author: GERALD J. WEBER, District Judge.

text:
    Richard J. MANDIA v. ARCO CHEMICAL COMPANY.
    Civ. A. No. 83-1529.
    United States District Court, W.D. Pennsylvania.
    Sept. 30, 1985.

      Stanley Stein, Pittsburgh, Pa., for plaintiff.
    Charles Kenrich, Dickie McCamey & Chilcote, Jess Womack, Arco Chemical Co., Philadelphia, Pa., for defendant.
   OPINION

GERALD J. WEBER, District Judge.

Plaintiff filed an action against Defendant under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, specifically under Section 2000e-3(a) relating to unlawful discrimination in employment against an employee who has opposed discrimination in employment, or against an employee who has assisted or participated in any manner in an investigation or proceeding under Title VII.

Plaintiff’s Complaint in 1117 alleges that his termination:

... was solely the result of Mason-Mandia’s filing of the EEOC claim against ARCO, as well as the result of Mandia’s expressed opinion in support of his wife’s claim, ...

(Mason-Mandia refers to plaintiff’s wife).

The statute creates and the cases recognize two types of retaliation discharges under Section 2000e-3(a); the opposition clause, because “he has opposed any practice made an unlawful employment practice by this Title,” i.e. see Great American Federal Savings and Loan v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979), and the second, the participation clause, “because he made a charge, testified, assisted ... or participated in any manner in any investigation, proceeding or hearing under this Title.”

The plaintiff has failed to carry the burden of proving that he is within the protected activity of the statute by opposing any unlawful employment practices. One of the functions of his job was to guard against, investigate, and report any such practices. He was well familiar with the concept of sexual harassment, he wrote the employee manual, he conducted a seminar on the topic, he was familiar with the EEOC procedure and was familiar with what an EEOC charge would produce. While he complained of employment practices within the company’s plant at Beaver Valley, there is no evidence that he raised any question of sexual harassment.

With respect to the participation element, the evidence is clear that he participated, supported and aided his wife in the filing of the EEOC charge on November 3, 1982 with relation to sexual harassment. It is solely by reason of his wife’s charge that he could be considered to have made any allegation of sexual harassment against his employer, and thus be engaged in a protected activity. We will concentrate on the evidence surrounding the claim that his discharge from employment arose out of the filing by his wife of a complaint under Title VII against her employer, the same employer as her husband’s, the defendant here. This is retaliation against a third-party because of the filing of a Title VII complaint by a close relative. We conclude that Section 2000e-3 proscribes such retaliation. See De Medina v. Reinhardt, 444 F.Supp. 573 (D.D.C.1978) and Kornbluh v. Stearns and Foster Co., 73 F.R.D. 307 (N.D.Ohio 1976).

The wife’s EEOC complaint against ARCO Chemical was filed November 3, 1982 and alleged sexual harassment by her supervisor at the ARCO Chemical Co. Beaver Valley Plant. Sexual harassment is a form of sex discrimination prohibited in employment by Title VII. The prohibition “is violated when a supervisor, with the actual or constructive knowledge of the employer, makes sexual advances or demands toward a subordinate employee and conditions that employee’s job status — evaluation, continued employment, promotion, or other aspects of career development — on a favorable response to those advances or demands, and the employer does not take prompt and appropriate and remedial action after acquiring such knowledge. Tomkins v. Public Service Electric and Gas Company, 568 F.2d 1044, 1048-1049 (3d Cir.1977).

This case presents a complex background, almost Byzantine in its involvements, and with enough characters and incidents to provide a full season of soap opera. The plaintiff, Richard Mandia, has a B.S. degree in psychology, an M.S. degree in behavioral science, with training and experience in psychological counseling. He was hired by ARCO Chemical Company in 1979 in Philadelphia, as Manager of Management Development and was transferred on September 22, 1980 to ARCO’s Beaver Valley Plant as Manager of Employee Relations. His chain of command was to Carl Simmons, Manager of Employee Relations in Philadelphia; then to William Edmunds, Director of Employee Relations in Philadelphia, and finally to Jack Oppasser, Vice-President of Employee Relations in Philadelphia.

Under Mandia at the Beaver plant were Fernand Price, Supervisor of Salaried Personnel; and A.L. Rice, Supervisor of Labor Relations.

Mandia received competent (3+) performance evaluations on May 2, 1981 and March 4, 1982. He received merit salary raises in 1980, 1981 and 1982.

Cheryl Mason (later Cheryl Mason-Mandia) was a registered nurse who was hired as a part-time nurse at the Beaver Valley Plant in January 1981. She was interviewed by Richard Mandia at that time and they became good friends. She was hired as a full time nurse in September 1981. Mandia was giving her psychological counseling during 1981 because of the effects on her of the mental instability of her husband, Paul Mason, who committed suicide on October 14, 1981. Mandia had separated from his second wife in 1981. Thereafter Cheryl Mason and Richard Mandia dated each other, attended the company Christmas party together in 1981, became lovers and were married in April 1982.

On May 21, 1982, Cheryl Mason submitted her letter of resignation to ARCO Chemical and it was accepted June 11, 1982. She filed a claim for Pennsylvania Unemployment Compensation and testified at a hearing that she was forced to leave her employment because she was being harassed, but she did not mention sexual harassment.

Dr. Jack Kerns was the medical director of the Beaver Valley Plant from January 1981 through July 1982. He is the supervisor that was the target of Mrs. Mason’s harassment complaint to the EEOC. She testified to being bothered by being touched, by lewd jokes, by calls to her at home. She testified that she was offered the position of head nurse with a suggestion of sexual favors in return, but the post went to another nurse. She testified this head nurse got favorable treatment, and that she was assigned to menial and clerical duties. She also blamed the new head nurse for harassment.

She made specific complaints within the company. The first concerned the action of Dr. Kerns in docking her for four days pay in October 1981 for absence without calling in. In this matter she consulted Mandia who turned the matter over to Fernand Price, Supervisor of Salaried Personnel. It was resolved by a reimbursement.

In 1982 she was evaluated below average in competence by Dr. Kerns and wrote to him asking reconsideration and review by Dr. Lippin, Kern’s superior in Philadelphia. A meeting was held on the matter at a company conference in Philadelphia.

During the period in 1981 Cheryl Mason was involved in psychological counseling with Richard Mandia. Mandia testified that she was referred to him for this, but Dr. Kerns denies this because the company had full scale psychiatric counseling available to employees and would not refer anyone to Mandia, whose academic credentials he did not regard highly.

While Cheryl Mason may have told her friend, counselor, lover and husband that she was a victim of sexual harassment by Dr. Kerns there is no recorded evidence of a specific recorded complaint of sexual harassment either by Cheryl Mason or by her husband Richard Mandia in any of the many documents entered as exhibits here.

On March 1, 1982, Cheryl Mason wrote to Dr. Kerns objecting to her 3 minus rating and mentioning problems with a coworker. (Defendant’s Exhibit 109).

On May 21, 1982, Cheryl Mason wrote a letter of resignation to ARCO, which does not mention sexual harassment as a reason for leaving. (Defendant’s Exhibit 3).

On September 27, 1982, Cheryl Mason testified before the Pennsylvania Unemployment Commission as to the reasons for her leaving employment. When asked to explain her claim of harassment she did not claim sexual harassment.

On October 4, 1982, Cheryl Mason wrote to the Pennsylvania Unemployment Compensation Commission that she resigned because of harassment by her superior, head nurse Judy Warwick. (Defendant’s Exhibit 32).

Similarly there is no record that plaintiff Richard Mandia ever recorded a specific complaint of sexual harassment by Cheryl Mason. Mandia testified that he was familiar with the meaning of sexual harassment, that he had prepared the employee’s handbook covering such complaints, that he had given a training program on sexual harassment, furnished by the company, and that it was his duty to report complaints of sexual harassment to his superiors in the chain of command.

Nowhere in the evidence is there any formal report of any complaint of sexual harassment of Cheryl Mason. Mandia had referred her complaint of pay docking to Fernand Price, he had talked to William Edmunds, the Director of Employee Relations in Philadelphia, about conditions in the medical center. Mandia’s testimony, as to mentioning sexual harassment specifically is vague, but Edmunds denies that it was raised. He complained about the treatment of Cheryl Mason in reference to the low performance evaluation.

On June 3, 1982, after being told to put his report in writing, Mandia wrote an extensive memorandum to his superior, William Edmunds, in reference to personnel problems in the Medical Department. There is extensive reference to the problems of Nurse Mason in the report, but no mention of any problem of sexual harassment. It dealt with the complaint that Nurse Mason’s professional skills were not being utilized.

Neither Edmunds nor Oppasser were aware that Nurse Mason was Mandia’s wife.

Edmunds’ and Oppasser’s reaction to the report was that the Medical Department of Beaver-Valley was not within their chain of command, nor under Mandia’s jurisdiction. The Medical Department at Beaver Valley reported to a superior in Philadelphia, Dr. Richard Lappin, who in turn reported to superiors in Los Angeles.

Edmunds and Mandia personally discussed this report. Mandia testified that Edmunds made some remark that if Mandia’s wife made a complaint of sexual harassment it would cost Mandia his job. Edmunds denies this remark. Edmunds and Oppasser took no further action on the matter because they learned that Dr. Kerns was taking employment elsewhere within a month. Alxander L. Rice, Mandia’s subordinate as Employee Relations Supervisor of the Beaver Valley plant, who was discharged on the same date as Mandia and for the same reason, testified that Richard Mandia discussed Cheryl’s troubles in her employment in the medical department, but never used the words sexual.

Dr. Kerns testified that Mandia talked to him about Cheryl’s treatment obliquely in conversations about other subjects. The matter was presented by Mandia stating that the chief nurse, (Judy Warwick) was treating Cheryl unfairly or that Judy was “setting Cheryl up”. No mention of sexual harassment was made. This is somewhat surprising in that Mandia as Cheryl’s close friend, lover, and later as husband, would most naturally raise such a subject directly with Dr. Kerns. Dr. Kerns testified that Cheryl’s complaints to him covered the pay docking incident, the job evaluation, and her low level clerical assignments. No charge of sexual harassment was made to him by Cheryl, although she did accuse chief nurse Judy Warwick of on-the-job harassment. Dr. Kerns characterized as an “outright lie” the claim of Cheryl that Kerns would appoint her head nurse if she would “come across.”

Mandia was terminated on October 12, 1982, along with another employee, Mandia’s subordinate, A.L. Rice, by William Edmunds,pursuant to a specific order by Jack Oppasser. On October 11, 1982, Op-passer had learned of a surreptitious wire tapping incident of an employee’s telephone call made on June 21, 1982. Oppasser had been highly indignant at learning of this episode.

As a result of a number of personnel matters that had arisen at the Beaver Valley plant, Edmunds and Oppasser discussed Mandia’s general competence to handle this assignment and an experienced man was interviewed as a replacement for him on September 27 and 28, 1982. They considered assigning Mandia to another position. The person interviewed was made manager at Beaver Valley on October 15, 1982. At Mandia’s request he was allowed to resign effective October 15, 1982. Mandia and Rice were permitted to remain on the payroll until November 30, 1982, and Mandia performed some services for the company, appearing at a deposition in its behalf on November 3, 1982. On October 12,1982, it was announced at the plant that Mandia had resigned as of October 15, 1982. H. Fernard Price, Mandia’s former assistant, was designated to take over Mandia’s duties at the plant.

Mandia made several efforts to have the decision reversed, or to seek a transfer elsewhere in the company, citing strong mitigating circumstances involving the company’s prior knowledge and condonation of surreptitious tape recording of phone calls. Mandia met with Simmons to arrange a meeting with Oppasser, and on November 1, 1982 met with Oppasser. At neither of said meetings did Mandia raise the claim that his wife had been sexually harassed. Oppasser told Mandia at the November 1, 1982 meeting that he would review the discharge. On November 10, 1982 Oppasser informed Mandia that he had reviewed the discharge and would not reverse it. Oppasser testified that he did not then know that Cheryl Mason had filed a sexual harassment charge on November 3, 1982 with the EEOC. Oppasser testified that as of October 1982 he didn’t know that Mandia was married to Cheryl Mason.

On. November 5, 1982 ARCO Chemical received a copy of the EEOC charge at the Beaver Valley plant. Personnel at the plant advised Edmunds in Philadelphia of receipt of the charge, and Edmonds asked that a copy be forwarded to him. He received this on or about November 8, 1982. Although Edmunds and Oppasser met between November 8 and November 10, 1982, there is no direct evidence that Oppasser learned of the chargé before November 10, 1982. Oppasser denies this, and testified that he first learned of it on November 16, 1982. Plaintiff only argues that he must have known earlier because of the close departmental relationship between Edmunds and Oppasser.

The EEOC administrative investigator found no probable cause for Cheryl Mason’s complaint of sexual harassment. However, we need not make a finding that the sexual harassment actually occurred. The test in retaliation cases is whether plaintiff had a reasonable belief that an employment practice violated Title VII. See Novotny v. Great American Federal Savings and Loan Association, 539 F.Supp. 437 (W.D.Pa.1982). Even if a charge filed with the EEOC is found to be without merit, the employee is protected in making that charge by Section 2000-3(a). Hicks v. ABT Assoc., 572 F.2d 960 (3d Cir.1978).

Mandia filed a charge of retaliatory discharge with the EEOC on November 16, 1982. The EEOC administrative procedure found no probable cause.

The ultimate question is, was Mandia terminated because of his wife’s EEOC charge? Plaintiff bears the ultimate burden of proof on this issue. While there is a time relation between Mandia’s termination and the wife’s charge, to conclude from that relation alone that they were causally related would be pure speculation.

While we have Mandia’s assertion that the complaints of sexual harassment were orally transmitted to his superiors, and the denial of the superiors that they received such reports, all of the corroborating documentation from Robert Mandia and Cheryl Mason fail to support Richard Mandia’s claim. With respect to whether Oppasser knew of the EEOC charge on November 11, 1982 when he refused to reconsider the the termination of October 12, 1982, we can only rest on mere speculation. His testimony refutes this. The time-stamps on his incoming correspondence refutes this. Plaintiff’s counsel’s argument that he must have known because of his corporate relationship to those who were informed, and the critical importance of this issue, ignores the fact shown by the evidence that the Beaver Valley plant is only one of several widely spaced plants under his jurisdiction, and that Nurse Mason was only one of the many personnel problems that he faced, and actually she and the Medical Department were not under his jurisdiction.

Furthermore, the employer has shown a bonafide business reason for the dismissal of October 12, 1982, which may seem harsh, but is entirely legitimate. Even before that time Mandia’s superiors were disturbed at the way he was handling his job, were actively seeking and interviewing a replacement, and announced his replacement by October 19, 1982, before the date of Cheryl Mason’s charge.

Therefore, plaintiff has failed to carry his burden of proof and judgment will be entered for defendant.

The foregoing opinion shall constitute the court’s findings of fact and conclusions of law.

       Throughout this proceeding all documentary evidence has identified the plaintiffs wife as Cheryl Mason, despite her April 1982 marriage to plaintiff, Richard Mandia. This includes the EEOC charge filed November 3, 1982.


source: Caselaw Access Project

author: JACKSON, District Judge.

license: Public Domain

text:
    AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO v. OFFICE OF PERSONNEL MANAGEMENT, et al. NATIONAL TREASURY EMPLOYEES UNION v. Loretta CORNELIUS, et al. NATIONAL FEDERATION OF FEDERAL EMPLOYEES v. Loretta CORNELIUS, et al.
    Civ. A. Nos. 85-2092, 85-2101 and 85-2109.
    United States District Court, District of Columbia.
    Sept. 30, 1985.

      William J. Stone, Washington, D.C., for AFGE.
    Gregory O’Duden, Washington, D.C., for NTEU.
    Edwin Harvey, Washington, D.C., for NFFE.
    Richard Willard, Acting Asst. Atty. Gen., Dept. Justice, Civil Div., Washington, D.C., for defendants.
   MEMORANDUM AND ORDER

JACKSON, District Judge.

In these three consolidated cases unions representing federal civilian employees challenge the implementation of regulations promulgated by the Office of Personnel Management (“OPM”) which work major changes in the terms and conditions upon which federal employment is held, including such matters as reductions in force (“RIFs”), promotions, performance management systems, pay administration under the Fair Labor Standards Act (“FLSA”), and others. The case is now before the Court on plaintiffs’ motions for a preliminary injunction staying implementation of the regulations pending a decision on the merits of their legality. For the reasons set forth below the Court finds that plaintiffs have not made the showing required of them for preliminary injunctive relief under Virginia Petroleum Jobbers Ass’n v. Federal Power Comm’n, 259 F.2d 921, 925 (D.C.Cir.1958), and Washington Metropolitan Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977), and their motions for preliminary injunction will, therefore, be denied.

I.

The origins, including the judicial antecedents, of the present dispute are many and convoluted, and have engaged at various times the simultaneous attentions of all three branches of the government. The controversy began on March 30, 1983, when, as required by the APA, 5 U.S.C. § 553, OPM published in the Federal Register a proposed set of regulations governing federal civilian employment, the primary thrust of which was to exalt sustained high-quality performance over seniority as the principal criterion upon which promotions, pay, retention preferences, and the like would be dispensed. 48 Fed.Reg. 13,341 et seq. (1983). Having provoked the extensive commentary which might be expected, the proposed regulations were then revised and republished by OPM on July 14, 1983, and the public given an additional 30 days in which to comment again. 48 Fed.Reg. 32,279 et seq. (1983). Apparently still uneasy with the results, however, on August 15, 1983, Congress enacted legislation prohibiting OPM from expending any funds “to adopt, to issue, or to carry out a final rule or regulation, a final revision, addition, or amendment to regulations, or a final statement of policy” in the matter. Department of Transportation and Related Agencies Appropriations Act, 1984, Pub.L. 98-78, § 323, 97 Stat. 453 (1983). The ban on spending expired on October 15, 1983, and Congress failed to renew it. Once again OPM put the regulations forth, publishing its intended final version in the Federal Register on October 25, 1983, to take effect on November 25, 1983. 48 Fed.Reg. 49,462-49,498 (1983). In the meantime, however, the House Appropriations Committee had reported H.R. 4139 making appropriations for the fiscal year ending September 30, 1984, for a number of federal agencies, including OPM, see H.R.Rep. No. 417, 98th Cong., 1st Sess. (1983), and contained within the bill was the so-called “Hoyer Amendment” providing:

None of the funds appropriated under this Act shall be obligated or expended to implement, promulgate, administer, or enforce the proposed Office of Personnel Management regulations and the proposed Federal Personnel Manual issuances published in the Federal Register on March 30, 1983, ... as superseded by proposed regulations and Federal Personnel Manual issuances published in the Federal Register on July 14, 1983.

H.R. 4139 was passed by the House on October 27, 1983, with the Hoyer Amendment intact, two days after OPM had issued its third version of the regulations. The Senate never had an opportunity to act on H.R. 4139, for in early November, 1983, compelled by fiscal urgency, Congress resorted to a continuing resolution, H.J.Res. 413, the second for that year, in lieu of the customary appropriations process for funding government operations, and H.J.Res. 413 incorporated H.R. 4139, including the Hoyer Amendment. Pub.L. 98-151, 97 Stat. 964 (1983). Undaunted, on November 21, 1983, OPM announced that, notwithstanding H.J.Res. 413, the regulations would take effect as scheduled on November 25, 1985, because, being finished, no additional money would have to be spent on them.

Two weeks earlier, however, uncertain of the extent to which it could count on Congress for succor, National Treasury Employees Union (“NTEU”), one of plaintiffs here, had filed suit in this court seeking injunctive relief and a declaration that the regulations were “null and void.” Upon OPM’s announcement of its intention to go forward with the regulations plaintiffs applied for and were granted a temporary restraining order staying their implementation, which was thereafter extended by agreement of the parties pending the court’s decision on cross-motions for summary judgment.

On December 30, 1983, a judge of this court granted plaintiffs’ motion for partial summary judgment, holding that Congress had intended HJ.Res. 413 to forestall implementation of the regulations and render them “without any effect whatsoever, as long as OPM’s funding derives from” [the continuing resolution], whether or not OPM expected to spend any of it on putting the regulations into effect. National Treasury Employees Union v. Devine, 577 F.Supp. 738, 750 (D.D.C.1983).

In April, 1984, the court of appeals affirmed, adopting the holding of the district court. It then added a dictum, however, that:

In so holding, we emphasize the finite nature of the congressional prohibition. There is no suggestion in the language of the Hoyer Amendment, or H.R.J.Res. 413, that Congress intended to bar implementation of the regulations beyond the period during which OPM receives its funds through H.R.J.Res. 413. Moreover, as we have said, the legislative history indicates that Congress sought additional time to evaluate legislative solutions — it does not suggest that Congress permanently repealed OPM’s authority to implement the disputed regulations. Therefore, we hold that when OPM’s funding no longer derives from H.R.J.Res. 413, OPM will be free to take any steps deemed necessary to implement, administer and enforce the regulations, unless Congress acts to impose new restrictions.

National Treasury Employees Union v. Devine, 733 F.2d 114, 120 (D.C.Cir.1984).

Congress did, indeed, thereafter impose new restrictions, in the form of the Continuing Appropriations Act of 1985, Pub.L. 98-473, 98 Stat. 1963, which extended the ban until July 1, 1985, and there the matter rested until in late June, 1985, when OPM intimated that it might withdraw the regulations. The following day, however, the Office of Management and Budget (“OMB”), to whom the proposed withdrawal had been submitted for review pursuant to Executive Order, announced that the regulations would take effect on July 1, 1985. On June 27, 1985, plaintiff AFGE filed the first of these actions.

II.

To obtain the preliminary injunctive relief they seek, plaintiffs must establish: (1) that they are likely to prevail on the merits of their claims; (2) that without such relief, they may expect to suffer irreparable injury; (3) that issuance of an injunction would not substantially harm other parties interested in the litigation; and (4) that it would be in the public interest to grant the relief requested. Virginia Petroleum Jobbers Ass ’n, 259 F.2d at 925; WMATA v. Holiday Tours, 559 F.2d at 843.

Defendants contend that there is no likelihood that plaintiffs will ultimately succeed on the merits of their claims because (1) they lack standing to litigate their claims, and the claims themselves are not ripe for adjudication; (2) the disputed regulations were properly formulated and implemented in accordance with the “notice and comment” requirements of the APA, 5 U.S.C. § 553; and (3) the regulations are not “arbitrary,' capricious, or otherwise not in accordance with law,” and, thus, invalid under the APA, 5 U.S.C. § 706(2)(A). Standing and Ripeness

As a general rule, plaintiffs have standing to sue when they can satisfy the basic Article III requirement that they show they have suffered or are likely to suffer some actual or threatened injury as a result of a defendant’s allegedly illegal conduct; that the injury is fairly traceable to the challenged conduct; and that it will be redressed by a favorable decision. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (citing Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976)). In addition, plaintiffs must meet the “prudential” requirement that their particular concerns fall within “ ‘the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.’ ” Valley Forge, 454 U.S. at 475, 102 S.Ct. at 760 (quoting Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970)). “The zone of interests adequate to sustain judicial review,” however, is deemed to be “particularly broad in suits to compel federal agency compliance with law,” in keeping with the expansive scope of the provision of the APA which affords review to any person “ ‘adversely affected or aggrieved by agency action within the meaning of a relevant statute,’ ” namely, 5 U.S.C. § 702. FAIC Securities, Inc. v. United States, 768 F.2d 352, 357 (D.C.Cir.1985).

When plaintiffs last attempted to halt the implementation of the disputed regulations by litigation in 1983, OPM also questioned the unions’ standing to do so, asserting, as it does here, that the unions and their members had not suffered injury in fact. The district court, after thoughtful review, concluded otherwise, however, and refused to dismiss the suit on standing grounds, NTEU v. Devine, 577 F.Supp. at 743-45, and the court of appeals implicitly concurred. Whether or not this Court is bound by those earlier decisions, the considerations which convinced those courts of plaintiffs’ standing to sue still obtain.

The three unions are, pursuant to statute, the exclusive bargaining representatives for multitudes of their members employed throughout the federal government. Their obligations to their members are also established by statute, see, e.g., 5 U.S.C. §§ 7111, 7114, and include “negotiating collective bargaining agreements, arbitrating grievances, filing unfair labor practice charges, lobbying Congress on matters affecting federal employees, and litigating individual and collective rights of employees” in administrative and judicial forums. The several complaints in these eases allege myriad palpable consequences emanating from the new regulations which have fundamentally altered the relationship between federal employees and their several agency employers. All three unions have submitted affidavits or declarations to the effect that real and substantial “injury,” as they see it, is even now being done to the unions and their members by the regulations.

The regulations are currently (as they have been since July 3, 1985) in effect, and they purport, and will continue, to affect almost every species of personnel action for the entire federal civilian workforce in the months and years to come. That individual employees now hold their jobs upon new — and arguably less attractive — terms is a certainty, and plaintiffs need not be able to identify particular employees who will be harmed, nor to prophesy the exact nature and extent of the damage to be inflicted, to maintain such actions. The Court finds that these plaintiffs have standing in their own right and as the representatives of their members. See Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 341-43, 97 S.Ct. 2434, 2440-41, 53 L.Ed.2d 383 (1977).

Similarly, the Court finds that these issues are ripe for adjudication. OPM argues that the situation at the moment resembles that of AFGE v. O’Connor, 747 F.2d 748 (D.C.Cir.1984), in that plaintiffs are actually in quest of an advisory opinion with respect to hypothetical evils which have yet to befall them, a dispute “not wedded to the facts of a particular case.” Id. at 749. AFGE v. O’Connor concerned an opinion of the Special Counsel of the Merit Systems Protection Board (“MSPB”) expressing his view as to the legality under the Hatch Act, 5 U.S.C. § 7324(a)(2) (1982), of voter registration drives conducted by members of public sector unions having committed themselves previously to particular candidates. The Special Counsel having no adjudicatory authority in Hatch Act enforcement cases, and the MSPB, in whom such authority resided, having no obligation to follow the Special Counsel’s advice, the court of appeals concluded that the Special Counsel’s opinion “create[d] no law and [bound] neither the public nor any agency or officer of government,” 747 F.2d at 752-53, holding that the controversy was not ripe for review.

In contrast, the regulations at issue here are presently in effect, and they are binding upon hundreds of thousands of federal employees. They are, for the moment, the “final administrative word” with respect to the aspects of federal employment they cover, id. at 753, and the issues before the Court are therefore sufficiently concrete for judicial resolution within the meaning of Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). There is nothing “anticipatory” about plaintiffs’ challenge to expected government action. Compare Andrade v. Lauer, 729 F.2d 1475, 1483 (D.C.Cir.1984). OPM has acted, and its action is having repercussions for plaintiffs and their members daily.

Notice and Comment Under the APA

Plaintiffs contend that OPM’s precipitous implementation of the new regulations once the congressional inhibition lapsed violated the notice-and-comment provisions of the APA, because the language used by both the district and circuit courts in the earlier litigation requires OPM to begin the rulemaking process again. Republication is also necessary, they say, because the passage of time and supervening events have rendered the regulations as written obsolete and, thus, “facially invalid.”

In the NTEU v. Devine cases both courts held that the effect Congress intended for H.J.Res. 413 was a temporal bar to implementation of the regulations, i.e., until such time as OPM’s funding derived from elsewhere. Both courts, however, (apparently borrowing the language of plaintiffs’ prayer for relief) spoke of the regulations as being “null and void,” 577 F.Supp. at 751; 733 F.2d at 121, and plaintiffs insist that the words “null and void” mean just that, viz., that the regulations were vitiated for all purposes.

The tenor of the opinions, however, is not nearly so dogmatic as plaintiffs would have them be read. Indeed, it is clear from the totality of the court of appeals’ opinion that it saw H.J.Res. 413 as nothing more than a pause for further legislative reflection, not as an act of nullification. The court expressly observed that, upon expiration or repeal of H.J.Res. 413, OPM would be free to put the regulations into effect by whatever means it “deemed necessary,” unless Congress were to direct otherwise, 733 F.2d at 120, a proposition clearly inconsistent with the notion that nothing remained of them to be given effect. As the court of appeals itself reasoned in the same case, albeit in another context, when the “plain meaning” of words leads to “absurd or futile results,” or merely an unreasonable one “plainly at variance with the policy ... as a whole,” courts should follow purpose rather than literal words, id., quoting United States v. American Trucking Ass’n, 310 U.S. 534, 543, 60 S.Ct. 1059, 1064, 84 L.Ed. 1345 (1940), and that reasoning is altogether apposite in considering its own use of the words “null and void” in the light of the balance of its opinion.

Action on Smoking and Health v. Civil Aeronautics Bd., 713 F.2d 795 (D.C.Cir.1983), cited by plaintiffs as an analogous case, is, in fact, not so. That case involved regulations which had earlier been “vacated” because the agency had failed to provide an adequate statement of their basis and purpose, as the APA requires. 5 U.S.C. § 553(c). See Action on Smoking and Health v. Civil Aeronautics Bd., 699 F.2d 1209, 1215-17 (D.C.Cir.1983). Despite the decision, however, the agency then promulgated substantially identical regulations without new notice and comment, prompting the court to explain in its later opinion that by the word “vacate” it had meant to cancel or rescind the regulations in their entirety. Action on Smoking and Health, 713 F.2d at 798-99. In the instant case, OPM’s regulations have never been found to be technically defective in either origin or content; unlike the Civil Aeronautics Board’s regulations in Action on Smoking and Health, they have not been “vacated,” and the process of promulgation need not begin anew.

Plaintiffs next submit that a new notice- and-comment period should be required because more than two years have elapsed since the regulations were published in 1983, and they are now dated. There appears to be no bright-line rule as to the “useful life” of a notice-and-comment record (although the court of appeals has warned that it is “not infinite.” See Action on Smoking and Health, 713 F.2d at 800.) But the APA requires only that “notice of proposed rulemaking ... be published in the Federal Register” at least 30 days prior to the rules’ effective date, and interested persons given “an opportunity to participate in the rule making through submissions of written data, views, or arguments,” which the agency must explicitly consider in a reasonably contemporaneous statement of basis and purpose. 5 U.S.C. § 553. Nor is a new notice-and-comment period required merely because final regulations differ from those originally proposed. As the court of appeals has stated:

An agency adopting final rules that differ from its proposed rules is required to renotice when the changes are so major that the original notice did not adequately frame the subjects for discussion____ The agency need not renotice changes that follow logically from or that reasonably develop the rules it proposed originally.

Connecticut Light and Power Co. v. Nuclear Regulatory Comm’n, 673 F.2d 525, 533 (D.C.Cir.), cert. denied, 459 U.S. 835, 103 S.Ct. 79, 74 L.Ed.2d 76 (1982). See also Air Transport Ass’n of America v. Civil Aeronautics Bd., 732 F.2d 219, 224-25 (D.C.Cir.1984); Weyerhauser Co. v. Costle, 590 F.2d 1011, 1031 (D.C.Cir.1978).

The proposed . regulations published in the Federal Register in July, 1983, were substantially (if not exactly) the same as the final version published in the Federal Register in late October, 1983, and although, as matters developed, they would not take effect until nearly two years later, their subject matter is as essentially ageless as it is perpetually controversial. As subjects for discussion, the regulations have been adequately framed, as well as discussed, for a good two years, and plaintiffs, the general public, and Congress were all given notice by the court of appeals that OPM would be in position, if it wished, to implement the rules on July 1, 1985, when H.J.Res. 413’s prohibition lapsed, unless something were to happen in the interim. Further notice now, not to mention comment, would be superfluous.

For similar reasons it is apparent that the fact that the implementation schedules established in the 1983 regulations are outdated, or that Congress has superseded a portion of the regulations by subsequent legislation, does not make it imperative that entire process be gone through again. Plaintiffs have submitted no authority for the proposition that the regulations, mutatis mutandis, are rendered “facially invalid” in their entirety by such circumstances, and indeed, common sense would dictate otherwise.

The Substance of the Regulations

Plaintiffs also challenge substantively various provisions of the new regulations themselves as “arbitrary, capricious, or otherwise not in accordance with law,” as the APA proscribes. 5 U.S.C. § 706(2)(A). The standard of review of agency action alleged to be defective under the APA, however, is highly deferential, and the Court may not substitute its judgment for that of the agency as long as the agency’s choices are rational in light of the facts presented to it. Environmental Defense Fund v. Costle, 657 F.2d 275, 283 (D.C.Cir.1981); Bowman Transportation, Inc. v. Arkansas-Best Freight Systems, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974), reh’g denied, 420 U.S. 956, 95 S.Ct. 1340, 43 L.Ed.2d 433 (1975); Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1983). The provisions plaintiffs find offensive must, therefore, be examined with this principle in mind.

1. Under the old regulations an employee’s retention standing in case of a RIF could be enhanced by service credit awarded on the basis of his or her performance rating as of the date of the RIF notice. The maximum possible credit, for an “outstanding” rating, was four years. 5 C.F.R. § 351.504 (1984). Under § 351.-504 of the new regulations, 48 Fed.Reg. 49,467 (1983), entitlement to service credit is based upon annual performance ratings for the three years prior to issuance of a RIF notice, and the maximum credit available is ten additional years of service for each rating of “outstanding.” Thus, an employee with three successive “outstanding” ratings could earn an additional thirty years of service credit.

Plaintiffs contend that this provision, ostensibly rewarding meritorious performance, is in actuality a convenient camouflage for “cronyism” or a device to facilitate employment decisions which depend upon employees’ allegiance to their supervisors’ political agendas. In addition, plaintiffs assert that the provision violates 5 U.S.C. §§ 3502 and 2301, which relate to the order of retention of employees in a RIF, and that OPM has not adequately explained its reasons for adopting the new rule.

The evils of cronyism and political favoritism, however, are not only entirely spectral at the moment, but when they materialize they can flourish no matter what the applicable regulations provide. There is nothing on the face of this particular regulation to indicate any purpose for it other than the obvious, i.e., to place greater emphasis on sustained merit and less on seniority in determining who stays and who goes in a reduction in force, and the use of additional service credits based upon several years’ performance ratings appears an entirely rational way to achieve the goal. Although it might be equally reasonable to assign a credit of, say, six years or four years, as opposed to ten, for a rating of “outstanding,” OPM’s choice of the latter certainly cannot be said to be arbitrary and capricious.

Nor does the Court perceive the regulation to be antithetical to 5 U.S.C. §§ 2301 and 3502. Section 2301(b)(6), a part of the Civil Service Reform Act, provides that, as a matter of general principle, employees “should be retained on the basis of the adequacy of their performance.” And Section 3502 grants OPM the authority to promulgate regulations for the release of employees in a RIF, with “due effect” to be given to tenure of employment, military preference, length of service, and efficiency or performance ratings. Plaintiffs read into this linear list a “ranking” of the factors, i.e., a statutory requirement that seniority be accorded greater importance than merit in deciding who stays, but there is nothing elsewhere in the statute or its history to so indicate, nor, for that matter, to suggest an intention on the part of Congress to preclude OPM from determining for itself the effect to be “due” to each factor.

2. Section 531.404 of the new regulations provides that an employee is eligible for a within-grade increase if he meets certain requirements, including that his performance of the work assigned him be “at an acceptable level of competence,” which is defined as a rating of at least “fully successful” on each critical job element under his agency’s performance management plan. 48 Fed.Reg. 49,486 (1983) . Plaintiffs contend that this contravenes 5 U.S.C. § 5335, which provides for within-grade increases only if, inter alia, the employee’s work is of an acceptable level of competence “as determined by the head of the agency.” (The old regulation added, however, that the employee’s level of competence could be evaluated by any agency official to whom such authority had been delegated. See 5 C.F.R. § 531.404 (1984) ).

There is no inconsistency between the statute and the regulation. The agency, by statute, is to determine the critical and noncritical elements for each job and set the performance standards required for a rating of “fully successful.” See 5 U.S.C. § 4302a(b). The agency head is responsible for his agency, and, thus, for determining the acceptable level of competence for each position within it. The only change in practice effected by the new regime is to cause such determinations to be made within the framework of the performance appraisal system format.

3. Another provision of the new regulations which plaintiffs believe to contravene statutory law is § 430.204(p), which states that employees must be given the right to ask for reconsideration of a performance rating by their supervisors or managers, and that additional review procedures “may be established at the discretion of the agency head.” 48 Fed.Reg. 49,480 (1983). Plaintiffs assert that this provision violates the Civil Service Reform Act, 5 U.S.C. § 7121, which provides that collective bargaining agreements “shall provide procedures for the settlement of grievances,” 5 U.S.C. § 7121(a)(1), other than those specifically excluded by the parties or by statute.

The relevant comments explain that the regulation as originally proposed rejected both appeals and grievances of performance ratings, but negative responses to the proposal prompted inclusion of the provision mandating reconsideration. They further state that, while agencies are free to negotiate with respect to review procedures and may also permit grievances, they are entitled to determine that performance ratings are not grievable. 48 Fed.Reg. 49,-474-75 (1983).

Thus, nothing in the new regulations prevents the unions from bargaining with respect to grievances of performance ratings, and, of course, an agency may not refuse to provide grievance procedures where required to do so by statute. The discretion accorded the agency head would appear, therefore, to amount only to freedom to determine what bargaining position to take when negotiating with a union, within the constraints of applicable law.

4. Plaintiffs next take issue with § 351.901, which provides for appeals from reductions in force to the Merit Systems Protection Board (“MSPB”), but permits review of the agency’s action solely on the written record if the presiding official determines that there are no material issues of fact in dispute that would require a hearing. Plaintiffs contend that this section violates 5 U.S.C. § 7701, which provides that in appeals to the MSPB, the appellant “shall” have the right to a hearing.

The long-standing law of this circuit, however, is that an agency is not required to provide a hearing, even when mandated by statute, if it would serve no purpose, as, for example, when there are no material issues of fact in dispute. See Independent Bankers Ass’n of Georgia v. Board of Governors of the Federal Reserve System, 516 F.2d 1206, 1220 (D.C.Cir.1975); General Motors Corp. v. Federal Energy Regulatory Comm’n, 656 F.2d 791, 795 (D.C.Cir.1981). Although an agency may bear “a heavy burden of justification,” Independent Bankers Ass’n, 516 F.2d at 1220, and a statutorily-required hearing should be denied “only in exceptional circumstances,” id. at 1220, n. 57, a determination as to the regulation’s illegality must await an actual denial of a hearing in a crystallized situation. Absent an application of the regulation in the context of a specific case, consideration of its validity would be premature.

5. Section 351.701(d) of the new regulations concerns “bumping” of employees in a RIF situation, and provides, specifically, that clerical employees are precluded from bumping non-clerical employees and vice versa. (The comment explains that the provision was designed “to limit excessive disruption caused by bumping and retreating across the entire grade structure.” 48 Fed.Reg. 49,462 (1983)). Plaintiffs challenge this provision on the grounds that employees may be differentiated only in accordance with 5 U.S.C. § 3502, which does not recognize such a dichotomy. Section 3502, however, says nothing at all about bumping; it authorizes OPM to promulgate appropriate regulations, giving due effect to such factors as seniority and performance, and certainly does not purport even remotely to preclude a distinction between clerical and non-clerical employees, for bumping or any other purpose.

6. Plaintiffs contend that §§ 551.-204(a) and 551.203(c) of the new regulations violate the Fair Labor Standards Act (“FLSA”). Specifically, the FLSA provides that overtime will be paid to employees who work more than 40 hours, except for those who are “employed in a bona fide executive, administrative or professional capacity,” as those terms are elsewhere defined,;by regulations to be promulgated in accordance with the APA. 29 U.S.C. §§ 207, 213(a)(1). Although OPM has defined executive employees with reference to the “supervisory grade evaluation guide” which is part of the Federal Personnel Manual, (“FPM”), and which is not ordinarily published in accordance with the provisions of the APA, 48 Fed.Reg. 49,496 (1983), OPM responds that any future changes in this portion of the FPM will be made in accordance with the APA, and unless and until OPM does otherwise, this particular issue is not ripe for judicial intervention.

Plaintiffs also assert that § 551.203(c), which establishes a regulatory presumption that employees at grades GS-11 and above are exempt from the overtime provisions of the FLSA, violates longstanding law to the effect that the burden of proof of an FLSA exemption is on the employer. See, e.g., Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 394, 80 S.Ct. 453, 457, 4 L.Ed.2d 393 (1960). OPM contends, however, that there is ample basis to presume that employees at these high grade levels would be exempt, and that the presumption .is, moreover, easily rebuttable. The administrative presumption does not, of course, affect the burden of proof applicable in a court of law.

In sum, the Court does not find on the record now before it any of the provisions challenged by plaintiffs to be arbitrary and capricious or otherwise unlawful, and plaintiffs have not, therefore, met their burden of establishing a likelihood that they will succeed in persuading it to the contrary at trial.

III.

In the absence of a showing of ■likely success on the merits, it is unnecessary to address the other requirements for issuance of preliminary injunctive relief, but the Court notes for purposes of review that plaintiffs have not demonstrated the existence of these other elements to its satisfaction either.

First, with respect to irreparable injury, the Court finds that while both unions and their members find themselves in altered (and, to them, distasteful) circumstances as a result of the new regulations, they cannot be said to have sustained an “irreparable injury” as that term has been interpreted by the Supreme Court. In Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974), the Supreme Court had before it the case of a federal employee who sought injunctive relief to prevent her imminent discharge pending completion of an administrative appeal, and, although the instant case is obviously distinguishable on its facts, it is significant that the Court there found that no irreparable injury would ensue from the employee’s dismissal, either in terms of lost earnings or damaged reputation, and therefore, that the lower court’s issuance of an injunction was improper. Similarly, to the extent that individual employees represented by plaintiffs here to whom the new regulations apply are unlawfully dismissed in a RIF, or denied a within-grade increase, or refused overtime pay under the FLSA, each retains his or her individual remedies, and the fact that vast numbers of employees are potentially affected instead of just one does not raise the irreparability quotient of the situation. Injuries of this sort ordinarily cannot be aggregated numerically to reach a magic threshold at which they collectively become irreparable.

Nor is the Court persuaded by plaintiffs’ argument that irreparable injury will be incurred by the unions qua bargaining agents because the negotiations process will be hampered by the uncertainty attendant upon the status of the new regulations. As in the case of any newly-promulgated rules, there is likely to be confusion at the outset, but, as OPM points out, both sides are equally affected, and the issuance of a preliminary injunction would not only not alleviate, but, indeed, would probably prolong and intensify the uncertainty. Moreover, as astute negotiators frequently are, plaintiffs may be able to turn uncertainty to their advantage in future negotiations, and in that sense the new regulations may represent more opportunity than injury.

Finally, the Court finds that it would neither be equitable nor in the public interest to force a return to the old regulations until this case is finally determined. Not only would it cause yet another disruption in the orderly administration of the government, but the new regulations reflect a conscious policy decision by OPM to substitute meritocratic principles for a system it has regarded for some time as an enervating influence on the federal workforce. For more than two years OPM has been endeavoring to implement the new regulations over the misgivings of Congress (which never, however, progressed to outright repudiation), and the opposition of some federal employees and their unions who see in them a threat to job security. OPM submits that its new rules will afford a greater assurance of job security in the long run to those civil servants most deserving of it, and of a civil service for the nation of the quality OPM intends for it to have. Pending a decision on the merits, at least, and in the absence of a congressional judgment that the changes wrought by them are unwise, the new regulations should be given a long-awaited chance to work.

Therefore, for the foregoing reasons, it is, this 30th day of September, 1985,

ORDERED, that plaintiffs’ motions for a preliminary injunction are denied.

      . The Court has jurisdiction under 5 U.S.C. § 701 et seq., and 28 U.S.C. §§ 1331, 1346(a)(2), 2201 and 2202 (1982). Review is sought pursuant to the Administrative Procedure Act ("APA”), 5 U.S.C. §§ 551-706 (1982).

      . Later that month the other two plaintiffs here, American Federation of Government Employees ("AFGE”) and National Federation of Federal Employees ("NFFE”), were permitted to intervene.

      . Section 315(j) incorporates the provisions of the Treasury, Postal Service and General Government Appropriations Act, 1985 (H.R. 5798), as provided for in its conference report, which states that "[n]one of the funds appropriated under this Act shall be obligated or expended to implement, promulgate, administer, enforce, or reissue or revise the proposed regulations and the proposed Federal Personnel Manual issuances published ... on July 14, 1983, ... and as further superseded by proposed regulations and issuances published ... on October 25, 1983____ Provided, that this section shall expire on July 1, 1985.” H.R.Rep. No. 98-993, 98th Cong., 2d Sess. at 3.

      . See "OPM May Cancel Plan to Revamp U.S. Job Rules,” Washington Post, June 26, 1985, at I, col. 1.

      . See "OMB Clears Way for New Job Rules,” Washington Post, June 27, 1985, at 1, col. 2.

      . Plaintiff NTEU filed its action on June 28, 1985, and the two cases were consolidated for purposes of hearing the motions for a temporary restraining order which were denied from the bench the same day. NFFE also filed suit on June 28, 1985, and all three cases were consolidated by the Court’s Order of July 3, 1985, for purposes of deciding plaintiffs’ motions for a preliminary injunction.

      . Title VII of the Civil Service Reform Act of 1978, 5 U.S.C. § 7101 et seq., and Chapter 10 of the Foreign Service Act of 1980, 22 U.S.C. § 4101 et seq. AFGE represents approximately 700,000 federal employees, NFFE another 150,-000, and NTEU 110,000.

      . AFGE Complaint at ¶ 4; NFFE’s First Amended Complaint at ¶ 3; NTEU’s First Amended Complaint at ¶ 3.

      . The Court assumes (and thus passes any issue with respect to it for the present) that plaintiffs are faithfully representing the views of their members who would truly prefer to work under rules favoring longevity of service over quality of performance in the conferral of certain benefits of employment.

      . The court added that it purposely had not remanded initially to the agency for an amended statement of basis and purpose which, in the circumstances, would have produced only a post hoc rationalization. Id. at 799-800. By "vacating” the rules it had ended the rulemaking proceeding, and, "[i]f one rulemaking proceeding has culminated and another has begun," said the court, "then new notice and comment procedures are required.” Id. at 800.

      . Legislation enacted in November, 1984, superseded Part 540 of the Regulations and substituted the Performance Management and Recognition System for the Merit Pay System for supervisors and managers in grades GS-13 through GS-15. 5 U.S.C. § 4302a. OPM thereafter promulgated separate regulations designed to implement it. See 40 Fed.Reg. 11,788 (March 25, 1985).
      Following oral argument on these motions OPM published a revised version of the regulations at issue here which, inter alia, established a current implementation schedule. See 50 Fed.Reg. 35,488 (August 30, 1985).

      . Each rating of “exceeds fully successful" qualifies an employee for seven additional years; each "fully successful” rating earns an additional five years.

      . Indeed, passage of the Civil Service Reform Act generally reflected Congress’ affirmative desire to make merit more central to a variety of federal personnel decisions.

      . "Grievance” is defined in 5 U.S.C. § 7103(a)(9)(A) as any complaint "by any employee concerning any matter relating to the employment of the employee.”

      . In its accompanying comment, OPM estimates that by its calculations the population of high-grade employees who might become exempt under the presumption does not exceed 20,000 — one percent of the total number of covered employees. 48 Fed.Reg. 49,495.

      . NTEU raises an additional issue, to wit, that the decision to implement the regulations on July 1, 1985, was due to an unlawful usurpation by OMB of the rulemaking authority delegated by Congress to OPM. However, the record on this issue is altogether inadequate to permit the Court to reach any conclusion. Plaintiff relies entirely upon newspaper articles for its claim of illegality on the part of OMB; OPM responds, also without evidentiary support, that OMB’s role was merely consultative in nature. Unless and until this issue is properly developed, the Court declines to address NTEU's allegations and does not factor them into its decision with respect to plaintiffs’ likelihood of success on the merits.

      . The Court also adverted to the "well-established rule" that the government “has traditionally been granted the widest latitude in the 'dispatch of its own internal affairs.' ” 415 U.S. at 83, 94 S.Ct. at 949 (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 896, 81 S.Ct. 1743, 1749, 6 L.Ed.2d 1230 (1961)).

      . Collective bargaining agreements already in existence are not affected unless they were specifically tied by agreement to future regulations. See 5 U.S.C. § 7116.


author: REYNOLDS, Chief Judge.

text:
    Le Roy RICHARDS, Plaintiff, v. SHEBOYGAN COUNTY, Edward Stengel, Sheboygan County Sheriffs Department, Unknown Officer A, Unknown Officer B and the Honorable Ernest C. Keppler, Defendants.
    Civ. A. No. 85-C-81.
    United States District Court, E.D. Wisconsin.
    Sept. 30, 1985.

      George W. Curtis, Curtis-Wilde Law Offices, Oshkosh, Wis., for plaintiff.
    James H. McDermott, Asst. Atty. Gen., Wis. Dept, of Justice, Madison, Wis., for defendant Keppler.
    Charles H. Bohl, Frisch, Dudek & Slattery, Ltd., Milwaukee, Wis., for defendant Stengel.
    Thomas J. Basting, Brennan, Steil, Ryan, Basting & MacDougall, S.C., Janesville, Wis., for defendants Sheboygan County, Sheboygan County Sheriff’s Dept., Unknown Officer A, Unknown Officer B, and The Honorable Ernest C. Keppler.
   DECISION AND ORDER

REYNOLDS, Chief Judge.

Plaintiff has brought this action alleging a variety of claims in tort and deprivations of his and other parties’ federal and state constitutional rights by Sheboygan County, the Sheboygan County Sheriff’s Department, two unknown deputies, District Attorney Edward Stengel, and Circuit Judge Ernest Keppler. He seeks damages and injunctive relief. This court has jurisdiction under 28 U.S.C. §§ 1343(3), 1331 and 1332; the plaintiff shall be allowed to amend his second complaint to include this jurisdictional allegation.

Defendants Stengler and Judge Keppler have moved to dismiss this action against them and have renewed their motions in the face of plaintiff’s motion to amend his complaint. Defendant Sheboygan County, its Sheriff’s Department and the two unnamed deputies oppose plaintiff’s motion to amend his complaint but have chosen not to file a brief in support of their position. The plaintiff shall be allowed to amend his complaint and the court will consider the defendants’ pending motions accordingly.

Plaintiff alleges that the facts are as follows. On or around December 15, 1984 he was questioned about the alleged sexual assault of a 17 year old retarded boy who had worked on the plaintiff’s truck farm for roughly two years. Plaintiff was later arrested without a warrant at his home, taken into custody at the Sheboygan County Jail, and brought before Judge Keppler on Tuesday, December 18, 1984. Although neither charges nor a complaint were filed against the plaintiff at that time, the Judge required him to post a $5,000 signature bond, not leave the state and not have any contact with the alleged victim of the assault. That evening the police again returned to the plaintiff’s house to attempt to obtain a statement.

The plaintiff was ordered to appear in court on January 8, 1985 and at that time he requested that he be released or charged. The judge reduced his signature bond to $3,000, ordered the District Attorney to file a complaint in the matter by January 14, 1985, and ordered the defendant to return for a further hearing on January 15, 1985. The District Attorney failed to file a complaint by the 14th and the plaintiff was released from his bond on January 15, 1985.

The plaintiff has alleged that the treatment he received caused irreparable harm and that it reflects policies and procedures that the defendants continue to follow, and will follow, absent this court’s intervention. He seeks damages, costs and attorney’s fees for himself, declaratory judgment that the defendants’ practices violate his and other similarily situated individuals’ constitutional rights and a court order enjoining the defendants from enforcing the alleged unconstitutional policies in the future.

In his amended complaint he also seeks certification of a class action and requests a jury trial on his legal claims. As a preliminary matter, the court cannot act on the plaintiff’s request for class certification until he has filed a motion setting forth the ground for such certification pursuant to Rule 23, Federal Rules of Civil Procedure.

The plaintiff did not request a jury trial in his original complaint although he did indicate that he intended to request one on the form he filed with the clerk of court when he instituted this action. Federal Rule of Civil Procedure 38 provides that a party who has failed to serve the other parties with a jury demand within ten days after the last pleading directed to the issue has waived his right to a jury trial. Plaintiff’s amended complaint essentially restates the issues raised in his original complaint. Because he failed to inform the other parties of his desire for a jury trial and he has failed to present the court with any reasons why his tardy request should be granted, the court finds that he has waived his right to a jury.

Judge Keppler and District Attorney Stengel have asserted immunity from this action and moved to dismiss the complaint both as to the injunctive and monetary relief. Their motion as to damages will be granted as the court finds that the plaintiff’s damage, if any, resulted from discretionary decisions those two defendants made in the course of performing their respective judicial, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), and prosecutorial functions, Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).

The court will also grant the defendants’ motion to dismiss plaintiff’s claim under 42 U.S.C. 1985(2) because the plaintiff has failed to allege any facts sufficient to support the conspiratorial threats or intimidation against a class that that section requires.

The court will, however, deny defendants’ motion to dismiss plaintiff’s request for declaratory and injunctive relief. Unlike suits for damages, no similar immunity is available which would protect the defendants in the event the court were to make a finding that their policies resulted in, and would continue to result in, unconstitutional deprivations of plaintiffs and others’ rights. Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984).

Defendants’ contention that plaintiff’s appropriate remedy would have been a habeas corpus action is not persuasive in the context of this suit wherein plaintiff also seeks prospective relief for himself and others that would not be available through a habeas corpus action. Defendants’ argument that the plaintiff is required to pursue his § 1983 claim in state court is without merit.

Plaintiff alleges that he was arrested without a warrant in his own home, brought before a judge on two occasions and ordered to appear a third time, that charges were never formally brought against him and that during this time his liberty and property were subject to the restrictions of a signature bond. Further, he alleges that the treatment he received reflects a general policy of the named defendants.

Liberally construing the plaintiff’s pleadings, the court finds that he has alleged facts sufficient to raise federal questions as to the constitutionality of a policy which results in a class of plaintiffs’ liberty being restricted in the manner plaintiff sets forth in his complaint. Read in a similar light the court finds that he has sufficiently alleged facts which form an actual controversy between the parties and one which is likely to cause irreparable harm to the plaintiff if relief is not granted.

It may be that plaintiff’s class does not exist, that he cannot prove his allegations or that his was an isolated incident. At this stage of the proceedings, the court cannot yet say.

As such, and because the court finds that the changes suggested in his. proposed amended complaint would not be futile, the court will allow the plaintiff to amend his complaint and deny the defendants’ motion to dismiss the entire action.

Defendants Stengler and Judge Keppler’s motion to dismiss will be granted insofar as the complaint asserts a cause of action against them for damages.

Because defendants Sheboygan County, the Sheboygan County Sheriff’s Department and the deputies have chosen not to file a brief or a motion on this question the court is unable to speak to the applicability of the questions discussed in this opinion as to them. Although they’ve expressed a desire to rely upon the briefs filed by their co-defendants, the issues involved are not so similar as to allow the court to address their individual situations.

The court will, however, dismiss plaintiff’s 42 U.S.C. 1985(2) claim as to all the defendants.

IT IS SO ORDERED.


author: GENE CARTER, District Judge.

text:
    Lucille G. LESSARD, et al., Plaintiffs, v. METROPOLITAN LIFE INSURANCE COMPANY, Defendant.
    Civ. No. 83-0091 P.
    United States District Court, D. Maine.
    Sept. 30, 1985.

      Jon Holder, Holder & Grover, Portland, Me., and Hugh Calkins, Dover-Foxcroft, Me., for plaintiffs.
    Howard H. Dana, Jr., Charles Kadish, Gregg H. Ginn, Verrill & Dana, Portland, Me., and Nancy Mayer, Asst. Gen. Counsel, Metropolitan Life Ins. Co., New York City, for defendant.
   OPINION AND ORDER OF REMAND

GENE CARTER, District Judge.

In this class action Plaintiff seeks payment of long-term disability benefits under the Borden, Inc. disability plan, which was funded by Metropolitan Group Policy No. 23501-GS. These benefits have either been withheld or recouped by Metropolitan as a result of Plaintiff’s receipt of retroactive Social Security payments. Initially the case was brought in state court by Plaintiff Lessard, alleging in five counts breach of contract, breach of fiduciary duty and misrepresentation. After removal and denial of her motion for remand, Plaintiff Lessard amended the complaint to add claims under ERISA, the Employee Retirement Income Security Act, 29 U.S.C. § 1001, et seq., and the Social Security Act, 42 U.S.C. § 407. The case is currently before the Court on cross motions for summary judgment on Counts I, II and III. Count I alleges breach of the insurance contract under state common law. Count II alleges that Metropolitan breached its duties under ER-ISA. Count III alleges that Metropolitan has violated 42 U.S.C. § 407, which prohibits attempts to assign or transfer social security benefits.

DISCUSSION

I. COUNT I

A. Preemption

Metropolitan argues that it is entitled to summary judgment on Count I because Plaintiffs’ state law contract claims have been preempted by ERISA. Section 1144(a) of Title 29, United States Code, provides:

Except as provided in subsection (b) of this section, the provisions of this sub-chapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title. This section shall take effect on January 1, 1975.

State law is broadly defined “[f]or purposes of this section” to include “all laws, decisions, rules, regulations, or other State action having the effect of law.” 29 U.S.C. § 1144 (emphasis added). Although the preemption mandated by 29 U.S.C. § 1144(a) is sweeping in scope, and would appear to operate on the common law claim set forth in Count I, section 1144 also sets forth an exemption to preemption which Plaintiffs assert is applicable here. Subsection (b)(2)(A) provides that “[ejxcept as provided in subparagraph (B), nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities.” The question then posed is whether a state’s common law of contracts is a law regulating insurance for purposes of the section 1144(b)(2) exemption.

Defendant first argues that Congress did not intend to exempt state decisional law in the insurance savings clause. It contends that Congress’ intent to exempt only a narrow category of “law” was denoted by its use of the words “any law of any state.” It is argued that if Congress had intended the same sweeping scope it intended in the preemption clause, it would have used the same words, “any and all State laws,” that are used for that subsection. This argument is overly facile. Although the wording is slightly different, the meaning of the two phrases is and must be the same. The law of a state is the same as state law. And “any and all laws” can encompass no larger set of laws than the phrase “any law.” “Any and all” is a redundancy. Thus the Court concludes that in exempting from preemption any law of any state regulating insurance, Congress meant to exclude decisional law as well since decisional law is included in the statutory definition of state law. See Eversole v. Metropolitan Life Insurance Co., Inc., 500 F.Supp. 1162, 1167 (C.D.Cal.1980).

Defendant also argues that decisional law is not within the purview of the insurance savings clause because that clause must be read consistently with the McCarran-Ferguson Act, 15 U.S.C. § 1012(a), a statute designed “to ensure that the States would continue to have the ability to tax and regulate .the business of insurance.” Group Life and Health Insurance Co. v. Royal Drug Co., 440 U.S. 205, 217-18, 99 S.Ct. 1067, 1076-77, 59 L.Ed.2d 261 (1979). The McCarran-Ferguson Act states that “no act of Congress shall be construed to invalidate, impair or supersede any law enacted by any State for the purpose of regulating the business of insurance____” 15 U.S.C. § 1012(b). The language of that Act clearly refers only to statutory law regulating insurance.

In the recent case of Metropolitan Life Insurance Co. v. Massachusetts, - U.S. -, -, 105 S.Ct. 2380, 2391, 85 L.Ed.2d 728,743 (1985), the Supreme Court held that mandated-benefit laws, which regulate the substantive terms of insurance contracts, are saved from preemption by ERISA by the operation of the insurance saving clause. In so holding, the Court made plain in a note that ERISA and the McCarran-Ferguson Act are in pari materia:

The ERISA saving clause, with its similarly worded protection of “any law of any State which regulates insurance,” appears to have been designed to preserve the McCarran-Ferguson Act’s reservation of the business of insurance to the States. The saving clause and the McCarran-Ferguson Act serve the same federal policy and utilize similar language to define what is left to the States.

Id., — U.S. at -, n. 21, 105 S.Ct. at 2392, n. 21, 85 L.Ed.2d at 743, n. 21; see also Eversole, 500 F.Supp. at 1168.

“[W]hat is left to the States” by both the McCarran-Ferguson Act and ERISA is regulation of the business of insurance. See also Group Life and Health Insurance Co., 440 U.S. 205, 99 S.Ct. 1067. To allow state common law as well as state statutory law to effect that regulation is consonant with the purpose if not the specific language of the McCarran-Ferguson Act. As the Supreme Court stated so recently in Metropolitan Life:

Initially, nothing in Section 514(b)(2)(A) [the insurance saving clause] or in the “deemer clause” which modifies it, purports to distinguish between traditional and innovative insurance laws. The presumption is against preemption, and we are not inclined to read limitations into the federal statutes in order to enlarge their preemptive scope.
We, therefore, decline to impose any limitation on the saving clause beyond those Congress imposed in the clause itself and in the “deemer clause” which modifies it. If a state law “regulates insurance” as mandated benefit laws do, it is not preempted. Nothing in the language, structure or legislative history of the act supports a more narrow reading of the clause.

Id., — U.S. at -, -, 105 S.Ct. at 2389, 2392, 85 L.Ed.2d at 741, 744 (emphasis added).

Defendant asks the Court to ignore the explicit definition of state law set forth in ERISA’s § 1144 and to seek a definition of the terms of the ERISA insurance saving clause in the McCarran-Ferguson Act., where the phrase “any law of any state” has not even been specifically defined. If it were to do so, the Court would be grasping for means to enlarge the preemptive scope of ERISA in the insurance context, a practice explicitly repudiated by the Supreme Court in Metropolitan. The Court finds, therefore, that the insurance savings clause exempts state decisional law from preemption as long as it “regulates insurance.”

In Metropolitan Life Insurance Co. v. Massachusetts the Supreme Court reiterated several criteria established to aid in a determination of whether a practice which is regulated is the business of insurance:

“first, whether the practice has the effect of transferring or spreading a policyholder’s risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry.”

Id., — U.S. at -, 105 S.Ct. at 2391, 85 L.Ed.2d at 742 (quoting Union Labor Life Insurance Co. v. Pireno, 458 U.S. 119, 129, 102 S.Ct. 3002, 3008, 73 L.Ed.2d 647 (1982)). State contract law regulates the contract between insurer and insured by providing rules for interpretation and enforcement of the contract. The contract sets forth the relationship between the insurer and insured, and is the device by which the risk is assigned. The contract and its interpretation and enforcement have long been recognized by the Supreme Court as the core of the business of insurance. Pireno, 458 U.S. at 128, 102 S.Ct. at 3008; Group Life & Health Insurance Co. v. Royal Drug Co., 440 U.S. 205, 99 S.Ct. 1067; SEC v. National Securities, Inc., 393 U.S. 453, 89 S.Ct. 564, 21 L.Ed.2d 668 (1969). The common law contract claim asserted by Plaintiffs here seeks both interpretation and enforcement of the insurance contract issued by Defendant. As the Court stated in Eversole: “Since the claims which Plaintiff asserts against the insurance company are permitted under state law for the purpose of securing her interests as a policyholder, they should be treated as insurance regulation and saved from preemption.” 500 F.Supp. at 1168-69.

Defendant has attempted to argue that this case is analogous to Pireno, in which the Supreme Court held that the use of a chiropractic peer review board to provide advice to an insurance company on reasonable fees was not “the business of insurance.” The analogy is faulty, however. As the Court itself stated, the use of the peer review board is not an integral part of the relationship between insurer and insured because “the challenged arrangement between the ULL and NYSCA is obviously distinct from ULL’s contracts with its policyholders.” Pireno, 458 U.S., at 131, 102 S.Ct. at 3009. Here the challenged practice, Metropolitan’s interpretation of its contract with its policyholders, is the crux of the business of insurance.

The Court is not dissuaded from this result by the fact, pointed out by Defendant, that this Court has previously taken the position, in orders of the Magistrate and in an order of the Court affirming the Magistrate, that this case was brought entirely under ERISA. The Court departs from its previous rulings to apply the recent teaching of the Supreme Court concerning the presumption against preemption when dealing with insurance laws. See Metropolitan Life Insurance Co. v. Massachusetts, — U.S. -, 105 S.Ct. 2380, 85 L.Ed.2d 728.

This Court’s decision is also in accord with thoughtful discussions of the preemption/insurance regulation issue in cases cited by the Plaintiffs. See Eversole v. Metropolitan Life Insurance Co., 500 F.Supp. 1162 (C.D.Cal.1980); McLaughlin v. Connecticut General Life Insurance Co., 565 F.Supp. 434 (N.D.Cal.1983); Anderson v. Connecticut General Life Insurance Co., No. Jg80-0136(R) (S.D.Miss.1981). As the Court stated in Eversole after analyzing the statute and pertinent case law:

The rule that emerges ... is that any law directly regulating an employee benefit plan is preempted, but laws regulating an insurance company or policy purchased from an insurance company are saved from preemption. It is therefore the ruling of this court that ERISA does apply to plaintiff’s plan but her state law claims against Metropolitan are not preempted. The court recognizes the difficulties which are and will be encountered by insurance companies, such as defendant, who are subject to the dual obligations of state and federal law when they assume the responsibilities of an ERISA fiduciary; but the Congressional concern for uniformity of regulations appears to have been limited to the plans and did not extend to the insurers. Thus, the result announced herein is necessary to harmonize the divergent goals of ERISA’s preemption provisions: to establish uniform regulation of employee benefit plans while simultaneously maintaining the ascendency of state regulation of insurance matters. Further clarification is needed, but that must come from the source of the legislation.

Eversole, 500 F.Supp. at 1170. Further clarification of the scope of the insurance saving clause has now been provided by the Supreme Court in Metropolitan Life Insurance Co. v. Massachusetts, which indicates that the expansive approach taken by the Court in Eversole was correct. See Metropolitan, — U.S. at -, 105 S.Ct. at 2389, 85 L.Ed.2d at 741.

Defendants cite many cases in which state law claims have been preempted by ERISA, most of which do not deal with insurance or insurance companies. See, e.g., Delisi v. United Parcel Service, 580 F.Supp. 1572 (D.Pa.1984); Brown v. Retirement Committee of Briggs & Stratton Retirement Plan, 575 F.Supp. 1073 (E.D.Wis.1983). In those cases cited by Defendant which do raise state law claims bearing on insurance, the decisions do not reflect that the effect of the insurance saving clause was raised or considered. See, e.g., Russell v. Massachusetts Mutual Life Insurance Co., 722 F.2d 482, 493 (9th Cir. 1983), reversed on other grounds, — U.S. -, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985). In fact, in Dedeaux v. Pilot Life Insurance Co., Civil No. 580-0467(R) (S.D.Miss.1984), a case factually similar to that here, the Court considered itself bound to dismiss plaintiff’s state law claims on the basis of precedent in the same circuit which did not deal at all with insurance, E.D. Hayden v. Texas-U.S. Chemical Co., 557 F.Supp. 382 (E.D.Texas 1983), but merely with a breach of the terms of the benefit plan. In the case at bar, the employer purchased a contract of insurance from an insurance company to fund its benefit plan. It is breach of that contract which is the subject of the state law claims in Count I, and for that reason the claims are not preempted.

B. Remand

This case was removed from Maine Superior Court on the basis of Defendant’s petition, which asserted that the complaint stated claims under federal law (ERISA) and also that there was diversity of citizenship. Plaintiff moved to remand, but the motion was denied by the Magistrate on the grounds that ERISA preempted the state law claims asserted in the complaint. In light of the foregoing determination that Plaintiff’s state law contract claims are not preempted, it is, as Defendant points out, necessary to reexamine the decision not to remand.

The original complaint asserted two claims for breach of contract, one for unjust enrichment or quasi contract, one for misrepresentation, and one for breach of fiduciary duty. These are all traditional state law claims which must be brought in state court unless they are pendent to federal claims or there is diversity of citizenship. The Court has now determined that the contract claims have not been preempted by state law and would adopt the same analysis for the other asserted state law claims, since all of them are “based solely on [plaintiffs’] relationship with the insurer and the interpretation and enforcement of the insurance policy.” Eversole, 500 F.Supp. at 1168.

Plaintiff now desires to remain in federal court and, in a revisionist interpretation of the complaint, asserts that both federal and state claims are asserted. That is plainly not the case. Nowhere does the original complaint mention ERISA or breach of federal law. Plaintiff could have elected to bring similar claims under ERISA either in state or federal court, see 29 U.S.C. § 1132, but chose not to. As Moore has stated, “where plaintiff’s claim involves both a federal ground and a state ground, the plaintiff is free to pitch his claim on the state ground.” 1A Moore’s Federal Practice, ¶ 1.60 at 185 (1979); See La Chemise Lacoste v. Alligator Co., 506 F.2d 339 (3d Cir.1974); Eversole v. Metropolitan Life Insurance Co., Inc., 500 F.Supp. at 1162. That Plaintiff chose to do so is clear from her vigorous prosecution of her motion to remand.

The fact that Plaintiffs have amended their complaint cannot bring them within the jurisdiction of this Court, for it ■ has long been the law that jurisdiction on removal is to be determined on the basis of the complaint at the time the petition for removal is filed. Pullman v. Jenkins, 305 U.S. 534, 59 S.Ct. 347, 83 L.Ed. 334 (1939). This is not a case governed by 28 U.S.C. § 1653 where there is a defective allegation of jurisdiction that may be amended. As discussed above, the original complaint, by choice, did not assert a federal claim.

Since the claims of the original complaint were not preempted and there is no other basis for federal jurisdiction, this case was improvidently removed and must be remanded. 28 U.S.C. § 1447(c). Unfortunately, all actions taken in this case by this Court were taken without jurisdiction.

Accordingly, it is ORDERED that this case be, and it is hereby, REMANDED to the Maine Superior Court from which it was removed. All orders entered in this case are hereby VACATED.

So ORDERED.

      . Noting that ‘‘[n]early every court that has addressed the question has concluded that laws regulating the substantive content of insurance contracts are laws that regulate insurance and thus are within the scope of the insurance saving clause,” the Supreme Court cited Eversole in its opinion in Metropolitan Life Ins. Co. v. Massachusetts, — U.S. at -, n. 18, 105 S.Ct. at 2390, n. 18, 85 L.Ed.2d at 742, n. 18.

      . The Court is aware that Dedeaux was decided by the same judge who decided Anderson, an almost identical case. While Anderson includes a thoughtful discussion of the ERISA insurance exception issue, Dedeaux, which implicitly overrules it, appears wrongly decided on the basis of inapplicable precedent. Since decisions from the Southern District of Mississippi are not binding on this Court, it may choose and apply the reasoning it finds most persuasive even though the same judge authored the competing rationales.

      . It is clear that Plaintiff Lessard, the only named plaintiff in the original complaint, could not assert a claim in this Court based on diversity of citizenship, for she did not meet the requisite jurisdictional amount. 28 U.S.C. § 1332(a).

      . Although, as Plaintiff suggests, the complaint alleges that Metropolitan took Social Security benefits, the claim asserted does not deal with Social Security law, but with breach of contract.

      . Although Plaintiffs now assert that there is concurrent jurisdiction in federal and state courts, that jurisdiction only applies if the federal claims are asserted.