author: NEESE, Senior District Judge.

text:
    Richard J. WAGNER, Plaintiff, v. CAREER OPPORTUNITIES, INC., etc., Defendant.
    Civ. A. No. 3:84-0361.
    United States District Court, M.D. Tennessee, Nashville Division.
    April 16, 1984.
    On Motion for Summary Judgment Oct. 16, 1984.

      Richard A. Buntele, Hackney & Buntele Associates, Nashville, Tenn., for plaintiff.
    Thomas Brothers, Nashville, Tenn., for defendant.
   NEESE, Senior District Judge.

The Court notices sua sponte, as it must, Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 699, n. 1 (6th Cir.1978), that the plaintiff has not included in his complaint a short and plain statement of the grounds upon which the Court’s jurisdiction depends in the manner contemplated by Rule 8(a)(1), F.R.Civ.P. See form 2, F.R.Civ.P., appendix of forms. The district courts of this Circuit are adjured to insist upon strict compliance with the requirements of Rule 8(a)(1), supra. Lenoir v. Porters Creek Watershed Dist., 586 F.2d 1081, 1085 (6th Cir.1978). Accordingly, the plaintiff is

ALLOWED 10 days in which to amend his complaint herein. 28 U.S.C. § 1653.

ON MOTION FOR SUMMARY JUDGMENT

This is a civil action brought under the Fair Labor Standards Act of 1939 (FLSA), 29 U.S.C. §§ 201, et seq., 29 U.S.C. § 216(b). The defendant moved for a summary judgment, Rule 56(b), F.R.Civ.P., on the ground that the plaintiff was not an “employee” within the scope of "the FLSA. Such motion lacks merit.

The FLSA precludes making the decision of whether a particular relationship is that of employer-and-employee on the basis solely of whether the traditional attributes of master-and-servant are present. Dunlop v. Dr. Pepper-Pepsi Cola Bottling Co., Etc., 529 F.2d 298, 300-301[2] (6th Cir.1976). Instead, the issue must be decided upon a consideration of the total relationship between the parties with careful consideration being given to the person’s economic dependency on the purported employer and whether the person’s work is an integral part of the operations of the purported employer. Ib., 529 F.2d at 301[3].

“ * * * To be entitled to summary judgment, the party seeking it must show conclusively that there exists for trial no genuine issue as to any material fact, and that under the undisputed record he is entitled to judgment as a matter of law. * * ” Mayes v. Gordon, 536 F.Supp. 2, 7[10] (D.C.Tenn.1980) (citations omitted). The defendant has not met this burden because the record herein is not developed sufficiently to permit this Court to consider the total relationship between the parties. This is an example of the situation “ * * * where a full inquiry into the facts under the usual trial procedure is advisable to develop the facts for the purpose of clarifying the application of the law * * S.J. Groves & Sons Company v. Ohio Turnpike Commission, 315 F.2d 235, 238[2] (6th Cir.1963).

The motion of the defendant for a summary judgment, therefore, hereby is DENIED.

      . The Congress defined an "employee” simply as " * * * including] an individual employed by an employer.” 29 U.S.C. § 203(e). This has been described as " * * * the broadest definition that has even been included in any one act.” United States v. Rosenwasser, 323 U.S. 360, 363, 65 S.Ct. 295, 296 n. 3, 89 L.Ed. 301 (1945).

      . In view of the complex factual and legal issues implicated herein, the anticipated length of the trial, and the relatively small amount of pay to which the plaintiff claims he is entitled ($6,587.28), counsel ought to consider seriously whether it might not be in the best interests of their respective clients to settle this matter out of court.


source: Caselaw Access Project

author: DORSEY, District Judge.

license: Public Domain

text:
    UNITED STATES of America v. Louis J. ZUGER.
    Cr. No. N-84-21 (PCD).
    United States District Court, D. Connecticut.
    June 18, 1984.

      Michael Hartmere, Asst. U.S. Atty., New Haven, Conn., for plaintiff.
    Zuger, defendant, pro se.
   RULING ON PENDING MOTIONS

DORSEY, District Judge.

Defendant is charged in two counts with willful and knowing failure to file income tax returns for the tax years of 1977 and 1978, in violation of Section 7203 of the Internal Revenue Code, 26 U.S.C. § 7203. The law as in effect during the tax years in question provides that, upon conviction for this misdemeanor offense, a person shall be fined not more than $10,000.00 or imprisoned not more than one year, or both, and shall be responsible for the costs of prosecution. At a bond hearing held May 24, 1984, after this matter was reassigned to the undersigned, the court determined to treat three documents filed by the pro se defendant as motions to dismiss directed to the jurisdiction and authority of the court to act in this matter. Defendant was given until June 11, 1984, to secure counsel, if desired, and file any further materials relating to the jurisdictional infirmities alleged in the three pleadings. As no counsel has appeared and nothing further has been filed by defendant, the motions are ripe for resolution.

Under date of April 1, 1984, defendant filed a document entitled “Special Appearanee” which, under the general head of “No Jurisdiction,” asserted thirteen grounds or “counts” for his claim that the information must be dismissed. The first seven counts are variations on the theme that, inasmuch as Title 26, — and for that matter in excess of half the United States Code — has not been enacted into positive law under 1 U.S.C. § 204(a), it is not law at all, thus rendering null and void any proceedings or prosecution thereunder. This abstruse contention wholly misconstrues the nature of legislation and the significance of the codification of law.

Defendant asserts that, unless and until Congress enacts a title of the United States Code into positive law, the title and all provisions contained therein are of no legal force. A necessary corollary to this transparently semantic argument is that a majority vote of the respective houses of Congress on a resolution reported out by the appropriate committee or committees does not make law. Such a notion, anathema to any rational legislative process, is totally inconsistent with the process contemplated by the constitution. Instead, a piece of legislation takes effect according to its terms when Congress properly approves a bill and the President either signs it, fails to object within ten days, or vetoes it but Congress overrides the veto. This, and only this, is legislation or statutory law.

Codification of existing legislation is an entirely different, subsequent and largely ministerial matter, directed towards the proper and commendable goal of collecting the multitude of congressional enactments in force and organizing them in a readily-accessible manner. The “United States Code” is, of course, such a codification. Acts of Congress do not take effect or gain force by virtue of their codification into the United States Code; rather, they are simply organized in a comprehensive way under the rubric of appropriate titles, for ready reference.

Nor does the enactment into “positive” law of a title of the United States Code make or unmake the efficacy or force of a duly-enacted law. Instead, congressional enactment of a title of the United States Code, as such, into positive law is relevant only to the question of whether the contents of that Code title itself, as such, are to be deemed to constitute full and faithful reflections of the law in force as Congress has enacted it. Where a title has not undergone the mystical-sounding ritual of “enactment into positive law,” recourse to the numerous volumes of the statutes at large or other records of congressional proceedings is available in case a question arises as to the accuracy of the version of the law as reflected in the Code vis-a-vis the law as enacted by Congress. Where a title has, however, been enacted into positive law, the Code title itself is deemed to constitute conclusive evidence of the law; recourse to other sources is unnecessary and precluded.

Thus, a codification is evidence of law as Congress enacted it. Enactment into positive law only affects the weight of that evidence. Congress has set all of this forth for a law now codified in language somewhat more technical than the above at 1 U.S.C. § 204(a). Under this section, and as plainly explained in defendant’s own Exhibit 5 appended to his motion, whenever a title, as such, is enacted into positive law, the text of that title constitutes legal evidence of the laws contained in that title. In construing a provision of such a title, a court may neither permit nor require proof of the underlying original statutes. Where, however, a title, as such, has not been enacted into positive law, then the title is only prima facie or rebuttable evidence of the law. If construction of a provision to such a title is necessary, recourse may be had to the original statutes themselves. 1 U.S.C. § 204(a). See United States v. Welden, 377 U.S. 95, 84 S.Ct. 1082, 12 L.Ed.2d 152 (1964).

Thus, the failure of Congress to enact a title as such and in such form into positive law — the criteria for such a determination being those detailed in defendant’s Exhibit 6 — in no way impugns the validity, effect, enforceability or constitutionality of the laws as contained and set forth in the title. Defendant’s argument that Title 26 is without legal force is therefore specious. The remaining assertions in defendant’s April 2 pleading need not detain the court. While the constitution does not, as defendant notes, explicitly refer to nor create an Internal Revenue Service, that fact cannot be said to preclude congressional delegation of tax-collecting authority to an executive agency, such as the IRS. There is nothing improper in the prosecution of this action.

The fact that the undersigned’s salary is paid by the United States neither dictates nor suggests the need for recusal under 28 U.S.C. § 455(a) (“Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned”). The court has no doubt concerning its impartiality and finds no reasonable person with knowledge of the facts would come to any different conclusion. Disqualification on such a basis would not be restricted to any one judge, but would mean that no federal judge could preside over the trial of a federal offense. If such claim were not dismissed as farsical, on its face, it would further violate the time-honored Rule of Necessity, United States v. Will, 449 U.S. 200, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980), whereby a judge is not disqualified to try a case because of personal interest if there is no other judge available to hear and decide the issue. Finally, defendant’s comments regarding the lack of equitable jurisdiction appear misdirected in this criminal prosecution. To the extent the “Special Appearance” filed April 2, 1984, purports to challenge the jurisdiction of this court, it is denied.

Both the “Special Appearance” filed April 18, 1984, and the “Stay and Order” filed April 23, 1984, are based on the pend-ency of the challenge decided above. Deemed also to be motions, both are denied as moot.

Defendant’s assumption in his “Notice,” filed June 13, 1984, that all proceedings are stayed pending the resolution of his appeal, is quite erroneous. Effective this date with the issuance of this order, the case shall proceed. Jury selection is scheduled as per a previously issued calendar for June 26, 1984, at the Hartford seat of court. For defendant’s convenience, the status conference originally scheduled for June 28, 1984, shall be held at 8:30 a.m. on June 26, 1984, the date of jury selection. Trial, on a date to be confirmed either by subsequent calendar or on the day of jury selection, shall commence shortly thereafter.

SO ORDERED.


author: ORRICK, District Judge.

text:
    SIERRA CLUB, Plaintiff, v. William D. RUCKELSHAUS, in his official capacity as Administrator of the United States Environmental Protection Agency; and the United States Environmental Protection Agency, Defendants. Idaho Mining Association, Defendant-Intervenor.
    No. C-84-0656 WHO.
    United States District Court, N.D. California.
    July 24, 1984.
    On Order of Contempt Dec. 11, 1984.

      Roger Beers, Beers & Dickson, San Francisco, Cal., for plaintiff.
    Joseph P. Russoniello, U.S. Atty., Francis B. Boone, Asst. U.S. Atty., San Francisco, Cal., Dean K. Dunsmore, U.S. Dept, of Justice, Washington, D.C., for defendants.
    Albert J. Beveridge, III, Carl Eardley, Gary H. Baise, Don G. Scroggin, Beveridge & Diamond, P.C., Washington, D.C., E. Lewis Reid, Michael R. Marrón, Marrón, Reid & Sheehy, San Francisco, Cal., for defendant-intervenor Idaho Mining Ass’n.
   OPINION

ORRICK, District Judge.

The Sierra Club, an organization devoted to the preservation of the environment, filed this suit against William D. Ruckelshaus as Administrator of the United States Environmental Protection Agency (the “EPA”) to compel the EPA to comply with certain requirements of the federal Clean Air Act, 42 U.S.C. §§ 7401 et seq. Because the sole question in the case is a matter of statutory interpretation and enforcement, plaintiff filed a motion for summary judgment, which is now before the Court. Also before the Court is a motion for intervention filed by the Idaho Mining Association pursuant to Federal Rule of Civil Procedure 24(a). For the reasons detailed below, the motion to intervene and plaintiff’s motion for summary judgment are both granted.

I

The dispute now before this Court had its genesis in 1977 when Congress determined that radionuclides posed a potentially serious health hazard. Radionuclides are radioactive particles that may be released into the atmosphere from a wide range of sources, including facilities that use radioactive materials (nuclear power plants, weapons factories, hospitals), and uranium and phosphate mining operations. Finding that no federal agency regulated these emissions, Congress amended the Clean Air Act, instructing the EPA to investigate radionuclides and to determine if these emissions indeed posed a health risk. 42 U.S.C. § 7422. The Act then required the EPA, if it determined that radionuclides posed a health risk, to issue emission standards on a timetable fixed by statute. See 42 U.S.C. §§ 7412, 7422.

After investigation, the EPA in November 1979 issued its determination that radionuclides increase the risk of cancer, genetic damage, and death, and added radionuclides to the list of “hazardous pollutants” regulated pursuant to the Clean Air Act, 42 U.S.C. § 7412.

Having made that determination, the EPA was required by statute to issue proposed regulations, which were to be followed by final regulations:

“Within 180 days after the inclusion of any air pollutant in such list, the Administrator shall publish proposed regulations establishing emission standards for such pollutant together with a notice of a public hearing within thirty days. Not later than 180 days after such publication [of the proposed standards], the Administrator shall prescribe an emission standard for such pollutant, unless he finds, on the basis of information presented at such hearings, that such pollutant clearly is not a hazardous pollutant. * * *”

42 U.S.C. § 7412(b)(1)(B).

The EPA did not issue the proposed regulations within the 180 days prescribed by statute and in 1982 the Sierra Club sued the EPA in Sierra Club v. Gorsuch, 551 F.Supp. 785, 786 (N.D.Cal.1982) (Sweigert, J.). On plaintiff’s motion for summary judgment in that case, the court ruled that the EPA had failed “to perform its mandatory statutory duty to issue proposed radionuclide emission standards within 180 days of listing them as a hazardous air pollutant.” Id. at 787.

By way of designing an appropriate remedy, Judge Sweigert at first offered to allow the EPA to develop a compliance schedule and to attempt to agree with plaintiff as to that schedule. The EPA, in response, offered to issue proposed regulations by 1989, more than nine years after the mandatory statutory deadline. Judge Sweigert, finding that Congress had set the 180-day limit for the precise purpose of rapidly implementing clean air standards, rejected the EPA’s proposal and ordered it to issue proposed regulations for radionuclides within 180 days. See id. at 789. The EPA finally issued proposed standards for radionuclide emissions on April 6, 1983, approximately three years after the deadline set by statute.

The next stage in the Clean Air Act’s regulatory process is the issuance of final regulations governing emissions of the hazardous air pollutant. Section 7412(b)(1)(B), quoted above, mandates that the EPA will either issue the final emission standards, or make a determination that radionuclides do not pose a health risk, within 180 days after issuance of the proposed regulations. The final regulations for radionuclide emissions were, therefore, due on October 3, 1983; to date the EPA has not issued final regulations.

The Sierra Club has again sued in the case now before this Court for a judgment ordering the EPA to comply with the mandatory requirement of 42 U.S.C. § 7412.

II

The proposed intervenor in this lawsuit, Idaho Mining Association (“the Association”), represents numerous companies that mine more than 50 percent of the elemental phosphorus produced in the United States. Radionuclides are emitted when elemental phosphorus is mined and processed.

Intervention in a lawsuit is permitted of right upon the timely application of anyone with an interest in the subject matter of the litigation, who is so situated that disposition of the case may “as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” F.R.Civ.P. 24(a).

Because Association members mine phosphorus, they will be directly affected by final radionuclide emission standards. Although the Association is arguably more concerned with the content of the regulations, a matter not before this Court, than with when they are issued, and would have the opportunity to litigate the merits of the regulations at a later date, such an after-the-fact remedy

“may, ‘as a practical matter,’ afford much less protection than the opportunity to participate in * * * proceedings that seek to ensure sustainable regulations in the first place, with no need for judicial review. * * * [I]t may [also] be that review might be had only after final effectiveness, during a period when appellants may be subject to compliance and enforcement [of the regulations].”

Natural Resources Defense Council v. Costle, 561 F.2d 904, 909 (D.C.Cir.1977). Thus, the Association’s interests might be impaired if intervention in this action were not allowed.

Finally, although both the Association and the EPA oppose the motion for summary judgment, the ultimate interests of the mining Association clearly differ from those of the EPA. See id. at 912 (agency’s interest in content of regulation will differ from the interest of the one governed by those regulations). Accordingly, the motion for intervention by the Association is granted.

Ill

In its brief opposing summary judgment, the EPA admits that “it has not made the required determinations within the time established by 42 U.S.C. § 7412(b) and that it is under a statutory obligation to make these determinations.” Def.Br. at 2:10-13. Nonetheless, the EPA and the Association oppose summary judgment. The EPA argues, first, that the Sierra Club has no standing and, second, that this Court should exercise its discretionary power to refuse the remedy sought. The Association argues that issuance of these regulations is not, in fact, a matter of great urgency and that certain procedural steps must be completed by the EPA before final standards are promulgated.

A

In enacting the Clean Air Act, Con- . gress specifically, provided for citizen suits to enforce the Act. Section 7604(a) provides in pertinent part that:

“any person may commence a civil action on his own behalf—
jfc * % # Sfc
(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary * *

An association has standing to sue if it or its members are in a position to suffer actual or threatened injury. See, e.g., Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982).

Although the government raised no objection to the Sierra Club’s standing to sue in the prior suit before Judge Sweigert, it here argues that plaintiff has failed to prove “its membership and alleged injury or threatened injury thereto.” See Def. Br. at 6.

In response to the standing argument the Sierra Club has offered the declaration of Eugene Coan, Assistant Conservation Director of the Sierra Club, demonstrating that members of the Sierra Club live in close proximity to specific facilities that emit radionuclides. See Plf. Reply Br. at 4 and Declaration of Coan. That declaration more than adequately illustrates the threat of injury to Sierra Club members and establishes plaintiffs’ standing to sue.

B

The Association’s first argument against summary judgment is that “the fixing of an early date for issuing final regulations is not urgent.” Assoc.Br. at 7. Taking as an example the EPA’s hypothetical that radionuclide emissions from a particular phosphorus plant pose only one potential cancer death in 100 years of plant operation, the Association urges that there is no emergency and that this Court should not order the EPA to issue final regulations pending further EPA review of the health risks caused by radionuclides.

Whatever the scientific merits of the Association’s position may be, the “emergency” factor is irrelevant to this lawsuit. This Court has no jurisdiction to evaluate the health risks posed by radionuclides or to review the adequacy or even the need for regulation. Congress divided jurisdiction to review actions pursuant to the Clean Air Act between the district and appellate courts. The district court may enforce nondiscretionary agency actions, 42 U.S.C. § 7604(a); only the Court of Appeals for the District of Columbia may review the merits of regulations, the risks associated with the pollutant, or the adequacy of the data before the EPA when it promulgates regulations pursuant to the Act, 42 U.S.C. § 7607(b)(1). The need for regulation of radionuclide emissions is simply not a matter that this Court has the power to determine.

C

The Association also argues, joined by the EPA, that the Act sets forth several “nondiscretionary” procedural requirements that the EPA must follow before issuing a final rule. Particularly, it is contended that the Administrator must make a determination that the pollutant poses a “significant health risk” by preparing a “health assessment document”; that the health assessment document must be reviewed by certain advisory agencies; and that Congressionally established advisory committees must be consulted.

In making this argument, the Association and the EPA rely on certain sections of the Clean Air Act that, when read in context, do not at all support their position. First, they point to the rule-making provision of the Act, 42 U.S.C. § 7607. Subsection (d)(6)(A) provides that a promulgated rule “shall be accompanied by” certain supporting documents, which the EPA and the Association claim have not yet been prepared. Subsection (d)(10) of § 7607, however, provides that when the statutory deadline for promulgating a rule is less than six months after the date of proposal, the Administrator can extend the deadline for issuance of the final rule by another six months. Where, as here, the statutory deadline for promulgating the final rule is six months or more after the proposals, no such extension is provided, whether or not the supporting materials have been prepared.

The second section relied on by the Association and the EPA, 42 U.S.C. § 7417(c), also does not support their position. That section provides that before issuing emission standards, the EPA administrator “shall, to the maximum extent practicable within the time provided, consult with appropriate advisory committees, independent experts, and Federal departments and agencies.” Id. Thus, while the statute requires consultation to “the maximum extent possible,” it specifically provides that such activities must be carried out within the statutory deadlines for issuing the regulations.

D

The primary argument made by the EPA and joined by the Association is that even though the EPA has violated the Act, this Court has the discretion to fashion any appropriate remedy and is not required to order immediate compliance.

The remedy requested by plaintiff, a mandatory injunction ordering the EPA Administrator to act, is within the jurisdiction of this Court as established by the Act: “The district courts shall have jurisdiction * * * to order the Administrator to perform such [a nondiscretionary] * * * act or duty * * 42 U.S.C. § 7604(a).

The EPA contends that the Court’s jurisdiction to order compliance with a statutory duty does not automatically divest the Court of its usual discretion in fashioning appropriate remedies. This argument, while correct, ultimately fails, because the EPA has not carried its burden of proving that compliance with the statutory deadline is impossible.

The principle that the district court has discretion to fashion remedies other than injunctive relief when the EPA administrator fails to perform a nondiscretionary act is well-supported. In Weinberger v. Carlos Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), for example, the Supreme Court held that “[t]he grant of jurisdiction to insure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of the law.” Id., 102 S.Ct. at 1803.

The Court of Appeals for the District of Columbia Circuit has given some instruction on when a court should withhold injunctive relief to compel performance of a statutory duty. In Natural Resources Defense Council v. Train, 510 F.2d 692 (D.C.Cir.1975), the court affirmed the lower court’s imposition of a timetable for EPA compliance with the regulations, but noted:

“We perceive two types of constraints which might delay the formulation of adequate guidelines * * * beyond the deadline established by the Act. First, it is possible that budgetary commitments and manpower demands required to complete the guidelines * * * are beyond the agency’s capacity or would unduly jeopardize the implementation of other essential programs. Second, the EPA may be unable to conduct sufficient evaluation [of factors relevant to issuing appropriate regulations] * * *. The courts cannot responsibly mandate flat guideline deadlines when the Administrator demonstrates that additional time is necessary to insure that the guidelines are rooted in an understanding of the relative merits of available control technologies.”

Id. at 712 (emphasis added). The court concluded that the “sound discretion of an equity court does not embrace enforcement * * * of a party’s duty to comply with an order that calls on him ‘to do an impossibility’.” Id. at 713, citing Maggio v. Zeitz, 333 U.S. 56, 68 S.Ct. 401, 92 L.Ed. 476 (1948).

The EPA attempts to shift the burden to plaintiff to show that the EPA can in fact comply with the deadline. See Def.Br. at 15. Cases following Train, however, clearly establish that “the agency [bears] * * * a heavy burden to demonstrate the existence of an impossibility” of complying with the statute. Alabama Power Co. v. Costle, 636 F.2d 323, 359 (D.C.Cir.1980) (emphasis added). The agency has not met that burden of proof.

The EPA has made some attempt to prove- that compliance is “impossible” by submitting the declaration of Glen Sjoblom, Director of the Office of Radiation Programs at the EPA. He asserts that further study and analysis of materials before the EPA requires “several months” more work before final rules can be issued. Some particulars are given, but the thrust of the declaration is really no more than “further study always makes everything better.” As the D.C. Circuit has pointed out, a district court must “separate justifications grounded in the purposes of the Act from footdragging efforts of a delinquent agency.” Natural Resources Defense Council v. Train, supra, 510 F.2d at 713.

Judge Sweigert rejected the EPA’s earlier claim that issuance of proposed radionuclide regulations was impossible, relying on Congress’ purpose in imposing deadlines for regulation issuance, as the Train court instructed. “Congress * * * expressly stated that one of the purposes of Subchapter I of the Act (of which Section 7412 is a part) was to ‘accelerate a national research and development program to achieve the prevention and control of air pollution.’ 42 U.S.C. § 7401(b)(2).” Sierra Club v. Gorsuch, supra, 551 F.Supp. at 787. He then concluded:

“Upon the evidentiary record before us, considered against the time period already passed, the information regarding radionuclides already before the EPA, and the Congressional purpose beyond [sic] Section 7412, this Court finds and concludes that the EPA has not met its heavy burden of demonstrating that it would be infeasible or impossible to issue the proposed regulations within the 180 day schedule proposed by plaintiffs * *.”

Id. at 789.

The EPA has not demonstrated that timely issuance of final regulations covering radionuclide emissions is impossible, only that it is always easier to do something with more rather than less time. Considering, as Judge Sweigert did, the length of time between Congress’ designation in 1977 of radionuclides as a hazardous pollutant and the EPA’s issuance of proposed regulations under court order in 1983, and its further delinquency in making final those rules, no justification appears for allowing more “footdragging” by the EPA. “To accept EPA’s proposal for further, indefinite, and virtually open-ended extension of the time for compliance, without a more convincing demonstration of evident impossibility, would be to, in effect, repeal the Congressional mandate.” Id. at 789.

Accordingly,

IT IS HEREBY ORDERED that

1. Plaintiff’s motion for summary judgment is granted.

2. The Administrator of the EPA will issue final standards for radionuclide emissions under Section 112 of the Clean Air Act, 42 U.S.C. § 7412, within ninety (90) days from the date of this Opinion and Order.

ON ORDER OF CONTEMPT

On October 31,1984, this Court issued an order requiring the Administrator of the Environmental Protection Agency and the Environmental Protection Agency (the “EPA”) to show cause why they should not be held in contempt for failure to comply with the Court’s Opinion and Order entered July 27, 1984, as amended by the Court’s Order of September 17, 1984 (hereinafter both referred to as the “Order”). A contempt hearing was held on November 21, 1984. The Court, after having carefully considered defendants’ memorandum of points and authorities in response to order to show cause, the declarations of William Ruckelshaus, Administrator of the EPA, and Richard J. Guimond, an EPA staff person in charge of developing standards for radionuclides for the EPA, the parties’ papers, and the oral arguments presented at the contempt hearing, hereby finds defendants in contempt of court.

I

The history of this suit is chronicled in detail in the Court’s Opinion entered July 27 and will be briefly summarized here. In 1977, Congress determined that radionuclides pose a potentially serious health hazard, and amended the Clean Air Act, 42 U.S.C. § 7401 et seq., to require the EPA to investigate radionuclides and to determine whether or not emissions of radionuclides may reasonably be anticipated to endanger public health. 42 U.S.C. § 7422. Under the Act, once the EPA determines that a radioactive pollutant, such as radionuclides, pose a health risk, the EPA is required to list such pollutant on the “hazardous pollutant” list, and to issue emission standards on a timetable fixed by statute. See 42 U.S.C. §§ 7412, 7422.

In November 1979, the EPA issued its determination that radionuclides increase the risk of cancer, genetic damage, and death, and added radionuclides to the list of “hazardous pollutants” regulated pursuant to the Act. 42 U.S.C. § 7412. Having made that determination, the EPA was then required by statute to issue proposed regulations establishing emission standards within 180 days of listing radionuclides. See 42 U.S.C. § 7412(b)(1)(B). The EPA did not issue the proposed regulations within the 180 days prescribed by statute and in 1982 the Sierra Club sued the EPA and its Administrator to force compliance with the statutory mandate. In that suit, the court found that the EPA had failed to “perform its mandatory statutory duty to issue proposed radionuclide emission standards within 180 days of listing them as a hazardous air pollutant,” and required that the proposed regulations be issued. See Sierra Club v. Gorsuch, 551 F.Supp. 785, 786, 787 (N.D.Cal.1982). The EPA finally issued proposed regulations on April 6, 1983, approximately three years after the mandatory deadline set by statute.

Once proposed regulations are issued, the Act requires the EPA to take one of two options within 180 days of issuance of the proposed regulations. The EPA must either (1) issue final standards for radionuclide emissions, or (2) make a finding on the basis of information presented at hearings during the rulemaking that radionuclides are clearly not a hazardous pollutant. 42 U.S.C. § 7412(b)(1)(B). Contrary to this mandatory scheme, the EPA failed to either issue the final standards or make the requisite finding and delist radionuclides within the 180 day time period. Plaintiff Sierra Club once more sued the EPA and its administrator in order to force the EPA to comply with the nondiscretionary duties imposed upon it by the Act. On July 27, 1984, this Court found that defendants had failed to comply with the Act, granted plaintiff’s motion for summary judgment, and ordered the EPA to issue final regulations governing emission standards within 90 days.

Subsequently, the parties moved the Court to amend its July 27 Order. Defendants requested that the Order allow the EPA to either issue final emission standards or to take any other actions “permitted by law,” arguing that its interpretation of 42 U.S.C. § 7412 permits the EPA a host of options not specifically provided for in the statute. Plaintiff requested that the Order be amended to allow the EPA only the two options provided for in the statute, arguing that the basis of the suit surrounded what is “permitted by law” and that the statute clearly gives the EPA only two options.

On September 17,1984, this Court rejected defendants’ expansive interpretation of the governing statute, holding that under the express, unambiguous language of § 7412, the EPA has but two options: to either issue final standards for radionuclide emissions, or find that radionuclides are clearly not a hazardous pollutant based upon the information presented at hearings during the rulemaking. The Court specifically ordered the EPA to exercise one of those two options within 90 days of the Court’s July 27 Opinion.

On October 23, 1984, the Administrator of the EPA, while affirming the health risk of radionuclides, signed a Federal Register Notice announcing the EPA’s withdrawal of the proposed radionuclide emission standards for three of the four categories of sources for which the EPA had proposed standards. Withdrawal of the proposed regulations absent a finding that radionuclides clearly do not pose a health risk is not one of the options afforded the EPA under the clear language of 42 U.S.C. § 7412 or this Court’s Order.

II

Congress divided jurisdiction to review agency actions pursuant to the Clean Air Act between the district and appellate courts. The district court may enforce nondiscretionary agency actions, 42 U.S.C. § 7604(a); the Court of Appeals for the District of Columbia may review the merits of regulations, including the risks associated with the pollutant, and the adequacy of the date before the EPA in promulating regulations pursuant to the Act, 42 U.S.C. § 7607(b)(1). This Court’s jurisdiction, therefore, is limited to determining whether the EPA has complied with the nondiscretionary duties imposed by Congress. In the Order, this Court stated in no uncertain terms what mandatory, nondiscretionary duties are imposed by 42 U.S.C. § 7412: issue final regulations or delist based upon a proper finding that radionuclides do not pose a health hazard. Under the guise of an interpretation of the pertinent statute and the Order, defendants have done neither. Therefore, the only issues presently before this Court are (1) whether defendants are in contempt of this Court’s Order, and if so, (2) what actions defendants must take in order to purge the contempt.

Ill

Defendants admitted at the contempt hearing that Mr. Ruckelshaus, as Administrator of the EPA, did not issue final regulations or delist radionuclides based upon a proper finding. The thrust of the defendants’ argument against finding them in contempt is that the Order only required the EPA “take final action” with regard to its proposed radionuclide emission standards, and that the EPA took final action on October 23, 1984, by withdrawing emission standards for three of the four emission sources. Mr. Ruckelshaus states that his decision to withdraw emission standards for the three sources “viewed by itself, was proper and defensible,” and was supported by his legal counsel. See Ruckelshaus decl. at 8. Mr. Ruckelshaus states further that his counsel advised him that they believed that they could defend a “reading of Section 112 that would require the Administrator to make * * * either (1) a final decision to issue regulations, or (2) a final decision that no regulation were necessary, or (3) a final decision that the record would not support a decision to regulate.” Id. at 9.

Regardless of whether the EPA’s actions were supported by the opinions of its legal counsel, the Court finds that this argument in justification for the EPA’s actions is evasive and unpersuasive. Defendants’ interpretation of 42 U.S.C. § 7412, viewed by itself, is simply irrelevant. The proper interpretation of § 7412 has been the very essence of this litigation since its inception. The EPA proffered, and vigorously defended, its interpretation of the statute in opposition to plaintiff’s summary judgment motion, decided on July 27, 1984, and once again as part of defendants’ motion to amend, which culminated in the Order of September 17, 1984. On both occasions, the Court rejected the very interpretation of the statute that is once again being forwarded by the EPA, instead adopting the express and unambiguous language of the statute. Importantly, nowhere in Mr. Ruckelshaus’ declaration does he state that he or his counsel believed their actions were a proper and defensible interpretation of the Order.

The statutory language provides the EPA only two options. This Court has already interpreted the statute to mean exactly what it says. The EPA is not entitled to ignore the terms of the Order simply because it differs from the EPA’s own interpretation of § 7412. The fact that Mr. Ruckelshaus, as Administrator of the EPA, chose to adopt the legal interpretation of 42 U.S.C. § 7412 that he “thought best” is simply irrelevant, and in no way evidences a good-faith attempt to comply with the Order.

Defendants’ second argument against being held in contempt is that the Order is not sufficiently clear so as to be enforceable by contempt. The Order of September 17 reads in pertinent part:

The Administrator of the EPA will issue final standards for radionuclide emissions or a finding on the basis of information presented hearings during the rulemaking, that radionuclides are clearly not a hazardous pollutant, under Section 112 of the Clean Air Act, 42 U.S.C. § 7412, within ninety (90) days from the date of this Opinion and Order, July 25, 1984.

It is frankly incomprehensible to the Court that Mr. Ruckelshaus and his counsel at EPA could find ambiguity in the above language. The Order, which closely tracks the language of the statute, clearly and unambiguously sets forth the possible EPA actions. Defendants’ argument that the Order is not sufficiently clear so as to be enforceable by contempt is patently meritless.

Finally, defendants attempt to justify the actions taken on a quasi impossibility theory. Defendants assert that Mr. Ruckelshaus could not lawfully comply with the Order because the EPA did not have sufficient time within which to renotice proposed standards for uranium mines, one of the four sources for which proposed regulations were issued. The most obvious weakness of this argument is that it is nonresponsive as to the other three sources for which proposed regulations had been issued.

Mr. Ruckelshaus’ declaration does not state that there was no possibility of issuing final regulations by the Court-ordered deadline for the sources other than uranium mines. In fact, Richard Guimond, the staff person responsible for directing the EPA’s regulatory environmental radiation protection program, specifically recommended that Mr. Ruckelshaus promulgate final standards at levels slightly, less stringent than the level proposed for the other three sources. Guimond decl. at 17. According to Mr. Guimond, control technology is readily available to reduce radionuclide emissions from these sources, and developing emission standards is relatively straightforward. Id. at 7. Evidently, Mr. Ruckelshaus simply decided to withdraw the proposed standards for the three sources, even against the advice of his principal staff expert.

The Scientific Advisory Board Report (“SAB Report”), which was issued on August 17, 1984, and which reviewed the scientific bases for the EPA’s proposed emission regulations, cannot be relied upon as a justification for noncompliance with the Order. While the SAB Report stated several concerns with the EPA’s procedures that Mr. Ruckelshaus felt could not be formally resolved within the time that remained to him for decision, the body of the SAB Report “generally supported the assessment and risk estimates made by EPA.” Id. at 16.

Much of defendants’ quasi impossibility arguments are directed toward regulation of uranium mines. The EPA declined to withdraw standards governing radionuclide emissions from uranium mines, but also declined to issue final emission standards. Although the Court is not unsympathetic to the task of promulgating accurate and fair regulations that would withstand judicial review, the difficulty in issuing workable final regulations cannot be a valid excuse for noncompliance with the Order.

The EPA has not demonstrated that timely issuance of final regulations for uranium mines is impossible, only that it would be easier to issue more accurate standards with more time. Indeed, the EPA has been arguing this point with respect to uranium mines since 1982. In response to Judge Sweigert’s ruling that the EPA failed to perform its mandatory duty to issue proposed emission standards within 180 days of listing radionuclides as a hazardous air pollutant, the EPA offered to issue such proposed regulations by 1989, more than nine years after the statutory deadline. See Sierra Club v. Gorsuch, supra, 551 F.Supp. at 789. In the instant case, the EPA would not even go as far as to identify a date on which it thought final regulations for uranium mines could be promulgated! When asked how long it would take the EPA to promulgate final emission regulations, EPA’s counsel refused to give the Court any time estimate. Unfortunately, Judge Sweigert’s 1982 statement has even more validity today: “To accept EPA’s proposal for further, indefinite, and virtually open-ended extension of the time for compliance, without a more convincing demonstration of evident impossibility, would be to, in effect, repeal the Congressional mandate.” Id. Therefore, the difficulty in issuing final regulations for uranium mines does not excuse or justify EPA’s failure to comply with the Order.

Civil contempt is characterized by a court’s desire to compel obedience to a court’s order. Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 778 (9th Cir.1983), citing Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966). The contempt must be proven by clear and convincing evidence. Falstaff, supra, 702 F.2d at 778 n. 1. For the reasons set forth above, this Court finds defendants William Ruckelshaus, as Administrator of the EPA, and the EPA in contempt.

IV

In sum, the Clean Air Act imposes mandatory, nondiscretionary duties upon the EPA. This Court has jurisdiction to enforce nondiscretionary agency actions. 42 U.S.C. § 7604(a). In the Court’s Opinion and Order of July 27, 1984, as amended on September 17, 1984, the Court rejected defendants’ broad interpretation of 42 U.S.C. § 7412, and required the EPA to comply, within 90 days, with the express and unambiguous provisions of that statute.

Defendants have admitted that they have not issued final emission standards, nor delisted radionuclides based upon a proper finding that radionuclides are clearly not a hazardous pollutant. Instead, defendants have argued that their interpretation of the Act should take precedence over this Court’s interpretation, that the Court’s Order is ambiguous, and that compliance is simply too difficult. Having carefully reviewed the parties’ papers, declarations, and oral argument, this Court finds that defendants’ arguments are unpersuasive and that there is clear and convincing evidence that defendants are in contempt.

Having found defendants in contempt, this Court must fashion an appropriate remedy. To that end,

IT IS HEREBY ORDERED that defendants must:

1. (a) Issue within 30 days of the filing of this Opinion and Order final radionuclide emission standards for DOE facilities, NRC-licensed and non-DOE federal facilities, and elemental phosphorus plants, and

(b) Issue within 120 days final radionuclide emission standards for uranium mines; OR

2. Make a finding on the basis of the information presented at hearings during the rulemaking, that radionuclides are clearly not a hazardous pollutant.

      . The House Report accompanying the bill that ultimately became the Clean Air Act amendments of 1977 specifically addressed Congress' concern with radionuclide emissions:
      “It is clear that exposure to radioactive materials can cause serious harm to health, including cancer, genetic damage, and birth deformities. Materials that are radioactive may remain so for thousands of years. This longevity poses a special problem for living organisms. Furthermore, exposures to radioactivity are cumulative, that is, each new or additional exposure increases the risk of serious illness.”
      H.R.Rep. No. 95-294, 95th Cong., 1st Sess. 36-37, reprinted in (1977) U.S.Code Cong. & Ad. News 1077, 1114-15.

      . 42 U.S.C. § 7422(a) provides in pertinent part: "Not later than one year after August 7, 1977 (two years for radioactive pollutants) and after notice and opportunity for public hearing, the Administrator [of the EPA] shall review all available relevant information and determine whether or not emissions of radioactive pollutants * * * into the ambient air will cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health.”

      . The parties have not opposed the motion of Idaho Mining Association to intervene.

      . Regulated industries are required to comply with final emission regulations within ninety days of their issuance by the EPA. 42 U.S.C. § 7412(c)(1)(B).

      . The merits of regulations promulgated under the Clean Air Act may be litigated before the Court of Appeals for the District of Columbia Circuit. 42 U.S.C. § 7607(b)(1); see Section IIIB infra.

      . The "adequacy of representation" prong of the intervention test carries only a minimal burden of showing that the intervenor’s interests in the litigation "may be" inadequately represented. See Trhovich v. United Mine Workers, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 636 n. 10, 30 L.Ed.2d 686 (1972).

      . Paragraph 6 of Mr. Coan’s declaration, for example, states that approximately 1,092 members of the Sierra Club live near Department of Energy facilities that emit radionuclides in Columbus, Ohio.

      . 42 U.S.C. § 7607(d)(10) provides:
      “Each statutory deadline for promulgation of rules to which this subsection applies which requires promulgation less than six months after date of proposal may be extended to not more than six months after date of proposal by the Administrator upon a determination that such extension is necessary to afford the public, and the agency, adequate opportunity to carry out the purposes of this subsection.”

      . The EPA tries to characterize its argument concerning the appropriate remedy for its breach of a mandatory statutory duty as a material question of fact, making summary judgment inappropriate when there is "no genuine issue as to any material fact * * F.R.Civ.P. 56(c). The only factual issue in this case is whether or not the EPA issued final regulations for radionuclide emissions within 180 days of the issuance of proposed regulations. The EPA admits that it did not. The argument made by the Agency and the Association goes to the purely equitable issue of how this Court should exercise its power as a chancellor in fashioning a remedy for the EPA’s clear violation of the law; this cannot be characterized as a factual dispute.

      . See Declaration of Sjoblom ¶ 12. The Court notes that Mr. Sjoblom’s declaration is dated May 10, 1984. Two months have passed without any indication of progress on the issuance of radionuclide regulations by the EPA.

      . The purpose of the Clean Air Act is set forth in 42 U.S.C. § 7401(b), which provides in pertinent part:
      “The purposes of this subchapter are—
      (2) to initiate and accelerate a national research and development program to achieve the prevention and control of air pollution."
      (Emphasis added.)

      . The Order of September 17, 1984, reads in pertinent part as follows:
      The Administrator of the EPA will issue final standards for radionuclide emissions or a finding on the basis of information presented at hearings during the rulemaking, that radionuclides are clearly not a hazardous pollutant, under Section 112 of the Clean Air Act, 42 U.S.C. § 7412, within ninety (90) days from the date of this Opinion and Order, July 25, 1984.

      . These four categories are: DOE facilities, NRC-licensed facilities, elemental phosphorus plants, and underground uranium mines. The EPA also affirmed its decision not to regulate emissions from five other sources for which no proposed regulations had been issued. These five categories are not part of this lawsuit.

      . The EPA did not issue final regulations or delist radionuclides emitted from uranium mines, but declined to withdraw any proposed regulations as to that source.

      . The fact that the EPA’s interpretation of § 7412 has been consistent with the agency since the enactment of the statute is likewise unpersuasive. It is extraordinary to suggest that an agency’s interpretation of a statute is somehow elevated to a position of precedence over a district court’s interpretation simply by the consistence of the agency's interpretation. The Supreme Court has emphasized that the courts are the final authorities on issues of statutory construction. See Volkswagenwerke v. Federal Maritime Commission, 390 U.S. 261, 272, 88 S.Ct. 929, 935, 19 L.Ed.2d 1090 (1968).

      . Indeed, defendants do not specify which terms of the Order are vague.


author: ROBERT L. CARTER, District Judge.

text:
    Arthur CHAMBLESS and Mildred H. Chambless, Plaintiffs, v. MASTERS, MATES & PILOTS PENSION PLAN, et al., Defendants.
    No. 80 Civ. 4258 (RLC).
    United States District Court, S.D. New York.
    Aug. 2, 1984.

      Wisehart & Koch, New York City, for plaintiffs; Arthur M. Wisehart, New York City, of counsel.
    Proskauer, Rose, Goetz & Mendelsohn, New York City, for MM & P Pension Plan, Maher, MM & P Pension Plan Trustees and Maritime Service Committee; Bettina B. Plevan, Eileen Reinhardt, New York City, of counsel.
    Burton M. Epstein, New York City, for International Organization of Masters, Mates and Pilots.
   OPINION

ROBERT L. CARTER, District Judge.

Background Facts

Plaintiff, Albert Chambless, became a member of the International Organization of Masters, Mates & Pilots (“MM & P”) in 1944 after being issued a third mate’s license. He is a resident of Alabama and received all of his MM & P work assignments through the union hiring hall in Mobile, Alabama. He obtained his master’s license in 1956, and his first assignment as a master in August, 1966, when he was given command of the Frontenac Victory. This assignment lasted until May, 1968. Thereafter, Chambless regularly hired out as master or chief mate through 1975.

The MM & P pension plan (“plan”) was established in 1955. It is an employer-funded pension and trust fund that provides retirement benefits for MM & P licensed deck officers. The plan is administered by an equal number of employee and employer designated trustees who have broad powers to formulate regulations for the administration of the plan. The trustees have delegated the day to day operation of the plan to an administrator. Stephen Maher, now Executive Director of the plan, functioned as administrator from 1965-1981. The administrator decides initially whether an applicant satisfies the plan’s eligibility requirements and determines the appropriate pension benefit the applicant is entitled to receive. His decisions are presented to the trustees for approval. The administrator’s determination that an applicant is not entitled to benefits does not reach the trustees unless the applicant appeals, in which case the trustees then determine whether to uphold or reject the administrator’s determination.

The trustees have formulated a large body of regulations governing the plan’s operations. Prior to the enactment of ERISA, 29 U.S.C. § 1001 et seq., the plan’s regulations provided for normal retirement without regard to age, after 20 years of pension service credits. Pursuant to the terms of the 1966 collective bargaining agreement, the plan was amended to provide for wage related pension benefits based on the average salary for the five highest salary years in the last ten years prior to the effective date of retirement.

Prior to August, 1976, retirement was defined in Article II, Section 13a of the plan regulations as complete withdrawal from “further employment in any capacity in the maritime industry”, except that the trustees “in their sole discretion could permit [a retiree to work] in shoreside positions covered by a collective bargaining agreement by the [union], and upon application submitted through the [union], [to work] as a marine surveyor or employment aboard fishing vessels, yachts and other small craft (such as supply boats) provided employment [is] in a capacity, not covered by the collective bargaining agreements of the [union].”

Article II, Section 13(b) provided that if a retiree worked in employment forbidden by Section 13a, he forfeited his pension benefits for the month he worked and for six additional months. He had to return all benefits received and if he failed or refused to do so, all future benefits could be denied. The retiree had to notify the trustees in writing within 15 days of the commencement of forbidden employment, and the trustees were empowered to disqualify him permanently from receiving any future pension benefits if he failed to do so.

In December, 1975 the plan adopted Amendment 42 which added a new Section 13 to Article II. Normal retirement age was defined as “age 65, or, if later, the age of the participant on the tenth anniversary of his participation. All references to ‘Normal Pension’ [were] changed to read ‘Regular Pension’ ”.

In 1976, Walter Anderson, who was in charge of the hiring hall in Mobile, Alabama, sought to induce Chambless to retire in accord with then current union policy. Anderson advised Chambless that the union wanted all the older licensed deck officers to retire and that if Chambless did not retire, he could expect to be shipped out on second or third mate assignments. During 1976 and 1977 all of Chambless’ assignments through the Mobile, Alabama hiring hall were in second or third mate jobs. In a letter dated March 17, 1979, sent to all offshore ports, Robert Lowen, Union President, discussed the union’s effort to secure non-wage related benefits and other incentives to induce older deck officers to retire.

Chambless apparently succumbed to the pressure and filed an application for retirement benefits on November 12, 1976, but then, having second thoughts, withdrew the application. On April 2,1977, he filed a second application. At that time he was advised that his retirement benefits would be approximately $920 per month. This calculation was presumably based on his 33V4 years of pension service credits as of April 2,1977, and his average salary for his five highest salary years between 1967 and 1977, which appear to be 1970-1975 when he sailed two times as master (6/10/73-9/30/74, Hess Petrol; 7/1/75-11/24/75, Greenport) and five times as chief mate (1/1/70-2/11/70, Spirit of Liberty; 5/25/70-1/1/71, Golden Gate; 8/6/71-3/31/73, Hess Voyager; 4/9/73-6/9/73, Hess Petrol; 2/14/75-4/10/75, Hess Refiner).

Prior to filing his application, Chambless had accepted employment as a master (3/18/77-4/1/77) on the Mission Viking, a vessel owned by a company not a party to a collective bargaining agreement with MM & P. He testified that before accepting this assignment, he had spoken to the dispatcher at the union hiring hall in Mobile, Alabama and was advised that there would be no problem. Two days after the filing of his April 2, 1977 application, he accepted assignment as master on the Mount Explorer, another non-MM & P contract vessel. That assignment did not end until September 13, 1977. The Mission Viking was an oil drilling rig. The Mount Explorer was a U.S. flag ocean going vessel.

On August 24,1976, the trustees adopted amendments 46 and 47 as new plan regulations. These amendments were proposed by union designated trustees and drafted by union counsel who advised the trustees that the two proposals were not at odds with any ERISA provision. Amendment 46 provides that retirees working in forbidden employment are not entitled to any pension benefits during such employment and for six months thereafter, provided the six month penalty does not extend beyond the retiree’s normal retirement age. Moreover, if a retiree works as a licensed deck officer on a U.S. flag ocean going vessel owned by a company not participating in the MM & P plan, the retiree forfeits his pension benefits until normal retirement. Amendment 47 provides that an active member (i.e. one not yet retired) who, subsequent to acquiring 10 years of vesting service, works as a licensed deck officer on a United States flag ocean going vessel for a company not under contract with MM & P, shall not be entitled to any pension benefits until normal retirement age.

The two new amendments were discussed in articles by Robert Lowen, then MM & P Secretary Treasurer and Stephen Maher, plan administrator, published in the October, 1976 issue of the MM & P newspaper, The Pilot. Lowen’s article called attention to the regulations’ ban on prohibited employment. Maher’s article highlighted the same theme in a short explanation of the amendments’ meaning, and his article carried the full text of the two provisions. In a later article published in the December, 1976 issue of the newspaper, Maher again focused on the two regulations and discussed their importance.

Copies of the newspaper, distributed at union hiring halls in various ports from which the union operates, are not mailed to union members or pension participants. Booklets concerning the pension plan and explaining the regulations are sent to plan participants but the texts of neither the regulations or amendments were sent directly to union members. The first communication directly to the plan participants about Amendment 47 is a letter from Maher dated March 13, 1978, which states in pertinent part:

Further, subsequent to accruing ten (10) years of vesting service credit and prior to retirement, if you work as a Licensed Deck Officer aboard U.S. flag ocean going vessels which are operated by a company which is not a participant in an MM & P Pension Plan (excluding civilian employment with the Military Sealift Command or another government entity) you will not be entitled to any pension benefits prior to reaching Normal Retirement Age (Normal Retirement Age means age 65 or, if after, the age of the participant on the tenth (10th) anniversary of his participation).
An excerpt of the Pension Regulations pertaining to vested pension credit is attached.
I urge you to read the attached language carefully, as violation of the Rules will affect payment of your pension benefit, as well as, any survivor’s options.

Plaintiff’s Ex. 38.

On July 19, 1977, Maher wrote asking Chambless to confirm or deny that he was working as a licensed deck officer on a ship not under MM & P contract. Defendants’ Ex. M. Chambless replied in an undated letter confirming that he had accepted employment aboard a non-MM & P vessel and inquired whether his pension would be “payable as soon as he ceases such employment and withdraws completely from employment aboard a vessel.” There is no direct reply to this latter inquiry in the record.

Chambless was subsequently advised by Maher that his pension application had been denied and that because of his acceptance of employment as a licensed deck officer with a company not under contract with MM & P, he had forfeited all rights to pension benefits until age 65. He was further advised that his estimated pension benefits at age 65 would be $470 per month, not the $920 figure previously given to him. Chambless appealed to the trustees who ratified the decision of the administrator.

The Claims Involved

Plaintiffs (Chambless and his wife) instituted the instant action in 1980 making a wide variety of claims including antitrust infractions by the shipping companies, breach of the duty of fair representation by the union, breach of fiduciary duties as well as a variety of other ERISA violations by the plan and its trustees, and the infliction of emotional distress on both plaintiffs by the union and plan trustees. Both compensatory and punitive damages were sought. Early on in the litigation all claims against the trustees in their individual capacities were dismissed, and the litigation proceeded against the trustees in their official capacities only.

Many of the claims were dismissed when the court granted partial summary judgment for defendants in an opinion reported at 571 F.Supp. 1430 (1983), with which familiarity is assumed. At trial a jury was empanelled to consider the claims for breach of the duty of fair representation, for emotional distress, and for compensatory and punitive damages against the union and the trustees. At the close of the plaintiffs’ case those claims were taken from the jury and dismissed by the court, applying the standard enunciated in Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir.1970) and cognate cases, see e.g. Mattivi v. South African Marine Corp., “Huguenot”, 618 F.2d 163, 167 (2d Cir.1980).

This resulted in the dismissal of all claims against the union and all claims concerning Mrs. Chambless, leaving Chambless as the sole plaintiff in the case. What remained to be decided was whether the forfeiture of Chambless’ pension benefits until age 65 by the plan trustees was arbitrary and capricious. Since that matter was an issue for court determination, the jury was dismissed and the trial proceeded to the court. Subsequent to the conclusion of the trial, the parties submitted post-trial proposed findings of fact and memoranda of law.

Determination

Chambless claims that the suspension of his pension until age 65 violates Section 203 of ERISA, 29 U.S.C. § 1053(a). Prior to December, 1975, a plan participant was entitled to what was described as a normal pension after 20 years of pension service credits. Age was not a factor. The regulations were changed in December, 1975 to conform to ERISA language, 29 U.S.C. § 1053(a), prohibiting all vested pension benefits from forfeiture at normal retirement age. The statute defines normal retirement age as 65 years of age, or if later, the 10th anniversary of a participant’s participation in the plan. Amendment 42 to the plan regulations tracks this statutory language. It is clear that ERISA imposes no obligation to pay retirement benefits to a plan participant before he reaches age 65. Fine v. Semet, 699 F.2d 1091, 1093 (11th Cir.1983). Riley v. MEBA Pension Trust (Riley II), 452 F.Supp. 117, 120 (S.D.N.Y.) (MacMahon, J.), aff'd 586 F.2d 968, 970 (2d Cir.1978); Hurn v. Retirement Fund Trust, 648 F.2d 1252, 1253—54 (9th Cir.1981). See also Morse v. Stanley, 732 F.2d 1139, 1144 (2d Cir.1984) (“Considering that ... the plaintiffs ... will each receive their vested benefits with interest upon reaching their normal retirement age (65), their contention that the trustees acted arbitrarily or in bad faith in denying them accelerated benefits is without merit”). Moreover, where the trustees act within the law their determinations may be disturbed by court order only on a showing of bad faith, caprice or arbitrariness. Riley v. MEBA Pension Trust (Riley I), 570 F.2d 406, 410 (2d Cir.1977); Fine v. Semet, supra; Bayles v. Central States, Southeast and Southwest Areas Pension Fund, 602 F.2d 97 (5th Cir.1979).

The trustees are required to provide plan participants with a summary plan description which sets forth circumstances which may result in disqualification, ineligibility, denial or loss of benefits. 29 U.S.C. § 1022(a)(1), (2), (b). Neither the administrator nor the trustees complied with this requirement before forfeiting Chambless’ benefits. The record discloses that Amendment 47 to the regulations, pursuant to which Chambless’ application was denied and he was held to have forfeited his right to a pension until age 65, was adopted in August, 1976. The amendment was discussed in articles by Lowen and Maher in the October, 1976 issue of the union newspaper. In Maher’s column the text of the amendment was set out in full. The matter was again discussed in another article by Maher in the December, 1976 issue of the union newspaper. As I understand it the newspaper is distributed in quantity at various union hiring halls at offshore ports. Chambless says he never saw the articles. There is testimony that about 200 copies of the October issue of the MM & P newspaper would normally be sent to Mobile arriving about the first two weeks of November. The copies are stacked on a table in the hall. A secretary in the Mobile office testified by deposition that Chambless had knowledge of Amendment 47 before filing his application. She states that she discussed the matter thoroughly with him and that she wrote the plan office for information on the amount Chambless was expected to receive in pension benefits when he retired. (Dep. Mary Smith at 118). I do not credit the testimony that Chambless and the secretary discussed Amendment 47 thoroughly. Amendment 47 had no conceivable impact on Smith sufficient to stimulate her interest in the provisions to the point that she would be able to discuss it thoroughly with anybody. In any event, it is the trustees’ responsibility to get the necessary information to the participants. Chambless’ vicarious receipt of this knowledge through third parties not connected with the plan does not suffice. Moreover, while it is clear from Chambless’ response to Maher’s inquiry about engaging in forbidden employment that he knew that he would be barred from receiving any pension until he had actually retired, I am satisfied that he did not understand the impact which Amendment 47 would have on his pension rights.

There is no evidence of any act by the plan or union to clarify that impact for participants. What was published in the various articles was the simple message that forbidden employment would result in forfeiture of the right to retirement benefits until age 65. Neither the articles in the October and December issue of the newspaper nor even the letter sent to all participants dated 13 March 1978 explained the full import of the forfeiture of the right to benefits until age 65 to a participant such as Chambless with 32V4 years of pension service credits. The forfeiture until age 65 brought into play an additional factor not mentioned in any of these statements concerning the amendment. A wage related pension benefit provision accords a participant the right to have his benefits based on the average of his highest salary for five of his last ten years before retirement during which he earned the most. Denying Chambless the right to a pension until age 65 meant not only that his pension was postponed, but since the ten years preceeding the year in which he turns age 65, 1976-1986, cover a period in which he will earn nothing on MM & P jobs, the wage related formula pursuant to which he would have obtained a generous pension would not apply. His benefits would be determined under a different formula which results in reducing his benefits to roughly half of what he would have received in 1977 based on a wage related formula.

While the court does not believe the trustees willfully withheld information from Chambless or other participants as to the effective reach and full import of Amendment 47, the statutory requirement of full disclosure has no meaning in this context unless the trustees are required to advise participants fully of what effect a new regulation will have before they can penalize a participant for violating the regulation. Defendants contend at trial that Chambless knew, or should have been able to figure out by taking into account the wage related provision, the effect forfeiture until age 65 would have on his pension benefits. It is not all that obvious, however, and it seems to me inequitable to enforce the new provision without first having its full effect explained to all participants. In my judgment, therefore, the trustees were barred in 1977 from applying Amendment 47 to Chambless before first explaining all of its implications to him. It is clear enough that Chambless believed he might be denied his pension for the period he continued to work. He was not aware, however, that by taking a non-MM & P assignment he had forfeited his rights to a pension until age 65 and moreover that the forfeiture carried an added penalty of halving the benefits he had been advised he would receive.

Amendment 47 is arbitrary and capricious in any event. In Riley v. MEBA Trust Fund (Riley I), supra at 413, the Second Circuit stated that “new federal standards of fairness must apply with respect to charges of breach of fiduciary duty not explicitly covered by Part 4 of ERISA”, but concluded that it knew of no applicable federal standard other than the arbitrary or capricious yardstick. Suspension of benefits until age 65 is, of course, permissible. Sutton v. Weirton Steel Division of National Steel Corp., 724 F.2d 406, 410 (4th Cir.1983), cert. denied, _ U.S. _, 104 S.Ct. 2387, 81 L.Ed.2d 345 (1984); Hurn v. Retirement Fund Trust of the Plumbing, Heating and Piping Industry of Southern California, 460 F.Supp. 112 (C.D.Ca.1978), aff'd, 648 F.2d 1252 (9th Cir.1981). However, the right to suspend benefits until age 65 is of no comfort to defendants. They have not only suspended Chambless’ rights to benefits until age 65 but have confiscated a considerable part of those benefits. While the cases allow suspension, none has approved a formula where the suspension results in greatly reduced benefits. Indeed, in Morse v. Stanley, supra, the court was satisfied that all of plaintiffs’ accrued benefits would be received, with interest, when they reached age 65 and explicitly cited this factor in setting forth its reasons for allowing the funds to be withheld.

Defendants argue that since the wage related benefits were incorporated into the pension plan pursuant to a collective bargaining agreement, the trustees’ enforcement was required unless modification was necessary to comply with applicable federal standards and that the arbitrary and capricious standard is not applicable. See United Mine Workers of American Health & Retirement Fund v. Robinson, 455 U.S. 562, 102 S.Ct. 1226, 71 L.Ed.2d 419 (1982). That contention, however, misses the point. The wage related provision is not being contested. What is questioned is the trustees’ right to forfeit a plan participant’s vested rights by taking action which results both in suspending his benefits until age 65 and in reducing much of the accrued and vested pension benefits.

The discrimination that the plan practices against retirees and applicants for retirement, barring participation in any maritime employment while allowing others to continue working in the maritime industries and permiting some retirees, pursuant to the 1981 collective bargaining agreement, to accept, after three years, employment on vessels engaged in offshore drilling, exploration and research, or on vessels ancillary to such operations, and permitting short time employment on vessels engaged in trial runs or being delivered, provided union approval is received and plan trustees are notified, does not seem in the abstract so egregious as to come within the arbitrary or capricious prohibition. Nonetheless, the bar became arbitrary and capricious in its application to Chambless.

In 1976, the union launched a plan to pressure older licensed deck officers to retire. Chambless, who between 1966 and 1975 had regularly received assignments as chief mate or master, was told either to retire or to accept only the lowest grade assignment — second or third mate. Indeed, his only assignments from MM & P hiring halls during 1976 and 1979 were second and third mate jobs. Subsequent to the events in this case, the union sought, through collective bargaining agreement, to secure for older licensed deck officers pension benefits that were not wage related. This would have enabled the union to continue its policy of giving choice assignments to younger men without unduly penalizing the older officers. As of 1979 the union had not succeeded in exacting those benefits from the employer.

The union cannot adopt a policy of forcing applicants to retire or face low paying assignments if they refuse to do so and yet prohibit or penalize them from working apart from MM & P in jobs matching the skills and experience they have acquired. This is another reason why the penalty imposed on Chambless for accepting employment as a master on ships operated by companies not under contract to MM & P is capricious.

A retiree who works in forbidden employment but not as a licensed deck officer on a U.S. flag ocean going vessel operated by a company not under contract to MM & P forfeits his pension for the time he is working and for six months thereafter. One, however, who works as a licensed deck officer on a U.S. vessel under the jurisdiction of a rival union forfeits his pension until age 65. This regulation does not conform to ERISA requirements. It is evident that no forfeiture of benefits can be exacted for competing with an employer. Hummell v. S.E. Rykoff & Co., 634 F.2d 446 (9th Cir.1980); Westwood Chemi cal Co., Inc. v. Kulick, 570 F.Supp. 1032, 1034 (S.D.N.Y.1983) (Werker, J.); Bonar v. Barnett Bank of Jacksonville, 488 F.Supp. 365 (M.D.Fla.1980). Trustees have a fiduciary obligation to act with care, skill, prudence and diligence, 29 U.S.C. § 1104(a)(1)(B), and they must administer the plan solely in the interest of the participants and their beneficiaries. The trustees’ basic fiduciary obligation is to maintain the pension fund on a sound economic and actuarial basis. They must not favor one group of participants over others, but where action is taken to preserve or maintain the integrity of the fund which incidentally disadvantages one group of participants, no fiduciary breach of trust has occurred.

In this instance there was testimony by one of the employer designated trustees that he favored Amendment 46’s and Amendment 47’s forfeiture of benefits for participants who worked for parties not contributing to the MM & P plan, because the plan was very costly and employers wanted participants to work as long as possible so that the employers could get their money’s worth. That testimony makes clear that the employer trustees and the union trustees approved the Amendments for different and conflicting reasons.

Employer trustees favored the regulations as a means of keeping participants working on their vessels for a long time. They did not like the idea of bearing the burden of financing a pension plan where employees with 20 years of pension service credit could retire, receive pension benefits, and then go to work for a competing employer in the industry. The union wanted to keep younger licensed deck officers content with their MM & P affiliation. Therefore they pressured the older officers to retire with these provisions. Given the wage related formula for computing pension benefits, the threat to assign older officers lower paying second and third mate jobs was tantamount to a threat to reduce their pensions. Thus they had to choose between retiring and securing a greater pension benefit or continuing to work faced with both a loss of pay and status and also a reduced pension. Amendment 47 was intended to prevent older officers from escaping this Hobson’s choice by taking non-MM & P jobs,

Defendants, to the court’s surprise, presented no expert actuarial testimony that the penalty imposed in the two amendments was needed or even that it in any way enhanced the financial integrity of the plan. There was no evidence that actuarial considerations were a factor in the trustees’ decision to adopt these amendments. Finally, it is impossible to conclude that the financial integrity of the plan is protected by severely penalizing defectors from MM & P ranks, when the impact on the plan’s financial well being of those retirees who work in forbidden employment other than on U.S. flag ocean going vessels not covered by MM & P agreement is so insignificant that a denial of benefits while they work and for six months thereafter suffices. There was, moreover, no testimony that the plan’s actuaries had advised imposing the penalty or had approved it as needed to safeguard the plan. On the contrary, the amendments were of union origin, drafted by union counsel, and there is nothing in the record to show that the amendments benefited the plan or its participants.

I conclude, as did the court in Deak v. Masters, Mates and Pilots Pension Program, No. 79-190 slip op. at 15 (M.D.Fla. June 4, 1984), “Trustees drew a distinction between certain types of re-employment in the industry primarily to protect MM & P by discouraging members who were eligible for their pension from accepting any job which benefited a competing union.”

This penalty imposed on Chambless pursuant to Amendment 47 has not been justified, and is at best the product of the trustees’ uninformed analysis. Elser v. IAM National Pension Fund, 684 F.2d 648 (9th Cir.1982), cert. denied, _ U.S. _, 104 S.Ct. 67, 78 L.Ed.2d 82 (1983); Winpisinger v. Aurora Corp., 456 F.Supp. 559 (N.D.Ohio 1978).

While the trustees may clearly impose regulations requiring full retirement before they are obligated to award pension benefits, they cannot extract the harsh penalty they imposed on Chambless in this case. The regulation pursuant to which the penalty was imposed is not in the interest of the plan participants or their beneficiaries and is not necessary to maintain the financial integrity of the fund. Accordingly, the action of the trustees was arbitrary and capricious. Moreover, while Chambless could be denied pension benefits while he was still going to sea, he was not adequately informed of the harsh penalty that would be inflicted by his working for a rival union. His inquiry in his undated response to Maher’s letter of July 19, 1977 makes clear that he thought he would be denied a pension only during the period he worked.

The action forfeiting his pension until age 65 is declared a nullity. The trustees are ordered to approve Chambless’ application for a pension provided he ceases working in the maritime industry and certifies that he has done so and applies for a pension within six months of the date of this decision. If he so applies, the trustees are to treat the application as if it had been made in 1977 and grant him a wage related pension based on his 1967-1977 employment record.

IT IS SO ORDERED.

      . Captain Lowen, Union President, on being deposed by plaintiffs counsel before trial, stated that he did not recollect the August 24, 1976 meeting of the trustees — the date Amendments 46 and 47 were adopted. (Lowen Dep. PP 194). He did not recall Bernard Epstein's review of the definition of retirement with the Joint Committee of Trustees at the August, 1976 meeting and did not recall what amendments Epstein had prepared. He did recall Amendments 46 and 47 from just having seen them. Id. 196-197. He did not recall having discussed the Amendments with Epstein before the meeting and had only a vague recollection of the meeting when the Amendments were discussed. Id. 198.
      Nonetheless, at trial on questioning by counsel for the plan Lowen launched into a long and extensive dissertation on the reasoning behind the amendments and the need to protect the integrity of the fund. It is clear that at the pretrial deposition Lowen deliberately frustrated plaintiffs right to discovery. Accordingly, his testimony concerning the basis for these amendments is stricken and will not be considered by the court. F.R.Civ.P. 37.


author: HORACE T. WARD, District Judge.

text:
    INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 926, Plaintiff, v. SUPERIOR RIGGING AND ERECTING CO. and H & T Crane and Erecting Company, Defendants.
    Civ. A. No. C84-570A.
    United States District Court, N.D. Georgia, Atlanta Division.
    Aug. 18, 1984.

      Frank B. Shuster, Decatur, Ga., for plaintiff.
    Zan Blue, Terry M. Brooks, Nashville, Tenn., Edward Katze and William A. Blue, Jr., Atlanta, Ga., for defendants.
   ORDER OF COURT

HORACE T. WARD, District Judge.

This is an action brought by plaintiff International Union of Operating Engineers, Local 926 (“Union”) pursuant to Section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), to enforce the terms of a collective bargaining agreement alleged to exist between itself and defendants Superior Rigging and Erecting Co. (“Superior”) and H & T Crane and Erecting Co. (“H & T”). A collective bargaining agreement has been signed by the Union and Superior. The Union has invoked the jurisdiction of this court to enforce that collective agreement against Superior and against H & T, a nonsignatory to the agreement, on the theory that the defendant corporations “constitute a single integrated business enterprise, single employer, and/or alter ego, each defendant being merely another face of the other.” Complaint at 115.

Shortly after the Union commenced this action, defendant Superior filed a unit clarification petition with the National Labor Relations Board (“NLRB”) pursuant to § 9(c) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 159. In light of the petition pending before the NLRB, defendants have moved this court to dismiss this action pursuant to Fed.R.Civ.P. 12(b)(1) (lack of subject matter jurisdiction), or in the alternative, to stay all further proceedings pending the resolution of the unit clarification petition before the NLRB. For the reasons set forth below, defendants’ motions will be denied.

BACKGROUND

In this case, plaintiff Union alleges a breach of contract by defendants Superior and H & T. In order to prevail as against defendant H & T, plaintiff must show that H & T is a party to the collective agreement which is the subject of this action. It asserts two grounds upon which this court might find H & T liable on the collective agreement despite its non-signatory status. The Union’s first theory is that the defendants constitute a “single employer” such that the two sub-entities comprising the single employer should be held bound by a contract signed only by one. A second theory put forth by the Union is that H & T is but the alter ego of Superior, being operated to circumvent and evade the obligations of Superior under the contract between Superior and the Union.

The single employer doctrine is a creation of the NLRB which allows it to treat two or more related enterprises as one employer. A determination to treat two or more enterprises as bound by a contract signed only by one under the single employer theory involves two separate factual inquiries. First, the relevant facts as to the operation of the sub-entities (i.e., interrelation of operations, common management, centralized control of labor relations, common ownership) must point to the absence of an arm’s length relationship between the companies. Second, having found that two employers constitute a single employer for purposes of the NLRA, the employees of both entities must be found to constitute an appropriate bargaining unit. The focus of each inquiry is different. In the single employer determination, the focus is on the interrelatedness of the employers, while in assessing an appropriate bargaining unit, the focus is on the similarity of concerns between the employees of the employers. See generally, Carpenters Local Union No. 1846 v. Pratt-Farnsworth, Inc., 690 F.2d 489, 504-507 (5th Cir.1982), cert. denied, _ U.S. _, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983).

The alter ego doctrine involves a factual inquiry similar to the first part of the single employer determination; in particular, whether the two enterprises have substantially identical management, business purpose, operation, equipment, customers, supervision and ownership. However, the focus of the alter ego doctrine, unlike that of the single employer theory, is on the existence of an attempt to avoid the obligations of a collective agreement through a sham transaction. Additionally, while the single employer doctrine inquiry requires a finding that the employees of the two firms held to be a single employer constitute an appropriate bargaining unit, a finding that a non-signatory employer is the alter ego of a signatory employer does not require an evaluation of the appropriateness of the bargaining unit under the community of interests test but instead requires a far more limited inquiry to determine only whether the unit is repugnant to any policy embodied in the NLRA. See generally, Carpenters Local, 690 F.2d at 507-509.

DISCUSSION

In their motions to dismiss or to stay this action, defendants present this court with a question of the appropriate relationship between a district court and the NLRB in the context of a § 301 action. Pursuant to § 301(a) of the Labor Management Relations Act, federal courts have jurisdiction to examine alleged violations of collective bargaining agreements:

Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in the Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.

29 U.S.C. § 185(a). Section 301 is more than a jurisdictional statute. It is the basis for the development of federal common law of collective bargaining contract interpretation and enforcement. See, e.g., Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). Section 301 “express a federal policy that federal courts should enforce these agreements ... and that industrial peace can be best obtained only in that way.” 353 U.S. at 455, 77 S.Ct. at 917.

In Carey v. Westinghouse Electric Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964), the Supreme Court noted that § 301 provides the parties to a labor contract with an independent forum in which to seek enforcement as an alternative to government enforcement by the NLRB. The Court concluded that representational issues can be adjudicated by a federal court pursuant to § 301(a), even though an alternative remedy before the NLRB (i.e., a unit clarification petition) is available. 375 U.S. at 268, 84 S.Ct. at 407.

In Carpenters Local, supra, the Fifth Circuit was faced with a case similar to the case now before this court. There, a union brought a § 301 action to, among other things, enforce a collective agreement against a non-signatory employer under both the single employer doctrine and the alter ego doctrine. The district court held that the NLRB had exclusive jurisdiction to decide the issue of the appropriateness of the bargaining unit under the single employer doctrine. Recognizing the important role Congress intended § 301 to play in furthering national labor policy of promoting industrial peace, the Fifth Circuit reversed the lower court. Because § 301 vests the courts with the responsibility to create a federal common law of contract, fashioned from the policy of our national labor laws, applicable to collective bargaining agreements, the Court of Appeals framed the issue as it must be understood in the context of a § 301 action:

We are faced here with one of the most fundamental questions that can arise in a contract suit, namely: who is bound by this contract? To say that the courts and not the Board are solely entitled to pass upon contractual disputes and at the same time to deny the courts the power to determine in a fashion consistent with the policy of our national labor laws the identity of persons or entities obligated by the contract is self-contradictory. If anything, the power to enforce a contract must necessarily include the ability to decide who is bound by the contract. No question is more basic to the existence of contractual rights. Thus to the extent that the identity of the obligees is bound up in representational issues, the federal courts must be empowered to decide those issues for the purposes of determining contractual rights and obligations.

690 F.2d at 518. The Fifth Circuit then held that under its congressional grant of jurisdiction to determine the existence of a breach of contract, a federal court may pass upon collateral issues of labor law, such as a determination of the appropriateness of a bargaining unit, notwithstanding the fact that a unit determination by the Board might be available if one of the parties filed an unfair labor practice charge or sought unit clarification. 690 F.2d at 519.

Defendants rely heavily upon South Prairie Construction Co. v. Local No. 627, 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976) (per curiam) and Computer Sciences Corp. v. N.L.R.B., 677 F.2d 804 (11th Cir.1982), to support their claim that this court does not have jurisdiction to pass upon the question of the appropriateness of the bargaining unit. While both cases do have language to the effect that the selection of an appropriate bargaining unit lies within the discretion of the NLRB, it is important to recognize that neither case arose in the context of an action to enforce a collective agreement. In neither case was the court faced with the question of which body — the district court or the administrative agency — should be making a determination essential to a matter which both tribunals are given jurisdiction to decide in the first instance. Instead, those cases stand for the proposition that a court which is given the power to review decisions rendered by an administrative agency should not take upon itself the initial determination of any issue which is within the authority of the agency to decide. Such practice is obviously a vital part of the orderly function of the process of judicial review.

Thus, the Court in South Prairie and the Eleventh Circuit in Computer Sciences Corp. simply recognized that the statutory authority of the circuit courts to review NLRB decisions is limited to just that — appellate review — and that initial factual determinations in such actions must be made in the first instance by the appropriate administrative agency. In a § 301 action to enforce a labor contract, this court does not review any decision of an administrative agency. Instead, this court’s statutory duty is to enforce the contract between the parties. As the court in Carpenters Local recognized, the decision in South Prairie does not apply in the context of a § 301 action where the NLRB has made no determination as to the appropriateness of the bargaining unit. 690 F.2d at 513-517. Therefore, § 301 confers upon this court the power and the duty to resolve any issues, including those over which the NLRB has concurrent jurisdiction, which are essential to the adjudication of a breach of contract claim.

Defendants also rely on several Ninth Circuit decisions which seem to have extended South Prairie to § 301 actions. In Local No. 3-193 International Woodworkers of America v. Ketchikan Pulp Co., 611 F.2d 1295 (9th Cir.1980) and Brotherhood of Teamsters, Local No. 70 v. California Consolidators, Inc., 693 F.2d 81 (9th Cir.1982) (per curiam), the Ninth Circuit reached the conclusion that “[wjhile § 301 grants the district court jurisdiction to decide whether employers constitute a single employer, we conclude that it does not extend to the determination of the second part of the issue, the appropriateness of the bargaining unit.” 693 F.2d at 83 (footnote omitted). For the reasons set forth by the Fifth Circuit in Carpenters Local, this court declines to follow the views of the Ninth Circuit. See Carpenters Local, 690 F.2d at 519-21. Moreover, the Ninth Circuit recently modified its Ketchikan Pulp holding, concluding that the NLRB and the district courts have “concurrent jurisdiction” over cases legitimately involving both breach of collective bargaining agreement claims and representational status disputes. Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 v. Celotex Corp., 708 F.2d 488, 490 n. 3 (9th Cir.1983). Since the instant case presents this court with a legitimate breach of contract claim and not simply a representational status determination disguised in contractual garb, this court has jurisdiction to decide the issues before it.

For the foregoing reasons, defendants’ motions to dismiss or to stay this action are DENIED.