author: OBERDORFER, District Judge.

text:
    Gretchen GREENSPUN, Plaintiff, v. COMMISSIONER OF INTERNAL REVENUE, et al., Defendants.
    Civ. A. No. 84-3426.
    United States District Court, District of Columbia.
    Sept. 30, 1985.

      Gretchen Greenspun, pro se.
    Edward J. Snyder, J. Brian Ferrel, Michael J. Salem, Attys., Tax Div., U.S. Dept, of Justice, Washington, D.C., for defendants; Joseph E. diGenova, U.S. Atty., of counsel.
   MEMORANDUM

OBERDORFER, District Judge.

Plaintiff, proceeding as her own attorney, brought this action under the Freedom of Information Act (“FOIA”) and the Privacy Act of 1974 in order to obtain documents and records allegedly possessed by the Internal Revenue Service (“IRS”). In- general, plaintiff’s request referred to several categories of documents and over eighty systems of records and sought records relating to her and to her recent conviction for failure to file income tax returns. The parties previously filed cross motions for summary judgment, the IRS claiming that it had released all but eleven pages of the requested material in its control. By memorandum dated June 26, 1985, the Court denied without prejudice the parties’ cross motions for summary judgment. An order accompanying that memorandum required defendant to file, on or before July 8, 1985, a renewed motion for summary judgment. Defendant has complied with that order. For the reasons stated below, an accompanying order will grant defendants’ renewed motion for summary judgment.

I.

The Court’s order of June 26, 1985 required defendant to include with its renewed motion for summary judgment “a detailed justification explaining whether the IRS has segregated disclosable from non-disclosable information appearing in the eleven documents presently at issue in this case.” Such segregation is required by the FOIA, which provides that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552(b). In response to the Court’s order, defendants have filed the Declaration of Michael J. Salem.

Mr. Salem, a trial attorney employed by the United States Department of Justice, Tax Division, described in his declaration the steps that were taken to redact the eleven pages at issue. The Salem Declaration clarifies that of the eleven pages in dispute, eight were released to plaintiff. These eight pages were redacted only to the extent that the names and addresses and taxpayer identification numbers of third-party taxpayers were not released.

The Salem Declaration also clarifies that three of the eleven pages were not released to plaintiff, even in redacted form. These documents, however, were not erroneously withheld as they were apparently not responsive to plaintiff’s request. Pages 9 and 10 are described as a

two page ... deficiency assessment pertaining to a third party taxpayer. It contains no information relating to plaintiff, and therefore, while it was located in a file indexed under her name, bears no connection to any of her tax years. Therefore, while it could be released by removing all identifiers, addresses and identifying numbers, it does not actually concern her request, and if redacted, would convey little if any information.

Salem Declaration at ¶ 5 (emphasis added).

Similarly, the eleventh page, a “computer printout pertaining to a third-party taxpayer,” was not redacted and released “since it does not pertain to plaintiff in any way.” Id. at ¶ 5. Given the lack of any relation between these pages and plaintiff, as well as the minimal information that would remain after redaction, defendants’ decision not to release these documents was not erroneous. See Neufeld v. Internal Revenue Service, 646 F.2d 661, 666 (D.C.Cir.1981).

In short, the Salem Declaration demonstrates that defendants have fulfilled their obligation with respect to the eleven contested pages to insure that “[a]ny reasonably segregable portion of a record shall be released to any person requesting such record after deletion of the portions which are exempt under this subsection.” 5 U.S.C. § 552(b). There remains for consideration the question of (1) whether defendants’ search was reasonably calculated to uncover other relevant documents and (2) whether certain documents withheld were, as defendants claimed, protected from disclosure as grand jury materials.

II.

The Court’s order of June 26, 1985 further required defendants to file an affidavit “demonstrating that the IRS has conducted a search calculated to uncover all relevant documents.” See Weisberg v. Department of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984), (quoting Weisberg v. Department of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983)). In response to the Court’s order, defendants have filed the “Declaration of Stuart Chamberlain.”

Mr. Chamberlain, the Disclosure Specialist for the Internal Revenue Service, Philadelphia District, in his declaration stated that plaintiff “initially requested all records pertaining to her in eighty-one (81) specifically identified systems of records as well as any record pertaining to her in any other system of records within the IRS.” Id. at ¶ 4.

Upon being informed that an adequate search request must specify the tax years to be searched, plaintiff by letter dated July 30, 1984 requested the District to search files for the tax years 1972, 1973, 1976, and 1978-1983. Id. According to Mr. Chamberlain’s Declaration, the District initiated its search on July 25, 1984, treating the request “as a FOIA request that sought any document filed under plaintiff’s name.” Id. at ¶ 5. The Disclosure Officer instructed the District’s Examination Division, Criminal Investigation Division and Collection Division to search for responsive records, and each division searched its files for tax years 1972-1983. Id. at ¶ 5. Mr. Chamberlain stated that “[s]earching the Examination, the Criminal Investigation, and the Collection Divisions enabled the Disclosure Officer to determine whether the Philadelphia District had opened any case on Plaintiff for the tax years searched [and whether] the Appeals Division or District Counsel possibly possessed any records responsive to Plaintiff’s request.” Id. at ¶ 6.

The Examination and Collection Divisions responded respectively on August 7, 1984 and August 10, 1984 that they did not possess any documents responsive to plaintiff’s request. Id. at ¶¶ 7-8. The Criminal Investigation Division responded on July 30, 1984 that records in its possession filed under plaintiff’s name were grand jury records and, therefore, not within the control of the IRS. Id. at ¶ 9. After the institution of this litigation, the Criminal Investigation Division, upon request from the Office of Chief Counsel, Disclosure Litigation Division, again searched its files for non-grand jury documents in its possession. That search resulted in identification of more documents which were turned over to the Philadelphia District Disclosure Officer for disclosure to plaintiff.

The Declaration of Stuart Chamberlain satisfactorily demonstrates that the IRS has conducted a “ ‘search reasonably calculated to uncover all relevant documents.’ ” Weisberg, supra, 745 F.2d at 1485. There remains for consideration the issue of whether documents were properly withheld as grand jury materials.

III.

Defendants’ in their initial motion for summary judgment indicated that certain documents responsive to plaintiff’s request and in the IRS’ possession were not released to plaintiff as “the material is grand jury material which is not within the custody and control of the Internal Revenue Service, and hence is not subject to the Freedom of Information Act.” Memorandum in Support of Defendants’ Motion for Summary Judgment at 2. The Court’s Memorandum and Order of June 26, 1985 required defendants to file with their renewed motion for summary judgment an “affidavit establishing whether or not the Pennsylvania grand jury has manifested an intent to retain control over the documents in the custody of the IRS, or whether the IRS exercises actual control over these documents.” In response to the Court’s order of June 26, 1985, defendants have filed the “Second Declaration of Frank McLaughlin.”

McLaughlin, a Special Agent with the Criminal Investigation Division of the IRS’ Philadelphia Office, “began investigating Plaintiff as a result of a Grand Jury investigation into an organization to which Plaintiff belongs.” Id. at ¶ 3. According to McLaughlin’s declaration, “[he] submitted to the Grand Jury all evidence that [he] gathered during the investigation and a report that summarized [his] findings.” Id. at ¶ 4.

McLaughlin’s declaration further indicates that:

After Plaintiff filed this lawsuit, [McLaughlin] turned over to the Philadelphia District Disclosure Office, for disclosure to Plaintiff, all documents within the Criminal Investigation Division that pertained to Plaintiff. The documents included Plaintiff’s tax returns for the years 1980 and 1981, Plaintiff’s transcript of account and correspondence between Plaintiff and the IRS. Some of the material contained in these documents .... concerns individuals other than Plaintiff. Copies of these documents also had been submitted to the
Grand Jury as evidence____
After the Grand Jury was adjourned and Plaintiff’s criminal trial was concluded, all Grand Jury documents were returned to the Grand Jury record room for conservation. The Grand Jury has not issued any order pursuant to Rule 6(e) of the Federal Rules of Criminal Procedure and its records are sealed pending final disposition of Plaintiff’s case. Consequently, the Grand Jury documents remain in the exclusive control of the Grand Jury and its agents.

Id. at ¶¶ 5-6.

Federal Rule of Criminal Procedure 6(e) prohibits, with certain exceptions, disclosure of “matters occurring before the grand jury.” To effectuate the objectives of Rule 6(e),

the scope of the secrecy is necessarily broad. It encompasses not only the direct revelation of grand jury transcripts but also the disclosure of information which would reveal the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of the jurors, and the like.

Fund for Constitutional Govt., supra, at 869 (quoting SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1382 (D.C.Cir.) (en banc), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980)).

Our Court of Appeals has concluded that, inter alia, “information ... identifying documents considered by the grand jury ... falls within the broad reach of ... grand jury secrecy.” Fund for Constitutional Govt., supra, at 869. Similarly, “[potential witnesses and potential documentary exhibits, while less clearly within the rule, if disclosed would reveal the direction and strategy of the investigation.” Id. at 869-70. As in Fund for Constitutional Govt., supra, the instant case does not present a situation where “documentary information coincidentally before the grand jury would be revealed in such a manner that its revelation would not elucidate the inner workings of the grand jury.” Id. at 870.

In such circumstances, “[t]he relevant inquiry is not whether the party seeking the information has an interest other than its role in a grand jury investigation but whether revelation in the particular context would in fact reveal what was before the grand jury.” Id. at 870. The materials here sought by plaintiff were withheld by defendants on the grounds that the grand jury considered them and, after conclusion of plaintiffs criminal trial, returned them to the grand jury room for conservation under seal pending final disposition of plaintiffs case. See Second Declaration of Frank McLaughlin at ¶ 6. In this particular context, disclosure would “in fact reveal what was before the grand jury” and is prohibited by Rule 6(e). Plaintiffs vague allegations that she “has knowledge” that defendants have provided the information here withheld to “various departments of the IRS, in complete violation of the Privacy Act,” and that defendants have thereby waived Rule 6(e)’s protections against disclosure, are insufficient to compel the conclusion that defendants must release the grand jury materials to plaintiff.

IV.

Finally, the Court’s Order of June 26, 1985 required defendants to submit with their renewed motion for summary judgment “[a] supplemental memorandum addressing the question of whether, pursuant to the Privacy Act, plaintiff may obtain information concerning herself from grand jury records held in the custody of the IRS.” Defendants have filed that supplemental memorandum.

The Privacy Act applies only to systems of records maintained by an executive agency. See 5 U.S.C. § 552a(a)(1), (d)(1). Two factors are critical in ascertaining whether the disputed documents in the IRS’ physical possession are “agency records” and as such susceptible to plaintiff’s Privacy Act request: (1) the extent to which the grand jury manifested an intent to retain control over these documents; and (2) the extent to which the IRS actually exercises control over them.

Here, the court in Pennsylvania has clearly manifested its intention to retain control over the documents which were before the grand jury. After the conclusion of plaintiff’s criminal trial, all grand jury documents were returned to the grand jury record room for conservation under seal pending final disposition of plaintiff’s case. Second Declaration of Frank McLaughlin at ¶ 6. The Pennsylvania court has issued no order pursuant to Rule 6(e) permitting disclosure of these documents. Id. Consequently, “the Grand Jury documents remain in the exclusive control of the Grand Jury and may be examined only by the Grand Jury and its agents,” id. at ¶ 6, and defendants cite this as evidence of IRS’ lack of control.

Somewhat troubling for this conclusion is the Supreme Court’s clarification that an agency must either create or obtain documents before those records can be considered “agency records.” Forsham v. Harris, 445 U.S. 169, 182, 100 S.Ct. 977, 985, 63 L.Ed.2d 293 (1980). As discussed below, certain of the documents in the possession of the IRS and evidently withheld as “grand jury records” were apparently not initially generated by or for the grand jury-

The Second Declaration of Frank McLaughlin indicates that after plaintiff instituted this litigation, McLaughlin turned over to the Philadelphia District Disclosure Officer those documents within the Criminal Division that pertained to plaintiff. “The documents included Plaintiff’s tax returns for the years 1980 and 1981, Plaintiff’s transcript of account and correspondence between Plaintiff and the IRS.” Id. at ¶ 5.

Although “[cjopies of these documents also had been submitted to the Grand Jury as evidence,” id., McLaughlin’s description suggests that at least some of these documents were not generated by or initially for the grand jury. This conclusion is supported by McLaughlin’s first Declaration in which he indicated that documents not released to plaintiff and concerning matters occurring before the grand jury investigation “were compiled pursuant to grand jury subpoena, prepared in the course of the grand jury investigation, or otherwise presented to the grand jury.” Declaration of Frank McLaughlin at ¶ 9 (emphasis added). In short, McLaughlin’s first and second declarations suggest that at least some of the documents which were transmitted to the grand jury (and later withheld by defendants on that basis) were not in fact generated during the course of the grand jury investigation, but were pre-existing IRS records, copies of which were submitted to the grand jury.

Notwithstanding this fact, the Court concludes that these records are not susceptible to release pursuant to plaintiffs Privacy Act request. The actions of the grand jury, manifesting its intent to retain control over materials it reviewed and the need to preserve grand jury secrecy, effectively remove these documents from the control of the IRS. Consequently, despite the fact that certain documents were not initially generated by or for the grand jury, they are not “agency records” susceptible to plaintiff’s Privacy Act request.

For the reasons expressed in this memorandum, an order will grant defendant’s renewed Motion for Summary Judgment, without prejudice to further pursuit of plaintiff’s claim, either in this Court or in the United States District Court for the Eastern District of Pennsylvania, when the criminal proceedings are completed (see supra note 8) or plaintiff is in a position to establish a violation of Rule 6(e) by virtue of a release of grand jury documents to civil divisions in the IRS.

      . By letter dated March 20, 1985, the IRS transmitted to plaintiff copies of sixty-four pages of documents arguably responsive to her request. Of these sixty-four pages, all except eight pages were complete, unredacted copies. Declaration of Michael J. Salem ¶¶ 4-5. Defendant withheld certain other documents, claiming they were grand jury materials protected from disclosure by Federal Rule of Criminal Procedure 6(e) as applied through 5 U.S.C. § 552(b)(3) (1982).

      . The order stated that the renewed motion should include the following:
      (1) A detailed justification explaining whether the IRS has segregated disclosable from nondisclosable information appearing in the eleven documents presently at issue in this case;
      (2) An affidavit demonstrating that the IRS has conducted a search calculated to uncover all relevant documents;
      (3) An affidavit establishing whether or not the Pennsylvania grand jury has manifested an intent to retain control over the documents in the custody of the IRS, or whether the IRS exercises actual control over these documents;
      (4) A supplemental memorandum addressing the question of whether, pursuant to the Privacy Act, plaintiff may obtain information concerning herself from the grand jury records held in the custody of the IRS.
      The order also required plaintiff to file any response to these affidavits and supplemental memorandum on or before July 18, 1985. Plaintiff has filed no response.

      . The IRS has claimed that it has released in unredacted form all but eleven pages of plaintiffs requested material and that three of these eleven pages are duplicates. Eight pages here in dispute (and three pages duplicating some of those eight pages) were released in redacted form. Three other pages were determined to contain no information pertaining to plaintiff and were not released. See discussion infra.

      . Mr. Salem was the attorney primarily responsible for the preparation and trial or other disposition of this case. Declaration of Michael J. Salem ("Salem Declaration") at ¶ 2.

      . As discussed in the Court’s memorandum of June 26, 1985, such information is properly redacted under the joint application of 26 U.S.C. § 6103(b)(2) and 5 U.S.C. §§ 552(b)(3) and 552(b)(7)(C).

        . Id. at ¶ 12; Second Declaration of Frank McLaughlin at ¶ 5. See supra note 1.

      7. In a telephone conference on September 27, 1985, plaintiff represented that the Court of Appeals for the Third Circuit has sustained the plaintiffs conviction and a petition for a writ of certiorari is on file in the Supreme Court.

      . The Court of Appeals for the District of Columbia has clarified that Rule 6(e) is a statute which in connection with FOIA exemption 3 can protect information from disclosure under the FOIA. See Fund for Constitutional Government v. National Archives and Records Service, 656 F.2d 856, 867-68 (D.C.Cir.1981).

      . Plaintiff is, of course, free under Fed.R.Crim.P. 6(e)(3)(D) to petition the United States District Court in the Eastern District of Pennsylvania for disclosure of the grand jury materials.

      . See Brief in Support of Opposition to Defendants’ Motion for Summary Judgment, and Plaintiff’s Cross Motion for Summary Judgment at ¶ 12. In a telephone conference on September 27, 1985, plaintiff reiterated a representation that relevant grand jury documents had been made available to a "civil division" within the IRS. Government counsel volunteered that if this did happen it would constitute a violation of Rule 6(e).

      . Plaintiff in her Cross Motion for Summary Judgment suggested that records exempted from disclosure under the FOIA are not necessarily exempt under the Privacy Act. See Plaintiffs Brief in Support of Opposition to Defendants’ Motion for Summary Judgment, And Plaintiffs Cross Motion for Summary Judgment at ¶ 5.

      . Because a grand jury is an arm of the judicial branch, see, e.g., Levine v. United States, 362 U.S. 610, 617, 80 S.Ct. 1038, 1043, 41 L.Ed.2d 989 (1960), its records ordinarily are not agency records within the meaning of the Privacy Act, and thus would not be susceptible to plaintiff's Privacy Act request. Thus, if these records are grand jury records, they are not susceptible to plaintiffs Privacy Act request.

      . A "system of records" to which the Privacy Act of 1974 grants individuals a right of access is defined as a group of records "under the control of any agency." 5 U.S.C. § 552a(a)(5) (emphasis added). See also Tigar & Buffone v. United States Department of Justice, 590 F.Supp. 1012, 1014 (D.D.C.1984); Paisley v. Central Intelligence Agency, 712 F.2d 686, 693 (D.C.Cir.1983) (“the cases fit together in standing for the general proposition that the agency to whom the FOIA request is directed must have exclusive control of the disputed documents”), modified on other grounds, 724 F.2d 201 (D.C.Cir.1984) (per curiam).

      . Again, it is recognized that plaintiff is free pursuant to Rule 6(e)(3)(D) to petition the United States District Court in the Eastern District of Pennsylvania for disclosure of the grand jury materials,


source: Caselaw Access Project

author: PIERAS, District Judge.

license: Public Domain

text:
    Victor LASA, Plaintiff, v. Severo COLBERG and Miguel Hernandez Agosto, Defendants.
    Civ. No. 82-0149 (JP).
    United States District Court, D. Puerto Rico.
    Oct. 1, 1985.

      Antonio Córdova, and Rafael Rosario Hernández, San Juan, P.R., for plaintiff.
    Marcos A. Ramírez Lavandera, Hato Rey, P.R., for defendants.
   OPINION AND ORDER

PIERAS, District Judge.

This action for alleged violation of civil rights, pursuant to 42 U.S.C. 1983 and 42 U.S.C. 1985, is before us on defendants’ Motion to Dismiss, the Magistrate’s Report and Recommendation and Defendants’ Objections to said Report.

The facts alleged in the complaint are as follows:

Plaintiff Victor Lasa was appointed Superintendent of the Capitol Building on August 1, 1978 by the New Progressive Party legislators, pursuant to Law No. 4 of July 21, 1977, 2 L.P.R.A. Secs. 651-661. On January 4, 1982, defendants Severo Col-berg and Miguel Hernández Agosto fired Lasa because of his ideological or political affiliation. Lasa claims that defendants Colberg and Hernández, using their respective positions as Speaker of the House and President of the Senate and acting under color of authority and law, have denied and infringed several Constitutional rights guaranteed to plaintiff, namely, his rights to equal protection of the law, due process of law, and political belief and association. Plaintiff requests this Court for injunctive relief and/or damages.

Defendants move for dismissal, alleging: (a) lack of jurisdiction because the complaint fails to present a substantial federal question; (b) failure of the complaint to state a claim upon which relief can be granted; and (c) immunity on the basis of the common law immunity recognized for state legislators.

A. Jurisdiction:

Defendant has alleged lack of jurisdiction for failure to present a “substantial” federal question. This Court takes defendant’s allegations as a defense made under F.R.C.P. 12(b)(1), that is, lack of jurisdiction over the subject matter. In this case, the plaintiff has adequately alleged a cause of action for violation of constitutional rights. Regardless of the actual validity of said allegations, we find that federal question jurisdiction under 28 U.S.C. 1331 is sufficiently established for purposes of this lawsuit. See Wheeldin v. Wheeler, 373 U.S. 647, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963).

B. Failure to State a Claim Upon Which Relief Can Be Granted:

Defendants also assert a 12(b)(6) defense, alleging failure of the complaint to state a claim upon which relief can be granted.

Insofar as plaintiff’s claim under 42 U.S.C. 1985 is concerned, and reading the complaint in plaintiff’s favor as a claim brought under subsection (3) of said statute, this Court finds that plaintiff has failed to properly and specifically plead a § 1985(3) cause of action. The complaint does not mention a conspiracy and merely presents the broad allegation that defendant Colberg discharged plaintiff “with the advice and consent of defendant Hernández Agosto”. For the foregoing rgasons, the Court dismisses plaintiff’s claim under 42 U.S.C. § 1985. Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798-99, 29 L.Ed.2d 338 (1971); Serrano Medina v. U.S., 709 F.2d 104, 106 (1st Cir.1983); Fletcher v. Hook, 446 F.2d 14, 15-16 (3d Cir.1971).

As to plaintiff’s claim under 42 U.S.C. § 1983, this Court finds that the complaint adequately constitutes the statement of a claim under the federal rules of pleading. F.R.C.P. 8(a). Furthermore, in the exercise of its discretion under F.R.C.P. 12(b), the Court chooses to exclude matters outside the pleading, thereby abstaining from considering the motion as one for summary judgment. Wright, Miller & Kane, Federal Practice and Procedure, § 2713. This action is taken in light of the forthcoming disposition of the matter under the affirmative defense of legislative immunity.

C. Legislative Immunity:

Defendants assert absolute immunity to plaintiff’s suit for damages or injunctive relief under Sec. 1983 under the common law immunity accorded state legislators. The Supreme Court has clearly held that state legislators acting in a legislative capacity are absolutely immune from the imposition of injunctive remedies or civil damages in suits brought under 42 U.S.C. § 1983. Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 732-34, 100 S.Ct. 1967, 1974-76, 64 L.Ed.2d 641 (1980) (immunity from equitable remedies), Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (immunity from civil liability). Furthermore, legislative activities which otherwise are entitled to immunity in a 1983 suit do not lose the absolute protection of that immunity merely because such activities allegedly have violated a plaintiff’s constitutional rights, Colón Berríos v. Hernández Agosto, 716 F.2d 85 (1st Cir.1983).

This immunity under Sec. 1983 was recognized to protect the integrity of the legislative process and not for the personal or private benefit of the members. The motive of the clause remains as a shield protecting the legislators from intimidation by other governmental authority, as well as from the time-consuming distractions of defending official -legislative acts in Court. See Tenney v. Brandhove, supra, at 373-78, 71 S.Ct. at 786-89. Such protection allows the legislative function to be performed independently without fear of outside interference. Supreme Court of Virginia, supra, at 731, 100 S.Ct. at 1974.

The Sec. 1983 immunity enjoyed by state legislators, while originating in the common law of legislative immunity, has been placed on a parity with the constitutional immunity granted members of Congress under the Speech and Debate clause, Art. I, Sec. 6, Clause 1 of the U.S. Constitution. The two types of immunity have been compared for purposes of determining the scope of legislative activities subject to their protection. Supreme Court of Virginia, 446 U.S. at 733, 100 S.Ct. at 1975.

As was stated in the Magistrate’s Report and Recommendation, the Speech and Debate clause protects “things generally done in session of the House by one of its members in relation to the business before it.” Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1880) cited with approval in United States v. Johnson, 383 U.S. 169, 179, 86 S.Ct. 749, 755, 15 L.Ed.2d 681 (1966). In order to effectuate the purposes of the privilege, prior decisions have extended immunity under the Speech and Debate clause to matters beyond pure speech or debate in either House but “only when necessary to prevent indirect impairment of such deliberations,” Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627, 33 L.Ed.2d 583 (1972), citing United States v. Doe, 455 F.2d 753, 760 (1st Cir.1972). That is, the immunity is available only when the legislative act at issue is “an integral part of the deliberative and communicative process by which members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” Gravel v. United States, supra, at 625, 92 S.Ct. at 2627.

Decisions regarding the scope of § 1983 immunity protecting state legislators have been guided, but not necessarily determined, by the boundaries drawn for immunity under the clause. See Agromayor v. Colberg, 738 F.2d 55 (1st Cir.1984); cert. denied, — U.S. -, 105 S.Ct. 515, 83 L.Ed.2d 405 (1984). The § 1983 decisions have characterized the legislators’ privileged conduct as those acts undertaken “within the sphere of legitimate legislative activity” or within “a field where legislators traditionally have power to act.” Tenney v. Brandhove, supra, at 376, 379, 71 S.Ct. at 788, 789; Supreme Court of Virginia, supra at 732-33, 100 S.Ct. at 1974-75.

It is clear that not everything a legislator may regularly do in his official capacity is necessarily a legislative act qualifying for the immunity protection. In particular, the act of hiring or firing of legislative aides, assistants or staff personnel does not, in every case, receive immunity. The hiring or firing of an employee in a position which is only casually or incidentally related to the legislative process cannot be considered a legislative act entitled to immunity. See, e.g., Walker v. Jones, 733 F.2d 923 (D.C.Cir.1984) (the position of House restaurant manager has no “meaningful input” into the legislative function; thus discharge of this employee is not within protection of the Speech and Debate clause). Protection should be afforded a legislative decision to hire or fire only when the particular position at issue provides sufficient opportunity for meaningful input into the legislative process. Agromayor v. Colberg, supra at 60. See Davis v. Passman, 442 U.S. 228, 229, 249-50, 99 S.Ct. 2264, 2268, 2279-80, 60 L.Ed.2d 846 (1979).

In this case, an inquiry limited to the statutory definition of plaintiff’s post is sufficient to conclude that Mr. Lasa occupied a position which constitutes an integral element of the meaningful input necessary for the performance of defendants’ legislative duty and for the general functioning of the legislative process. Title 2, Section 652 of the Laws of Puerto Rico creates the Office of Superintendent of the Capitol. Said provision clearly states in its pertinent part that “the Superintendent shall hold office at the discretion of the Presidents of both Bodies of the Legislature of Puerto Rico, who shall fix the remuneration for the position.” This language is unequivocal and must be taken in its plain meaning. Plaintiff, as a politically-appointed employee, holds his position at the discretion of the Presidents of both Bodies of the legislature.

From the statute, it is clear that the Superintendent acts as an advisor and formulates plans for the implementation of broad goals. The statute provides that the Superintendent may seek the cooperation and advice of government agencies, an action which involves party affiliation. 2 L.P. R.A. § 653. Likewise, the functions, duties and powers of the Superintendent grant him control over the maintenance and development of the Capitol buildings and the financial planning, public appropriations and private contributions involved therein. 2 L.P.R.A. §§ 655, 656. He is also required to submit reports, plans and recommendations for the approval of the President of the Senate and Speaker of the House regarding such matters as acquisition of real property, conservation of energy, and public order and safety within the Capitol. 2 L.P.R.A. § 655.

In short, plaintiff is a political creature governed by Presidents of the two Legislative Bodies. His powers and functions revolve around politics; he is a confidential employee appointed by mutual agreement of both legislative bodies. With this in mind, the Court finds that defendants’ discharge of Mr. Lasa was an act performed in furtherance of their legislative duties and is thus protected by legislative immunity.

Plaintiff’s allegations of politically discriminatory discharge do not take into consideration the business of those that run the Government. We cannot lose sight of the political ideology and programs of the politicians in charge of Government. When there is a change in government, a new government is voted in to answer and respond to a pledged program of action. This program has been submitted to the people by the new political head, his political advisors and in general, his staff. The people voted for the program in an election and in a sense have ordered the politician to put into effect that program as an inherent part of that election. The mandate given to the politicians by the people requires that those who are associated with the elected leader and who create and believe in the spirit of the program put the same into practice. Their public service would be markedly thwarted were they required to retain “those who hold steadfast to their claim in deliberate challenge to the electoral verdict.” Ramos Villanueva v. Cintrón, et al., No. R-81-137 (P.R., March 31, 1982), Justice Díaz Cruz, dissenting. In sum, the new political leaders must have the freedom to substitute those who believe in the new program, and who will work towards the accomplishment of it.

The reason for the privilege which we uphold today is clear and deeply rooted in the United States system of government. In reference to the successful Parliamentary struggles of the sixteenth and seventeenth centuries to be independent from the Crown, Blackstone disclosed that the “(p)rivilege of parliament was principally established, in order to protect it’s (sic) members not only from being molested by their fellow subjects, but also more especially from being oppressed by the power of the crown... These privileges however, which derogate from the common law, [are] only indulged to prevent the member’s being diverted from the public business.” 1 Blackstone, Commentaries on the Laws of England (1768), 159-60, reprinted by Dawsons of Pall Mall (1966). The legislators’ immunity has been established, not for their good, but for the good of the people. The separation of powers, co-ordinated in their several functions, achieves a balance which ensures the political liberty of each citizen. See C. Montesquieu, The Spirit of Laws (1748), translated by T. Nugent, revised by J.V. Prichard, 38 Great Books of the Western World 70 (1952). With reference to the prototype of the Speech & Debate Clause in our Federal Constitution, Blackstone observed:

“As to privilege of speech, it is declared by the statute I W. & M. § 2. c. 2. as one of the liberties of the people, “that the freedom of speech, and debates, and proceedings in “parliament, ought not to be impeached or questioned in any court or place out of parliament.”

1 W. Blackstone, Commentaries, supra, at 160 (emphasis supplied).

The application of the legislative privilege to the political and legal realities in this District of Puerto Rico stands in sharp contrast to the unrealized form of a similar privilege in the Spanish law of the last half of the 19th Century, during the time of the Spanish possession of Puerto Rico. Although commentators have recognized the influence of Montesquieu upon Spanish constitutional law, e.g., 1 Nueva Enciclopedia Juridica (1975) 384-85, the realities of Spanish government, both in Spain and Puerto Rico, revealed monarchic, rather than democratic ideals put into practice. The Constitutions of Spain, written in the 19th Century, present a system of lawmaking shared by the Crown and the Cortes, the latter a bicameral body composed of a Senate and a Congress of Deputies. The Constitution, Art. 46, provided that the Senators and Deputies were “inviolable for their opinions and votes in exercise of their duties,” Art. 46, Constitution of Spain, 1876, Documents on the Constitutional History of Puerto Rico (2d ed. 1964) 16. However, any privilege of independence from the Crown granted by these words was effectively nullified by the decisive role of the monarch in the composition and management of the Cortes and the provincial leaders.

Thus, the people of Puerto Rico, in the 19th Century, along with those of Spain, knew little of “government by the people” as that system is defined in the United States Constitution and practiced in the organization of government which is the United States. It is this government which has been inherited and is now applied by the United States citizens living in Puerto Rico after 87 years of association with the United States, a period of time which represents nearly one-half the life of the United States. And it is this government which protects the rights of the people to self-government by providing to their elected legislators the privilege of immunity in the performance of legislative acts. The Puerto Rican cultural philosophy has been true to these Constitutional principles throughout its history of association with the United States.

The underpinning of the culture of the New World is essentially Greco-Roman, the culture prevailing in Europe at the time of the discovery of the Americas. Thereafter, the great experiment in democracy using a Republican form of government which is consecrated in the Constitution of the United States, gave rise to a practical cultural principle predicated on respect for the natural rights of men. The United States Constitution with its separation of powers protects such rights. The principle that ours is a government of laws and not of people has become second nature to every citizen of our Republic, including the citizens of this community.

It has been said that “there is no country in the world which can touch Spain in the matter of magnificent laws and there is no country in the world which can touch Spain in non-compliance with laws.” Santiago Iglesias, Puerto Rico Resident Commissioner to Congress, quoted in H.K. Carroll, Report on the Island of Puerto Rico 723 (U.S. Gov’t Printing Office, 1899). Whatever the truth of this statement, it is precisely at the juncture of Spanish and U.S. involvement in 1898 that Puerto Rico adopted a culture based upon the U.S. Constitutional principles. Such Constitutional principles are so imbedded in the conscience and thinking of the people that they are conceived as articles of faith of their everyday life and an integral part of their culture and prevailing institutions. Indeed, the communal will of the people of Puerto Rico is buttressed by the principles of liberty and their corresponding obligations, such that Puerto Ricans, in defense of these principles have contributed together with their fellow citizens of the continent in the patriotic endeavor of two World Wars and other conflicts. Meanwhile, most of the other Latin American countries have been unconscious of this sacrifice and what it has meant in terms of preservation of our culture. Many of these countries have adopted a different culture devoid of the concept of a Government of laws and not of people.

This century’s history shows that, in many of these countries which have failed to embrace a democratic way of life, citizens are subjected to violations of their civil rights, repeated revolutions with no relation to the welfare or will of the people, terror, mass assassinations and extreme poverty.

Puerto Rico’s culture stands in contrast to that of Latin America. See generally Juan R. Torruella, The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal (1985). The community of Puerto Rico within the United States has learned to solve its political differences with great respect for the civil rights of the people by applying constitutional principles, as in this case where one of our pivotal concepts, the separation of powers, is at issue. Such principles are applied independently of any partisan political consideration because U.S. Judges have one and only client to which they are loyal: the Constitution and laws of the United States which they have sworn to uphold.

For all the above reasons, and in strict application of the Constitutional principles which are an integral part of our American culture, the Motion to Dismiss filed by the defendants is hereby GRANTED and Judgment is to be entered by the Clerk accordingly.

IT IS SO ORDERED.

      . Ramos Villanueva dealt with an executive decision to discharge a government employee. Although no immunity is accorded such executive decisions in suits for injunctive relief, see Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), we find the policy supporting Justice Cruz’ dissent particularly appropriate to a discussion of the merits of legislative immunity.

      . In the Constitution of 1876, the last of the Spanish Constitutions, the Senate was composed of royalty, royally-appointed noblemen, and officials elected by corporations of the state and the largest taxpayers. The Deputies were selected by electoral committees under the provisions of Article 27; each one represented 50,000 people. The Constitution of 1876 was extended to Puerto Rico by decree on April 2, 1881.

      . For a fuller discussion of the constitutional powers of the Spanish Crown by the late 19th Century, see I J. Trias Monge, Historia Constitucional de Puerto Rico 68-73.


author: NANGLE, Chief Judge.

text:
    Charles M. GATES, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.
    No. 85-388C(1).
    United States District Court, E.D. Missouri, E.D.
    Oct. 3, 1985.
    Charles M. Gates, pro se.
    Maria T. Robinson, Law Dept. U.S. Postal Service, Chicago, 111., Wesley D. Wedemeyer, Asst. U.S. Atty., St. Louis, Mo., for defendant.
   MEMORANDUM

NANGLE, Chief Judge.

Plaintiff was employed as a letter carrier for the Chicago office of the United States Post Office. Plaintiff alleges in his complaint that he suffered an injury while on the job in November, 1978. Sometime during 1980, plaintiff was reassigned by defendant from his job as a letter carrier to a position as a distribution clerk. Plaintiff claims that the reassignment was both arbitrary and involuntary. Plaintiff further alleges in his petition that as a result of the prior injury and the more demanding physical requirements of a distribution clerk, plaintiff was forced to apply for disability. Following his denial of disability, plaintiff was ultimately discharged on January 6, 1982 for being absent without leave. Plaintiff filed this action on February 19, 1985 seeking relief under the Rehabilitation Act of 1973. 29 U.S.C. § 701 et seq.; under 39 U.S.C. § 1208(b) for breach of the collective bargaining agreement; and under 42 U.S.C. § 1981 and § 1983 for discrimination on the basis of race and handicap.

This case is now before this Court on defendant’s motion to dismiss or in the alternative, motion for summary judgment. An attorney was appointed to represent plaintiff by this Court on June 12, 1985. Plaintiff subsequently filed an amended complaint and responded to defendant’s motions. Under Rule 12(b) of the Federal Rules of Civil Procedure, when matters outside the pleadings are considered, the motion to dismiss must be treated as a motion for summary judgment under Rule 56. Court v. Hall County, Nebraska, 725 F.2d 1170 (8th Cir.1984). This Court, in ruling on defendant’s motion, considered only the pleadings in this action. Accordingly, defendant’s motion will be treated solely as a motion to dismiss for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b).

In passing on a motion to dismiss, a court is required to view the facts alleged in the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A motion to dismiss will not be granted merely because the complaint does not state every element necessary for recovery with precision. 5 Wright & Miller, Federal Practice and Procedure: Civil § 1216 at 120 (1969). A complaint is sufficient if it “contain[s] allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.” Id. at 122-23. A complaint should not be dismissed unless it “appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46, 78 S.Ct. at 101-02.

Plaintiff, in Count I of his complaint, seeks relief under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. Defendant moves to dismiss Count I on the basis that plaintiff failed to exhaust his administrative remedies. Plaintiff, in his complaint, failed to specify whether he was seeking redress under § 501 or § 505 of the Rehabilitation Act. Section 501 of the Rehabilitation Act, 29 U.S.C. § 791, contains various provisions for encouraging the Post Office to employ the handicapped. In 1978, Congress created a private cause of action for this section by adding § 505, 29 U.S.C. § 794a to the Act. The section provides that the “remedies, procedures and rights” in Title VII of the Civil Rights Act of 1964 shall be available to any federal employee complaining of handicap discrimination. McGuinness v. United States Postal Service, 744 F.2d 1318 (7th Cir.1984). The addition of the new section in 1978 requires a plaintiff to seek and exhaust administrative remedies prior to filing an action in federal court. Prewitt v. United States Postal Service, 662 F.2d 292, 303 (5th Cir.1981). In the case at bar, plaintiff’s failure to do so is fatal to his cause of action. Plaintiff has failed to pursue any of the administrative requirements of 29 C.F.R. § 1613 et seq. Accordingly, Count I of plaintiff’s complaint must be dismissed.

In addition, plaintiff cannot avoid the exhaustion requirement of section 501 simply by alleging his cause of action under section 504, 29 U.S.C. § 794. It is clear that section 504 is applicable to employment discrimination. See Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 104 S.Ct. 1248, 1253-55, 79 L.Ed.2d 568 (1984). Several circuits, including the Eighth Circuit, in Miener v. Missouri, 673 F.2d 969 (8th Cir.1982) have held that under certain circumstances “§ 504 suits may be maintained in advance of exhaustion of administrative remedies”. However, Miener is distinguishable from the case at bar for the reason that in Miener the plaintiff was not trying to get or retain a job. Plaintiff’s complaint in Miener alleged discrimination in the provision of educational services in violation of § 504. See Miener v. Missouri, 673 F.2d at 975. Under § 504, the 1978 amendment made Title VI remedies available to the plaintiff. Title VI remedies, which include cutting off federal funds to the discriminator are not designed to assist an individual. Accordingly, the Eighth Circuit has not required plaintiffs to exhaust Title VI remedies in situations where the remedies available will be of little or no avail to the individual plaintiff. Miener v. State of Missouri, 673 F.2d at 978. In this action however, under § 501 the plaintiff is provided all the remedies, procedures and rights set forth in section 717 of the Civil Rights Act of 1964. § 505(a), 29 U.S.C. § 794a(a). It is clear to this Court that § 501 affords adequate remedies to redress the alleged discrimination. This Court is in agreement with the Seventh Circuit’s well reasoned opinion in McGuinness v. United States Postal Service, supra. That action is squarely on point with the case at bar. The Seventh Circuit pointed out that it would not make sense for Congress “to provide (and in the very same section— 505(a)) different sets of remedies, having different sets of exhaustion requirements for the same wrong committed by the same employer.” McGuinness v. United States Postal Service, 744 F.2d at 1321. Accordingly, Gates is required to exhaust Title VII administrative remedies and his failure to do so requires dismissal of his action under the Rehabilitation Act. See also, Clark v. United States Postal Service, 592 F.Supp. 631, 632 (D.Mass.1984).

The Fifth Circuit in Prewitt v. United States Postal Service, supra, reached the same result through a slightly different analysis. The Fifth Circuit found it necessary to read the exhaustion of administrative remedies requirement of § 501 into the private remedy section of § 504 to give effect to both 1978 amendments. Therefore, the Fifth Circuit found that a plaintiff, seeking redress under either section would be required to exhaust his administrative remedies. Accord Boyd v. United States Postal Service, 752 F.2d 410 (9th Cir.1985); Smith v. United States Postal Service, 742 F.2d 257 (6th Cir.1984).

In Count II, plaintiff alleges a breach of the collective bargaining agreement by the employer in violation of 39 U.S.C. § 1208. Defendant seeks dismissal of Count II for the reason that plaintiff has again failed to exhaust his administrative remedies and because the suit is untimely. It is well-settled that an employee must first attempt to exhaust the grievance procedures before filing an action against the employer for breach of the collective bargaining agreement. However, the Supreme Court has noted that exceptions to this general rule exist. See Clayton v. Automobile Workers, 451 U.S. 679, 101 S.Ct. 2088, 68 L.Ed.2d 538 (1981). Whether or not plaintiff’s situation falls into an exception, however, is an issue that need not be reached. This Court is in agreement with defendant that this suit is untimely. The Eighth Circuit recently held that the six month statute of limitations, as applied in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), governs actions brought under 39 U.S.C. § 1208. Abernathy v. United States Postal Service, 740 F.2d 612 (8th Cir.1984). Plaintiff, in his complaint states that on January 6, 1982 he was removed from his employment with the post office. It is beyond doubt that plaintiff has far exceeded the applicable statute of limitations. Accordingly, Count II must be dismissed.

In Counts III and IV of the complaint, plaintiff seeks damages for race discrimination under 42 U.S.C. § 1981 and § 1983 respectively. In Brown v. General Services Administration, 425 U.S. 820, 835, 96 S.Ct. 1961, 1969, 48 L.Ed.2d 402 (1976), the Court unequivocally held that § 717 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16(c), “provides the exclusive remedy for claims of discrimination in federal employment.” See also Newbold v. United States Postal Service, 614 F.2d 46 (5th Cir.1980). While it is somewhat unclear whether plaintiff is alleging race discrimination or handicapped discrimination his Count VI of his claim, in either event, he is precluded from using § 1983. Plaintiff has not and in fact cannot allege that any action by the Post Office was under color of state law. See Gillespie v. Civiletti, 629 F.2d 637 (9th Cir.1980). Accordingly, plaintiff’s claims of discrimination fail to state a cause of action under 42 U.S.C. § 1981 and § 1983 and must be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See also Giles v. Equal Employment Opportunity Commission, 520 F.Supp. 1198 (E.D.Mo.1981).


author: ROBERT L. CARTER, District Judge.

text:
    Application of NEW YORK TYPOGRAPHICAL UNION NO. 6, For an Order Conforming an Arbitration Award v. AA JOB PRINTING and the Jewish Press, Inc., Respondents.
    84 Civ. 8734 (RLC).
    United States District Court, S.D. New York.
    Oct. 3, 1985.
    Robinson, Silverman, Pearce, Aronsohn & Berman, New York City (Andrew Irving, Mark Risk, of counsel), for petitioner.
    Rappaport & Frost, New York City (Gary L. Berenholtz, of counsel), for respondents.
   OPINION

ROBERT L. CARTER, District Judge.

Petitioner New York Typographical Union No. 6 (“the Union”) moves for an order pursuant to Rule 55, F.R.Civ.P., granting judgment by default in favor of the Union or, in the alternative, for an order pursuant to Rule 56, F.R.Civ.P., granting summary judgment in favor of the Union confirming the arbitration awards rendered by Designated Arbitrator Walter L. Eisenberg (the “arbitrator”) on July 4, 1982 and August 27, 1984 (the “award”). Respondents AA Job Printing Corp. and the Jewish Press, Inc. (the “employer”) cross-move for an order pursuant to Rule 56 granting the respondents summary judgment dismissing the petition.

In the absence of a statement by respondent of material facts at issue as required by Rule 3(g), Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York, the court is required to view the facts as set forth by the petitioner in its Rule 3(g) statement as admitted unless controverted by the statement required to be served by a respondent. S.E.C. v. Research Automation Corp., 585 F.2d 31, 34 n. 6 (2d Cir.1978). The following facts, therefore, as set out in petitioner’s Rule 3(g) statement are undisputed:

Petitioner is a labor organization representing employees in the printing industry and is subject to the provisions of the Labor Management Relations Act of 1947, as amended (the “Act”). Respondents are employers within the meaning of the Act. The Printers’ League is a multi-employer association that bargains with the union on behalf of the employer and other employers in the printing industry. The Union and the Printers’ League entered into a 1974 collective bargaining agreement with a term beginning on October 4, 1975, and ending on October 3, 1985, then agreed to amend the 1974 contract and extend its term to October 3, 1989. The contract as originally written, amended and extended provided for resolution of disputes between the Union and individual employer members of the Printers’ League by a designated arbitrator and named Walter L. Eisenberg to this position.

The Union submitted a dispute to Eisenberg for adjudication on October 29, 1980. The issues submitted concerned the existence of a contract between the Union and employer, the jurisdiction of the arbitrator to hear the matter, and whether the employer violated the collective bargaining agreement by allegedly failing to pay the employees covered by that contract wages and benefits, including contributions to certain jointly administered funds, and by requiring employees to follow a work schedule violative of the contract. A remedy for any finding of violative conduct was also sought.

Eisenberg filed an interim opinion and award on July 4, 1982, ruling that a contract existed between the parties and that the matter submited by the Union was arbitrable. A final opinion and order was issued on August 29, 1984, finding that the employer had violated the contract, that certain actions to remedy the violations were required of the employer, including provision of personnel, wage, hour and related records that were necessary to effectuate the remedy. The Union made a written demand for these documents on September 7, 1984, and no response was made by the employer.

On or about November 9, 1984, the Union filed a petition seeking confirmation of the award pursuant to NYCPLR § 7510 returnable to the Supreme Court of the State of New York, County of New York, on November 29, 1984. The employer did not appear and did not serve an answer to the petition. An order of default was subsequently entered in State court on December 3, 1984. The employer removed the proceeding to this court on December 6, 1984, and filed its answer on January 3, 1985.

Respondent’s answer was untimely since, under the pertinent terms of Rule 81(c), F.R.Civ.P., “[i]n a removed action in which the defendant has not answered, he shall answer ... within 20 days after the receipt ... of a copy of the initial pleading ..., or within 20 days after the service of summons upon such initial pleading, ... or within 5 days after the filing of the petition for removal, whichever period is longest.” No answer was filed as of December 11, 5 days after the removal, or as of December 26, which would have been at the very least 20 days after receipt of a copy of the complaint or service thereof and respondents were therefore in technical default. A decision on the merits, however, is favored by this court, Traguth v. Zuck, 710 F.2d 90, 94 (2d Cir.1983), and the existence now of a filed answer as well as petitioners’ failure to move for default during the weeks subsequent to respondents’ expiration of time also favors a decision on the merits.

Respondents’ first defense to the Union’s motion for summary judgment and first argument in favor of their own motion is that the arbitratpr failed to render a final and definite award. Bell Aerospace Co. Div. of Textron, Inc. v. Local 516, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, 500 F.2d 921, 923 (2d Cir.1974). However, the award here is complete, final and definite in all respects save for the provision of information necessary to calculate back pay and benefits due Union members according to the contract. This information is in the hands of respondents and has been under subpoena during the arbitration and, in the award, ordered to be turned over to the Union. Such a post-award requirement does not abrogate the finality of an arbitrator’s award. Kallen v. District 1199, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO, 574 F.2d 723 (2d Cir.1978). Further, respondents should not profit from their own intransigence in providing the required records.

Respondents’ second defense and second argument for summary judgment consists of the assertion that a pending matter before the National Labor Relations Board concerning unfair labor practices preempts the petition for confirmation of the arbitration award. Petitioner does not dispute that on July 24, 1984, United Production Workers Union, Local 17-18 filed a petition, case nos. 29 RC 6211 and 6212, for an election with the NLRB seeking to represent the same employees now subject to the award. Petitioner argues, however, that the NLRB action is immaterial to the instant action which seeks to enforce a final arbitration award pursuant to § 301 of the Labor Management Relations Act, 29 U.S.C. § 185. District courts possess jurisdiction under § 301 to enforce such awards pursuant to a collective bargaining agreement independent of the jurisdiction granted the NLRB. William E. Arnold Co. v. Carpenters District Council, 417 U.S. 12, 15, 16, 94 S.Ct. 2069, 2071-72, 40 L.Ed.2d 620 (1974); General Drivers, Warehousemen and Helpers, Local Union No. 89 v. Riss and Company, Inc., 372 U.S. 517, 83 S.Ct. 789, 9 L.Ed.2d 918 (1963); Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962).

Respondents’ final defense and argument rests on an allegation of sexual discrimination based upon an unsupported claim that application of the award would result in the disproportionate firing of female, nonunion employees in favor of male, union workers. Without support from a Rule 3(g) statement or like pleading, this allegation utterly fails as a defense to confirmation of the arbitration award.

For the above reasons, summary judgment is granted to petitioner for confirmation of the award and respondents’ cross-motion for summary judgment is denied.

IT IS SO ORDERED.


author: PEREZ-GIMENEZ, Chief Judge.

text:
    Rafael MARQUEZ VELEZ, Plaintiff, v. DAVID M. PUERTO RICO GRAPHIC SUPPLIES, INC., et al., Defendants.
    Civ. No. 84-3068 (PG).
    United States District Court, D. Puerto Rico.
    Oct. 3, 1985.

      José E. Fernández Seín, Santurce, P.R., for plaintiff.
    Rossell Barrios Amy, McConnell, Valdes, Kelley, Sifre, Griggs & Ruiz-Suria, San Juan, P.R., for defendants.
   OPINION AND ORDER

PEREZ-GIMENEZ, Chief Judge.

This is a civil action brought by plaintiff, Rafael Márquez Vélez, against David M. Puerto Rico Graphic Supplies, Inc., (hereinafter referred to as David M.) and Wheelabrator-Frye, Inc. Plaintiff alleges violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq., as amended, (ADEA) and the Puerto Rican statute prohibiting discrimination in employment on account of age, Law 100 of June 30, 1959, as amended, (Law 100), 29 L.P.R.A. § 146, et seq.

On January 15,1985, defendant David M. filed a motion requesting partial dismissal of the pendent state claim. The United States Magistrate issued a report and recommendation on the motion. The Magistrate recommended in his report that defendant’s motion to dismiss plaintiff’s state claim be denied. Defendant filed its opposition to the Magistrate’s report and recommendation, and the matter is presently before this Court on defendant’s opposition.

Upon objections being made to a Magistrate’s Report and Recommendation, we are required to make a de novo review of matters included in a Magistrate’s report to which objection is made. 28 U.S.C. § 636(b)(1)(C).

Defendant contends that ADEA supersedes plaintiff’s claim under Law 100 and that therefore the exercise of pendent jurisdiction over plaintiff’s state claim is inappropriate and contrary to ADEA.

The courts have presented two divergent interpretations of section 633(a) of the ADEA. In Pandis v. Sikorsky Aircraft Div. of U.T.C., 431 F.Supp. 793 (D.C.Conn.1977), a federal district court found that the exercise of pendent jurisdiction over state age discrimination claim was inappropriate. One of the stated reasons was that section 633(a) of the ADEA provides that the filing of a federal age discrimination lawsuit after the requisite periods for state and federal conciliation supersedes any state action in process, and “the fact that the filing of a federal ADEA lawsuit supersedes and stays any action pending in a state forum is a persuasive indication that it would be inappropriate for a federal court considering a federal ADEA claim to assume pendent jurisdiction over a cause of action grounded in state law.” Id., at 796.

On the other side of the spectrum, in Shanahan v. Witi-TV, Inc., 565 F.Supp. 219 (E.D.Wis.1982), the court held that although section 633(a) operates to stay any state proceedings upon the commencement of the ADEA actions, this stay does not imply that a pendent state cause of action is not permitted. The reasoning behind this interpretation is that section 633 refers to the jurisdiction of state agencies whose function it is to prevent employment discrimination. Section 633(a) provides that the jurisdiction of such a state agency is not affected by ADEA “except that upon commencement of action under [ADEA] such action shall supersede any state action.” The Court reads the term “any state action” to mean action by a state agency or by a court reviewing the action of a state agency because the term is contained in an exception to the general rule that the jurisdiction of state agencies remains unchanged. The Court concluded that “[i]n a state that has no agency with jurisdiction over age discrimination but that allows a private cause of action for age discrimination § 633(a) would not be applicable.” Id., at 224.

The court, in Wagner v. Sperry Univac Div. of Sperry Rand Corp., 458 F.Supp. 505, 518-19 (E.D.Penn.1978), specifically rejected the rule set forth in Pandis, which precludes the litigation of state age discrimination claims in federal courts. The court found that the appropriate inquiry was that of United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) as to whether considerations of judicial economy, convenience and fairness to litigants militate in favor of exercising the discretionary pendent jurisdiction. The court, in Sussman v. Vornado, Inc., 90 F.R.D. 680 (D.C.N.J.1981), adopts the view espoused in Wagner and utilizing the Gibbs rule, found that it would be in the best interest of justice to assume pendent jurisdiction over the state age discrimination claim.

We adopt the interpretation given by the court in Shanahan, supra, to section 633(a) of the ADEA and conclude that said section does not preclude the litigation of state age discrimination claim in federal court. Accord, Simpson v. Alaska State Com’n for Human Rights, 423 F.Supp. 552 (D.C.Alaska 1976). Contra, Lettich v. Kenway, 590 F.Supp. 1225 (D.C.Mass.1984) (ADEA appears to be an exclusive remedy).

Having reached the above conclusion we will now determine whether a federal court should exercise jurisdiction over a pendent state claim. In order to so determine the Court must apply a three-step analysis. First, using the test enunciated in United Mine Workers v. Gibbs, supra, it ■must be decided whether the assertion of pendent jurisdiction is constitutionally permissible. A federal court could constitutionally exercise jurisdiction over pendent state law claims only if: 1) the federal claim being asserted was substantial; 2) the state and federal claims derived from a common nucleus of operative facts; and 3) the claims were such that plaintiff would ordinarily be expected to try them all in one judicial proceeding. 383 U.S. at 724, 86 S.Ct. at 1137. Second, the Court must look to the federal statute being asserted and “... determine whether Congress in [that statute] has ... expressly or by implication ‘negated’ the exercise of jurisdiction over the particular non-federal claim.” Owen Equipment and Erection Co. v. Kroger, 437 U.S. 365, 373, 98 S.Ct. 2396, 2402, 57 L.Ed.2d 274 (1978); Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976); Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973). If the statute evidences such an intent the Court may not exercise its discretion and assume pendent jurisdiction. Finally, if the Court determines that the exercise of pendent jurisdiction is not prohibited by the Constitution or federal statutory law, it must exercise its own discretion in deciding whether it will or will not assert jurisdiction over the pendent state claim. Thibodeau v. Foremost Ins. Co., 605 F.Supp. 653, 661 (N.D.Ind.1985).

There is no dispute that the exercise of pendent jurisdiction over the state age discrimination claim is not barred under the Gibbs constitutional test. The age discrimination claim under the ADEA is a substantial federal claim and the same operative facts give rise to both the state age discrimination claim and the federal claim. Congress in ADEA has not expressly or by implication negated the exercise of jurisdiction over the pendent state claims. Ritter v. Colorado Interstate Gas Co., 593 F.Supp. 1279 (D.C.Col.1984) (In Ritter, the court analyzed and compared ADEA to Title VII and concluded that although it contains remedial limitations like Title VII, to wit: compensatory or punitive damages are not recoverable, it does not contain the procedural limitations of Title VIL ADEA was amended in 1978 to guarantee trial by jury of any fact issue, 29 U.S.C. § 626(c)(2), and there is no provision for expedited adjudication nor for referral to a master as in Title VII.)

Even assuming that the Court has the power to hear the pendent state claims, it does not follow that they must be heard here because exercise of pendent jurisdiction is committed to the discretion of the district court.

In United Mine Workers v. Gibbs, supra, the Supreme Court identified a number of factors that counsel against the exercise of jurisdiction over pendent state claims. Discretion to dismiss state claims should be exercised: 1) when considerations of judicial economy, convenience and fairness to litigants are not present; 2) when a surerfooted reading of applicable state law can be obtained in a state court; 3) when state issues predominate in terms of proof, scope of issues raised, or comprehensiveness of remedies sought; and 4) when divergent state and federal claims and theories are likely to cause jury confusion. Ritter v. Colorado Interstate Gas Co., supra.

Once again, courts have split with regard to application of these factors when plaintiffs have asserted state claims pendent to ADEA claims. There is a line of cases that decline to exercise pendent jurisdiction over a state claim such as intentional infliction of emotional distress because “adjudication of such state claims would circumvent the scope of the remedies available under the federal cause of action, and subvert the policies of excluding damages for emotional distress under the ADEA.” See, e.g., Hannon v. Continental National Bank, 427 F.Supp. 215, 218 (D.Colo.1977); Shirley v. Brown and Williamson Tobacco Co., 608 F.Supp. 78 (D.C.Tenn.1984); Deutsch v. Carl Zeiss, Inc., 529 F.Supp. 215 (S.D.N.Y.1981); Kempe v. Prince Gardner, Inc., 569 F.Supp. 779 (E.D.Mo.1983); Douglas v. American Cyanamid Co., 472 F.Supp. 298 (D.Conn.1979) (allowing state defamation claim to proceed would avail the plaintiff of remedies to which he would not be entitled under the ADEA).

The ratio decidendi that led the courts to hold that they had no power to exercise jurisdiction over pendent state claims, that is, to uphold the federal policy limiting remedies, was specifically rejected in Deen v. Great Atlantic & Pacific Tea Co., Inc., 608 F.Supp. 783 (D.C.N.C.1985). In Deen, the court followed the theory espoused in Frykberg v. State Farm Mut. Auto. Ins. Co., 557 F.Supp. 517, 519 (W.D.N.C.1983), where the court after distinguishing the doctrine of pendent jurisdiction with that of federal preemption concludes that “as long as other considerations of fairness and convenience weigh in favor of pendent jurisdiction, therefore, there is no reason why a federal court should refuse pendent jurisdiction simply because state law provides remedies above and beyond those provided Congress.” 557 F.Supp. at 519, quoting, Guyette v. Stauffer Chemical Co., 518 F.Supp. 521, 524-25 (D.N.J.1981). After weighing such factors as the predominance of the issues and adjudication of unsettled questions of state law, the Court concluded that the exercise of pendent jurisdiction was appropriate. See also, Thibodeau v. Foremost Ins. Co., supra.

Co-defendant David M. urges various reasons why the Court should refuse pendent jurisdiction of the Law 100 claim. Among the reasons alleged are: the different burdens of proof and jury confusion regarding the requirements of proof. In the very recent case of Mark Wildman v. Lerner Stores Corporation, 771 F.2d 605 (1st Cir.1985), defendants argued that because of the different burdens of proof under the ADEA and Law 100 the district court had abused its discretion in trying the federal and Puerto Rico claims together. The First Circuit Court of Appeals held that the district court did not abuse its discretion in trying the federal and Puerto Rico claims together because: 1) the liability issue was the same under all claims, to wit: was the plaintiff discharged because of his age or for another reason; 2) the district court had carefully and correctly explained the burden of proof applicable to the statutes; and 3) written interrogatories were submitted to the jury for findings on each of the statutes. The First Circuit found that the instructions were sufficient to enable the jury to cope with the different burdens of proof and apply them correctly. Furthermore, the First Circuit reasoned that if the jury found a violation of the ADEA, violations of the Puerto Rico statutes would necessarily follow. This is due to the fact that under ADEA the burden of proof is at all times on the plaintiff, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st Cir.1979), while under Law 100, the fact of discharge at age sixty-one would put the burden on the employer to prove that the discharge was not discriminatory. Ibañez v. Molinos de Puerto Rico, 83 JTS 30 (March 16, 1983).

Another reason advanced by the co-defendant in order to refuse pendent jurisdiction over the state claim is that neither the Supreme Court of Puerto Rico nor the Legislature has made clear the extent of the remedies afforded by Law 100 and that therefore the district court should avoid needless decisions of state law. The Supreme Court in Odriozola v. Superior Cosmetic Distributors Corporation, 85 JTS 51 (June 28, 1985), has clarified to some extent the remedies afforded by Law 100. The Supreme Court held that future wages to retirement age are available under Law 100. However, the Supreme Court did not rule on whether damages for emotional suffering was available under Law 100 because the trial court’s determination that plaintiff had been made whole by the double damages awarded under the statute was not appealed.

In footnote 10, the Supreme Court stated: “Quaere if damages for emotional suffering due to a discriminatory discharge from employment are recoverable under Law 100. They are not under the ADEA.” (Our translation).

The First Circuit Court of Appeals in the Mark Wildman case, apparently not made aware by the appellant of the Odriozola case, adopted the opinion of the district court and ruled that Law 100 does not authorize damages for emotional suffering. In Enrique Casanova v. Xerox Corporation, Civil No. 83-0004, a previous case before this Court, we dismissed plaintiff’s request under Law 100 for emotional damages allegedly caused by the discharge.

In Gibbs, the Supreme Court cautioned that “needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law.” 383 U.S. at 726, 86 S.Ct. at 1139.

In the case at bar judicial economy, convenience and fairness to litigants which might favor trial of the claims together does not outweigh the fears of possible intervention into an uncertain area of state law. Furthermore, dual concerns of federalism and that a surer-footed reading of the state law could be obtained in state court operate against the exercise of pendent jurisdiction over the state claim. See, e.g., Borumka v. Rocky Mountain Hosp., 599 F.Supp. 857 (D.C.Col.1984); Arnell v. Pan American World Airways, Inc., 611 F.Supp. 908 (S.D.N.Y.1985); Zamore v. Dyer, 597 F.Supp. 923 (D.C.Conn.1984).

In view of the above, the Court hereby REJECTS the Magistrate’s Report and Recommendation and ORDERS that co-defendant’s motion requesting partial dismissal of plaintiff’s cause of action under Law 100 of June 30, 1959, as amended, 29 L.P.R.A., § 146, et seq., be and is hereby GRANTED; and

FURTHER ORDERS that the pendent state claim under Law 100 be and is hereby DISMISSED without prejudice.

IT IS SO ORDERED.

      . Section 633(a) reads: "Nothing in this chapter shall affect the jurisdiction of any agency of any state performing like functions with regard to discriminatory employment practices on account of age except that upon commencement of action under this chapter such action shall supersede any state action."

      . In Frykberg an identical argument as in Deen and the case at bar was raised, to wit: jurisdiction over pendent state claims for intentional infliction of emotional distress should be declined because relief sought would circumvent the limited scope of relief available under Title VII, 42 U.S.C. § 2000, et seq.

      . Retirement age is sixty-five. 29 L.P.R.A. § 151(1).