author: MORAN, District Judge.

text:
    Renee JOHNSON, a/k/a Renee Jones, Plaintiff, v. William ARNOS, Joseph Obrachta, and John Bibbs, Defendants.
    No. 85 C 3177.
    United States District Court, N.D. Illinois, E.D.
    Dec. 31, 1985.

      James C. Uzzell, Chicago, 111., for plaintiff.
    James P. McCarthy, James D. Montgomery, City of Chicago Corp. Counsel, Chicago, 111., for defendants.
   MEMORANDUM AND ORDER

MORAN, District Judge.

Plaintiff alleges a deprivation of her constitutional rights under the Fourth and Fourteenth Amendments, specifically an unreasonable seizure, an invasion of the security of her person, and a denial of equal protection of the laws. She was arrested for theft while standing in front of a store in the Chicago Loop. She claims the defendants, in making the arrest, used excessive force, allegedly by throwing her through a plate glass window of the store, causing internal and external injuries including permanent scarring. She brings her action under 42 U.S.C. § 1983. Defendants have moved to dismiss the action as time-barred. Plaintiff was arrested on July 15, 1981. She filed this action on April 2, 1985, nearly four years later. When she filed, the law of this circuit allowed a five-year limitation period for section 1983 actions in Illinois. Beard v. Robinson, 563 F.2d 331 (7th Cir.1977). Two weeks after she initiated this suit the Supreme Court decided Wilson v. Garcia, 471 U.S. -, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Defendants argue that Garcia in effect overruled Beard and placed section 1983 actions in Illinois under the limitation for personal injury, Ill.Rev.Stat. ch. 110, 1113-202, a two-year period.

This court disagrees on two grounds. As the following discussion will show, Garcia’s holding, applied to Illinois, requires the use of Ill.Rev.Stat. ch. 110, ¶ 13-205, the five-year statute of limitations. And even if that were not true, any change in the appropriate statute would not be applied retroactively to bar this claim.

I. CHOOSING A LIMITATION PERIOD

Congress did not give the Civil Rights Acts of the reconstruction era their own statutes of limitations. Rather, 42 U.S.C. § 1988, passed with them, directs federal courts generally to refer to the applicable state law whenever no federal rule of deci-' sion exists. State law will fill the gap unless it is inconsistent with the federal interest. Burnett v. Grattan, 468 U.S. 42, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984). The Supreme Court has repeatedly held that state statutes of limitations are ordinarily part of that applicable state law. Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). A federal court hearing a section 1983 action therefore borrows “the most analogous state statute of limitations” from the law of the state in which it sits. Tomanio, 446 U.S. at 488, 100 S.Ct. at 1797.

The question of which statute to borrow has not been a problem in Illinois for several years. Anticipating at least part of the Supreme Court’s holding in Garcia, the Seventh Circuit in effect adopted “a simple, broad characterization of all § 1983 claims” for limitation purposes, 471 U.S. at -, 105 S.Ct. at 1945. In Beard, 563 F.2d 331, the Court of Appeals held that the five-year statute of limitations for “civil actions not otherwise provided for,” Ill.Rev.Stat. ch. 110, 1113-205, governed all Illinois claims under the Civil Rights Acts. Other states, however, have not been so fortunate. Several circuits chose a statute of limitations by analyzing the particular facts of each section 1983 claim, determining which common law action it most resembled and then selecting a statute for that claim from the state’s array. The process would then begin anew for the next claim. See, e.g., Gashgai v. Leibowitz, 703 F.2d 10 (1st Cir.1983); Aitchison v. Raffiani, 708 F.2d 96 (3d Cir.1983).

The Supreme Court, in Garcia, facing evidence that such an approach “inevitably breeds uncertainty and time-consuming litigation,” 471 U.S. at -, 105 S.Ct. at 1945, concluded, much as the Seventh Circuit had earlier, that section 1988 “is fairly construed as a directive to select, in each state, the one most appropriate statute of limitations for all § 1983 claims.” Id. at 1947. Cf. Beard, 563 F.2d at 337. Toward that end the Court decided that “all § 1983 claims should be characterized in the same way for limitation purposes,” and further that the characterization should be as a tort action “conferring a general remedy for injuries to personal rights.” Garcia, 471 U.S. at -, -, 105 S.Ct. at 1945, 1948. It anticipated that its decision would be a "simple approach” to limitation problems. Id. at 1947.

In those states which have one statute which governs all, or at least most, tort actions for injuries to personal rights, applying the approach has been simple. The precise holding of Garcia was to affirm the Tenth Circuit’s choice of New Mexico’s three-year limitation on actions “for an injury to the person or reputation of any person” for section 1983 actions in New Mexico. 471 U.S. at -, 105 S.Ct. at 1949. Similarly, applying Garcia to Pennsylvania, the Third Circuit was able to select a two-year limitation covering “assault, battery, false imprisonment, false arrest, malicious prosecution or malicious abuse of process ... [or] an action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.” Knoll v. Springfield Township School District, 763 F.2d 584 (3d Cir.1985).

Many states, however, provide more than one limitation period for different types of personal injury claims. In these states the court must closely examine the state’s characterization of its own statutes of limitations to determine which of these is the one most appropriate for, or analogous to, the section 1983 general remedy for injuries to personal rights. Like any other application of state law under section 1988, a statute of limitations must still be reasonably consistent with the federal interest. “An appropriate limitations period must be responsive to [the] characteristics of litigation under the federal statute. A state law is not ‘appropriate’ if it fails to take into account ... policies that are analogous to the goals of the Civil Rights Acts.” Burnett, 468 U.S. at -, 104 S.Ct. at 2930. So, for example, the Eleventh Circuit, applying Garcia to Alabama, found that a superficial resemblance between the phrase, “personal injury,” and the one-year limitation governing “any injury to the person or rights of another not arising from contract and not specifically enumerated in this section,” Ala.Code § 6-2-39(a)(5) (1975), was not controlling. Alabama courts had defined the choices among its statutes of limitations in accordance with the old forms of action, and that statute covered only actions brought as trespass on the case. Given the legislative history of section 1983, the court found that the six-year statute, “for any trespass to person or liberty, such as false imprisonment or assault and battery,” for actions in trespass, was far more appropriate to section 1983 claims. Jones v. Preuit & Mauldin, 763 F.2d 1250 (11th Cir.1985); Ala.Code § 6-2-34(1) (1975).

The Tenth Circuit, facing a similar problem with Colorado statutes of limitations, bypassed both a one-year statute for trespass actions, including assault, battery and false imprisonment, and a six-year statute for actions on the case. Unlike Alabama, Colorado also provided a three-year period for “all other actions of every kind for which no other period of limitation is provided by law.” Colo.Rev.Stat. § 13-80-108(l)(b) (1973). Given the limits Colorado courts had placed on the other statutes, this residuary limitation was the most appropriate for an action for injury to the rights of another. McKay v. Hammock, 730 F.2d 1367, 1370 (10th Cir.1984). See also Gates v. Spinks, 771 F.2d 916 (5th Cir.1985) (Mississippi, one-year limitation for intentional tort preferable to six-year residuary limitation); Mismash v. Murray City, 730 F.2d 1366 (10th Cir.1984), cert. denied 471 U.S. -, 105 S.Ct. 2111, 85 L.Ed.2d 476 (1985) (Utah, four-year residuary limitation preferable to one-year statute for libel, slander, assault, battery, false imprisonment and seduction).

The case at bar therefore presents the question of whether Illinois is a state where the application of Garcia will be simple, as in New Mexico and Pennsylvania, or will require analysis of state law for a choice between statutes, as in Alabama and Colorado. Until recently, most courts facing the question assumed that Illinois was in the former category. Garcia had apparently overruled Beard and required the use of Ill.Rev.Stat. ch. 110, ¶ 13-202, a two-year statute which governs, among other things, “actions for damages for an injury to the person.” See, e.g., Smith v. City of Chicago, 769 F.2d 408, 411 (7th Cir.1985) (dictum); Winston v. Sanders, 610 F.Supp. 176 (C.D.Ill.1985); Moore v. Floro, 614 F.Supp. 328 (N.D.Ill.1985). However, a recent opinion from Judge Shadur of this district argues persuasively that while the reasoning of Beard cannot survive Garcia, its exact holding can and should. Like Alabama, Illinois has defined the phrase, “injury to the person,” in a way which makes it irreconcilable with a general remedy for injuries to personal rights. Like Colorado, in the face of this definition, the statute for “civil actions not otherwise provided for” is still the one most appropriate statute of limitations for all section 1983 claims. Shorters v. City of Chicago, 617 F.Supp. 661 (N.D.Ill.1985).

The conclusion follows from an analysis of both statutory language and case law. Illinois is, first of all, a state which provides different periods of limitations for different types of injuries to personal interests. Shorters, 617 F.Supp. at 664; cf. Gates, 771 F.2d at 919. While paragraph 13-202 sets a two-year limit for “an injury to the person,” a separate statute, paragraph 13-201, provides for “actions for slander, libel, or for publication of matter violating the right of privacy.” Illinois’ limitations scheme is thus readily distinguishable from that of New Mexico, with which Garcia directly dealt. Also, paragraph 13-205, in addition to functioning as the residuary statute, covers actions on unwritten contracts, awards of arbitration and injuries to property. Actions brought on section 1983 could arise and have arisen from facts which, characterized as torts, fit any of these three categories. See, e.g., Alliance to End Repression v. Rochford, 407 F.Supp. 115 (N.D.Ill.1975) (invasion of privacy); North American Cold Storage Co. v. Cook County, 468 F.Supp. 424 (N.D. Ill.1979) (discriminatory tax assessment). Given this choice, a court must look to Illinois’ construction of its own statutes to determine which one best fits a section 1983 action.

Secondly, Illinois characterizes claims for limitation purposes precisely on the nature of the interest affected, rather than the theory of recovery or the form of the action. See Hundt v. Burhans, 13 Ill.App.3d 415, 300 N.E.2d 318 (3d Dist.1973); Handtoffski v. Chicago Consolidated Traction Co., 274 Ill. 282, 113 N.E. 620 (1916). For example, an airline flight attendant had spilled a pot of hot coffee on a passenger. He attempted to characterize his action as a suit for breach of his contract for safe transportation, in an effort to evade the two-year statute of limitations. But since his claim arose from an invasion of his interest in freedom from physical harm, the court held that his claim was governed by the personal injury limitation. Schreiber v. Eastern Airlines, Inc., 38 Ill.App.3d 556, 348 N.E.2d 218 (1st Dist.1976). On the other hand, when a husband sued the driver who caused a collision from which his wife had sustained injury, to recover her medical expenses, the suit came under the five-year residuary statute. He had not been injured; rather, he was suing for “damages occasioned to him by reason of his marital relationship to the injured party.” Roth v. Lundin, 237 Ill.App. 456, 458 (1st Dist.1925). This approach to characterization applies even when the cause of action is statutory in origin. In Neikirk v. Central Illinois Light Co., 128 Ill.App.3d 1069, 471 N.E.2d 1027, 84 Ill.Dec. 261 (3d Dist.1984), a snowmobile rider injured in a collision with an unlighted utility pole sued under the Public Utility Act. His personal injury claims were barred by the two-year limitation, but his property damage claim survived under the five-year statute.

The result of such an approach is that under Illinois law, “injury to the person” in paragraph 13-202 and its predecessors means only physical injury and its direct consequences. Shorters, 617 F.Supp. at 665. The statutory language itself leads to such an interpretation. Since libel, slander and invasion to privacy have a separate statute, and other actions such as false imprisonment and malicious prosecution are separately listed in the same statute, these rights must not be encompassed by “injury to the person.” Therefore, as long ago as Bassett v. Bassett, 20 Ill.App. 543, 548 (1887), the court concluded that if the phrase “were intended to include all injuries to personal and relative rights, the legislature would not have considered' it necessary in the same act to provide specially for a period of time in which an action should be brought for many of the injuries to such rights ... [It was] the clear intent of the legislature to limit ‘injuries to the person’ to those of a physical nature.” See also Denslow v. Hutchinson, 152 Ill.App. 502 (1910) (injury to the person means damages “of a physical character”).

Any tort action which is not grounded on physical injury to the plaintiff, then, is not “an injury to the person” for limitation purposes. Illinois statutes of limitations must be strictly construed. If an action is not specifically covered by a provision in the limitation act, it is governed by the five-year residuary limitation. Bates v. Bates Machinery Co., 230 Ill. 619, 82 N.E. 911 (1907). In Doerr v. Villate, 74 Ill. App.2d 332, 220 N.E.2d 767 (2d Dist.1966), a wife sued her husband's physician because the operation he performed had failed to sterilize her husband and they had a retarded child. She sued to recover for the burden of medical expenses and special care for it. The court held that though the action was for malpractice, it did not involve a direct physical or mental injury to the plaintiff, and so came under the five-year residuary limitation, not the two-year personal injury limitation.

Since Illinois restricts “injury to the person” to purely physical injury, this court must question whether it is truly appropriate to section 1983 actions. Burnett and Tomanio are presumably still good law after Garcia, and they still direct us to find the limitation period which would govern an analogous action in state law. 468 U.S. at -, 104 S.Ct. at 2929; 446 U.S. at 483-84, 100 S.Ct. at 1794-95. See Steinle v. Warren, 765 F.2d 95, 101 (7th Cir.1985) (“the period of limitations applicable to § 1983 actions is the limitation period for state law claims most analogous to the federal claim”). If a state limitations statute operates at too great a distance from the goals of the civil rights statutes, it cannot be applied to them. Burnett, 468 U.S. at -, 104 S.Ct. at 2931. The interest which gives rise to a section 1983 action is not fundamentally an interest in freedom from physical injury. Even when a physical injury is part of the facts of the case, as in the case at bar, the action rests on an infringement of a constitutional or statutory right. The Garcia court, indeed, at one point characterized section 1983 as analogous to “the tort action for the recovery of damages for personal injuries.” 471 U.S. at-, 105 S.Ct. at 1947. But in the same few paragraphs in which it made that statement, it also described section 1983 as protecting against “an injury to the individual rights of the person,” and variously called the statute “the federal civil rights remedy,” “a remedy for the violation of constitutional rights,” and “a general remedy for injuries to personal rights.” 105 S.Ct. at 1947-48. Cf. Shorters, 617 F.Supp. at 663. At the heart of the action is injury to an intangible, the citizen’s federal right.

Tort claims for injuries to intangible rights in Illinois, if not specifically mentioned in the statute, are “actions not otherwise provided for” for limitation purposes. Defamation and invasion of privacy have their own one-year statute; false imprisonment and malicious prosecution have a two-year limitation. Otherwise, Illinois courts have placed personal tort actions based on intangible rights under the residuary statute: fraud and deceit, Bates, 230 Ill. at 621, 82 N.E. at 912; tortious misrepresentation, Rozny v. Mamul, 43 Ill.2d 54, 250 N.E.2d 656 (1969); retaliatory discharge, Henon v. Lever Brothers Co., 114 Ill.App.3d 608, 449 N.E.2d 196, 70 Ill.Dec. 322 (1st Dist.1983); attorney malpractice, Dolce v. Gamberdino, 60 Ill.App.3d 124, 376 N.E.2d 273, 17 Ill.Dec. 274 (1st Dist. 1978); and apparently conspiracy, Cartolano v. Tyrrell, 421 F.Supp. 526, 533 (N.D.Ill. 1976); Cage v. Bitoy, 406 F.Supp. 1220 (N.D.Ill.1976), aff'd 559 F.2d 1225 (7th Cir. 1977). See generally Hockett v. American Airlines, Inc., 357 F.Supp. 1343 (N.D.Ill. 1973).

Section 1983 provides a statutory remedy for violations of constitutional and statutory rights. In Illinois, tort actions on statutory rights which cannot be characterized as direct physical injury are “actions not provided for.” In Seymour v. Union News Co., 217 F.2d 168 (7th Cir.1954), a husband’s suit against the restaurant which had served him a tainted pork dinner was time-barred as a claim for a personal injury. His wife, however, had five years to bring an action for his medical expenses and hospital bills, grounded on her rights under the Family Expense Statute. The same approach is used when the remedy is statutory. In Desiron v. Peloza, 308 Ill. App. 582, 32 N.E.2d 316 (1st Dist.1941), a mother and daughter sued under the Dram Shop Act. An allegedly intoxicated person had spilled a glass of beer on a tavern floor. The mother slipped and fell at that spot, fracturing her foot. The Dram Shop Act provides persons injured by the intoxicated a remedy against the tavern owners who have served them beverages. The mother’s claim was time-barred as a personal injury. The daughter’s claim, on an injury to her right of support from her mother, however, came under the residuary statute and was timely. 308 Ill.App. at 590, 592; 32 N.E.2d at 321.

The Supreme Court directs us to find one limitation for all section 1983 actions. The Seventh Circuit, in Beard, had previously chosen the residuary five-year statute for Illinois. That choice remains appropriate. Shorters, 617 F.Supp. at 666. Beard indeed rested on a perception of fundamental differences between a section 1983 action and a common law tort, 563 F.2d at 336, while Garcia now directs that we treat it precisely as a tort. But even analyzed as a tort, the section 1983 action is properly governed by the five-year limitation in Illinois. The personal injury limitation is restricted to only physical injuries. The Tenth Circuit, whose reasoning the Supreme Court expressly adopted in Garcia, 105 S.Ct. at 1941-1942, chose residuary statutes in Colorado and Utah when it found the alternatives too confining. McKay, 730 F.2d at 1370; Mismash, 730 F.2d at 1367. Section 1983 is a remedy for actions on personal rights. Illinois would, we believe, place it under the residuary statute. Nothing in Garcia rejects the use of a residuary statute when it is most appropriate and, indeed, the Supreme Court itself affirmed the selection of a residuary statute for section 1983 actions in Maryland just last year. Burnett, 468 U.S. at -, 104 S.Ct. at 2927. This court concludes that the one most appropriate statute of limitations for section 1983 actions in Illinois is the five-year residuary statute. Johnson’s complaint was therefore timely filed.

II. RETROACTIVE APPLICATION

Even if the foregoing analysis of the meaning of Garcia for Illinois should prove wrong, and section 1983 actions here are to be placed under a two-year statute of limitations, there is an alternative ground for denial of the motion to dismiss. If such a radical shortening of the limitation period were to take effect, it would not be applied retroactively to actions which accrued before the Garcia decision.

In Chevron Oil v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), the Supreme Court declined to give retroactive effect to its decision in Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969). That decision, holding that state law rather than admiralty law applied to oil drilling rigs on the continental shelf, appeared to shorten the limitation period for an oil worker’s personal injury claim. In holding that his suit was not time-barred, the Court articulated the factors for analysis which indicate when a decision should apply only prospectively. The decision must “establish a new principle of law, either by overruling clear past precedent on which litigants may have relied ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed.” Chevron Oil, 404 U.S. at 106, 92 S.Ct. at 355. If it does, then one must weigh how necessary retroactive application would be to implement the purpose and effect of the new decision against the likelihood of “substantial inequitable results” if the decision is applied retroactively. Id. at 107, 92 S.Ct. at 355; cf. Snyder v. Smith, 736 F.2d 409, 414 (7th Cir.1984).

Under the Chevron Oil analysis, Garcia would not be applied retroactively in Illinois if it would shorten the limitation period for section 1983 actions. A decision requiring the two-year period would definitely establish a new principle of law by overruling clear past precedent. Beard clearly stated a five-year limitation, 563 F.2d at 338, and that decision has been controlling in Illinois for nearly eight years. Litigants and attorneys across the state relied on it. Cf. Winston, 610 F.Supp. at 176. Retroactive application would not be necessary to further the purpose and effect of the new decision. The Supreme Court’s goal in Garcia was to achieve greater uniformity and certainty for section 1983 actions within each state. 471 U.S. at-, 105 S.Ct. at 1947. Illinois has had uniformity and certainty since 1977. See Moore, 614 F.Supp. at 333; De-Furgalski v. Siegel, 618 F.Supp. 295, 299 (N.D.Ill.1985). Finally, deciding only in 1985 that an action which accrued in 1981 became time-barred in 1983 would seem an inequitable result. As the Supreme Court noted in Chevron Oil, the harsh consequence of retroactive application of a decision which reduces a limitation period is to deprive a litigant of his day in court. When the decision overrules clear past precedent, that result is simply inequitable. 404 U.S. at 108, 92 S.Ct. at 356. See also Del Costello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983); Rivera v. Green, 775 F.2d 1381 (9th Cir.1985) (Garcia applied retroactively in Arizona to increase limitation period).

The decisions in the Third and Eighth Circuits which have applied Garcia retroactively to bar suits are not to the contrary. In each case, the situations are distinguishable from that of Illinois, so the analysis using the Chevron Oil factors yields a different result. The Third Circuit had characterized each section 1983 action individually for limitation purposes depending on the type of injury and the relief sought. Garcia therefore did not create a new principle of law there since the law was not settled, and applying it retroactively served the goals of uniformity and certainty. Fitzgerald v. Larson, 769 F.2d 160 (3d Cir.1985); Smith v. City of Pittsburgh, 764 F.2d 188 (3d Cir.1985). And, although the Eighth Circuit had clearly chosen a five-year period for Iowa in Garmon v. Foust, 668 F.2d 400 (8th Cir.1982), the plaintiff in Wycoff v. Menke, 773 F.2d 983 (8th Cir. 1985), demonstrably could not have relied on that precedent. His action had accrued and his claim had been filed before Garmon was decided, and prior to Garmon the law in the circuit had not been clear. Wycoff, 773 F.2d at 984, 986.

The situation in Illinois corresponds rather to that in the Tenth Circuit, from which Garcia arose. Its decision in Garcia v. Wilson, 731 F.2d 640 (10th Cir.1984), made a clear break with its own past precedent in New Mexico and Oklahoma. It also would shorten the limitation period in both states. Applying the Chevron Oil analysis, the court concluded that retroactive application would be unfair to the litigants in those states who had relied on that precedent, and applied its new rule prospectively only. Jackson v. City of Bloomfield, 731 F.2d 652 (10th Cir.1984).

The plaintiff’s claim here is therefore not time-barred. In the context of Illinois limitations law, Garcia does not change the five-year period in use in Illinois for section 1983 actions since 1977. But even if it did, Chevron Oil would require that we not apply a shorter limitation retroactively to a cause of action which accrued in 1981.

CONCLUSION

For the foregoing^easons, defendants’ motion to dismiss is denfetb-^^

      . See also Bailey v. Faulkner, 765 F.2d 102 (7th Cir.1985) (Indiana, two-year limitation for "injuries to person or character”); Altair Corp. v. Pesquera de Busquets, 769 F.2d 30 (1st Cir.1985) (Puerto Rico, one-year limitation for "tort actions for obligations arising from fault or negligence”); Burkhart v. Randles, 764 F.2d 1196, 1200 n. 5 (6th Cir.1985) (Tennessee, two-year limitation for personal injury actions); Franceski v. Plaquemines Parish School Board, 772 F.2d 197 (5th Cir.1985) (Louisiana, one-year "liberative prescription” for "delictual actions”); and decisions by the Tenth Circuit implementing Garcia v. Wilson, 731 F.2d 640 (10th Cir. 1984): Pike v. City of Mission, 731 F.2d 655 (10th Cir. 1984) (Kansas, two-year limitation for "injury to the rights of another, not arising on contract”); Abbitt v. Franklin, 731 F.2d 661 (10th Cir.1984) (Oklahoma, two-year limitation for "injury to the rights of another, not arising on contract.”).

        . McKay, while decided before the Supreme Court issued Garcia, nevertheless represents an application of the same reasoning as Garcia. The Tenth Circuit handed down eight en banc opinions dealing with section 1983 limitations problems on the same day. Garcia v. Wilson, 731 F.2d 640 (10th Cir.1984) was its extended treatment of the characterization issue which concluded that “every section 1983 claim is in essence an action for injury to personal rights.” 731 F.2d at 651. The Supreme Court not only affirmed the Tenth Circuit, but expressly adopted both its language and its reasoning. Wilson v. Garcia, 471 U.S. at -, -, 105 S.Ct. at 1941-42. The other opinions were applications of Garcia v. Wilson to states in the circuit. In addition to McKay, and to Pike and Abbitt cited in note 1 supra, they were: Hamilton v. City of Overland Park, 730 F.2d 613 (10th Cir. 1984), cert. denied, 471 U.S. -, 105 S.Ct. 2111, 85 L.Ed.2d 476 (1985) (Kansas); Cowdrey v. City of Eastborough, 730 F.2d 1376 (10th Cir.1984) (Kansas); Mismash v. Murray City, 730 F.2d 1366 (10th Cir.1984), cert. denied, 471 U.S. -, 105 S.Ct. 2111, 85 L.Ed.2d 476 (1985) (Utah); and Jackson v. City of Bloomfield, 731 F.2d 652 (10th Cir.1984) (New Mexico). It may also be worth noting that the denials of certiorari for Hamilton and Mismash came after the Garcia decision. In the same few days the Court decided Garcia, denied certiorari for Hamilton and Mismash, and vacated and remanded two Third Circuit decisions for reconsideration in light of Garcia: Swyka v. Johnson, 471 U.S. -, 105 S.Ct. 2108, 85 L.Ed.2d 474 (1985); Springfield Township School District v. Knoll, 471 U.S. -, 105 S.Ct. 2065, 85 L.Ed.2d 275 (1985).

      . If Illinois had a general tort remedy for injuries to personal rights, its courts would of course choose a limitation for each case, depending on whether the facts showed a direct physical injury, an invasion of an interest specifically mentioned in the statute, or injury to an intangible right not mentioned. Garcia requires using one limitation period for all cases. What Illinois courts would do under the same restriction no one can predict with complete confidence, but given the Illinois courts’ consistent treatment of tort actions based on intangible rights, it at least seems likely that they would choose the residuary limitation.


source: Caselaw Access Project

author: WARRINER, District Judge.

license: Public Domain

text:
    Charles Edward SMITH v. Rufus BAKER, Warden, et al.
    Civ. A. No. 85-0390-R.
    United States District Court, E.D. Virginia, Richmond Division.
    Dec. 31, 1985.
    Charles Edward Smith, pro se.
    Jacqueline G. Epps, Sr. Asst. Atty. Gen., Richmond, Va., for respondents.
   OPINION

WARRINER, District Judge.

On 16 April 1985, petitioner, proceeding pro se and in forma pauperis, submitted this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On 9 May respondents submitted a motion to dismiss. Petitioner rebutted on 4 June. By opinion and order of 28 June, the Court directed the parties to argue further several issues raised by the petition. On 26 July respondents submitted a supplemental motion to dismiss and motion for summary judgment to which petitioner responded on 23 September. Respondents’ motion is ripe for consideration. The Court exercises juris-, diction under 28 U.S.C. § 2241.

Petitioner’s present imprisonment results from his conviction on 14 May 1982, in the Circuit Court of Powhatan County of the offenses of breaking and entering and grand larceny. Petitioner was sentenced to twenty years confinement in the Virginia State Penitentiary.

Although the above convictions are responsible for petitioner’s present imprisonment, he does not attack them directly but instead challenges in the instant petition a misdemeanor conviction received 5 January 1985. Petitioner has long since served the sentence he received as a result of his conviction of that misdemeanor. The relevance of the misdemeanor conviction to petitioner’s present imprisonment becomes clear only upon an examination of the facts he has alleged. These follow.

On 29 March 1981, a U-Haul truck was stolen from the U-Haul lot in Richmond, Virginia. The truck was driven to Powhatan County where it was used the same evening in the burglary of a building owned by the Davis Merchant Equipment Company. The building was broken into and a number of tractors, mowers, and other items were removed and placed in the U-Haul truck. Officers in a police cruiser passing by the building noticed the presence of the truck and became suspicious. When the truck pulled out from the building, the officers followed it and presently forced it to stop. In the cab of the truck was one man, Terry Lee Gregory. In the back were items taken from the building owned by the Davis Merchant Equipment Company.

Sometime after his arrest on charges of breaking and entering and grand larceny, Mr. Gregory informed the police that he had not committed the offenses alone. He claimed that petitioner, Charles Edward Smith, had aided him in both stealing the truck in Richmond and carrying out the burglary in Powhatan County. On the basis of Mr. Gregory’s statement, the police arrested petitioner and charged him with the theft of the U-Haul truck as well as breaking and entering and grand larceny at the Davis Merchant Equipment Company.

Smith was scheduled to go to trial first on the charge of theft of the U-Haul truck. According to petitioner, his defense counsel negotiated a plea bargain with the police that he advised Mr. Smith to accept. The terms of the plea bargain were that if Mr. Smith pled guilty to the theft of the truck, the grand larceny charge against him would be reduced to a misdemeanor and he would receive a six month sentence with six months suspended. Since Smith at the time of trial had already been in jail six months, no further imprisonment would result from his conviction of the misdemean- or. Smith claims he questioned his lawyer as to whether his admission to the theft of the truck might not later be used against him in his upcoming trial for the robbery at the Davis Merchant Equipment Company. Defense counsel assured Smith that the conviction could not be used against him unless he took the stand to testify. Smith then pleaded guilty to the misdemeanor charge and received a six month sentence.

On 14 May 1982, Smith was brought to trial on the charges arising from the burglary at the Davis Merchant Equipment Company. The testimony at trial consisted primarily of the two officers involved testifying as to the details of the break-in and Mr. Gregory’s arrest, described above, and Mr. Gregory’s testimony that Smith had been involved in and, in fact, masterminded the entire operation. Finally, the Commonwealth elicited from Mr. Gregory’s lawyer the damning testimony that he had heard petitioner plead guilty in Richmond General District Court to stealing the U-Haul truck. This testimony was allowed in despite defense counsel’s imaginative argument that it was irrelevant. Petitioner did not take the stand. The jury found Smith guilty on both counts and the judge sentenced him to ten years on each count, the sentences to run consecutively.

The essence of Smith’s complaint is this; his counsel, Mr. Geary, misinformed him when he told Smith that a plea of guilty to the misdemeanor charge could not later be used against him. In fact, it was used and was, as the prosecution admitted, “critical” to their case against him. Smith argues that had he known the risk involved in accepting what was otherwise a desirable plea bargain, he would never have pled guilty. Because his misdemeanor conviction was based on false information, it was without effective assistance of counsel and therefore invalid. He attacks this misdemeanor conviction because it was of crucial importance in convicting him of the offenses for which he is now imprisoned.

Following his conviction, Smith filed a petition for habeas relief in the Circuit Court of the City of Richmond. In this first State petition he made in fragmentary form the claim he brings in the present petition. By order of 17 January 1984, the Circuit Court rejected his petition, finding its allegations legally “insufficient to affect the validity fo the conviction.” Petitioner failed to appeal the Circuit Court’s denial of his petition to the Virginia Supreme Court. On 29 August 1984, he filed a petition for a writ of habeas corpus in the Virginia Supreme Court. Here, he alleged, inter alia, that his guilty plea was “involuntary by virtue of his inducement to plead guilty by misrepresentation of his court-appointed counsel and his ignorance of the consequences of the plea.” Further on in the petition, Smith clarified this claim, stating:

Defense counsel was also ineffective because he advised petitioner to plea bargain. While petitioner emphasized grave concern about the use of his guilty plea against him in a pending trial, defense counsel erroneously assured him that the guilty plea or conviction could not, by law, be used against him by the Commonwealth. The advice to plea bargain was based on defense counsel’s ignorance and lack of preparation rather than an informed professional opinion.

On 1 February 1985, the Virginia Supreme Court denied the petition for the writ on the ground that “no writ should be granted on the basis of any allegation, the facts of which the petitioner had knowledge at the time of filing any- previous petition. Va. Code § 8.01-654(B)(2).” Petitioner then filed the instant federal petition.

Despite the complexities of petitioner’s claim and its potential for confusion, the Court finds that the Virginia Supreme Court had before them an adequate statement of petitioner’s claim. Although petitioner is, in essence, seeking to have his felony convictions set aside, his success in doing so is predicated upon his demonstrating that his misdemeanor conviction is invalid. The Virginia Supreme Court has had before them the issue of the validity of petitioner’s guilty plea to that offense. They have declined for procedural reasons to give relief on that ground. The Court finds that petitioner has met the exhaustion requirements imposed by 28 U.S.C. § 2254(b) as to his claim that his guilty plea to the misdemeanor charge was involuntary.

While the Virginia Supreme Court has had an opportunity to pass upon the merits of petitioner’s claim sufficient to satisfy § 2254(b), it is evident that they have not considered his claim on the merits because of their finding that petitioner had been guilty of procedural default. In denying petitioner’s second State habeas petition, the Virginia Supreme Court cited Va. Code § 8.01-654(B)(2) which reads, in pertinent part: “No writ shall be granted on the basis of any allegation, the facts of which petitioner had knowledge at the time of filing any previous petition.” The Court’s citation of this section indicates that it found petitioner’s claim procedurally barred because he failed to adequately present it in his first State habeas petition. The present question is whether the Virginia Supreme Court’s finding of a procedural bar constitutes an adequate and independent State ground which prohibits this Court from considering the merits of petitioner’s claim. The Court finds that it does.

The question of whether there has been a procedural default in this case should be evaluated with reference to Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), which held that a State finding of procedural default would bar federal habeas review unless both “cause” excusing the default and “prejudice” resulting from non-review could be shown. See also Cole v. Stevenson, 620 F.2d 1055 (4th Cir.1980).

Upholding application of the State procedural bar requires answering two questions in the affirmative: the first is whether the State procedural rule serves an adequate State interest, see Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408

(1965), the second is whether the rule has been reasonably applied. The first question has been settled by the Supreme Court’s holding in Murch v. Mottram, 409 U.S. 41, 45, 93 S.Ct. 71, 73, 34 L.Ed.2d 194 (1972) that a State may reasonably require “that a prisoner seeking post-conviction relief must assert all known constitutional claims in a single proceeding.” See also Grooms v. Mitchell, 500 F.Supp. 137 (E.D. Va.1980) (finding State application of Va. Code § 8.01-654(B)(2) precluded federal habeas review). The remaining question is whether § 8.01-654(B)(2) was fairly applied in this instance. In petitioner’s first State habeas petition which he filed in circuit court, he made the following allegations:

Ineffective assistance of counsel, i.e., Mr. Geary my attorney led me to believe I would be found guilty of unauthorized use of a motor vehicle. He was aware of another charge I had pending in Powhatan Circuit Court. And that this charge if convicted would be used against me ... I do not feel that Mr. Geary had my best interest in mind when he insisted I make a plea knowing that this would be used against me at a later date.

Although the specific claim petitioner brings here can be recognized in the above quotation, it is evident that the vague and incomplete way in which it was presented deprived the Virginia courts of any chance to pass upon the merits of his claim. It is simply impossible to tell from the above quoted section how Mr. Geary’s representation had been ineffective. Missing from this first petition are vital details establishing that Mr. Geary actually misled petitioner as to the consequences of his plea and that his guilty plea was in consequence involuntary. What petitioner presented suggested only his disagreement with his counsel’s advice.

Although he made some attempt, in essence petitioner failed to present the instant claim in his first State habeas petition. Accordingly the Virginia Supreme Court’s application of § 8.01-654(B)(2) to bar review was justified and presents a procedural bar to this Court’s review of Smith’s claim absent a showing of “cause” and “prejudice.” See Wainwright, supra.

Smith has the burden of demonstrating such “cause” and “prejudice” as to excuse his procedural default. He has not done so and the facts of this case do not suggest that he could. The procedural default that occurred in this case arises from petitioner’s failure to adequately present known grounds for relief. While the Supreme Court has left the definition of “cause” somewhat hazy, it is clear that failing to seek review through this type of neglect does not suffice. See Wainwright, supra. The Court finds, therefore, that review of petitioner’s claims is barred and that his petition for a writ of habeas corpus must be DENIED because of his failure to comply with State procedural requirements and the Virginia Supreme Court’s subsequent finding of procedural default.

An appropriate judgment shall issue.

Should petitioner wish to appeal, written notice of appeal must be, filed with the Clerk of the Court within thirty (30) days of the date of entry hereof.


author: HAROLD L. MURPHY, District Judge.

text:
    Mary L. DOSS, et al., Plaintiffs, v. James H. LONG, et al., Defendants.
    Civ. A. No. C81-229R.
    United States District Court, N.D. Georgia, Rome Division.
    Dec. 31, 1985.

      See also, D.C., 629 F.Supp. 127.
    Gloria Einstein, Ga. Legal Service, Way-cross, Ga., David Webster, Emory Law School, Atlanta, Ga., Gary Leshaw, Decatur, Ga., John Riemer, Dalton, Ga., Robert Remar, Douglasville, Ga., William J. Cobb & John L. Cromartie, Jr., Atlanta, Ga., for plaintiffs.
    Sam F. Little, Little & Adams, Dalton, Ga., John L. Tracy, Albany, Ga., Frank P. Samford, III, Moore, Samford & Moore, Atlanta, Ga., M.C. Pritchard, Waycross, Ga., Larry D. Woods, Nashville, Tenn., for defendants.
   ORDER

HAROLD L. MURPHY, District Judge.

This case is before the Court on plaintiff’s application for attorneys’ fees and costs following the plaintiff’s successful § 1983 action. In addition, plaintiff’s seek to alter or amend this Court’s judgment of August 23, 1985. Because the plaintiff’s are the prevailing party in this matter, and because defendant’s cannot show special circumstances that would justify a denial of fees, the Court will grant the request for fees. The Court will deny plaintiff’s motion to alter its prior Order regarding notice because the Court finds its provision for notice to be reasonable. However, the Court will clarify its prior Order regarding notice as there seems to be a misunderstanding regarding the intent of its provisions.

ATTORNEYS’ FEES

Plaintiffs’ application for attorneys’ fees meets all the threshold requirements for an award of fees under 42 U.S.C. § 1988. Plaintiffs were successful in their challenge of the inferior court judges fee system of the State of Georgia under 42 U.S.C. § 1983. This Court’s order of August 23, 1985, (Civil Action No. C81-229R, N.D.Ga.) declared that the fee system courts, as they existed prior to July 1,1982, created an unconstitutional pecuniary interest on the part of the judges of such courts. The Court held that the judgments of those courts, rendered prior to July 1, 1982, were rendered in violation of due process of law. The Court restrained and enjoined any successor judges from making any effort whatsoever to collect or enforce those judgments. That judgment for the plaintiffs places them in the prevailing party category and within the rule that “attorneys’ fees be available in any action to enforce a provision of § 1983.” Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 1982, 80 L.Ed.2d 565 (1984).

The award of fees is discretionary with the court. But “the prevailing party should ordinarily recover an attorneys’ fee unless special circumstances would render such an award unjust.” Criterion Club of Albany v. Board of Commissioners of Dougherty County, 594 F.2d 118, 120 (5th Cir.1979). Furthermore, the discretion to deny attorneys’ fees to a prevailing plaintiff under § 1988 is “exceedingly narrow.” Ellwest Stereo Theatre, Inc. v. Jackson, 653 F.2d 954, 955 (5th Cir. 1981) see also, Fitzgerald v. Peek, Civil Action No. C772074A (N.D.Ga., March 29, 1982), per curiam affirmed, 703 F.2d 581 (11th Cir. 1983).

The State of Georgia in their response in opposition, filed October 15, 1985, argues that the award of fees in these circumstances would be unjust. They assert that the State was never a party to the action. The Attorney General, who initially indicated a desire to file an amicus brief with this Court, later declined to do so. The State contends that they had no interest in the continuing litigation and that it was “litigated for 3 years after the statute was changed by State law primarily over the issue of the enforceability of the judgments entered under the previous fee system.” The State notes that this effort may have been “motivated by the pecuniary interest which the named Defendants might have in collecting their fees,” but insist that the State itself had no interest in, nor benefit by, the continued course of litigation, and that therefore they should not be taxed with any costs. The state asserts that should the Court find that the defendants who litigated the case did so in bad faith, those defendants should bear the costs individually. Hutto v. Finney, 437 U.S. 678, 700, 98 S.Ct. 2565, 2578, 57 L.Ed.2d 522 (1978)

However, the fact that the Attorney General did not ultimately choose to represent the state judicial officers is not dispositive of their claim. In Fitzgerald v. Peek Judge O’Kelley held:

the State of Georgia cannot wash its hands of its liability for attorneys' fees under a federal statute by merely failing to provide the defendant with representation by the State Attorney General.

Fitzgerald v. Peek, Civil Action No. C772074A at 21, (N.D.Ga., March 29, 1982) per curiam affirmed, 703 F.2d 581 (11th Cir. 1983).

Since all the defendants were state officials, acting pursuant to the State Constitution and statutes, the defendants were as much the State as the Attorney General. As Judge O’Kelley noted in Fitzgerald, the premise that the State of Georgia’s interests are not represented in the litigation unless the Attorney General’s office represents it “[...] is unsound.” Id. at 21.

A recent 11th Circuit decision has held: It is well settled law that a section 1988 attorneys’ fees award may run against a public treasury for section 1983 violations by public officers acting in their official capacities even though the public entity is not named as a defendant in the suit, [citations omitted].

Odum v. Clark, 748 F.2d 1538, 1542 (11th Cir.1984). In Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), the Supreme Court noted that the legislative history of section 1988 requires that:

in such suits attorneys’ fees should generally be obtained ‘either directly from the official, in his official capacity, from funds of his agency or under his control, or from the State or local government (■whether or not the agency or government is a named party).’

Id. at 700, 98 S.Ct. at 2578 (emphasis added). More recently the Supreme Court stated:

[A] judgment against a public servant ‘in his official capacity’ imposes liability on the entity that he represents provided, of course, the public entity received notice and an opportunity to respond. We now make that point explicitly.

Brandon v. Holt, — U.S. -, 105 S.Ct. 873, 878, 83 L.Ed.2d 878 (1985).

Certainly here the State received notice and an opportunity to respond. The State contends it responded by not getting into the case and by changing the law. However, those actions are not dispositive of the State’s ultimate responsibility for the actions of its duly appointed officers, acting under color of its laws at the time the suit was commenced.

The State contests the amount the plaintiffs ask in fees, but it is necessary to first decide whether fees and costs are to be allowed at all. The Court is sympathetic with the State’s position in this matter. The litigation continued for the past three years largely because of the efforts of a few of the judges involved. However, sympathies are not statutes, and the Court cannot ignore the clear dictates of the statutory language and case precedent in the critical area of attorneys’ fees in civil rights litigation. That language and precedent, as outlined above, clearly entitles plaintiffs to an award of attorneys’ fees. The amount of fees awarded is in the discretion of the district judge, who must consider the factors outlined in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974) before making an award. The Court has considered plaintiff’s fee request in light of those factors and finds the amount requested appropriate. The Court will address the objections to the plaintiffs’ request for attorneys’ fees under the individual headings.

1. The time and labor required.

Lead counsel have attached affidavits indicating the number of hours spent on the case. They have not requested the total number of attorney hours spent on the case. Work done by other attorneys at Georgia Legal Services has not been included. Nor have they included the time spent on the case by law students or paralegals. Further, plaintiffs have reduced the time requested for administrative functions relating to the litigation, such as time spent coordinating meetings. The total number of hours requested are 136 hours for Gary Leshaw and 87 hours for David Webster. The Court disagrees with the defendant’s assertion that the fee request is excessive. Defendants argue that because there was precedent on point in plaintiff’s favor a minimum of effort should have been expended. In reviewing the lengthy docket of this matter the Court considers the efforts of the plaintiffs counsel to have been reasonable. Plaintiffs did not seek to maintain this litigation but were required to do so by the refusal of defendants to settle this matter in the face of the precedents they now call upon.

2. Novelty and Difficulty of the Question.

The litigation of a lawsuit calling into question a state-wide system of adjudication presented several difficult and involved problems. Plaintiffs had to deal with thousands of pages of documents, and the use and preparation of 198 interrogatories and 444 requests for production. There was a question of the propriety of handling this matter as a bilateral class action which the State now questions. The State does not suggest any more efficacious way by which plaintiffs could have proceeded, and the Court does not find this criticism harmful to plaintiffs request. Plaintiffs have competently and intelligently litigated this lengthy, complex matter.

3. Requisite Skills.

The Court has reviewed with care the work product of plaintiffs’ counsel and concludes that they litigated this matter diligently and professionally.

4. Preclusion of Other Employment.

While not a particularly important factor in this instance, it is uncontestable that time spent on this litigation over the past four years was time that was unavailable to other eligible clients of Georgia Legal Services.

5. The Customary Fee.

Mr. Webster has requested an hourly rate of $125.00 for his work in this matter. Mr. Webster graduated from the University of Chicago law school in 1969. He clerked for Chief Judge John C. Godbold for one year before joining the Atlanta Legal Aid Society (ALAS). He remained with ALAS for six years, then worked in the regional office of the Legal Services Corporation from 1978 to 1980. In 1981 Mr. Webster became the Director of Impact Litigation for ALAS and this year joined the faculty of Emory Law School. Mr. Webster has litigated numerous civil rights cases in federal court, particularly in the area of procedural due process. Although the State has questioned the hourly fee requested by Mr. Webster it does not question his experience and skill in this area. The Court concludes that an hourly rate of $125.00 is commensurate with Mr. Webster’s qualifications in these type of cases.

Mr. Leshaw has requested an hourly rate of $100.00 for his work in this matter. Mr. Leshaw graduated from Emory University School of Law in 1976, and received an LL.M. from that law school in 1980. From 1976 to the present time Mr. Leshaw has been employed at ALAS. In 1979 he became managing attorney of the DeKalb County office of ALAS and is now a senior attorney. Mr. Leshaw has litigated as lead counsel or co-counsel numerous cases involving significant constitutional claims. The State questions the hourly fee he requests, but does not question his experience and skill in this area. The Court concludes that an hourly rate of $100.00 is commensurate with Mr. Leshaw’s qualifications in these type of cases.

6. Fixed v. Contingent Fee.

This factor has no bearing in this matter.

7. Time Limitations Imposed by the Client or the Circumstances.

Plaintiffs litigated this matter over a four year period without delay. The interests of plaintiffs clients that would otherwise go unrepresented mandated the dispatch with which plaintiffs conducted this litigation. The priority that it thus imposed entitles plaintiffs to a premium, reflected by the approval of their hourly rate requests.

8. The Amount Involved and the Results Obtained.

Plaintiffs sought declaratory and injunctive relief against the operation of the fee system for compensation of the class of judges. The relief obtained was precisely what the Plaintiff class requested.

9. The Experience, Reputation and Ability of the Attorneys.

The Court has discussed the skill of plaintiffs’ counsel above. The Court has been impressed with the quality of their work product.

10. The Undesirability of the Case.

The time, cost and complexity of this far-reaching litigation would have made it unappealing or impossible for a private attorney. The State argues that the issues involved were not politically sensitive and points to the fact that the State’s Attorney General was not actively defending the fee system and that the General Assembly voted to abolish the system within a year of the beginning of the litigation. However, in a matter in which attorneys question the validity of a branch of the state judiciary there often are political ramifications. Legal Services are at the mercy of political pressures. The diligence with which they represent the legal rights of the poor and underrepresented, when those rights come into conflict with the actions of the government, cannot be trivialized. The Court finds that the undesirability of this matter operates in support of plaintiffs request for fees.

11. The Nature and Length of the Professional Relationship.

This factor has no bearing in this matter.

12. Awards in Similar Cases.

The Court believes that the attorneys’ fee award granted in this case is commensurate with the fee awards granted in similar cases.

In calculating the amount to be awarded the Court concludes that Mr. Webster is entitled to 87 hours at the rate of $125.00 per hour ($10,875). Mr. Leshaw is entitled to 136 hours at $100.00 per hour ($13,600).

NOTICE

Plaintiffs ask for relief under Fed. R.Civ.P. 60(b)(6) and renew their request for costs of implementing notice. Defendants basically rely on the statement in the Courts order of August 23, 1985, denying the cost of notice to plaintiff class, while requiring defendant’s to bear the cost of notice to the defendant class.

The plaintiffs note that under section 1988, “Courts in this Circuit have long awarded expenses as part of the costs in civil rights litigation.” Dowdell v. City of Apopka, 698 F.2d 1181, 1188 (11th Cir. 1983). That court held that “all reasonable expenses incurred in case preparation, during the course of litigation, or as an aspect of settlement of the case may be taxed as costs under section 1988.” Id. at 1191-92.

The plaintiffs also ask for clarification of the Courts order in regard to notice. They ask whether the costs imposed on the defendant class for notice were to be born against defendants individually or in their official capacities. It is from the apparent foreclosure of the imposition of costs on the State of any notice that plaintiffs seek relief under Fed.R.Civ.P. 60(b)(6).

The Court will not alter its Order of August 23, 1985, regarding costs of notice, and plaintiff’s Fed.R.Civ.P. 60(b)(6) motion is denied. However, it is apparent that there has been a misunderstanding concerning the intention of the Court’s order. The Court finds that reasonable and appropriate notice in this matter consists of the mailing of this Court’s order as to the unconstitutionality of the judgments of the fee-system courts to every named defendant, the posting of that order on the place of posting of public notices at the Courthouse doors, and notice to all persons now serving as the successors to the fee-paying court officials. The cost of this notice, as was the intent of this Court’s prior order, shall be borne by the State. However, any additional notice that plaintiff may seek to effect shall be at their own cost, as the Court finds that the notice provided for herein is more than adequate.

ACCORDINGLY, the plaintiff’s request for attorneys’ fees is GRANTED in the amount of $24,475.00 to be paid by the State of Georgia. Plaintiff’s request to modify, alter or amend the Court’s order of August 23, 1985 is DENIED, consistent with the clarification of that order outlined above, that the cost of notice to the defendant class as described by the Court shall be borne by the State of Georgia.

      . Indeed, the defendants who maintained this litigation filed a response on September 24, 1985, asking that if fees are awarded in this litigation that they be awarded against the State and not themselves.


author: SKINNER, District Judge.

text:
    NAACP, BOSTON CHAPTER, Plaintiff, v. Samuel R. PIERCE, Jr., Secretary of Housing and Urban Development, et al., Defendants.
    Civ. A. No. 78-850-S.
    United States District Court, D. Massachusetts.
    Dec. 31, 1985.

      Edward Barhsak, Sugarman, Rogers, Barshak & Cohen, Boston, Mass., Michael Sussman, NAACP Special Contr. Fund, Brooklyn, N.Y., for plaintiff.
    Anthony J. Ciccone, HUD, Washington, D.C., Melissa Jad, Stephen Kaye, City of Boston Law Dept., Richard Welch, III, Asst. U.S. Atty., Kathy Machan, HUD, Boston, Mass., for defendants.
   MEMORANDUM AND ORDER ON FEDERAL DEFENDANTS’ MOTION TO DISMISS FOR LACK OF JURISDICTION

SKINNER, District Judge.

In this action plaintiff, the National Association for the Advancement of Colored People, Boston Chapter (“NAACP”), claimed that the Secretary of the Department of Housing and Urban Development and the local administrators of the Department (hereinafter collectively referred to as “HUD”) had failed to take measures mandated by various statutes and the Constitution of the United States to prevent racial discrimination and promote fair housing in the administration of federal grants to the City of Boston (“the City”). I made findings and conclusions of fact and rulings of law after a trial on the merits of plaintiff’s claims against HUD. 567 F.Supp. 637 (D.Mass.1983). All findings, conclusions and rulings contained therein are hereby incorporated and restated herein.

In summary, I concluded that HUD itself did not intentionally discriminate in administering its programs and that the evidence did not warrant a finding that HUD financed City programs that were either intentionally discriminatory or had a discriminatory impact. Consequently, I found no violations of § 109 of Title I of the Housing and Community Development Act of 1974 (42 U.S.C. § 5309), § 601 of Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d) or the Fifth Amendment to the Constitution.

However, I did find that HUD was violating its own regulations by failing to condition receipt by the City of CDBG funds on preparation of a Community Development and Housing Plan identifying the “special needs” of the lower income population. 24 C.F.R. § 570.300(b). This failure was found seriously to impede HUD in carrying out its statutory mandate under Title VIII of the Civil Rights Act of 1968 (42 U.S.C. § 3601 et seq.) (“Title VIII” or the “Fair Housing Act”) to promote fair housing in all federally financed projects. This issue is no longer in the case, however, because the City did submit to HUD a 180-page minority needs assessment on September 7, 1982, and HUD is no longer in violation of its own regulations.

I found that HUD’s mandate under Title VIII, to “administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of this subchapter”, 42 U.S.C. § 3608(d)(5), requires effective fair housing enforcement. Shannon v. HUD, 436 F.2d 809 (3rd Cir.1970); Garrett v. City of Hamtramck, 503 F.2d 1236 (6th Cir.1974). I found that HUD did not satisfy the minimum levels of compliance required by this section in two respects. First, it had not required the City to establish an effective fair housing enforcement program in the face of knowledge of pervasive racial discrimination in the City. Second, HUD had knowledge that there was and is a housing emergency in the City of Boston which had a disproportionate impact on low income black families and nevertheless did not condition its UDAG grants on the construction of low income housing.

I noted in the opinion that it was “extremely difficult to quantify HUD legal obligations” under these statutes. The nature of these legal obligations is being challenged in this motion. HUD requests the court to dismiss this action for lack of jurisdiction. Based on the violations found, HUD argues that: (1) HUD has cured its violation of its own regulations because the City has submitted a Community Development Housing Plan; (2) plaintiff has eschewed reliance on the Administrative Procedure Act (“APA”) as a basis for judicial. review of HUD’s actions; (3) sovereign immunity bars plaintiff’s suit; and (4) plaintiff has no right of action against HUD under Title VIII.

A. RIGHT OF ACTION OTHER THAN UNDER THE APA

1. Lack of Jurisdiction.

It is well settled that no action will lie against an agency of the United States unless sovereign immunity has been waived either expressly or by clear implication. Absence of waiver goes to the subject matter jurisdiction of the court and may be raised at any time by a party or by the court. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941); see generally Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3654-5. The only surviving claim in the present action is one under Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3608(d), which does not contain an express waiver of sovereign immunity. The defendants correctly state that the waivers of sovereign immunity found in 42 U.S.C. § 1404a and 12 U.S.C. § 1702 do not apply to this case. The analysis found in the numerous cases cited by the defendants would lead to the conclusion that sovereign immunity has not been waiv.ed. The defendants’ memorandum fails to account for the Supreme Court’s opinion in Hills v. Gautreaux, 425 U.S. 284, 301-06, 96 S.Ct. 1538, 1548-50, 47 L.Ed.2d 792 (1976), however.

In Hills v. Gautreaux, the Supreme Court ruled that the district court had the authority to require HUD to carry out the duties mandated by Title VI of the Civil Rights Act of 1964 and Title VIII of the Civil Rights Act of 1968. 425 U.S. at 301-06, 96 S.Ct. at 1548-50. The district court had originally granted HUD’s motion to dismiss for lack of jurisdiction. 425 U.S. at 289, 96 S.Ct. at 1542. The court of appeals reversed. The Supreme Court affirmed the judgment of the court of appeals without discussion of jurisdiction or waiver of sovereign immunity.

The opinion contains neither analysis nor discussion of subject matter jurisdiction or sovereign immunity. The issue of subject matter jurisdiction had been raised in the case, however, and could hardly have been ignored. The case must stand for the proposition that subject matter jurisdiction exists in the federal courts to require HUD to carry out the mandates of Title VI of the Civil Rights Act of 1964 and Title VIII of the Civil Rights Act of 1968, specifically 42 U.S.C. § 3608(d), even though no analytical basis for the exercise of jurisdiction is apparent in the opinion. It is true, of course, that in Hills v. Gautreaux the Court found that HUD itself had participated in a discriminatory housing program. The significance of that fact, however, was that it provided a basis for a remedy cutting across municipal lines, distinguishing that case from Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974). 425 U.S. at 297, 96 S.Ct. at 1546. It would seem to have no bearing on the issue of whether sovereign immunity is waived for claims against HUD under Title VI and Title VIII.

In summary, there has been no explicit waiver of sovereign immunity by Congress which would govern this case. The application of traditional analysis would lead to the conclusion that there had been no waiver of sovereign immunity and hence no subject matter jurisdiction. Hills v. Gautreaux, however, implicitly holds that jurisdiction exists to require HUD to carry out the mandate of Title VIII of the Civil Rights Act of 1968, even though no analytical basis for the exercise of jurisdiction appears in the opinion. Accordingly, insofar as the defendants’ motion seeks dismissal on the basis of lack of subject matter jurisdiction, it is denied.

2. Implied Right of Action Under Title VIII.

HUD argues that plaintiff may not maintain this action because there is no implied private right of action under Title VIII. As discussed above, I found that HUD had not fulfilled its duty to “administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of this subchapter”. 42 U.S.C. § 3608(d)(5). The question is whether private relief against HUD is available for violations of this section. Both parties agree that there is no express statutory private right of action against HUD.

A challenge to the existence of a private right of action, unlike the issue of sovereign immunity, does not implicate subject matter jurisdiction but challenges the existence of a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). The same issues also may be reviewed at the close of the evidence by a motion under Fed.R. Civ.P. 12(h)(2). The defendants raise it now after I have already made findings of fact on the issue of liability, when the only issue remaining is whether the court should order injunctive relief, or alternately appoint a special master for the purpose of fashioning appropriate injunctive relief. Accordingly, I shall treat this motion as being limited to the context in which it is raised and consider only the narrow issue of whether there is an implicit private right of action under 42 U.S.C. § 3608(d)(5) to secure injunctive relief.

Plaintiff first asserts that the court of appeals decision on the standing issues in this suit constitutes approval of its theory that a private right of action under Title VIII exists because the opinion does not tie the decision on the standing of the parties to the APA. See N.A.A.C.P. Boston Chapter v. Harris, 607 F.2d 514, 517 n. 4, 519 (1st Cir.1979). That decision involved the standing of particular parties to contest UDAG grants on a number of different grounds. The issue of a private right of action under Title VIII was not presented to or considered by the court nor was resolution of this issue necessary to its decision. The court of appeals has often reminded us not to read into its opinions views on issues not expressly placed before it.

The cases which plaintiff asserts assume a private right of action under Title VIII primarily concern the situation in which local or state entities have taken discriminatory actions in violation of the Constitution, which is not the case here. The cases indicate only that HUD might be held liable where it is aware of a grantee’s discriminatory practices and makes no effort to force the grantee into compliance by terminating funding. Anderson v. City of Alpharetta, Ga., 737 F.2d 1530, 1536-37 (11th Cir.1984); see, e.g., Garrett v. City of Hamtramck, 503 F.2d 1236, 1247 (6th Cir.1974); Resident Advisory Bd. v. Rizzo, 425 F.Supp. 987, 1021 (E.D.Pa.1976) (noting HUD’s duty to further construction), aff'd, 564 F.2d 126 (3d Cir.1977), cert. denied sub nom. Whitman Area Improv. Council v. Resident Advisory Bd., 435 U.S. 908, 98 S.Ct. 1457, 55 L.Ed.2d 499 (1978); but see Otero v. New York City Housing Authority, 354 F.Supp. 941, 957 & n. 18 (S.D.N.Y.) (dismissing claims against HUD), rev’d on other grounds, 484 F.2d 1122 (2d Cir.1973); Crow v. Brown, 332 F.Supp. 382, 395 (N.D. Ga.1971) (not granting relief against HUD), aff'd, 457 F.2d 788 (5th Cir.1972).

The leading case of Shannon v. United States Dep. of Housing and Urban Dev., 436 F.2d 809 (3rd Cir.1970), permitted a private right of action against HUD. Whether this was an implied right of action under Title VIII or under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq., is not strictly clear. Although the opinion in general speaks of relevant factors under the APA, it appears to authorize relief which would go beyond that authorized by the APA. Other courts have concluded that review of the Secretary’s decisions under Title VIII is available only under the APA. E.g., Alschuler v. Dept. of Housing & Urban Development, 686 F.2d 472, 481 (7th Cir.1982); Little Earth of United Tribes v. U.S. Dept. of Housing, 584 F.Supp. 1292, 1296 (D.Minn. 1983); King v. Harris, 464 F.Supp. 827, 836-37 (E.D.N.Y.) aff'd w/o op., 636 F.2d 1202 (2d Cir.1980); see Clients Council v. Pierce, 711 F.2d 1406, 1425 (8th Cir.1983) (citing Alschuler).

In any case, since 1975, federal courts have not been free to assume an implied private right of action under federal statutes or to indulge in the ambiguity of the Shannon opinion. In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court stated that the existence of an implied private right of action must be determined in accordance with the following test:

In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff “one of the class for whose especial benefit the statute was enacted,” that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?

422 U.S. at 78, 95 S.Ct. at 2088 (emphasis in original) (citations omitted).

In Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), the Court made it clear that “before concluding that Congress intended to make a remedy available to a special class of litigants, a court must carefully analyze the four factors that Cort identifies as indicative of such an intent”. Id. 441 U.S. at 688, 99 S.Ct. at 1953. The focus of the analysis must be on the intent of Congress. See, e.g., Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 23-24, 100 S.Ct. 242, 249, 62 L.Ed.2d 146 (1979).

The first factor under Cort is whether the statute was enacted for the benefit of a special class of which plaintiff is a member. Section 3608(d)(5) does not identify the class, if any, which Congress intended to benefit; instead, the statute places an affirmative duty on the Secretary without reference to any beneficiaries. The Supreme Court noted the importance of this distinction in Cannon, 441 U.S. at 690-93, 99 S.Ct. at 1954-56:

There would be far less reason to infer a private remedy in favor of individual persons if Congress, instead of drafting Title IX with an unmistakable focus on the benefited class, had written it simply as a ban on discriminatory conduct by recipients of federal funds or as a prohibition against the disbursement of public funds to educational institutions engaged in discriminatory conduct.

The Court contrasted Title IX’s focus on the benefited class with rejected language which would have made the anti-discrimination aspect of Title IX “a simple directive to the Secretary of HEW”. Id. at 693 n. 14, 99 S.Ct. at 1955-56 n. 14. While the affirmative duty imposed on the Secretary by § 3608(d)(5) may be more than a “simple directive”, it is a duty imposed by language which does not specifically indicate any special class of intended beneficiaries. The fact that “the whole community” is the victim of discriminatory housing practices does not help plaintiff. See Trafficante v. Metropolitan Life Ins., 409 U.S. 205, 211, 93 S.Ct. 364, 367-68, 34 L.Ed.2d 415 (1972), quoting 114 Cong.Rec. 2706 (remarks of Senator Javits). Of course, it is not a very great leap to conclude that by pressing for fair housing Congress intended to benefit the victims of discriminatory housing, low income minorities, i.e., the very constituency which gives the plaintiff its standing in this action. Nevertheless, the unfocused cast of the language in § 3608(d)(5) is sufficiently different from that construed in Cannon to distinguish this case and lead to the conclusion that Congress intended only a very general admonition to HUD and not the creation of a private right of action.

The second of the factors identified in Cort, whether there is any indication of legislative intent to create a remedy or to deny one, has assumed increasing importance over the years. “Unless this congressional intent can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist.” Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 94, 101 S.Ct. 1571, 1582, 67 L.Ed.2d 750 (1981). The language of § 3608(d)(5) is silent on the issue. Because Title VIII was offered as a floor amendment to the Civil Rights Act of 1968 by Senators Mondale and Brooke, neither the House nor Senate Reports contain any explicit discussion of Title VIII. See H.R.Rep. No. 473, 90th Cong., 1st Sess.; S.Rep. No. 721, 90th Cong., 1st Sess. (1967), reprinted in 1968 U.S.Code Cong. & Ad.News 1837.

Review of the Congressional Record reveals only that the sponsors of the Fair Housing Act sought to require federal housing administrators to consider the impact of their funding decisions upon the racial composition of affected areas. See 114 Cong.Rec. 2278 (1968) (remarks of Senator Móndale); id. at 2281 (remarks of Senator Brooke); see also Anderson v. City of Alpharetta, Ga., 737 F.2d at 1535; Otero v. New York City Housing Authority, 484 F.2d 1122, 1133-34 (2d Cir.1973). The cited passages indicate that Senators Móndale and Brooke were concerned that the United States government was a covert “collaborator” in discrimination or “sanctioned” discrimination in housing. The purpose of § 3608(d)(5) was to correct this situation. The Congressional Record provides no evidence of an intent to allow private actions against HUD.

The only evidence of congressional intent concerning the issue of private suits to review HUD’s actions under Title VIII is contained in “questions and answers describing the fair housing amendment” which were ordered to be printed in the Congressional Record at the request of Senator Mondale:

Will persons who disagree with the Department of Housing and Urban Development’s interpretation of the Act have any recourse?
All orders of the Department will be subject to review by the Federal courts. In addition, the Department will be subject to the provisions of the Administrative Procedure Act in all its operations under the Fair Housing Act.

114 Cong.Rec. 2273 (emphasis added). The orders referred to in this answer are the cease and desist orders and temporary restraining orders the Secretary was empowered to issue under the original enforcement provisions of the Fair Housing Act as submitted by Senators Móndale and Brooke. See 114 Cong.Rec. 2271. These provisions were later deleted. The bill’s Senate sponsors, and by implication Congress, intended HUD’s operations under Title VIII to be reviewed under the APA where applicable. No broader intention can be inferred from this language.

Analysis of the statutory scheme is equally unproductive. Title VIII makes it unlawful to discriminate in the sale, rental, financing or brokerage of housing. 42 U.S.C. §§ 3604-3606. The statute sets out two methods by which a person aggrieved by discriminatory housing practices may seek to enforce these provisions. Under 42 U.S.C. § 3610(a)-(c), the aggrieved person may file a complaint with the Secretary. The Secretary will investigate and attempt to resolve the matter or refer it to a state or local fair housing agency. The complainant may file a civil suit if voluntary compliance is not obtained within thirty days. § 3610(d). The section only provides for suit “against the respondent named in the complaint”, a category which would not include HUD.

Alternatively, under 42 U.S.C. § 3612, a private person may file a civil action in federal district court to enforce rights against discrimination in the sale, rental, financing or brokerage of housing granted by §§ 3603, 3604, 3605 and 3606. The absence of § 3608 from this list of sections providing the basis for a civil action suggests that Congress did not intend a private right of action against HUD under § 3608. Title VIII also provides that the Attorney General may bring suit to challenge a “pattern or practice” of discrimination. § 3613. In view of the express provisions for private and governmental enforcement of the duties imposed on both the public and local or state governments by §§ 3603-3606, it is unlikely that “Congress absentmindedly forgot to mention an intended private action”. See Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. at 20, 100 S.Ct. at 247, quoting Cannon v. University of Chicago, 441 U.S. at 742, 99 S.Ct. at 1981 (Powell, J., dissenting).

I conclude that there is no evidence in the statutory scheme of a congressional intent to provide a private right of action against HUD under Title VIII. Indeed, such evidence as there is strongly suggests that Congress did not intend to create such a right of action.

The third factor identified in Cort is whether the existence of a private right of action is consistent with the underlying purposes of the legislative scheme. I suppose that private rights of action are consistent in one sense in that they necessarily provide yet another layer of enforcement. On the other hand, Senator Mondale’s summary of the proposed fair housing amendment states that “Responsibility for administration and enforcement would rest with the Secretary of Housing and Urban Development”. In Anderson v. City of Alpharetta, Ga., 737 F.2d 1530, the court held that there was no private right of action to enforce HUD’s generalized affirmative duty under § 3608(d)(5). By way of dicta, the court said that HUD could be held liable under § 3608(d)(5) when HUD had taken discriminatory action itself and when it knew of discriminatory action by a client agency and made no effort to enforce compliance with the Fair Housing Act by cutting off federal financing, citing Client’s Council v. Pierce, 711 F.2d 1406 at 1422-3. It is not clear, however, whether the court in Anderson or the court in Client’s Council is referring to a private right of action implicit in Title VIII or action under the APA for abuse of discretion, discussed hereinafter. The facts in this ease relieve me from the necessity of deciding whether HUD would be liable in the situations suggested by this dictum. However, the holding of Anderson appears to be squarely on point. I conclude that an implied private right of action under 3608(d)(5) is not consistent with the purpose of the Act to place responsibility for enforcement squarely on the Secretary of Housing and Urban Development.

This conclusion is consistent with Hills v. Gautreaux, supra, and my ruling on subject matter jurisdiction. The Court in Hills v. Gautreaux did not explicitly consider the issue of whether there was an implied right of action against HUD under Title VIII. Furthermore, a determination of the issue is not necessarily implicit in the judgment because it was not essential thereto. The existence of a private right of action goes to the sufficiency of the complaint to state a claim upon which relief may be granted, not to subject matter jurisdiction, and the issue is generally waived if not timely presented. The issue apparently was never presented in Hills v. Gautreaux.

B. REVIEWABILITY UNDER THE APA

The parties agree that if the APA is applicable, it supplies both the necessary waiver of sovereign immunity and a statutory private right of action.

As a preliminary matter, HUD argues that plaintiff has rejected reliance on the APA as the basis for this court’s power to review HUD’s actions. Quoting a section of plaintiff’s Memorandum in Support of its Proposed Form of Judgment and in Opposition to Defendant’s Form of Judgment in which plaintiff states “NAACP has never grounded this action on the APA”, HUD contends that plaintiff cannot now rely on the APA and the court should therefore dismiss the action. Plaintiff responds that it has not waived the APA as a basis for its claim that HUD violated Title VIII and that its failure to cite the APA in its complaint can have no effect on the court’s ability to review HUD’s actions.

If relief is in fact available under the APA there would be no problem in amending the complaint or deeming it amended for present purposes. Fed.R.Civ.P. 15. State Highway Commission of Missouri v. Volpe, 479 F.2d 1099, 1105 (8th Cir.1973) (quoting Sikora v. Brenner, 379 F.2d 134, 136 (D.C.Cir.1967)); see also Angleton v. Pierce, 574 F.Supp. 719, 728 (D.N.J.1983) aff'd w/o op., 734 F.2d 3 (3rd Cir.1984), cert. denied — U.S.-, 105 S.Ct. 245, 83 L.Ed.2d 183 (1984).

Treating the complaint as so amended, I must next consider the reviewability of HUD’s violation of Title VIII under the APA. HUD argues that the court can only proscribe specific agency actions found to be “an abuse of discretion”, citing 5 U.S.C. § 706(2)(A). Plaintiff argues that the court must “compel agency action unlawfully withheld or unreasonably delayed”, citing 5 U.S.C. § 706(1).

There is a threshold question of applicability of the APA which the parties have not argued, however. Section 701(a) of 5 U.S.C. provides that:

(a) This chapter applies, according to the provisions thereof, except to the extent that
(1) statutes preclude judicial review; or
(2) agency action is committed to agency discretion by law.

Title VIII’s affirmative duty provision, § 3608(d)(5), does not explicitly preclude judicial review. Is HUD’s level of activity under § 3608(d)(5) “committed to agency discretion by law”?

The Supreme Court has narrowly interpreted this exception to judicial review under the APA. In Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971), the Court stated that the exception applies only “in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply”.

Prior to the Supreme Court’s decision in Overton Park, our court of appeals had developed an analytical framework for determining whether an agency action is committed to agency discretion by law. In Hahn v. Gottlieb, 430 F.2d 1243 (1st Cir. 1970), the court considered whether tenants in housing subsidized under the National Housing Act had a right to review under the APA of the Federal Housing Administration’s decision to grant rent increases. The court approached the issue recognizing “a strong presumption in favor of review, which is overcome only by ‘clear and convincing evidence’ that Congress intended to cut off review above the agency level”, which may be identified by the following criteria:

[Ejvidence may ... be drawn not only from explicit language, but also from a statute’s purpose and design____ In the absence of a clear declaration of congressional intent, three factors seem to us determinative: first, the appropriateness of the issues raised for review by the courts; second, the need for judicial supervision to safeguard the interests of the plaintiffs; and third, the impact of review on the effectiveness of the agency in carrying out its assigned role.

Id at 1249. (citations omitted). Applying these guidelines to the facts in Hahn, the court concluded that the broad statutory grant of authority to the Secretary of Housing and Urban Development under the National Housing Act signified that Congress intended the agency’s actions pursuant to this authority to be “committed to agency discretion” within the meaning of 5 U.S.C. § 701(a)(2).

Our court of appeals has recognized that the Supreme Court’s decision in Overton Park limited the exception for matters “committed to agency discretion”. Adams Nursing Home, Inc. v. Mathews, 548 F.2d 1077, 1079 n. 5 (1st Cir.1977). However, the court of appeals and other courts continue to cite Hahn and to employ its analytical framework when considering the exception. See, e.g., Dugan v. Ramsay, 727 F.2d 192, 195 (1st Cir.1984); Munoz-Mendoza v. Pierce, 711 F.2d 421, 430 (1st Cir.1983); Colon v. Carter, 633 F.2d 964, 966-67 (1st Cir.1980); Natural Resources Defense Council, Inc. v. S.E.C., 606 F.2d 1031, 1043-44 (D.C.Cir.1979); S.G.A. Financial Corp. v. United States Small Business Administration, 509 F.Supp. 392, 398 (D.N.J.1981).

In one of the above cited cases, the court of appeals raised the issue of whether agency actions very similar to those requested by plaintiff in the instant case are committed to agency discretion under 5 U.S.C. § 701(a)(2). In Munoz-Mendoza, supra, minority residents of Boston brought suit seeking judicial review of HUD’s decision to grant $19 million to the City for the development of the Copley Place commercial complex. The court’s opinion dealt principally with the standing of various plaintiffs in the action. The case was remanded to the district court for further proceedings. The court took the opportunity to offer the parties and the district court guidance on several of the outstanding issues, however. The court stated that the case “in essence is a challenge to federal administrative action of the sort typically governed by the Administrative Procedure Act”. Id. at 429. The court concluded that the case presented several difficult issues, one of which was that plaintiffs, on remand,

must ... show that Congress intended the courts, at the risk of interrupting or seriously delaying multi-million dollar projects aimed at helping distressed areas, to review agency “study” decisions of the sort at issue here in order to correct the type of abuse of discretion that the plaintiffs here allege. See 5 U.S.C. § 701(a)(2); Hahn v. Gottlieb, 430 F.2d 1243 (1st Cir.1970).

Id. at 430 (emphasis in original).

Although the quoted language is dictum, the court not only reaffirmed the vitality of Hahn, but also suggested that the Hahn analysis is appropriately employed in considering judicial reviewability of HUD’s actions in administering federal grant programs.

Accordingly, I turn to the Hahn analytical framework in an attempt to determine whether agency action to carry out HUD’s affirmative duty to promote fair housing under 42 U.S.C. 3608(d)(5) is “committed to agency discretion” under 5 U.S.C. § 701(a)(2).

I note initially that Congress has not explicitly evidenced in the Fair Housing Act an intent to cut off review of HUD’s actions under § 3608(d)(5) above the agency level. Since there is no declaration of congressional intent a consideration of the three “determinative factors” is necessary.

1. Appropriateness of Issues for Judicial Review.

In considering whether the issues in the Hahn case were appropriate for judicial review, the court of appeals began by noting that the courts are “ill-equipped to superintend economic and managerial issues” of the kind at issue in that case. 430 F.2d at 1249. The court implied that cases which can be resolved by “judicial application of canons of statutory construction” are appropriate for judicial review. Id., (citing Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970)). This standard is similar to the Supreme Court’s declaration that the exception to judicial review applies only when in “a given case there is no law to apply”. 401 U.S. at 410.

Applying these standards to this case, I conclude that a review of HUD’s failure affirmatively to promote fair housing would require the kind of supervision over economic and managerial issues that the court of appeals in Hahn suggested the courts are ill-equipped to perform. This is particularly true where I have found the deficiency to consist of failure to promote the construction of sufficient additional low-income housing to make enforcement of fair housing practicable. Whether the choice is publicly financed housing, or one of an infinite range of public-private financial partnerships or private financing plus rent subsidies, successful low-income housing is the’ result of the careful resolution of many fluid and dynamic factors: economics, demography, neighborhood support, ethnic cohesiveness and, last but no means least, local politics. One need not be a social historian to recognize that much well-intentioned public housing has proven disastrous. The public, and the plaintiff’s constituents are best served when the housing program is well-researched, well-staffed and well-managed on a daily basis. This a court cannot do. It cannot frame an order to HUD with sufficient specificity to be effectively enforced. It can do little more than admonish the agency in general terms to comply with the statute.

The plaintiff has suggested that these problems can be solved by the appointment of a special master. This has indeed been successful where there is a discrete managerial problem, such as the supervision of the Rhode Island state pentitentiary at Howard, or the receivership of the Boston Housing Authority. Special masters have been of assistance to courts in attacking a specific evil, such as school desegregation. In this amorphous situation, however, the master still must approach the problem from but one point of view, without the benefit of expert staffing. Adversary advocacy is not likely to be an adequate substitute. The court should not set up a super-HUD to monitor HUD.

I note with interest that within the last two weeks two of the housing projects most urgently espoused by the plaintiff, Tent City and Columbia Point, have received the necessary financing through the political interaction of HUD, the City and housing financing agencies of the Commonwealth of Massachusetts. The laying on of the court’s heavy hand was neither necessary nor desirable.

I conclude that application of the first test under Hahn weighs heavily against judicial review.

2. Need for Review to Safeguard Plaintiffs Interests.

Plaintiff’s interests in fair housing are of the highest order. As in Hahn, the constituents plaintiff represents have limited choices and generally weak bargaining power. Id. at 1250. Plaintiff has an interest in insuring that there is an adequate supply of desegregated housing to give minority families a true choice. Plaintiff should be able to expect that HUD will heed the congressional order in Title VIII to act affirmatively to promote integrated housing, but if HUD fails there is indeed a need for review. This aspect of the analysis weighs in favor of review.

3. Impact of Review on Agency Effectiveness.

Judicial review of the day-to-day operations of large institutional bureaucracies has occasionally been highly successful, as noted above. However, a judicial determination of what HUD is required to do affirmatively to further fair housing policy would involve many of the same “essentially managerial decisions” that were required in Hahn. Id. There, the court of appeals felt that the values of informality and flexibility would be impinged upon by judicial review. Id.

In this case judicial review would impinge even more fundamentally on agency decision-making processes. For essentially the same reason I have mentioned under the rubric of appropriateness virtually every aspect of the agency’s research and negotiation would be subject to judicial monitoring, a condition likely to reduce the efficiency of the agency to near zero.

In summary, the inappropriateness of judicial review of the issues in this case, and the likely negative impact on the effectiveness of the agency’s operations outweigh the admittedly substantial need to safeguard plaintiff’s interests in fair housing. In light of this balance, and the Supreme Court’s characterization of the exception for matters “committed to agency discretion” as applicable to situations in which “there is no law to apply”, 401 U.S. at 410, I conclude that HUD’s actions under § 3608(d)(5) are excepted from judicial review.

One final issue remains. The court of appeals has recently indicated that even if agency action is “committed to agency discretion” the federal courts have power to review for abuses of discretion. Cruz v. Brock, Secretary of Labor of the United States, 778 F.2d 62, at 63 (1st Cir.1985) (citing K. Davis, Administrative Law Treatise § 28.7 (1984)). I conclude that my prior findings preclude review for abuse of discretion. Review for “abuse of discretion” under the APA standard is only possible when specific agency actions are challenged. 737 F.2d at 1534. As in Anderson, supra, I did not find that HUD acted wrongly with respect to any particular decision it made, but instead that HUD generally failed to act affirmatively to promote fair housing.

In summary, the only statutory violation HUD committed which has not been cured was of Title VIII, a statute under which there is no private right of action against HUD. The violated statutory provision requires HUD to take actions that are committed to agency discretion by law under the APA.

ORDER FOR JUDGMENT

I conclude that (1) the plaintiff has no implicit private right of action under 42 U.S.C. § 3608(d)(5), and (2) that review under the APA is not available to redress HUD’s failure to take affirmative action to promote fair housing under § 3608(d)(5). The defendant HUD’s motion to dismiss is ALLOWED. I order judgment of dismissal to be entered forthwith.

      . In contrast to the issue of subject matter jurisdiction in Hills v. Gautreaux, supra.