author: FREEDMAN, District Judge.

text:
    John A. HEALY, Plaintiff, v. Ellen Shong BERGMAN, Director, Office of the Federal Contract Compliance Programs and Interstate Uniform Service, Defendants.
    Civ. A. No. 83-0219-F.
    United States District Court, D. Massachusetts.
    May 28, 1985.

      Stewart T. Graham, Jr., Springfield, Mass., for plaintiff.
    Salvatore J. Scibelli, Springfield, Mass., for Interstate Uniform.
    C. Brian McDonald, Asst. U.S. Atty., Springfield, Mass., for Shong.
    Diane A. Heim, U.S. Dept. of Labor, Washington, D.C., for Bergman.
   MEMORANDUM

FREEDMAN, District Judge.

The plaintiff, John A. Healy, brings this action pursuant to the Administrative Procedures Act, 5 U.S.C. § 706, seeking declaratory relief from a decision of the defendant, director of the Office of Federal Contract Compliance Program (“OFCCP”) denying the plaintiff’s claim of employment discrimination because of handicap. He also seeks relief against defendant Interstate Uniform Services (“I.U.S.”) alleging unlawful discrimination.

Defendant I.U.S. has moved to dismiss the complaint for failure to state a claim, Fed.R.Civ.P. 12(b)(6), arguing that Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. § 793 (“the Act”), does not provide for a private cause of action, and such a private right should not be inferred. Federal defendant Bergman has moved to dismiss, or in the alternative, for summary judgment and states as grounds that the plaintiff has failed to exhaust his administrative remedies and that the defendant’s action was not arbitrary, capricious or contrary to law. The plaintiff has also filed a cross-motion for summary judgment.

Briefly stated, the facts of the case are as follows: In 1979 plaintiff was hired as a fireman and maintenance worker by the defendant I.U.S., a government contractor subject to Section 503 of the Act, see infra n. 2., with the knowledge that he was an alcoholic. He had a good work record with the defendant until January 8, 1980, when he voluntarily admitted himself to Baystate Medical Center’s detoxification facility in Springfield. He remained there until January 30, 1980 when he returned to work for I.U.S.

On February 25, 1980, the plaintiff notified defendant I.U.S. that he had to enter an alcohol rehabilitation center for sixty days. I.U.S. told the plaintiff that it did not approve of his absence from work in January for hospitalization and that if he admitted himself to a hospital again for alcoholism he would be terminated.

The plaintiff entered the alcohol rehabilitation center on February 26, 1980. His employment with I.U.S. was terminated effective February 22, 1980. While in the alcohol rehabilitation center and after-wards, the plaintiff saw classified advertisements for his former position. He applied for them and was refused employment.

On August 13, 1980, the plaintiff filed a complaint alleging employment discrimination with the Regional Office of defendant OFCCP of the United States Labor Department pursuant to 29 U.S.C. § 793. On April 12, 1982, the Regional Office issued its notification of results of investigation and found, inter alia, that the plaintiff was a handicapped individual and that his employer, I.U.S., unlawfully discriminated against him.

On November 30, 1982, the Regional Office of OFCCP, sua sponte, issued a Reissuance of Notification of Results of Investigation in which it denied the plaintiff’s claim and referred to “a recent ruling indicating that alcoholics who are receiving treatment for alcoholism are not considered to be qualified handicapped individuals under Section 503 of the Rehabilitation Act of 1973.”

On December 12, 1982, the plaintiff applied to the Director of the National Office of the defendant OFCCP for reconsideration. On April 18, 1982, defendant Bergman issued a final decision upholding the Regional Office’s denial of plaintiff's claim. Defendant Bergman’s notification stated in part that “alcoholics, per se, are not considered handicapped if alcohol abuse is current and prevents the individual from performing his/her job. Such was the case here.” Following this final agency decision, the plaintiff brought this action on May 23, 1983.

On May 1, 1985, a hearing was held at which time oral arguments were presented by counsel. Defendant Bergman withdrew her objection to the failure to exhaust administrative remedies on the issue of 1. U.S.’ failure to rehire the plaintiff and urged the Court to remand that issue to the federal agency for investigation and findings. Because neither party has presented a complete administrative record, the Court is not in a position to decide the issue. Therefore, a remand to OFCCP for expeditious action is appropriate.

There remain two principal issues:

(1) Should a private cause of action be implied from Section 503 of the Act?

(2) Was the administrative agency’s denial of plaintiff’s claim of discrimination because of handicap correct?

A. Implying Private Cause of Action

Section 503 of the Act is silent as to whether an individual who believes he has been the subject of discrimination because of his handicap is entitled to maintain a private cause of action against his employer. Of the eight Circuit Courts of Appeals to have considered the question, all have rejected private rights of action. Nevertheless, the plaintiff urges this Court to “analyze the merits of the controversy afresh,” in the absence of a mandatory authority in the First Circuit to the contrary. Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary Judgment at 5.

An inquiry into whether a statute implicitly authorizes a private cause of action must focus on Congressional intent, Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639, 101 S.Ct. 2061, 2066, 68 L.Ed.2d 500 (1981), at the time the statute was enacted. Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 378, 102 S.Ct. 1825, 1839, 72 L.Ed.2d 182 (1982). In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court announced a four-part test to determine whether a private cause of action should be implied. The Court held:

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

Id. at 78, 95 S.Ct. at 2087 (citations omitted). Subsequently, however, the Supreme Court appears to be moving away from a rigid application of the four-part test of Cort to a more generalized focus on Congressional intent. See, e.g., Middlesex County Sewerage Authority v. Sea Clammers, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981); Touche Ross v. Redington, 442 U.S. 560, 575-76, 99 S.Ct. 2479, 2488-89, 61 L.Ed.2d 82 (1979). Nevertheless, Cort still remains a useful starting point and analytical framework to examine whether Congress intended to authorize a private cause of action under Section 503 of the Act.

In applying the first of the three Cort factors — whether Congress intended to benefit a special class of which the plaintiff is a member, the circuit courts have reached conflicting results. In Fisher, 663 F.2d at 863-64, the Ninth Circuit found that Section 503 “was clearly intended to benefit handicapped persons.” However, in the other circuit cases in which full opinions were issued, Davis v. United Air Lines, 662 F.2d at 123; Rogers v. Frito-Lay, 611 F.2d at 1078-80; Hoopes v. Equifax, Inc., 611 F.2d at 134, the courts have found that the language of Section 503 did not manifest an intent on the part of Congress to invest handicapped individuals, as a class, with federal rights.

In concluding that Section 503 does not represent Congressional intent to benefit handicapped persons, Hoopes, Rogers and Davis focus on the distinction between “duty-creating” and “right-creating” language of the statute. In Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), the Supreme Court in finding that Title IX of the Education Amendments of 1972 implicitly authorized a private cause of action, stated that:

Not surprisingly,-the right- or duty-creating language of the statute has generally been the most accurate indicator of the propriety of implication of a cause of action____ Put somewhat differently, because the right to be free of discrimination is a “personal one” ... a statute conferring such a right will almost have to be phrased in terms of the persons benefited____ Conversely, the Court has been especially reluctant to imply causes of actions under statutes that create duties on the part of persons for the benefit of the public at large____

Id. at 690-692 n. 13, 99 S.Ct. at 1954 n. 13 (citations omitted).

The above-cited authorities reached their conclusion that the language of Section 503 was “duty-creating” rather than “right-creating” by contrasting it with the language of Section 901 of Title IX from which the Cannon Court implied a cause of action as well as the language of Section 504 of the Rehabilitation Act which has also been interpreted widely to imply a private cause of action. See, e.g., Kampmeier v. Nyquist, 553 F.2d 296 (2d Cir. 1977); Lloyd v. Illinois Regional Transportation Authority, 548 F.2d 1277 (7th Cir.1977); Cruz v. Collazo, 84 F.R.D. 307 (D.P.R.1979). See also Annot., 44 ALR Fed. 148, 170 (1979). Cf. Campbell v. Kruse, 434 U.S. 808, 98 S.Ct. 38, 54 L.Ed.2d 65 (1977). I agree with the assessment in Rogers, that the language of Section 503 is not cast in the same mold, 611 F.2d at 1080, as the statutes printed in the margin, and does not, therefore, create a federally enforceable civil right for handicapped individuals.

This conclusion is bolstered by the Cannon Court’s statement that had Section 901 of Title IX been phrased in different language the Court probably would not have implied a private right of action:

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

441 U.S. at 690-93, 99 S.Ct. at 1954-56.

As an example of statutory language which would not give rise to an implied cause of action, the Court reproduced an alternative proposal which congress rejected that is very similar to Section 503. Clearly, Section 503 does not confer federal rights on handicapped individuals but merely imposes certain obligations on government agencies. This is quite different from Section 504 of the Act which confers directly upon qualified handicapped individuals a right to be free from discrimination by any recipient of federal funds. See supra n. 6.

The plaintiff would have this Court find right-creating language nevertheless on the basis of the inclusion in Section 503 of a provision authorizing an individual who believes that any government contractor has failed to comply with the provisions of the statute may file a complaint with the Department of Labor. 29 U.S.C. § 792(b). I concur with Rogers that “[t]he handicapped may have simply the right to petition those who administer federal contracts to perform their duty.” 611 F.2d at 1080. This in itself is not tantamount to bestowing on the handicapped as a class, a substantive, enforceable federal right, but is only a device whereby federal agencies are requested to fulfill their obligations under the Act.

Therefore, I conclude that the plaintiff is not within a class “for whose especial benefit” Section 503 was enacted. Cort, 422 U.S. at 78, 95 S.Ct. at 2088.

Because of the conclusion I reached with regard to the first of the Cort factors, this case does not, as the plaintiff suggests, fall into the analytical approach suggested by Cort,

in situations in which it is clear that federal law has granted a class of persons certain rights, it is not necessary to show an intention to create a private cause of action, although an explicit purpose to deny such cause of action would be controlling.

442 U.S. at 82, 95 S.Ct. at 2090 (emphasis in original). Therefore, the inquiry remains whether Congress positively intended to create a private cause of action under Section 503 which is the second Cort factor.

An examination of the legislative history-concerning the enactment of Section 503 in 1973 yields little insight into whether Congress intended to authorize a private cause of action. However, the legislative history surrounding the passage of two amendments to the Rehabilitation Act is somewhat more instructive.

In 1974, Congress amended the Rehabilitation Act to clarify the definition of “handicapped persons” under Sections 503 and 504. The Senate Conference Committee Report, Sen.Conf.Rep. No. 93-1270, 93d Cong., 2d Sess. 25-28 (1974), discusses these sections in some detail. Rogers summarizes this report as follows:

[LJittle attention was directed to enforcement of section 503 but section 504 enforcement was discussed in detail. The Report equated section 504 to section 601 of the Civil Rights Act of 1964, 42 U.S.C. § 2000d and section 901 of the Education Amendments of 1972, 20 U.S.C. § 1681. Like those sections, the conferees stated, section 504 is to be enforced by administrative and judicial means, including a private judicial remedy for those harmed by violations of the section.
The Committee failed to make similarly explicit any understanding of section 503. It did, however, note the intent that “sections 503 and 504 be administered in such a manner than a consistent, uniform, and effective federal approach against handicapped persons would result. Sen.Conf.Rep. No. 93-1270, supra, at 27.

Rogers, 611 F.2d at 1081.

On the basis of this Report, the plaintiff argues that it could be inferred that Congress intended a private right of action under Section 503 by stating its intent that Sections 503 and 504 were to be administered consistently and that Section 504 was clearly intended to give rise to a private cause of action. As stated by the Ninth Circuit, this rough equation of Sections 503 and 504 “falls short of giving a clear indication that a private remedy was intended.” Fisher v. City of Tucson, 663 F.2d 861 (9th Cir.1981).

Greater support for the plaintiff’s position can be found in the legislative history of the 1978 amendments to the Rehabilitation Act by which Section 505, 29 U.S.C. § 794a, was added. Section 505 provides in part:

(b) In any action or proceeding to enforce or charge a violation of a provision of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.

Both the Senate and the House Reports contain unequivocal statements that Section 505 was intended to apply to both Sections 503 and 504. S.Rep. No. 95-890, 95 Cong.2d Sess. 19 (1978); H.R.Rep. No. 95-1149, 95th Cong., 2d Sess. (1978) reprinted in [1978] U.S.Code Cong. & Admin.News 7312, 7313. Thus, it is fairly clear that in 1978 committees of both Houses of Congress assumed that a private cause of action under Section 503 had somehow been created in the past. The Supreme Court has cautioned, however, that after-the-fact statements of Congressional intent, while shedding some light on the intent of the enacting Congress, “is not by any means dispositive.” Chrysler Corp. v. Brown, 441 U.S. 281, 299-300, 99 S.Ct. 1705, 1716-1717, 60 L.Ed.2d 208 (1979). But see Cannon, supra, 441 U.S. at 686-87 n. 7, 99 S.Ct. at 1951-52 n. 7.

As a result, my conclusion with regard to the second Cort factor is that evidence of contemporaneous Congressional intent to provide a private right of action is ambiguous at best.

I will now proceed to the third Cort factor — whether it is consistent with the underlying purposes of the legislative scheme to infer a private right of action. An examination of the statute reveals that Congress provided a complete administrative scheme to remedy Section 503 violations. Further, the implementing regulations, 41 C.F.R. § 60-741-4, provide explicit details for the operation of the enforcement plan with particular emphasis on conciliation and persuasion. To imply a private cause of action, then, would run counter to the Congressional purpose and administrative scheme to emphasize more informal means of dispute resolution. See Davis v. United Air Lines, 662 F.2d at 126; Rogers, 611 F.2d at 1084-85.

The plaintiff places great weight on the fact that OFCCP had at one time advocated a private cause of action. See Affidavit of Weldon J. Rougeau, Director of OFCCP appearing as Appendix to Rogers, 611 F.2d at 1108-09. It is unclear whether this remains the position of the Labor Department. Even if it were, however, I do not believe it is entitled to great weight because it is premised in large part on “the large backlog of Section 503 administrative complaints which the Department of Justice, due to limited resources, will not be able to investigate and resolve expeditiously.” Id. ¶ 3 at 1108. As the Davis court stated, “[w]hile the lack of executive resources to enforce an act of Congress is regrettable, it is hardly the judiciary’s role to redress that lack by inferring a judicial remedy.” 662 F.2d at 126-27.

Finally, the application of the fourth Cort factor is the clearest — discrimination against the disabled has not been a matter traditionally relegated to state law.

On balance, I find that the application of the four Cort factors together with the unanimous results reached by the eight circuit courts which have considered the question, require the conclusion that Section 503 of the Rehabilitation Act of 1973 does not authorize an implied private right of action.

B. Review of OFCCP’s Final Decision

Before I can proceed to review the adequacy of OFCCP’s final decision, it is necessary to resolve a dispute as to the appropriate standard of review. The plaintiff has suggested that the appropriate standard is whether the agency’s decision “has a reasonable basis in law.” See Volkswagenwerk Aktiengesellschaft v. Federal Maritime Comm., 390 U.S. 261, 272, 88 S.Ct. 929, 935, 19 L.Ed.2d 1090 (1968). The reasonable basis in law standard is appropriate in those situations in which the agency is effectively making a legal conclusion — providing a construction of the statute with which it is charged with administration. Although some personnel within the OFCCP apparently believed that an interpretive ruling had been made regarding a new definition of qualified handicapped individuals, see discussion infra, it appears that the agency was, at least in respect to its final action — defendant Bergman’s notification letter — acting in the traditional administrative manner of applying a statute and regulations to a given set of facts. In this situation, it is appropriate that the administrative decision should be upheld unless it is shown to be “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). See BASF Wyandotte Corp. v. Costle, 598 F.2d 637, 647 (1st Cir.1979).

Even with this very narrow standard of review, I am unable to sustain the agency’s decision at this time. In making its initial findings of facts, the Regional Office of the OFCCP stated that the plaintiff was a “handicapped individual within the meaning of section 503.” See supra n. 1. Some seven months later, however, the Regional Office, sua sponte, issued a Reissuance of Notification signed by the Boston Area Director referring to “a recent ruling indicating that alcoholics who are receiving treatment for alcoholism are not to be qualified handicapped individuals under Section 503 of the Rehabilitation Act of 1973.” The Area Director went on to state, “[bjased on [this] notification ..., the complainant is not considered to be a qualified handicapped individual under the law.”

The term “handicapped individual” is explicitly defined in the Act. Section 7(7), 29 U.S.C. § 706(7), states in part that for purposes of Sections 503 and 504 the term handicapped individual

does not include any individual who is an alcoholic or drug abuser whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or the safety of others.

29 U.S.C. § 706(7)(B). Thus, insofar as the conclusions contained in the Reissuance of Notification by the Area Director are premised on a nonexistent and erroneous ruling that alcoholics who are receiving treatment are automatically unqualified, these conclusions are arbitrary, capricious and contrary to law.

In the final administrative action, defendant Bergman upheld the revised decision of the Regional Office that the plaintiff “is not a covered individual under the Act.” Defendant Bergman did not repeat the incorrect statement of section 7(7) that was contained in the Area Director’s Reissuance; but accurately paraphrased the law by stating “[ajlcoholics, per se, are not considered handicapped if alcohol abuse is current and prevents the individual from performing his/her job.”

I am unable, however, to reach a conclusion as to whether defendant Bergman’s action was arbitrary or capricious because in denying the plaintiff’s complaint, she made no findings of fact or statement of reason other than to state that “[s]uch was the case here,” meaning that the plaintiff’s alcohol abuse was current and it prevented him from performing his job. Standing alone, this statement is a bare conclusion and contains no reasons why the plaintiff’s alcohol abuse prevented him from performing his job. Defendant Bergman may not rely on the findings of fact made by the Regional Office because they are inconsistent and, at least with respect to the Reissuance, premised on an incorrect understanding of the definition of handicapped individuals under the Act.

Being unable to conclude whether the administrative agency’s action was arbitrary or capricious because of the lack of findings, and not having a full administrative record, I shall remand the case to the Director of the OFCCP with instructions that the agency expeditiously conclude its investigation and make detailed findings of fact on whether the plaintiff’s alcoholism prevented him from performing his job and whether I.U.S.’ dismissal of the plaintiff and its subsequent failure to rehire him were in violation of Section 503 of the Act. See Helvering v. Rankin, 295 U.S. 123, 131, 55 S.Ct. 732, 736, 79 L.Ed. 1343 (1935).

An appropriate Order shall issue.

ORDER

For the reasons set forth in a Memorandum issued this date, the Court makes the following orders with respect to the above-captioned case:

First, defendant Interstate Uniform Service’s motion to dismiss pursuant to Fed.R. Civ.P. 12(b)(6) must be, and hereby is, GRANTED;

Second, the remainder of the case is remanded to the Office of Federal Contract Compliance Programs (“OFCCP”) of the United States Labor Department with the following instructions to defendant Ellen Shong Bergman:

(a) The OFCCP shall investigate the plaintiff’s complaint with respect to defendant Interstate Uniform Service’s allegedly improper dismissal and failure to rehire the plaintiff on account of his alleged handicap;
(b) The OFCCP shall provide a statement of reasons for its conclusions as to whether the plaintiff is a qualified handicapped individual for purposes of Section 503 of the Rehabilitation Act of 1973. Specifically, the OFCCP must specify in what ways the plaintiff’s alcoholism did or did not prevent him from performing the duties of his job;
(c) The agency shall conclude all administrative action on the plaintiff’s claims within sixty (60) days of the issuance of this Order; and
(d) In the event the plaintiff seeks further judicial review, the OFCCP shall provide a complete administrative record to the reviewing court.
It is So Ordered.

      . The Regional Office of the OFCCP made the following pertinent findings:
      2. John A. Healy is a handicapped individual within the meaning of Section 503 of the Rehabilitation Act of 1973, as amended and the regulations at 41 C.F.R. Chapter 60 as appropriate.
      5. Our investigation indicates that the complainant is a member of a protected class under Section 503 of the Rehabilitation Act of 1973. The contractor was aware of the complainant's problem with alcohol when he was hired. The complainant had a good work record from the date of hiring in June 1979 until January 8, 1980 when he went to the detoxification and rehabilitation center. Upon his discharge from the center on January 30, 1980, he was referred for follow-up to a local clinic. He returned to work and performed satisfactorily. On February 25, 1980, he told his supervisor that he had to go back to the hospital for sixty days.
      7. The actions described in 5 above violated the contractor’s obligation under the Regulations____

      . Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. § 793, provides, inter alia :
      (a) Amount of contracts or subcontracts; provision for employment and advancement of qualified handicapped individuals; regulations. Any contract in excess of $2,500 entered into by any Federal department or agency for the procurement of personal property and nonpersonal services (including construction) for the United States shall contain a provision requiring that, in employing persons to carry out such contract the party contracting with the United States shall take affirmative action to employ and advance in employment qualified handicapped individuals as defined in section 7(7)____ The President shall implement the provisions of this section by promulgating regulations within ninety days after the date of enactment of this section.
      (b) Administrative enforcement; complaints; investigations; departmental action. If any handicapped individual believes any contractor has failed or refuses to comply with the provisions of his contract with the United States, relating to employment of handicapped individuals, such individual may file a complaint with the Department of Labor. The Department shall promptly investigate such complaint and take such action thereon as the facts and circumstances warrant, consistent with the terms of such contract and the laws and regulations applicable thereto.

      . Davis v. United Air Lines, 662 F.2d 120 (2d Cir.1981), cert, denied, 456 U.S. 965, 102 S.Ct. 2045, 72 L.Ed.2d 490 (1982); Beam v. Sun Shipbuilding & Dry Dock Co., 679 F.2d 1077 (3rd Cir.1982); Painter v. Horne Bros. Inc., 710 F.2d 143 (4th Cir.1983) (per curiam); Rogers v. Frito-Lay, Inc., 611 F.2d 1074 (5th Cir.), cert, denied, 449 U.S. 889, 101 S.Ct. 246, 66 L.Ed.2d 115 (1980); Hoopes v. Equifax, Inc., 611 F.2d 134 (6th Cir. 1979); Simpson v. Reynolds Metals Co., 629 F.2d 1226 (7th Cir. 1980); Simon v. St. Louis County, 656 F.2d 316 (8th Cir.1981), cert, denied, 455 U.S. 976, 102 S.Ct. 1485, 71 L.Ed.2d 688 (1982); Fisher v. Tucson, 663 F.2d 861 (9th Cir. 1981).

      . While the Court of Appeals for the First Circuit has not had occasion to provide binding authority for this question, a Massachusetts district court has followed the overwhelming majority view and declined to imply a private cause of action under Section 503. Myers v. New England Tel & Tel Co., C.A. No. 82-0871-T, slip op. (D.Mass. September 27, 1983).

        . In pertinent part, Section 901 of Title IX, 20 U.S.C. § 1681, provides:
      (a) [N]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any education program or activity receiving federal assistance____

      . Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, provides, inter alia:

      No otherwise qualified handicapped individual in the United States ... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.

      . Congress rejected an amendment to the Higher Education Act of 1965 offered by Senator McGovern which would have provided in part:
      Section 1206(a). The Secretary shall not make any grant, loan guarantee, or interest subsidy payment, nor shall the Secretary enter into any contract with any institution of higher education, or any other post-secondary institution, training center, or agencies representing such institutions unless the application, contract, or other arrangement for the grant, loan guarantee, interest subsidy payment, or other financial assistance contains assurances satisfactory to the Secretary that any such institution, center, or agency will not discriminate on the basis of sex in the admission of individuals to any program to which the application, contract, or other arrangement is applicable.
      117 Cong.Rec. 30411 (1971) cited in Cannon, 441 U.S. n. 14 at 693, 99 S.Ct. n. 14 at 1955.


source: Caselaw Access Project

author: CLARKSON S. FISHER, Chief Judge.

license: Public Domain

text:
    Joseph and Florence LOVE, Plaintiffs, v. JOHNS-MANVILLE CANADA, INC., et al., Defendants.
    Civ. A. No. 82-2541.
    United States District Court, D. New Jersey.
    May 29, 1985.
    Ergood & Gavin by Richard S. Mannella, Westmont, N.J., for plaintiffs.
    Horn, Kaplan, Goldberg, Gorney & Daniels, P.C. by Jonathan Eron, Atlantic City, N.J., for third party defendant Owens Corning Fiberglas, Inc.
    Enright, Porter, Lenny & McGrath by David A. Walker, Bloomfield, N.J., for third party defendant, Pacor, Inc.
    Law Offices of Henry Simon by Jill E. Haley, Newark, N.J., for defendant/third party plaintiff Pittsburgh Corning Corp.
   OPINION

CLARKSON S. FISHER, Chief Judge.

In this asbestos-related products liability action, third party defendants Pacor, Inc. and Owens Corning Fiberglas, Inc. have moved for summary judgment on the basis of the decision in Cohn v. G.D. Searle Co., 598 F.Supp. 965 (D.N.J.1984), appeal docketed, No. 85-5048 (3rd Cir. Jan. 21, 1985), in which the District Court retroactively applied the New Jersey Supreme Court’s decision in Coons v. American Honda Motor Co., 94 N.J. 307, 463 A.2d 921 (1983), cert, denied, — U.S. —, 105 S.Ct. 808, 83 L.Ed.2d 800 (1985) invalidating the tolling provision of N.J.S.A. 2A:14-22 (West 1952) (hereinafter “the tolling provision”) to bar a products liability claim. For the reasons stated hereafter, the motions are denied.

I. Facts

Plaintiffs Joseph and Florence Love instituted this action in August 1981 seeking damages for injuries resulting from Mr. Love’s exposure to asbestos-containing products during the course of his employment at various shipyards. Mr. Love was first diagnosed as suffering from asbestosis in 1970. In his deposition he admitted that he did not institute legal action for his injuries at that time because he felt he could still earn a living.

Only several years later did the Loves consult a lawyer regarding a claim for Mr. Love’s asbestos-related injuries. At that time they found their claims barred by the two year statute of limitations applicable to personal injury claims. See N.J.S.A. 2A:14-2 (West 1952). However, plaintiffs commenced this action in August 1981 in reliance on the tolling provision.

During the pendency of this action, the New Jersey Supreme Court issued its opinion in Coons I, which invalidated the tolling provision. There the Court held that the tolling provision amounted to a “forced-licensure provision” which, when required of foreign corporations, unconstitutionally burdened interstate commerce. In Coons I the Court initially provided for. retrospective application of its holding, making its decision applicable to all matters which had not reached final judgment as of the date of its decision. Id., 94 N.J., at 318-19, 463 A.2d at 927.

In 1984 the New Jersey Supreme Court granted plaintiff's petition for rehearing limited to the issue of retroactive application of the holding in Coons I. In Coons v. American Honda Motor Company, 96 N.J. 419, 476 A.2d 763 (1984), cert, denied, — U.S. —, 105 S.Ct. 808, 83 L.Ed.2d 800 (1985) (“Coons II”), the New Jersey Supreme Court reversed its earlier position, and held “as a matter of state law that Coons I is to be applied prospectively only from the date of that decision, August 3, 1983.” Id. at 422, 476 A.2d at 765 (emphasis added).

Since the date of Coons II two decisions in this district have addressed the question of retroactive application of Coons I. In the first of these, Hopkins v. Kelsey-Hayes, No. 78-1646 letter op. (D.N.J. June 21, 1984) (Brotman, J.), the Court found Coons II controlling on the issue and applied Coons I prospectively.

The second, Cohn v. G.D. Searle & Co., 598 F.Supp. 965 (Debevoise, J.), held that Coons I should apply retroactively. In Cohn the Court rejected Coons II as controlling because that holding was based upon state law. Id. at 969. Instead the Court viewed the issue of the retroactivity of a federal constitutional decision as a question of federal law. It held:

[Ajpplying federal law, the determination that the statute (N.J.S.A. 2A:14-22) is unconstitutional [in Coons I] must be given retroactive effect and should be applied, at the very least, to the instant case.

Id. Subsequent to the decision in Cohn, the United States Supreme Court denied cross-petitions for writs of certiorari in Coons.

II. Conclusions of Law

Defendants’ motions are supported by a recitation seriatim, of the retroactivity analysis in Cohn, concluded by an argument that this Court should follow the holding in Cohn. In opposition, plaintiffs urge that under the civil retroactivity standard announced in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), the Court should apply Coons I prospectively.

A. Applicable Law

While the parties are in apparent agreement on the applicable body of law controlling the retroactivity issue, this decision clarifies the basis upon which this Court concludes that federal law governs its decision.

Coons II applied state law to reach the conclusion that Coons I applies prospectively; however, Judge Debevoise in Cohn noted:

It would be difficult to reconcile rationally a holding that federal law will be applied to determine the constitutionality of a statute but that the states remain free to determine under state law when and how the ruling of unconstitutionality will be applied. Such a rule would provide a tool for nullification of constitutional decisions and does not constitute current law.
Federal law governs the retroactivity question in this case.

598 F.Supp. at 969. This Court believes Cohn accurately states the law. While no case expressly so holds, the precedents of the Supreme Court dictate the conclusion that federal law must govern the retroactive application and enforcement of federal constitutional rights by the states.

The Supreme Court frequently reviews state court decision on the retroactivity of new federal constitutional rulings. The unstated holding of such cases is that federal law controls the issue. Cohn, 598 F.Supp. at 969. See, e.g., Brown v. Louisiana, 447 U.S. 323, 326-27, 100 S.Ct. 2214, 2218-19, 65 L.Ed.2d 159 (1980) (reversing decision of Louisiana Supreme Court that United States Supreme Court’s decision holding nonunanimous juries for nonpetty offenses unconstitutional should be applied only to juries empaneled after the date of the decision); Michigan v. Payne, 412 U.S. 47, 57, 93 S.Ct. 1966, 1971, 36 L.Ed.2d 736 (1973) (reversing decision of Michigan Supreme Court applying North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), retroactively). See also Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977); Ivan v. City of New York, 407 U.S. 203, 92 S.Ct. 1951, 32 L.Ed.2d 659 (1972); Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972).

Furthermore, several state courts have acknowledged that federal law controls the retroactivity of federal constitutional decisions. See, e.g., People v. Burnick, 14 Cal.3d 306, 535 P.2d 352, 121 Cal.Rptr. 488 (1975) (under U.S. Supreme Court retroactivity principles, decision that Fourteenth Amendment requires proof beyond reasonable doubt in mentally disordered sex offender proceedings must be retroactively applied); State v. Bernard, 391 So.2d 1180, 1181 (La.1980) (in Brown v. Louisiana, 447 U.S. 323, 100 S.Ct. 2214, U.S. Supreme Court ordered retroactive application of decision in Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979), prohibiting nonunanimous six-member jury verdicts; hence, 5-1 verdict returned against defendant in a pr e-Burch trial must be reversed); Commonwealth v. Stokes, 374 Mass. 583, 374 N.E.2d 87, 91-92 (1978) (decision in Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), applying retroactively the Supreme Court’s decision concerning constitutional requirements for jury charge on self-defense in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), requires reversal of defendant’s preMullaney conviction); People v. Patterson, 39 N.Y.2d 288, 383 N.Y.S.2d 573, 578, 347 N.E.2d 898, 903 (1976), affd, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (U.S. Supreme Court retroactivity precedents mandate retroactive application of federal constitutional rule set forth in Mullaney v. Wilbur), Commonwealth v. Hilbert, 476 Pa. 288, 382 A.2d 724, 727-28 (1978) (U.S. Supreme Court’s decision in Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, which mandates retroactive application of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, requires reversal of defendant’s preMullaney conviction).

Finally, the Court echoes the sentiment expressed in Cohn, that it would be somewhat anomalous to countenance a rule which would leave states free to implement or delay implementation of federal constitutional rulings on state law decisional grounds. This is particularly inappropriate when the federal ruling implicates the commerce clause, because that clause is meant to protect against “state action which imposes special or distinct burdens on out-of-state interests unrepresented in the states political process.” L. Tribe, American Constitutional Law § 6-5 (1978).

B. The Appropriate Federal Standard

The issue of retroactivity of federal constitutional decisions in civil cases is governed by a three part balancing test adopted by the .Supreme Court in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971).

There the Court stated:
In our cases dealing the with nonretroactive question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, [citation omitted], or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” [Citation omitted]. Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.” [Citation omitted].

404 U.S. at 106-07, 92 S.Ct. at 355. In principle both parties agree that Chevron controls this Court’s decision. Defendants, however, insist, as is stated in Cohn, that a subsequent Supreme Court decision has modified the first Chevron factor, thus restricting those instances in which prospectivity is the rule.

On this issue Cohn stated:
In United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982) (a criminal case) the Court explained that the initial Chevron test (applicable to civil cases) required a determination that the decision be a “clear break” with past law. Such a determination may be made only if a decision “[1] explicity overrules a past precedent of [the court]; or [2] disapproves a practice [the court] arguably has sanctioned in prior cases; or [3] overturns a longstanding and widespread practice to which [the court] has not spoken, but which near-unanimous body of lower court authority has expressed approval.” 457 U.S. at 551 [102 S.Ct. at 2588].

598 F.Supp. at 970 (emphasis added). The Court disagrees with defendants’ contention that Johnson requires a “clear break” standard in civil cases. Johnson merely held that “a decision of [the Supreme] Court construing the Fourth Amendment [was] to be applied to all convictions that were not yet final at the time the decision was rendered.” 457 U.S. at 562, 102 S.Ct. at 2594.

In addition to the language noted by the Cohn Court, (cited above), defendants would no doubt point to that portion of the Johnson opinion which labels the Chevron test as the “clear break” principle for civil cases. Id. at 550 n. 12, 102 S.Ct. at 2587 n. 12. Both of these factors would appear to affect Chevron’s first factor in some degree.

However, having labeled Chevron the “clear break” principle, Johnson proceeded to cite the original Chevron test verbatim:

[a] decision establishes] a new principle of law, either by overruling clear past precedent on which litigants may have relied ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed ”____

Id. (emphasis added).

The conclusion that Johnson did nothing to alter Chevron in the civil context, is further buttressed by the express limitations imposed upon the scope of Johnson by the Court:

[W]e express no view on retroactive application of decisions construing any constitutional provision other than the fourth amendment.

Id. at 562, 102 S.Ct. at 2594.

Finally, Johnson concludes stating that “all questions of civil retroactivity continue to be governed by the standards enunciated in Chevron.” Id.

This case, involving the retroactivity of a commerce clause ruling, is governed by Chevron and its progeny of civil retroactivity cases unembellished by Johnson.

C. The Chevron Factors Applied

1. Factor One — Objective Reliance

Defendants contend, as stated in Cohn, that, even under Chevron, Coons I fails to meet the first criterion for prospectivity. Under the facts in this record, the Court disagrees.

The first Chevron factor measures “objective reliance,” i.e., it requires the Court to examine the state of the law to determine whether reasonable litigants would have been justified in their reliance upon the old rule. See, e.g., Chevron, 404 U.S. at 106-07, 92 S.Ct. at 355-56 (court must examine whether new rule overrules law on which litigants may have relied) (emphasis added); Marino v. Bowers, 657 F.2d 1363 (3rd Cir.1981) (court must look to the “reasonable perceptions” of litigants). Accord Coons II, 96 N.J. at 433, 476 A.2d at 772 (“we focus at the outset on which it is that litigants may have relied”). In short, this factor, determines whether the claimed reliance was justified.

In evaluating objective reliance the Court must look to the state of the law at the time plaintiffs contemplated filing suit. The appropriate time period in this instance is the time between 1970, when plaintiffs’ claims arose, and 1981 when plaintiffs commenced this action. See Wachovia Bank & Trust Co. v. Nat’l. Student Marketing, 650 F.2d 342 (D.C.Cir.1980).

The inquiry thus commences with whether a litigant could have reasonably relied upon the tolling provision in light of the state of the law from 1970-81. Defendants characterize plaintiffs as litigants who chose to rely upon the tolling provision “with all its constitutional and interpretive risks.” The risks, they claim, were apparent from cases the tolling provision applied to foreign corporations otherwise amenable to process.

By 1970 a handful of opinions had construed the tolling provision. Whalen v. Young, 28 NJ.Super. 543, 101 A.2d 64 (Law.Div.1953), held that a foreign corporation is not “represented” within the meaning of the tolling provision, so as to avoid the tolling effect, merely because it is subject to service through the Director of Motor Vehicles.

To the contrary, Ferraro v. Ferro Trucking Co., 72 N.J.Super. 519, 179 A.2d 74 (Law Div.1962), found the statute tolled as to a foreign corporation amenable to process by service on the Director of Motor Vehicles.

In 1963 the New Jersey Supreme Court rejected an equal protection challenge to the tolling provision in Lemke v. Bailey, 41 N.J. 295, 196 A.2d 523 (1963). It held that with respect to individual (but not corporate) defendants the statute was not tolled even when such defendants were amenable to process through service on the Director of Motor Vehicles.

In 1970 then, the weight of New Jersey authority did not indicate any constitutional or interpretive risks in relying on the tolling provision. Ferraro, the lone authority to the contrary, is premised upon a distinction between individual and corporate defendants which this Court believes is spurious. In 1974 another trial court opinion stated as much, thus further discrediting Ferraro.

In Ferraro the court distinguished the holding in Whalen and Gotheiner upon the basis that the latter opinions concerned an individual nonresident motorist, while Ferraro dealt with a nonresident corporate defendant. This is a distinction without a difference and is illogical.
* * * * * *
There is no logical reason to treat corporate and individual defendants in a different manner. Standards applicable to one are applicable to the other.

Lackovic v. New England Paper Tube Co., Inc., 127 NJ.Super. 394, 398, 317 A.2d 426, 428-29 (Law Div.1974) (emphasis added).

Ferraro is the source which defendants insist foreshadowed Coons I. Even if Ferraro otherwise foreshadowed Coons I’s commerce clause holding, this Court could not accept a substantially discredited trial court opinion as a “clear foreshadowing” of the tolling provision’s eventual demise.

Any doubt as to constitutionality or interpretive risks surrounding the tolling provision were allayed by the New Jersey Supreme Court’s decision in Velmohos v. Maren Engineering Corp., 83 N.J. 282, 416 A.2d 372 (1980). There the Court rejected due process and equal protection challenges to the tolling provision and held that the approach taken years earlier in Lemke applied with equal force to toll the statute of limitations as to foreign corporations amenable to process through long arm jurisdiction.

Thus, when plaintiffs filed their suit in 1981, the holding of invalidity in Coons I under the commerce clause was not clearly foreshadowed. The tolling provision had been on the books since 1949. Some form of tolling provision had been a fixture of New Jersey law since 1820. See Lemke 41 N.J. at 298, 196 A.2d at 525 (1963). The constitutional challenges under the due process and equal protection clauses had been settled.

The first mention of a potential commerce clause problem by an appellate court in G.D. Searle & Co. v. Cohn, 455 U.S. 404, 102 S.Ct. 1137, 71 L.Ed.2d 250 (1982), occurred only after this suit was commenced. Up to that point the only mention of potential commerce clause problems was in a footnote to the trial court’s opinion in Searle, 447 F.Supp. 903, 911 n. 17 (D.N.J. 1978).

Thus, during the years 1970-81 there was little indication of the invalidation of the tolling statute as to foreign, unrepresented corporations on commerce clause grounds. Under these facts the declaration of Coons I was not clearly foreshadowed. A litigant would have been justified in relying upon the tolling provision.

2. Factor Two — Burden v. Benefit

The second Chevron factor directs the Court to examine “the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 1738, 14 L.Ed.2d 601 (1965). Defendants rely upon the terse analysis in Cohn for the proposition that prospective application of Coons I will retard its operation. In Cohn the court stated:

“The purpose of the constitutional rule which governs the case is to free interstate commerce from the burdens which might be imposed by the individual states through which that commerce flows. Retroactive application of Coons I furthers that objective; prospective application defeats it.”

598 F.Supp. at 971.

This position ignores the stark reality that in several cases involving civil statutes invalidated on constitutional grounds federal courts have opted for non-retroactivity. See, e.g., Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969); Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969); England v. State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). Clearly, this Court’s analysis must go beyond the talismanic recitation in Cohn.

The Court notes at the outset that this is the most difficult of the Chevron factors to apply. See, e.g., Marino v. Bowers, 657 F.2d 1363 (3rd Cir.1981); Ramey v. Harber, 589 F.2d 753 (4th Cir.1978). In the absence of suggestion by any party of an appropriate standard under which to scrutinize whether retroactivity will further or retard the operation of the holding in Coons I, the Court relies upon Lemon v. Kurtzman, 411 U.S. at 200, 93 S.Ct. at 1469, which teaches that questions of civil retroactivity are equitable in nature, involving a special blend of what is necessary, fair and workable. Id. In weighing this determination a Court must look to the “practical realities and necessities inescapably involved in reconciling competing interests, notwithstanding that [some of] those interests have constitutional roots.” Id.

Lemon thus requires a weighing of the benefits to be gained from retroactivity against the burdens imposed upon litigants as explicated under the first and third Chevron factors. See, e.g., Ramey, 589 F.2d at 753. Accord Coons II, 96 N.J. at 434, 476 A.2d at 772.

The Court concedes that the purpose of Coons I is to rid interstate commerce of the burden which the tolling provision might have imposed. Retroactive application would completely achieve the ultimate purpose of Coons I. However, when the Court examines the effect of the rule, prospectivity is called for. Plaintiffs argue that in this case the actual impact on interstate commerce is fairly negligible, i.e., while the tolling statute potentially burdened interstate commerce, in actuality it did nothing to deter defendants from marketing their products in New Jersey simply because they were compelled to register in New Jersey in order to permit recourse to the statute of limitations.

The Court finds the New Jersey Supreme Court’s pronouncement on this factor persuasive.

[T]he absence of any showing that in fact defendant and corporate amici suffered a burden borne of a compulsion to register in New Jersey to permit recourse to the statute of limitations ... [convinces us] that the purpose of the prior ruling is satisfied by [prospectivity]-

96 N.J. at 434, 476 A.2d at 772.

In the absence of any actual demonstrated burden on interstate commerce the Court believes, on the balance, that the burden imposed by retroactivity far outweighs the incremental benefit that would accrue; therefore, prospectivity will not hinder the operation of Coons I.

3. Factor Three — The Equities

The third Chevron factor directs this Court to examine the inequities imposed by retroactivity. On this point, defendants insist that this case is “on all fours” with Cohn. They characterize plaintiffs as those who chose to rely on the “tolling statute with all its interpretive risks.” The gravamen of Cohn is that at the time plaintiff filed suit “a careful attorney” should have known there were risks in relying on the tolling provision. That Cohn is inapplicable to this case is patent. The Cohn Court noted that by 1980 (one year prior to the instant suit) the constitutional questions had been settled. 598 F.Supp. at 972. See also supra p. 1463.

Moreover, the equitable considerations here point, on the balance, toward prospectivity.

1. The retroactive application of Coons I would deprive plaintiff of any remedy whatsoever. This consideration weighed heavily in the Chevron decision. See 404 U.S. at 108, 92 S.Ct. at 356. In this case, invalidating the tolling provision in mid-suit is no different than the announcement in mid-suit in Chevron that a shorter statute of limitations governs the action. Here, as in Chevron, prospectivity merely preserves plaintiff’s day in court.

2. Furthermore, this case has been pending through four years of costly pretrial. The case is scheduled to be pretried this month; a trial date is imminent. It would be particularly inequitable at this phase to bar this claim by retroactive application of Coons I where defendants have waited until this late stage to interpose this defense. If, as defendants insist, the invalidity of the tolling provision was “clearly foreshadowed” it is beyond comprehension that defendants have not raised it at an earlier phase.

3. In addition, a ruling in favor of retroactivity would countenance an anomalous situation wherein New Jersey state court litigants would continue to have viable claims because of the decision in Coons II; whereas, litigants in federal court would no longer have a claim only because it was pending in the federal forum.

One commentator has stated, “it is a fundamental ethical requirement that like cases should receive like treatment, that there should be no discrimination between one litigant and another except by reference to some relevant differentiating factor. The value of equality is at the root of our system of justice.” Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 Va.L.Rev. 201, 237 (1965). Here there is no relevant differentiating factor; a holding of prospectivity would ensure equality of treatment of cases pending in both fora.

4. The examination of the equities should transcend those surrounding the immediate parties. See, e.g., Ramey, 589 F.2d 753; Raggio v. Matunis, 489 F.Supp. 16 (E.D.Pa.1979). Accord Coons II, 96 N.J. at 433, 476 A.2d at 772.

In Ramey the Court held Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (holding that discharge of nonconfidential, non-policymaking employees under patronage system violated first amendment), should be applied only prospectively. In reaching this conclusion, the Court noted under the third Chevron factor:

“[I]f a decision could produce substantial inequitable results if applied retroactively, there is ample basis in [Supreme Court] cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.” [Citation omitted.] We are con vinced that both hardship and disruptive instability will result from retrospective application of Elrod. Although we do not have any statistics showing the number of employees who would be affected, we may safely assume that there are thousands of patronage appointments in Virginia and in this circuit which will be subject to attack if Elrod is given retroactive application.

589 F.2d at 759-60 (emphasis added).

Similarly, there would be considerable hardship and instability within this state if Coons I is applied retroactively. The New Jersey Supreme Court noted the substantial inequities which would ensue to litigants in general. On this point Coons II states:

[I]t would be most difficult, if not impossible, to forecast the number of claimants who might be affected by a holding that Coons I should be applied retroactively or, as the Attorney General points out, to measure “the extent and nature of the prejudice to be suffered by those potential plaintiffs who justifiably relied on the validity of the tolling statute.”
Despite those difficulties, we conclude that given the nature of this statute, we are justified in presuming that because of the tolling feature, many suits may not have been brought against unrepresented foreign corporations. The foreign corporations did not take any action to avoid whatever vulnerability the enactment created; they did not register in New Jersey. The history of nonaction by both the corporations and potential plaintiffs satisfies us that participants ... ordered their affairs in accordance with the tolling statute.

96 N.J. at 433-34, 476 A.2d at 772.

The analysis is equally applicable here. To hold that potential or actual plaintiffs, who have delayed or completely foregone filing suit in reliance on the tolling provision are now forever barred from a remedy would work a substantially inequitable result.

5. Moreover, the conclusion that equities other than those surrounding the immediate parties are a salient consideration has “a virtue of practicality.” See Coons II, 96 N.J. at 434, 476 A.2d at 772. A decision to apply Coons I prospectively based upon, inter alia, a weighing of such factors will avert the instability which would ensue in other pending cases by establishing a general rule to which parties can conform their conduct. Otherwise, this Court anticipates a proliferation of motions designed to test whether the tolling provision remains viable based on the peculiar facts of each plaintiffs case. As noted in Coons II, a Court “cannot construct a workable rule by questioning, in each case, whether plaintiff successfully demonstrated actual reliance.” Id. See also Raggio v. Matunis, 489 F.Supp. 16 (E.D.Pa.1979) (“the Supreme Court cases do not require this court to weigh the equity and reliance interests in each individual case where a rule may or may not be retroactively applied. I cannot apply a rule retroactively in one case and deny retroactive effect in another case.”)

6. The single factor which points away from prospective application of Coons I is the inordinately long time these plaintiffs waited before filing their claim. Nearly 11 years passed between the time of diagnosis and the filing of the complaint. Defendants therefore contend that it is not inequitable to dismiss claims by plaintiffs “who slept on their rights” and that to hold otherwise would do violence to the concept of limitations. See generally Velmohos, 83 N.J. at 798; 416 A.2d at 381 (Sullivan, J., dissenting).

The Court realizes that plaintiffs cannot be said to have “actually relied” upon the tolling provision until they consulted an attorney sometime in 1981. Thus, defendants’ contention is somewhat well-taken. I find this consideration tempered, however, by what is an equally important portion (given its longevity) of the New Jersey concept of limitations. The tolling provision specifically carved out an exception to the rule and stated a plaintiff need not take action. See Coons II, 96 N.J. at 433, 476 A.2d at 772.

Defendants further argue that “actual reliance” is a sine qua non for prospectivity. In effect, they state that plaintiffs cannot claim the benefit of prospectivity without having proven they decided to fore-go filing suit in reliance upon the tolling provision. The Court does not believe this contention reflects a fair reading of Chevron. In Chevron plaintiff suffered injury in 1965. His delay in filing suit was not attributable to his knowledge of the limitations doctrine applied to his case. See 404 U.S. at 98, 92 S.Ct. at 351. In 1968, however, having consulted counsel, he filed suit. Only at that time could plaintiff have been said to rely upon the admiralty limitations doctrine applicable to his action. Yet, throughout the opinion, the Supreme Court spoke of plaintiff’s reliance upon law in existence from 1965-68. See id. at 106, 107, 92 S.Ct. at 355, 356. Thus, to the extent Chevron requires actual reliance, that requirement is satisfied by plaintiffs’ actual reliance on the tolling provision in filing this suit after consulting an attorney.

Furthermore, the inequity that may result to defendants from today’s ruling is tempered by the continued availability of the defense of laches. If defendants have been prejudiced in their defense of this case by an inexcusable lapse of time, for which plaintiffs are at fault that defense may be interposed under state law. See Velmohos, 83 N.J. at 293 n. 10, 416 A.2d at 378 n. 10.

III. Conclusion

On the balance, the Court concludes that under the objective standard of Chevron’s first factor, litigants could have reasonably relied upon the tolling provision. Whatever confusion surrounded the tolling provision did not amount to a “clear foreshadowing” of the rule which Coons I announced. Moreover, with the sole exception of the absence of actual reliance by these plaintiffs until a very late stage, the equities point toward prospectivity. The record adequately details the considerable hardship and burden to these litigants and others which would result from retroactivity. In light of the foregoing, the benefit to be gained from retroactivity is outweighed by the burdens which would ensue to litigants. The Court holds that as a matter of federal law, Coons I should be applied prospectively from August 3, 1983, the date of that decision.

Plaintiffs will submit an order reflecting the result reached herein. No costs.

      . Owens Corning Fiberglas’ motion was joined by the following parties:
      a. Third Party Defendants — Fibreboard Corporation, Nicolet, Inc., Keene Corporation, Keene Building Products Corporation, Raymark Industries, Inc., GAF Corporation, Eagle-Picher Industries, Inc.;
      b. Defendant/Third Party Plaintiffs — Carey Canadian Mines, Ltd., and Pittsburgh Corning Corporation.

      . Owens Corning Fiberglas’ and Pacor's are motions are filed pursuant to Fed.R.Civ.P. 14 which gives a third party defendant the right to assert against plaintiff any defense which defendants/third party plaintiffs have to the plaintiff’s claim.

      . Mr. Love admits that he did not file suit because he reached a point where he could no longer earn a living. He merely states that "as things got heated up people suggested I better go see a lawyer". He first consulted counsel in April 1981. Deposition of Plaintiff Joseph Love (Oct. 31, 1984) at 181-82, Love, et al. v. Johns-Manville Canada, Inc., et al, No. 81-2541 (D.N. J.).

      . The tolling provision provides:

        [I]f any corporation ... not organized under the laws of this state, against whom there is ...a cause of action, is not represented in this state by any person or officer upon whom summons or other original process may be served, when [a] cause of action accrues or at any times before the expiration of the time so limited, the time or times during which ... such corporation ... is not so represented within this state shall not be computed as part of the periods of time within which such an action is required to be commenced by this to be commenced by this section.

        Id. (emphasis added).

      . The Appellate Division had previously affirmed the trial court's denial of defendant American Honda’s summary judgment motion citing the tolling provision. Coons v. Honda Motor Co., Ltd., 176 N.J.Super. 575, 424 A.2d 446 (App.Div.1980). After the New Jersey Supreme Court denied the parties’ cross-motions for leave to appeal, the parties sought review in the U.S. Supreme Court. That Court consented to hear Honda's appeal, after which it vacated the judgment below and remanded to the Appellate Division for reconsideration in light of G.D. Searle & Co. v. Cohn, 455 U.S. 404, 102 S.Ct. 1137, 71 L.Ed.2d 250 (1982). In Searle the Court upheld the tolling provision against equal protection and due process challenges. It did not address a commerce clause challenge pending clarification of New Jersey law. Thereafter, the New Jersey Supreme Court certified Coons for appeal on its own motion.

      . Honda of Japan brought the main petition in the case, No. 84-385, complaining of the Coons II decision in favor of prospectivity. Plaintiff Coons filed his cross-petition, No. 84-591, seeking review of the New Jersey Supreme Court's holding in Coons I, that the tolling provision violates the commerce clause of the federal constitution. See Honda Motor Co., Ltd. v. Coons, — U.S. —, 105 S.Ct. 808, 83 L.Ed.2d 800 (1985) (Rehnquist, J., dissenting from denial of certiorari in No. 84-591).

      . The New Jersey Supreme Court's Coons II decision looms as something of a maverick applying state law standards to the issue of retroactivity of federal constitutional rulings.

      . While Chevron was pending, the Supreme Court held in Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969), that state law, rather than admiralty law, including state statutes of limitation, applied to personal injury actions relating to fixed structures on the Outer Continental Shelf. Chevron, involved a suit for personal injury suffered by the plaintiff while working on the defendant’s drilling rig located on the Outer Continental Shelf. At the time Chevron was instituted, plaintiff's action was subject to limitation only by the admiralty doctrine of laches. The Chevron suit was filed within three years of the injury but outside the one-year statute of limitations which Rodrigue later held applicable.

      . Johnson has spawned considerable confusion in the retroactivity area. In Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984), a case involving the retroactivity of a new fifth amendment criminal law decision, the Court seemed to curtail severely the scope of Johnson, stating that Johnson’s application of the "clear break" test did not control in Stumes because the retroactivity question in Stumes "is controlled by prior precedent, arises on collateral review, and does not involve the Fourth Amendment”. Id. at 1341 n. 3. This apparent curtailment of Johnson in Stumes was severely criticized by the three Stumes dissenters, id. at 1352-53, (Stevens, J., joined by Brennan, J., and Marshall, J., dissenting), and was not the first time members of the Supreme Court have disagreed over the scope oí Johnson. See, e.g., Mack v. Oklahoma, 459 U.S. 900, 103 S.Ct. 201, 74 L.Ed.2d 161 (1982) (O’Connor, J., joined by Rehnquist, J., dissenting to decision to remand case to state court for reconsideration in light of Johnson; dissenters arguing that Johnson is inapplicable because Mack involved fifth, not fourth, amendment, and that a remand would only confuse lower courts).

      . It is dubious whether Johnson has any vitality outside the fourth amendment area. See Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984) (rule of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, rehg. denied, 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981), applied prospectively; despite absence of "clear break”, Edwards established new rule).

      . . Chevron indicates that any questions of actual reliance, i.e., whether plaintiffs were influenced in their actions by the old rule is a consideration under the third Chevron factor. See Chevron, 404 U.S. at 108, 92 S.Ct. at 356.

      . Wachovia is the only case to address this issue squarely. There the Court questioned whether Chevron required the court to look at the law at the time of the decision or at when the claim rose. The Court held:

        Chevron does not seek to compare a new decision to the extant law when the decision was published. Rather, Chevron favors comparing the decision to the law at the time the plaintiff claims to have relied upon it, i.e., the law after the claim arose and during the running of the limitations period. This choice is clear in the opinion itself. The very language of the first criterion set out in Chevron requires non-retroactive application of a decision that overrules law "on which litigants may have relied”. Moreover, the Court repeatedly noted that its Rodrigue decision reversed the law that the plaintiff relied upon when he contemplated filing suit. In reciting the facts, the Court remarked, “[w]hen this law suit was initiated, there was a line of federal court decisions” favoring application of admiralty law, and "the doctrine of laches, to the case”.

        Id. [404 U.S.] at 99 [92 S.Ct. at 351].
      I am aware of the decision of the Third Circuit in Marino v. Bowers, 657 F.2d 1363 (3rd Cir.1981), which states that "a court must look both to the state of the law at the time of the [new] ruling and the reasonable perceptions of the persons who claimed to rely upon it.” Id. at 1367. In Marino, unlike Wachovia, the timing of the inquiry was not in issue. Furthermore, on the basis of the analysis that follows, Marino points more clearly to prospectivity than does Wachovia. See infra p. 1463 (indicating that in 1981 the constitutionality of the tolling provision was settled).

      . Prior to Whalen, Gotheiner v. Lenihan, 20 NJ.Misc. 119, 25 A.2d 430 (Sup.Ct.1942), had similarly held the statute of limitations tolled as to a foreign corporation amenable to process through the Director of Motor Vehicles.

      . The Lemke Court did not rule on the effect of the tolling provision on foreign corporations stating it would “express no opinion on the . contradictory results of Whalen and Ferraro.” 41 N.J. at 301, 196 A.2d at 526.

      . In some criminal cases rulings which go to the “truth of the fact finding process" are generally held to apply retroactively for otherwise their operation would be retarded. See, e.g., Hankerson, 432 U.S. 233, 97 S.Ct. 2339; Ivan, 407 U.S. 203, 92 S.Ct. 1951.

      . The recent denial of the cross-petitions for certiorari in Coons makes Coons II’s prospectivity rule binding in the New Jersey state courts.

      . While defendants no doubt would contend that plaintiffs must suffer any adverse consequences of their choice of forum, the Court notes that it is not at all uncommon for these asbestos-related cases to have been removed to federal court, thus placing the litigation in a forum contrary to a plaintiffs choice.

      . In his Brief in Opposition to the petition for certiorari the Attorney General expands upon the nature of the prejudicial result.
      There may exist potential plaintiffs, who had a cause of action against a foreign, unrepresented corporate defendant which was amenable to longarm service in New Jersey during the assumed tolling of the statute of limitations. Such plaintiffs, in strict reliance on the tolling statute and for reasons of convenience, strategy, expense and the like, opted to refrain from utilizing long-arm service as the only available means for instituting action in this State within the statute of limitations. Such potentital plaintiffs would be seriously prejudiced by a retroactive application of Coons I since, but for the tolling statute, timely suit would have been commenced in New Jersey. In addition, there may be potentital plaintiffs who had a substantial cause of action against a foreign, unrepresented corporate defendant which was not amenable to long-arm service in New Jersey. Such plaintiffs, but for the tolling statute and the anticipation of filing suit in New Jersey sometime in the future, would have presumably made effort to institute action in a foreign jurisdiction in order to prosecute the cause of action. The expense and inconvenience of instituting such an action would have been justified in light of the seriousness and/or substantiality of the cause of action. Clearly such plaintiffs would be severely prejudiced by a retroactive application of the tolling statute’s invalidity particularly if the availability of the out-of-state forum were now foreclosed because the applicable statutes of limitation had run.
      Attorney General's Brief in Opposition to Petition for a Writ of Certiorari to the Supreme Court of New Jersey at 9-10, Honda Motor Co., Ltd. v. Walter P. Coons, No. 83-353, cert, denied, — U.S. —, 105 S.Ct. 808, 83 L.Ed.2d 800 (1985).

      . Plaintiffs here are not like those in Cohn who, with knowledge of the statute after consultation with an attorney consciously decided to forebear filing suit. See 598 F.Supp. at 971.

      . See discussion of the history of the tolling provision supra p. 1463.

      . The Court finds no distinction between plaintiffs here and others such as those in Wachovia or Chevron. In each case of limitations which ultimately was curtailed by intervening decisions.

      . Some commentators argue that is so. See Corr, Retroactivity: A Study in Supreme Court Doctrine “As Applied", 61 N.C.L.Rev. 745, 773 (1983).


author: ROBERT F. COLLINS, District Judge.

text:
    Susan H. STEWARD v. HOLIDAY INN (SIC), INC.
    Civ. A. No. 85-264.
    United States District Court, E.D. Louisiana.
    May 29, 1985.
    Joseph W. Thomas, New Orleans, La., for plaintiff.
    George W. Loveland, II, Memphis, Tenn., for defendant.
   ROBERT F. COLLINS, District Judge.

This matter is before the Court on motion of defendant, Holiday Inns, for summary judgment. Wherefore, after a careful consideration of the arguments of counsel, the submitted memoranda, and the applicable law, the Court hereby GRANTS defendant’s motion for summary judgment.

Holiday Inns fired plaintiff while she was hospitalized on February 17, 1984. Plaintiff alleges Title YII sex discrimination. 42 U.S.C. § 2000e-5(e) requires that charges be filed with the Equal Employment Opportunity Commission (EEOC) “within one hundred and eighty days after the alleged unlawful employment practice occurred.” Plaintiff did not file a Charge of Discrimination with the EEOC until September 13, 1984, 209 days after her discharge.

Plaintiff seeks to invoke the equitable doctrine of tolling in order to defeat summary judgment. Plaintiff alleges that she was physically and mentally incapacitated from January 29, 1984 to March 17, 1984, and that this incapacitation should toll the 180-day filing period. If the March 17th date is accepted and the equitable doctrine of tolling is determined to apply to cases of alleged physical and mental incapacitation, her filing would be deemed to be timely, albeit on the 180th day.

A factual problem arises with respect to the dates of her incapacitation. In her discrimination charge filed with the EEOC, plaintiff claimed her incapacitation ended March 15, 1984. If the March 15th date is accepted, her filing would be deemed to be tardy (182 days), even if the equitable doctrine of tolling is applied. The March 15th date appears on plaintiff’s Charge of Discrimination filed with the EEOC. Defendant argues this is the proper date.

The Court accepts the March 17th date now proposed by the plaintiff because disputed facts are viewed in a light most favorable to the non-moving party. Although plaintiff initially claimed her incapacity ended on March 15th, the Court accepts the March 17th date found in her affidavit.

There are no cases to date applying the doctrine of equitable tolling to cases of physical or mental incapacity.

In Chappell v. Emco Machine Works Co., 601 F.2d 1295 (5th Cir.1979), the Fifth Circuit described three types of cases in which equity would “toll” the running of the time period. They were: (1) where plaintiff filed his/her lawsuit in a state court which had subject matter jurisdiction but which was the wrong forum under state law; (2) where plaintiff was not aware of facts giving rise to his/her claim; and (3) where the EEOC misled plaintiff regarding his/her rights under Title VII.

The Chappell court found that the facts of the case did not fit into any of the three categories. It dismissed Chappel’s suit for failure to file within 180 days. The court declined to extend the tolling principle any further. The Fifth Circuit noted that the plaintiff “could easily have discovered whether her complaint was filed merely by writing or phoning the EEOC office.” 601 F.2d at 1303.

Like Chappell, the instant case does not fit into any of the three traditional categories. Physical and/or mental incapacitation should not become a fourth category tolling the filing period. Susan Steward, like Ms. Chappel, “could easily have discovered whether her Complaint was filed merely by writing or phoning the EEOC office.”

Accordingly, this Court rules as a matter of law that the 180-day period to file a discrimination charge pursuant to 42 U.S.C. § 2000e-5(e) is not tolled by a period of alleged physical and/or mental incapacity. This ruling is supported by the Fifth Circuit pronouncement in Chappell. Plaintiff cites no cases where the equitable tolling doctrine has been invoked by reason of physical or mental incapacity.

This ruling is consistent with the EEOC’s dismissal. The EEOC, with full knowledge of plaintiff’s physical incapacity and request for equitable tolling, dismissed plaintiff’s Charge of Discrimination because it was not filed within 180 days of the alleged discrimination.

Wherefore, the motion of Holiday Inns for Summary Judgment is hereby GRANTED.