attached to Opposition of the Trust and its Trustees to Class Certification (“Opposition to Class Certification”), filed Jan. 16, 1984. These post hoc figures are not directly relevant to whether the Trustees’ initial decision was arbitrary and capricious. They do, however, indicate that any concerns about the large number of potential claims filed by individuals like Mr. Goins were completely unfounded.

The affidavits and legal memoranda of the defendants indicate that they did not attempt to obtain information about the size of this group because they did not believe that its members had legally protectible interests in the future receipt of disability benefits. In view of this understanding, the Trustees applied the new rule to all employees, without regard to their status under the previous pension plan. This decision completely ignored the special interests of Mr. Goins and other individuals with five or more years of credited service. The Trustees’ inattention to the interests of individuals with more than five years of credited service under the Plan was arbitrary and capricious within the meaning of the applicable law.

CONCLUSION

The Court rules for the plaintiff and concludes that Huston Goins and his estate are entitled to monthly disability and ancillary health benefits from July 3, 1980, when Huston Goins first applied for such benefits, continuing through September 19, 1983, the date of his death.

Counsel for the parties shall confer in an attempt to determine the amount of benefits due the plaintiff, and resolve the nature of class relief, if any, which should be granted. In the alternative, they should consider an order granting declaratory relief. If an agreement is reached, the parties shall submit a proposed order, consistent with this Memorandum Opinion, within ten days of this date. In the absence of an agreement, counsel for the parties shall submit separate proposed orders within fifteen days of this date.

An appropriate order and judgment accompanies this Memorandum Opinion.

ORDER

In accordance with the Memorandum Opinion filed in this proceeding, it is

ORDERED

That the Court grants the plaintiff’s motion for summary judgment on the first count of the complaint charging that the 1978 amendment to the disability plan was arbitrary and capricious, and judgment is entered in favor of the plaintiff as to that claim.

That the Court grants the defendants’ motion for summary judgment on the remaining counts of the complaint.

      . The complaint also named the Drivers, Chauffeurs & Helpers, Local Union No. 639 and its business agent, James Woodward, as defendants. The complaint charged these defendants with breach of the duty of fair representation, violations of the Employee Income Retirement Security Act of 1974 ("ERISA”), 29 U.S.C. §§ 1140 and 1141, and breaches of various common law duties. The Court granted summary judgment in favor of the defendants with respect to these claims on April 12, 1984.

      . The defendants have moved for summary judgment on Counts II, III, and IV of the complaint, which allege violations of various substantive provisions of ERISA. The plaintiff has not opposed this motion, and the Court agrees that the defendants should prevail on these counts.

      . According to the figures submitted by the defendants, the Trust awarded between 12 and 34 disability pensions in any given year between 1973 and 1977. Ornold Dec. at ¶ 7. These claims were approximately twice as high as originally anticipated. Id. at ¶ 8; Ex. C at 2, attached to Declaration of Joseph Connors (Trustee), filed July 25, 1984.

      . In Saunders, once the pension plan was amended the plaintiff lost any future opportunity to receive benefits. Mr. Saunders had already left the plan when its eligibility provisions were amended to require that a participant must have participated in the plan at or after the age of 60 in order to receive benefits. Since Saunders was disabled and could not return to work, the amendment effectively deprived him of any future right to benefits. 667 F.2d at 147-48.

      . This conclusion is not undercut by the statement of one of the trustees that he personally believed that "it was likely that a large number of active employees would be in that category [of individuals with more than five years of covered service].” Supplemental Declaration of Joseph Connors at f 3, filed Oct. 30, 1984. More than mere speculation is required to support the policy change adopted here.

      . Oddly enough, a later actuarial report compiled a portion of this information in September of 1979, more than a year and a half after the decision to amend the Plan. This compilation revealed that in 1978, 29% of the active employees had more than five but less than ten years of covered service under the Plan. Ex. 1 at 5, attached to Supplemental Ornold Dec. The report did not indicate the numbers of disability claims filed by this group.


author: TENNEY, District Judge.

text:
    Rodney TAYLOR, Plaintiff, v. Thomas MAYONE, Sheriff of Ulster County, Deputy John Doe and Sergeant John Doe, Defendants.
    No. 78 Civ. 4062 (CHT).
    United States District Court, S.D. New York.
    Nov. 27, 1984.
    Louis B. Kimmelman; Evan A. Davis, Susan J. Stabile, New York City, for plaintiff.
    Greenhill, Speyer & Thurm, New York City, for defendants; Mitchell Bloch, Milton Thurm, New York City, of counsel.
   OPINION

TENNEY, District Judge.

In this action under 42 U.S.C. § 1983 (1982) (“§ 1983”), plaintiff Rodney Taylor (“Taylor”) alleges that defendant David Hyatt (“Hyatt”), a law enforcement officer, used excessive force when he fired his revolver toward Taylor, and that this use of excessive force violated his rights under both the fourth and fourteenth amendments. Specifically, Taylor asserts that the shooting deprived him of liberty without process in violation of the fourteenth amendment, and constituted an unreasonable seizure incident to an arrest in violation of the fourth amendment. Plaintiff seeks compensatory and punitive damages for mental and emotional distress. Defendant argues that the shooting was justified, that Taylor’s constitutional rights were not violated, and that Taylor has failed to demonstrate that he suffered injury as a result of the shooting. Defendant also asserts the affirmative defense of qualified immunity.

Because the evidence adduced at trial is insufficient to support a finding that Hyatt violated Taylor’s rights under the fourth or fourteenth amendments, the complaint in this action is dismissed on the merits.

Findings of Fact and Conclusions of Law

Based upon the testimony and evidence presented at a three-day bench trial, the Court makes the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).

1. In January 1977, Taylor was a student living in New Paltz, New York. His parents lived in Rosendale, approximately seven to ten miles from New Paltz. Trial Transcript (“Tr.”) at 184.

2. On January 16, 1977, Taylor was aware that he was wanted on an outstanding arrest warrant for first degree rape. Tr. at 186, 187, 223.

3. On January 16, 1977, defendant Hyatt was a corporal in the Ulster County Sheriff’s Department (“Sheriff’s Department”). Tr. at 321.

4. In the early morning of January 16th, when the incident at issue took place, Hyatt was on patrol in the vicinity of Rosendale in car number 97, accompanied by Deputy Donald Tinnie (“Tinnie”). Stipulation of Agreed Facts, dated March 1984 (“Stip.”), at 114.

5. Also during the early morning of January 16, 1977, James J. McNamara (“McNamara”), an off-duty police officer, observed Taylor outside a bar in New Paltz. Tr. at 271; Defendant’s Exh. D. McNamara knew that a warrant had been issued for Taylor’s arrest. Tr. at 272.

6. At approximately 2:55 a.m., after Taylor had gone into the bar, McNamara called the Sheriff’s Department. He reported Taylor’s location and asked that a patrol unit be sent over as soon as possible. Tr. at 273-274, 283.

7. The dispatcher for the Sheriff’s Department related McNamara’s report to four radio patrol cars from the Sheriff’s Department, including car number 97, manned by defendant Hyatt and Tinnie. Tr. at 297, 325; Defendant’s Exh. D.

8. McNamara attempted to restrain Taylor from leaving the bar, indicating that Taylor should wait to speak to certain people who wanted to speak to him. Taylor reacted by stating that he had not raped the alleged victim, and then running away from McNamara. McNamara pursued him on foot, but lost him after a chase. Tr. at 275-276.

9. McNamara believed that Taylor fled the area in a blue Chevrolet van. Tr. at 276.

10. McNamara flagged down a New Paltz Police Department car, and reported the situation. The New Paltz unit communicated with its radio dispatcher. Tr. at 276.

11. Two officers from the Sheriffs Department then appeared, and McNamara reported the situation to them. At approximately 3:08 a.m., one of the officers communicated with the dispatcher for the Sheriffs Department, and advised that Taylor might be headed north on Route 32 toward the Village of Rosendale, operating a 1968 or 1969 Chevrolet Malibu which was green or blue. Tr. at 276-277; Defendant’s Exh. D.

12. The dispatcher then relayed the above information to two radio patrol cars, including car number 97, defendant’s car. Tr. at 299, 325; Defendant’s Exh. D.

13. At approximately 3:15 a.m., the New Paltz Police Department informed the Sheriff’s Department dispatcher that one of its units was in pursuit of a blue Chevrolet which possibly contained Rodney Taylor. Tr. at 299-300; Defendant’s Exh. D.

14. The dispatcher then relayed the above information to three radio patrol cars, including car number 97. Defendant’s Exh. D.

15. The following information was also transmitted sometime in the course of the three dispatches from the Sheriff’s Department: (1) Taylor was wanted under an arrest warrant on a charge of rape, (2) the alleged victim of the rape had been beaten, and (3) Taylor did not like police. Tr. at 303-304, 307.

16. Before Hyatt started his shift that night, he knew that a warrant had been issued for Taylor’s arrest. His knowledge was based on a teletype that had been posted in the squad room of the Sheriff’s Department. The teletype stated that Taylor was wanted on a charge of first degree rape and that Taylor hated police. Tr. at 322.

Although Hyatt had seen Taylor on several occasions prior to January 16, 1977, he had never spoken to Taylor, arrested him, or had any other personal involvement with him. Tr. at 324, 364-365.

17. After Hyatt and Tinnie received the first radio transmission from the Sheriff’s Department around 2:55 a.m., see ¶¶ 6, 7, 13, Hyatt proceeded to drive from Kingston toward Rosendale, employing lights and the siren intermittently. Tr. at 325-326.

After receiving further information over the radio, Hyatt turned the car onto Elting Road in Rosendale, where he believed he would intercept the suspect vehicle. Hyatt stopped the car in a westbound position on Elting, in such a way that the car would constitute a partial roadblock. He could hear the siren of what he suspected was the New Paltz police car. He turned on all of the car’s lights — the roof lights, grill lights, dual spotlights, and the high beam. Tr. at 326-327, 335. Hyatt advised headquarters in Kingston of his location, and reported that he was setting up the partial roadblock. Hyatt established a partial, rather than a complete roadblock in order to give the suspect vehicle an opportunity to pass safely or stop. Tr. at 363.

18. Taylor’s van was being pursued by a marked, New Paltz Police Department patrol car, which was four or five car-lengths behind the van. Tr. at 80. The patrol car was manned by officer John Goldfluss (“Goldfluss”). His assignment on that morning was routine radio car patrol, which primarily involved looking for traffic violations. Tr. at 57-58.

19. Shortly before 3:15 a.m., Goldfluss had been travelling north on Route 32, within the town limits of New Paltz, when he sighted a blue Chevrolet van swerving from side to side. The van, which was also travelling north, was in front of Goldfluss. Tr. at 60-62.

20. Goldfluss suspected that the driver of the van was intoxicated, and — in an effort to signal the van to pull over — Goldfluss turned on his patrol car’s emergency-lights (red bar and flashing, rotating beacons) and four alternating, flashing grill-lights. At that point, Goldfluss did not know the identity of the driver of the van. Tr. at 61, 62, 106.

21. Within seconds after the patrol car’s lights were turned on, the van began to accelerate and pull away from the patrol car. Tr. at 61, 106, 111. The time was approximately 3:15 a.m. Tr. at 62.

22. Shortly thereafter, Goldfluss reported the pursuit to the New Paltz emergency-communications officer. Goldfluss described what was occurring, gave a description of the van, and provided its license plate number and direction of travel. Tr. at 62, 107-108; Defendant’s Exh. A.

23. Goldfluss accelerated to keep up with the van, and at some point turned on his siren. Tr. at 62, 327.

24. Goldfluss received two communications before leaving the town limits of New Paltz. The first, from the emergency-communications officer, was to the effect that the vehicle was registered to an individual with the last name of “Taylor,” and with a woman’s first name. Tr. at 63, 107. The second, from another police radio car, was to the effect that the operator of the van might be Rodney Taylor who was wanted under an arrest warrant for first degree rape, and that extreme caution should be used. Tr. at 63, 108, 110.

25: Goldfluss was not equipped to receive radio communications from the Sheriff’s Department dispatcher. Tr. at 110.

26. Goldfluss pursued Taylor beyond the town limits of New Paltz, through Till-son, through the Town of Rosendale and into the Village of Rosendale. Tr. at 62. The speed of the chase through the rural roadway varied between twenty and seventy miles per hour. Tr. at 64-65. The entire chase lasted about ten minutes, ending at approximately 3:25 a.m., and covering a distance of five to six miles. Tr. at 67,107; Defendant’s Exh. D.

27. Visibility was good. Tr. at 116, 329. 28. The roads were slick in spots. There had been a light snow, or a freezing rain or drizzle, sometime during the night, and there was some snow on the shoulders of the roadway. Tr. at 59, 77, 82; Plaintiff’s Exh. 8. The snow had, however, melted in part, so that some of the roadway was dry. Tr. at 116.

29. Taylor’s van was equipped with a side-view mirror. His rear view, however, was somewhat obstructed by a pile of wood in the rear of the van. Tr. at 222-223.

30. As Taylor was proceeding north on Route 32 in New Paltz, he noticed, in his side-view mirror, that a marked police car was behind him. Tr. at 228.

31. Taylor was fearful of stopping along the road because he was afraid of the police, and was particularly afraid of pulling over in an abandoned area. Thus, although Taylor may initially have thought that the police car was flashing its lights in order to warn motorists of bad driving conditions, Taylor admits that he subsequently “began driving as fast as the weather conditions would permit so that [he] woúld not have to stop on a deserted area during the middle of the night.” Defendant’s Exh. Q (Affidavit of Rodney Taylor, sworn to Aug. 1, 1983), ¶ 11; see Tr. at 234-239.

32. Within a few minutes, Taylor reached the section of Elting Road where Hyatt had stationed his patrol car. Tr. at 295.

33. Hyatt had stopped his car on a portion of Elting Road that runs downhill between two intersections — one with Mountain Road, and the other with Saint James Street. Tr. at 69, 361. Elting Road runs from the Town of New Paltz into the Village of Rosendale. In Rosendale, a piece of Elting Road, running roughly north-south, is intersected at a right angle by Mountain Road, coming from the west. At this intersection, Elting makes a right-angle turn to the east. Elting runs downhill from the right-angle turn for approximately 50 or 60 yards, and then makes another 45° right turn at a telephone pole. After the telephone pole, the road inclines more steeply for a straight stretch of approximately 100 yards. After this 100-yard straight-away, Elting makes a final, abrupt left turn of roughly 80°. Tr. at 69, 74; Plaintiffs Exhs. 1-16.

34. Hyatt’s car was positioned on the straight-away approximately 80 yards downhill, or east, of the telephone pole. Tr. at 69, 133; Defendant’s Exh. R. Elting is a two-lane road. Tr. at 327. Hyatt’s car was stationed in a west-bound position, heading uphill. It was located in or around the westbound lane. Tr. at 328. The Court concludes, despite conflicting testimony, that the car was positioned so that it crossed over the midpoint of the road and into the eastbound lane. Nevertheless, the eastbound lane was passable. Tr. at 74, 84-85, 328; Plaintiff’s Exh. 28. At the point where Hyatt’s car was stationed, the width of Elting road was approximately 25 to 30 feet, or roughly the width of three cars abreast. Tr. at 120-121, 327.

35. The area of Elting Road where the roadblock was located was illuminated by two street lamps. One street lamp was located on the telephone pole at the west end of the straight-away, and the other was located further downhill near the 80° curve at the east end of the straight-away. Tr. at 288-289; Plaintiff’s Exh. 6.

36. Hyatt was getting out of the patrol car on the driver’s side as the Taylor van, travelling eastward, came around the 45° turn at a speed of about 20 miles per hour. Tr. at 117-118, 327, 355.

37. Standing between the car door and the car, Hyatt held onto the door with his left hand, and held his gun in his right. Tr. at 356-358.

38. Taylor did not attempt to stop the van. Tr. at 255.

39. The van travelled down the middle of the road, and veered to the right, into its proper eastbound lane, when it was only 30 yards from Hyatt’s car. Just before the van did so, Hyatt saw the driver of the van. Until it veered to the right, the van had been headed in the direction of Hyatt’s car. Tr. at 121-122, 255-256, 331.

40. When Taylor approached Hyatt’s car, he saw an armed officer — Hyatt— pointing his gun. He increased his speed to approximately 50 miles per hour in order to pass the officer as quickly as possible. Tr. at 254-255, 258-259.

41. Goldfluss expected that the Taylor van would stop before reaching Hyatt’s car, so Goldfluss began to slow down. When he realized that the van had not stopped, he increased his speed, and resumed following the van. Tr. at 83, 118, 135-136.

42. As he neared Hyatt’s car, Taylor ducked down below his windshield. Tr. at 202-203, 259-260.

43. The van passed immediately alongside the door on Hyatt’s car, avoiding the door — behind which Hyatt was standing— by only a few inches. Tr. at 87, 122-123, 333, 373.

44. Hyatt fired his revolver at some point during the time when Taylor’s van was passing his car and during the time when Taylor was ducking below the windshield. Tr. at 203, 259-260; Plaintiff’s Exh. 25. The bullet hit the van behind and below the front door near the driver’s seat. Tr. at 97-99; Plaintiff’s Exh. 23. Hyatt fired with the intention of shooting at the driver of the van. Tr. at 372. He fired with a dual purpose: to save his life, and to apprehend Rodney Taylor. Tr. at 332-333.

45. Taylor turned off of Elting at the bottom of the hill, and proceeded toward Rosendale for approximately one-tenth of a mile. He then stopped in front of a hotel, where he was placed under arrest. Tr. at 87-88; Stip. at tl 6.

46. Taylor was very frightened and agitated as a result of the incident. Tr. at 209, 210; see also 204, 207-208.

47. At the time of the incident, there were regulations in effect in the Sheriff’s Department pertaining to the use of deadly force, and the discharge of firearms. Tr. at 40-41; Plaintiff’s Exh. 17.

A. Due Process Claim

48. Plaintiff claims that Hyatt used excessive force against him when he fired his gun, and that this use of force constituted a violation of Taylor’s due process rights.

49. The “application of undue force by law enforcement officers deprives a suspect of liberty without due process of law.” Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir.), cert. denied sub nom. Employee-Officer John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). The question before the Court is whether defendant’s conduct constituted excessive or undue force for the purpose of the fourteenth amendment. That determination depends on “such factors as [1] the need for the application of force, [2] the relationship between the need and the amount of force that was used, [3] the extent of the injury inflicted, and [4] whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Glick, 481 F.2d at 1033; see Hodges v. Stanley, 712 F.2d 34, 36 (2d Cir.1983); Anderson v. Thomas, 585 F.Supp. 570, 573 (S.D.N.Y. 1984).

Plaintiff, however, takes the position — without the support of authority— that excessive force, for the purpose of constitutional analysis, should be defined by the regulations issued by the Sheriff’s Department. Thus, it is plaintiff’s theory that under Glick the Court should use the departmental regulations to evaluate defendant’s conduct and that the determination of whether the shooting was constitutionally excessive should be based on whether the shooting violated those regulations. The Constitution may, however, require more or less than such administrative regulations. Thus, the constitutional analysis must be based on the requirements of the Constitution itself, as interpreted in the case law. The Court will therefore apply the Glick analysis without reference to the regulations of the Sheriff’s Department.

50. Applying the Glick analysis, the Court concludes that Hyatt’s firing of his gun did not constitute the use of excessive force under the due process clause. The credible evidence is insufficient to sustain plaintiff’s arguments to the contrary, and plaintiff’s due process claim must therefore fail.

Plaintiff argues that the shooting was excessive because Hyatt’s conduct violated the Sheriff’s Department regulations in the following ways: (1) the shooting cannot be justified as an attempt to arrest a fleeing felon since Hyatt lacked a sufficient basis for concluding, prior to firing his gun, that the driver of the van was Rodney Taylor; (2) Hyatt was not justified in shooting at a moving vehicle in light of the following considerations: (i) only the car — and not the driver — can be said to have posed a threat to Hyatt’s life, and (ii) Hyatt himself placed his life in danger by not leaving sufficient room for approaching cars to pass by, and by placing the roadblock in a location where approaching cars could not stop without skidding off the road or into Hyatt’s car; (3) the van was no longer coming toward Hyatt when he fired his gun; (4) since the arrest warrant was several weeks old, the shooting cannot be justified as an attempt of last resort to apprehend a fleeing felon; and (5) the shooting involved a high risk of endangering innocent persons who might have been in the van. Although the Court, as noted, is not employing the departmental regulations as the basis for evaluating Hyatt’s conduct, the Court has considered the substance of plaintiff’s arguments in applying the Glick analysis, and finds that these arguments must be rejected.

51. The first Glick factor to be considered — the need for the application of force — reveals that there were two reasonable grounds for the shooting. First, Hyatt reasonably believed that the Taylor van might cause him serious bodily injury or death. Second, based on the radio transmissions that night, Hyatt reasonably believed that the driver of the van was Rodney Taylor who was wanted for forcible rape, and that Taylor was attempting to avoid arrest.

52. The record shows that Taylor’s van initially approached Hyatt’s car on a collision course and that, although the van veered away to the side, it avoided hitting the door behind which Hyatt was standing by only a few inches. Hyatt also knew that Rodney Taylor, whom he believed to be the driver, was reputed to hate police.

Plaintiff contends that Hyatt did not fire his gun until the van was moving past the police car, and thus, not until it was already clear that the van would not injure Hyatt. Plaintiff’s evidence, however, is not sufficient to support this contention. The evidence failed to discredit Hyatt’s testimony that he believed his life or safety was threatened, and failed to prove that this belief was unreasonable.

53. In addition, based on the three radio transmissions he received, Hyatt had a reasonable belief that the operator of the car was Rodney Taylor, whom he knew was wanted on a charge of forcible rape. Finally, he was aware that the van had been under chase by another police vehicle operating with a siren, and that' the van had nevertheless refused to pull over. The roadblock itself, although partial, was clearly identifiable as a roadblock. Finally, even if, as Taylor argues, he reasonably believed that he could not bring his van to a complete stop before reaching Hyatt’s car, it is clear from the record that Taylor could have slowed down. The road conditions provided sufficient traction to permit reduction of speed. Indeed, according to his own testimony, Taylor had sufficient traction at that point to increase his speed.

54. As for the second factor to be considered in determining whether the use of force was excessive — that is, the relationship between the need and the amount of force used — Hyatt’s shooting at Taylor was, under the circumstances, reasonably related to the dual need to protect himself and to apprehend Taylor. Although it was by no means certain that the shooting would protect Hyatt or lead to the apprehension of Taylor, it was apparent that the non-forcible approach already tried — the partial roadblock — had not been successful. As Taylor’s van approached Hyatt, he had no other means of protecting himself or of apprehending the vehicle.

55. The third factor to be considered— the extent of the injury inflicted — also weighs against plaintiff’s argument. Taylor does not assert that he was physically injured by the shooting, and his claims for mental and emotional distress amount to little more than a claim that he was fright-' ened by the shooting and that he was very shaken for a relatively short period of time.

56. The fourth factor must be interpreted in the present context as a factor pertaining to the question of whether the defendant acted in good faith. Plaintiff has not shown that Hyatt was acting in bad faith or that he acted “maliciously and sadistically for the very purpose of causing harm.” Glick, 481 F.2d at 1033. Rather, the evidence supports the view that Hyatt acted in good faith. Although, with the advantage of hindsight, it is possible to question the utility and wisdom of the shooting, the Court cannot conclude that Hyatt’s action was taken in bad faith, or that under the circumstances a reasonable police officer would not, absent bad faith, have taken such an action. •

57. For the foregoing reasons, the Court concludes that, under the standard adopted in Glick, Hyatt did not apply excessive force constituting a due process violation. Therefore, Taylor’s due process claim is dismissed.

B. Fourth Amendment Claim

58. Plaintiff asserts that Hyatt’s shooting at Taylor constituted the application of excessive force in attempting Taylor's arrest, and that Hyatt thereby violated Taylor’s fourth amendment right to be free from unreasonable seizures.

59. In advancing this claim, premised on, inter alia, Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981); Carter v. Carlson, 447 F.2d 358, 363 & n. 10 (D.C. Cir.1971), rev’d on other grounds sub nom. District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), plaintiff relies on his argument that the shooting constituted excessive force under the due process clause, and on the evidentiary analysis accompanying that argument. Thus, plaintiff again relies on the theory that excessive force for the purpose of constitutional analysis should be defined by the regulations of the Sheriffs Department.

The Court again rejects this argument, see supra 1149, and applies the Glick standard to determine the reasonableness of the shooting for the purpose of the fourth amendment. Cf. Alberts v. City of New York, 549 F.Supp. 227, 232-33 (S.D.N.Y. 1982); Pratt v. Bernstein, 533 F.Supp. 110, 115 (S.D.N.Y.1981); see generally Samuel v. Busnuck, 423 F.Supp. 99, 101 (D.Md. 1976) (in the course of making a lawful arrest, police may use force which is reasonable under the circumstances). For the reasons set out in HH 51-56, the Court finds that Hyatt did not apply excessive force in attempting to arrest Taylor.

60. Thus, Taylor’s fourth amendment claim is dismissed.

Conclusion

For the foregoing reasons, plaintiff Taylor’s complaint is dismissed on the merits. The Clerk of the Court is directed to enter judgment accordingly.

So ordered.

      . Plaintiffs claims against two additional parties — Thomas Mayone, the Sheriff of Ulster County and Deputy Donald Tinnie — were previously dismissed on a motion for summary judgment. See 574 F.Supp. 609 (S.D.N.Y.1983).

      . Claims asserted by plaintiff for injunctive and declaratory relief have already been dismissed. See id.

      . Because the Court finds that plaintiff's claims are without merit, it does not address Hyatt’s affirmative defense of qualified immunity.

      . It is undisputed that' during the incident in question Hyatt was acting under color of law for the purpose of § 1983, and therefore satisfied the statute’s color-of-law requirement.
      It is also undisputed that this Court has jurisdiction to hear this case under 28 U.S.C. §§ 1331, 1343 (1982).

      . See supra note 1.


author: BIGGERS, District Judge.

text:
    Daniel Edward BYNUM, Plaintiff, v. GENERAL MOTORS CORPORATION and FMC Corporation, Defendants.
    No. WC82-51-NB-D.
    United States District Court, N.D. Mississippi, W.D.
    Nov. 27, 1984.
    Cliff Finch, Batesville, Miss., Melvin Block, Brooklyn, N.Y., for plaintiff.
    Lee Davis Thames, Jackson, Miss., for defendants.
   MEMORANDUM OPINION

BIGGERS, District Judge.

This cause came before the court on the oral motion by defendant FMC Corporation (FMC) to reconsider the denial of a previous motion for summary judgment by FMC in this case. After considering the pleadings, affidavits, memoranda, and stipulations of the parties, the court rendered an oral opinion granting summary judgment in favor of FMC. This opinion sets forth in detail the reasons for the court’s decision.

The parties hereto have entered into the following two stipulations:

(1) This court has the authority to reconsider a previous ruling on a motion for summary judgment; and

(2) The vehicle in issue in the present case was manufactured in accordance with precise design specifications furnished by the United States Government, the vehicle conformed to the specifications, and the manufacturer FMC knew of no patent dangers in the vehicle that were not known to the United States Government.

This case arose from the following uncontested facts. Plaintiff, a resident of Water Valley, Mississippi, seeks recovery for injuries sustained on July 18, 1978, during National Guard military training at the federal enclave of Fort Stewart, Georgia. The injuries complained of occurred when a United States Army vehicle, an M548 cargo carrier, plunged from a bridge into a creek bed. The plaintiff, who was riding in the vehicle turret as an air gunner, suffered severe injuries when the turret gun rotated freely and broke both his legs. The plaintiff alleges that the vehicle was defective due to both a faulty left track which caused the plunge and a faulty gun locking mechanism.

Due to the parties’ stipulations, this case involves only alleged “design defects” rather than negligent manufacture. The United States has no liability under the Federal Tort Claims Act for injuries sustained by the plaintiff incident to military service. See Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Therefore, the plaintiff seeks recovery only from the manufacturer FMC under the theories of strict liability, negligence, and breach of warranty. FMC contends that under the “government contractor” or “governmental specification” defense, it shares the immunity to suit of the United States under all the theories asserted by the plaintiff.

Public contractors have long been accorded immunity from tort under state law when the injury complained of does not result from performing the work in a tortious manner, see, e.g., Roland v. Jumper Creek Drainage District, 4 F.2d 719, 721-22 (D.C.Fla.1925) (non-liability of contractor hired by state for damage resulting from construction according to plans of state); Converse v. Portsmouth Cotton Oil Refining Corp., 281 F. 981, 984 (4th Cir.), cert. denied, 260 U.S. 724, 43 S.Ct. 13, 67 L.Ed. 482 (1922) (non-liability of contractor hired, by state for damage resulting from construction according to plans of state when incidental injury necessary and unavoidable consequence of work), see generally, Annot., 9 A.L.R.3d 389, 389-90 (1966) (cases involving immunity of state contractor when no negligent or wilful tortious conduct). Similarly, the Supreme Court has recognized that contractors of the federal government acquire a protective cloak when they perform such work in accordance with government specifications, although the Court did not specifically use the word “immunity.” Yearsley v. W.A. Ross Construction Co., 309 U.S. 18, 20-22, 60 S.Ct. 413, 414-415, 84 L.Ed. 554 (non-liability of contractor of United States Government when work performed properly, apparently through imputation of governmental immunity to contractor under agency principles).

Although the government contractor defense has not been applied in either Mississippi or this circuit, it was recently discussed by the Fifth Circuit Court in Hansen v. Johns-Mansville Products Corp., 734 F.2d 1036, 1045 (5th Cir.1984) (inapplicability of government specification defense in case not involving instrument of war absent state precedent and on facts in issue). Cf. Whitaker v. Harvell-Kilgore Corp., 418 F.2d 1010, 1014 (5th Cir.1969), reh’g. denied, 424 F.2d 549, 551 (5th Cir. 1970) (contractor not immune under agency principles where contract expressly provided contractor not agent of government; government contractor defense not raised); Challoner v. Day & Zimmermann, Inc., 512 F.2d 77, 82-83 (5th Cir.), vacated and remanded for misapplication of conflict of law rules, 423 U.S. 3, 96 S.Ct. 167, 46 L.Ed.2d 3 (1975) (possible liability of contractor for defective design under strict liability principles; government contractor defense not raised). Thus, this court has guidance through case law as to when the doctrine should apply, if at all.

In Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Supreme Court determined that the United States could not be held liable under the Federal Tort Claims Act for injuries arising out of or incident to military service. This doctrine was extended in Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977), wherein the Court held that the Federal Tort Claims Act prevents a third party from being indemnified by the United States for damages paid by the third party to a member of the military injured during or incident to military service. In reaching this decision, the Court in effect recognized that indirect liability of the government is no more proper than the direct liability prohibited by Feres. See 431 U.S. at 673-74, 97 S.Ct. at 2058-59.

In cases such as the one at bar, liability of a government contractor would indirectly impose liability upon the government, inasmuch as the increased exposure of the manufacturer would be reflected in higher contract prices to the government. Accord, McKay v. Rockwell International. Corp., 704 F.2d 444, 449 (9th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 711, 79 L.Ed.2d 175 (1984). Furthermore, the court is mindful that the advanced technology involved in the construction of an instrument of war may necessitate risks beyond those associated with normal consumer goods. See, e.g., In re “Agent Orange” Product Liability Litigation, 506 F.Supp. 737 (E.D.N.Y.1979), rev’d. on other grounds, 635 F.2d 987 (2d Cir.1980), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981). Liability on the part of the contractor is particularly inappropriate when dealing with war weapons, wherein a manufacturer may be compelled by federal law to produce the weapon with no ability to negotiate specifications, contract prices, or terms. In re “Agent Orange” Product Liability Litigation, 506 F.Supp. 762, 794 (E.D.N.Y.1980), cert. denied, — U.S. -, 104 S.Ct. 1417, 79 L.Ed.2d 743 (1984). The court is further impressed by the widespread acceptance of the government contractor defense throughout the nation, which was characterized by the Pennsylvania Supreme Court as follows:

In every jurisdiction in this Country where the question has been passed upon (and that includes the Supreme Court of the United States, other Federal courts and courts of approximately half of the States), it has been uniformly held that in the absence of negligence or wilfully tortious conduct on the part of an independent contractor, he is not liable for injury to another’s property which is caused by the performance of his contract with a governmental instrumentality in accordance with its plans and specifications. There has not been cited to us, nor has our independent research disclosed, a single case holding to the contrary (footnotes omitted).

Valley Forge Gardens, Inc. v. James D. Morrisey, Inc., 385 Pa. 477, 123 A.2d 888, 890 (1956). In accordance with this great weight of authority, this court can reasonably make an Erie guess that the courts of the State of Mississippi would apply the government contractor defense if and when such a situation were presented. See Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 204-05, 76 S.Ct. 273, 277, 100 L.Ed. 199, 206 (1955). Thus, this court concludes that the government contractor defense should be applied to shield a manufacturer from liability when such work is performed in accordance with government specifications and there has been no negligence or wilfully tortious conduct by the independent contractor.

In Hansen v. Johns-Manville Products Corp., 734 F.2d at 1045-46, the Fifth Circuit set forth the three elements of the government specification defense: (1) establishment of product specifications by the government, (2) manufacture in accordance with those specifications, and (3) government knowledge equal to that of the manufacturer of the hazards. Id. This court believes that the principles that justify application of the government contractor defense apply regardless of the theory of liability asserted. Accord, In re “Agent Orange”Product Liability Litigation, 506 F.Supp. at 796, Casabianca v. Casabianca, 104 Misc.2d 348, 428 N.Y.S.2d 400, 402 (Sup.Ct.1980). Thus, a military supplier who satisfies the three enumerated criteria is shielded from liability under any theory, whether strict liability, negligence, or breach of warranty.

In the present case, the parties have established by their stipulations that FMC satisfies all three of the enumerated criteria. FMC thus is shielded from liability under all the theories asserted. Accordingly, the motion for summary judgment by FMC was well taken and was properly granted by this court.

      . A previous decision of the court in this case, rendered on February 1, 1984, has established that the law of the State of Mississippi, rather than the law of the federal enclave of Fort Stewart, Georgia, is controlling in this case. Cf. Brown v. Caterpillar Tractor Co., 696 F.2d 246, 249 n. 6 (1982) (specific recognition of controlling effect of state rather than federal law in suits by servicemen against military supplies); In re “Agent Orange" Product Liability Litigation, 635 F.2d 987, 995 (2d Cir. 1980), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981) (same); see also, e.g., Day & Zimmermann, Inc. v. Challoner, 423 U.S. 3, 4-5, 96 S.Ct. 167, 167-168, 46 L.Ed.2d 3, 5 (1975) (per curiam) (reliance on state rather than federal law in suit by serviceman against military supplier); Foster v. Day & Zimmermann, Inc., 502 F.2d 867 (8th Cir.1974) (same); Whitaker v. Harvell-Kilgore Corp., 418 F.2d 1010 (5th Cir.1969), reh’g. denied, 424 F.2d 549 (5th Cir.1970) (same); Boeing Airplane Co. v. Brown, 291 F.2d 310 (9th Cir. 1961) (same).

      . The defense has been denominated in case law as either the “government contractor" or the "government specification” defense. In this opinion, we shall use such terms interchangeably.