author: GLEN M. WILLIAMS, District Judge.

text:
    INTERNATIONAL UNION, UMWA, Plaintiff, v. EASTOVER MINING CO., Eastover Land Co., Duke Power Co. and Virginia City Coal Co., Defendants.
    Civ. A. No. 83-0209-B.
    United States District Court, W.D. Virginia, Big Stone Gap Division.
    March 1, 1985.

      Willard Owens, A. Randall Vehar, Washington, D.C., Stuart B. Campbell, Jr., Wytheville, Va., John B. Rayson, E.H. Ray-son, Knoxville, Tenn., for plaintiff.
    Homer L. Deakins, Jr., Frederick A. Stuart, Atlanta, Ga., Carl Forster, Harlan, Ky., for Eastover Mining & Land Cos.
    Douglas Campbell, Tazewell, Va., Homer L. Deakins, Jr., Atlanta, Ga., Robert M. Bisanar, Charlotte, N.C., for Duke Power Co.
    David D. Johnson, Charles Q. Gage, Charleston, W.V., James P. Jones, Bristol, Va., David Boyd, Chicago, 111., for Virginia City.
   MEMORANDUM OPINION AND ORDER

GLEN M. WILLIAMS, District Judge.

International Union, United Mine Workers of America (UMWA) filed this three-count complaint pursuant to Section 301(a) of the National Labor Relations Act, 29 U.S.C. § 185(a). Count One of the complaint seeks rescission of a transaction between Eastover Mining Company, Eastover Land Company and Duke Power Company (selling defendants) and Virginia City Coal Company (purchasing defendant). Count Two seeks damages against the selling defendants for breach of the 1981 Bituminous Coal Operators Association (BCOA) Agreement, specifically Article I thereof. Count Three seeks damages against Virginia City Coal Company for inducing the selling defendants to breach the 1981 BCOA Agreement and for interfering with UMWA’s rights thereunder.

Article I of the 1981 BCOA Agreement provides in part as follows:

This agreement shall be binding upon all signatories hereto, including those employers which are members of signatory associations, and their successors and assigns. In consideration of the Union's execution of this Agreement, each Employer promises that its operations covered by this Agreement shall not be sold, conveyed, or otherwise transferred or assigned to any successor without first securing the agreement of the successor to assume the Employer’s obligations under this Agreement. Provided that the employer shall not be a guarantor or be held liable for any breach by the successor or assignee of its obligations, and the UMWA will look exclusively to the successor or assignee for compliance with the terms of this Agreement.

Eastover Mining Company has filed a motion to dismiss based on two grounds: first, that the complaint fails to state an actionable claim against Eastover since Eastover met its obligations under Article I, and second, that Virginia City Coal Company did not induce a breach of the 1981 BCOA Agreement since there was no breach by the selling defendants. UMWA has filed a motion for partial summary judgment seeking judgment against all four defendants on the issue of liability only. UMWA contends that the selling defendants violated the contract as a matter of law when they sold the Jawbone operation to Virginia City without requiring Virginia City to assume the selling defendants’ obligations under the 1981 BCOA Agreement. UMWA also moves for partial summary judgment against Virginia City, alleging that the record shows without dispute that Virginia City induced the selling defendants to breach the 1981 BCOA Agreement. Virginia City has filed a motion to dismiss or, in the alternative, for summary judgment, contending that Eastover did not violate the Agreement and that Virginia City did not induce Eastover to violate the Agreement.

Eastover Mining Company and Eastover Land Company are wholly owned subsidiaries of Duke Power Company. For several years, Eastover Mining Company operated four mines: Arjay, High Splint, and Brookside, all in Harlan County, Kentucky, and Jawbone, located in Wise County, Virginia. All coal produced at these mines was sold to the parent company, Duke Power Company. Arjay and High Splint mines were operated under contract with Southern Labor Union while the Brookside mine in Kentucky and the Jawbone mine in Virginia were operated under a contract with UMWA. Because of a 1982 ruling of the North Carolina Utilities Commission concerning the passing on of costs to consumers, Duke Power decided to sell all of its Eastover mines. The Brookside mine in Kentucky was sold and the provisions of Article I of the BCOA Agreement were passed on to the purchaser. The two mines operating under contract with Southern Labor Union were sold without incident.

The Jawbone mine was operated on a tract of land leased from a subsidiary of ANR Coal Company. By January 1983, ANR decided to attempt to buy the Jawbone mine; negotiations began that same month. Neither ANR nor any of its subsidiaries had ever had any working relationship with UMWA. The evidence is clear that, from the outset of the negotiations, they did not intend to become involved with UMWA. ANR knew from the beginning of the negotiations that the 1981 BCOA Agreement contained a successor-ship provision (Article I). Thus, in early 1983, ANR retained a management consulting firm, Southeastern Employee Service Corporation (SESCO), to advise how the Jawbone mine could be purchased without violating the letter and spirit of Article I. SESCO wrote a letter to ANR dated January 25, 1983 (Parker, Exhibit 4) in which SESCO advised ANR how it could avoid Article I. First, ANR should require East-over to contact UMWA and advise them that it was permanently shutting down the mine; second, Eastover should have a meeting with its employees and announce that the facility was permanently closing and should send a written notice of termination of the Agreement to each employee; third, a period of at least a month should pass between the date that Eastover shut down the mine and the date of approval of the buy-sell agreement between Virginia City and Eastover.

Subsequently, ANR submitted a written proposal (Robertson, Exhibit 4) offering Eastover twelve million dollars as a purchase price and requiring as preconditions that Eastover cease all operations and terminate all employees and that forty-five days elapse between the date of the termination and the closing of the sale. On March 6, 1983, ANR submitted an additional offer increasing the price to twenty million dollars, to be paid in two installments, and including the same requirements with regard to the closing of the mine. On March 10, 1983, ANR submitted another proposal offering twenty million dollars in cash. The final agreement, dated March 17, provided that the sale would be for 22.3 million dollars and included the preconditions which had been set out by ANR throughout the negotiations. Defendant Virginia City is a subsidiary of ANR which was organized for the purpose of purchasing the Jawbone mine. After an agreement in principle was made, there was an exchange of drafts of the purchase agreement. The first draft, prepared by the selling defendants, included the following paragraph, Section 1.6(a):

Covenants and agreements of buyer. Buyer covenants and agrees: (a) to recognize the United Mine Workers of America as the collective bargaining representative of the bargaining unit employees of the Virginia City mine located at Virginia City, Virginia and to assume EMC’s obligations to those employees under the National Bituminous Coal Wage Agreement of 1981.

The foregoing language was prepared by attorneys for Duke Power Company who were aware of the contractual successor-ship provision in the 1981 Agreement. It was the intention of Duke Power Company and consequently Eastover to comply with Article I of the BCOA Agreement. This specific language was used by the selling defendants in the earlier sale of the Brook-side mine in Kentucky. The evidence is undisputed that at that time, the selling defendants thought that such a clause was required and that Virginia City would be a successor. Virginia City told the selling defendants that they would not accept the agreement with the foregoing language and further informed them that they would not assume the UMWA contract.

On April 8, 1983 the Jawbone mine was closed and its employees were terminated as suggested by SESCO to avoid assumption of the BCOA Agreement. The closing of the mine and termination of the employees were more than one month before the sale agreement was finally reached. Virginia City’s agents stated that the mine would probably remain idle until the “end of the UMWA contract.” Virginia City further expressed the view that keeping the mine idle until the 1981 Agreement expired would free it from any obligation to UMWA. The final contract between the selling defendants and Virginia City Coal Company contained the following language, designated as Section 1.7(a):

If buyer is a successor to EMC within the terms of the National Bituminous Coal Wage Agreement of 1981, (the ‘Wage Agreement’), to recognize the United Mine Workers of America as the collective bargaining representative of the bargaining unit employees of Virginia City Mine located in Virginia City, Virginia, and to assume EMC’s obligations to those employees under the Wage Agreement; provided, however, that Buyer reserves the right to contest the question of whether or not it is a successor within the terms of the said Wage Agreement.

In addition, Section 2.1(c) was amended so that the final draft, instead of saying that there was a transfer of all “leases, contracts,” provided that there was a transfer of all “leases, contracts (other than the Wage Agreement).”

By the contract, Virginia City obtained Eastover’s Jawbone operation, including all leases, contracts and equipment. This was not a stock sale but a sale of assets. Virginia City insisted that Eastover’s mining permits be assigned to them. Virginia City has not operated the mine at all through the date of this opinion. The 1981 BCOA Agreement has expired; there was no operation of the mine during the life of the agreement. Most of the equipment is still in place in the mine, although some of it has been removed to other mines being operated by Virginia City.

Eastover’s mining contract with UMWA first began in 1975. The 1974 BCOA Agreement was the first to adopt the language binding signatories’ successors, as found in Article I of the 1981 Agreement. The 1971 contract had no similar language. This suggests that between the negotiations in 1971 and those in 1974, events occurred which caused a change in the language of the contract between UMWA and BCOA.

The cross-motions before- the court present the following question: did the selling defendants breach their obligations under the UMWA contract’s successorship provision (Article I) by including Sections 1.7(a) and 2.1(c) in the purchase agreement with Virginia City?

PAROL EVIDENCE AND HISTORY OF SUCCESSORSHIP CLAUSE

In briefs filed with the court and in oral argument before the court, both the plaintiff and defendants agreed that the court’s answer to the foregoing question would depend upon how the court defines the word “successor.” Defendants contend that there have been numerous interpretations in arbitration decisions, in the National Labor Relations Act and in other forums where the statutory word “successor” has been defined to have a particular meaning and not to mean any purchaser. On the other hand, the plaintiff argues: (1) that the court should consider parol evidence of the bargaining history involving the placement of the successorship clause in the 1974 contract; (2) that the court should utilize the meaning commonly understood by the parties who actually negotiated the clause, rather than a meaning taken from a court decision prior to the time that this language was placed in the Agreement, and (3) that where the parties have agreed upon the meaning of the contractual successorship clause, the court should honor their interpretation.

Among other documents filed in this case, is one by Joseph Yablonski who was a UMWA attorney involved in negotiating the 1974 Agreement. His affidavit sets forth the historical context in which the contractual successorship clause was negotiated into the 1974 agreement. It shows that the UMWA was concerned over an interpretation placed by the United States Supreme Court upon the statutory successorship doctrine. In Howard Johnson Co. v. Detroit Local Joint Executive Board, 417 U.S. 249, 94 S.Ct. 2236, 41 L.Ed.2d 46 (1974) and NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972), the Court held that passive clauses in collective bargaining agreements which attempt to bind “successors, assigns, purchasers, lessees, or transferees” are ineffectual for that purpose and that a successor, in the absence of an express assumption, is not required by operation of law to assume the obligation of the seller’s collective bargaining agreement with the union. Yablonski states that the UMWA responded to these Supreme Court decisions by securing a provision which required a signatory to the contract who was selling his property to bind his successors to the collective bargaining agreement. The Yablonski affidavit points out that the purpose of this provision was to enable the union to bind any purchaser to comply with the UMWA contract if he bought from an employer who was signatory to the union contract.

A collective bargaining agreement is not an ordinary contract. Bowen v. United States Postal Service, 459 U.S. 212, 103 S.Ct. 588, 74 L.Ed.2d 402 (1983). Moreover, collective agreements are often loosely drawn and less complete than other types of contracts. Much more must be supplied from the context in which they were negotiated to properly interpret them than is true of other contracts. Cox, Reflections upon Labor Arbitration, 72 Harv.L.Rev. 1482, 1500 (1959). “All collective bargaining agreements between BCOA and UMWA are not conceived in a vacuum; each side has lawyers scrutinizing every word in light of old interpretations.” Clinchfield Coal Co. v. District 28, UMWA, 556 F.Supp. 522 at 530 (W.D.Va. 1983); aff’d Clinchfield Coal Co. v. District 28, UMWA, 720 F.2d 1365 (4th Cir. 1983). As this court has noted previously, “... [A]ll words in these contracts have special meaning to the parties. For example, ‘employee,’ ‘employer,’ ‘classified,’ ‘in and around the mines,’ ‘signatory’ and many others have grown up over the years by interpretation to have special meaning.” Id. at 529. This is well-stated in Communications Workers of America v. Pacific Northwest Bell Telephone Co., 337 F.2d 455, 459 (9th Cir.1964):

The very nature of a collective bargaining agreement requires that it be read in the light of bargaining history and the history of the party’s own interpretations. A new technical rule of evidence which would render incompetent parole evidence of a party’s intent would seem peculiarly inappropriate in the area of collective bargaining.

This does not mean that use of bargaining history is always admissible as an exception to the parole evidence rule. For example, it has been held that bargaining history is not appropriate in determining whether a grievance is arbitrable. International Union of Electrical, Radio & Machine Workers, AFL-CIO v. General Electric Co., 332 F.2d 485 (2nd Cir.1964). The court stated that history can be very useful in determining whether a company has violated any provision of a contract, but it is of no use in deciding whether a grievance should be submitted to an arbitrator. The same court went on to note that history would appear to be a very appropriate device for interpreting a contract if a provision is ambiguous or unclear. However, in order for something to be excluded from a contract, it must be clearly and unambiguously stated as being excluded. The court therefore stated that one should not consider parole evidence in interpreting an exclusionary clause. Id. at 490.

This court will consider the evidence of bargaining history simply to explain why a new Article I paragraph changed the 1974 contract language from that in the 1971 contract. The court will not accept Mr. Yablonski’s interpretation of the word “successor” as evidence since none of the defendants participated in those bargaining sessions. The decision does not hinge upon the Yablonski affidavit except as it explains the reason for the change in the 1974 Agreement.

There is no question that the word “successor” has a different meaning in different contexts depending upon whether the issue involves an unfair labor practice, the duty to recognize and bargain with a union, or the duty to arbitrate. When defined in an NLRB decision involving statutory successors, in a contractual sense, in an arbitrator’s decision as distinguished from a court’s, or in a pension case, the word “successor” has different meanings. See Howard Johnson Co. v. Detroit Local Joint Executive Board, 417 U.S. at 263, 94 S.Ct. at 2244. Other language was changed in the 1974 Agreement, not just the word “successor.” The court must interpret Article I in its entirety without focusing upon a single word. The court will consider not only the language of Article I but also the facts surrounding the East-over sale and the contract language eventually adopted between the selling defendants and Virginia City.

THE MEANING OF THE ARTICLE I SUCCESSORSHIP CLAUSE AS IT RELATES TO THIS CONTRACT

The selling defendants contend that the Article I contractual successorship clause amounts to nothing more than a restatement of what had actually been said in 1971. This is an astounding assertion. It makes no sense to a reasonable mind that attorneys would argue for weeks over language in a contract with the result that the new language simply restates the old language. Such an argument will not hold. It is quite obvious that UMWA was not bargaining for a clause which would mean that they would wait until after a sale had been concluded and then go through a lawsuit to determine whether a person who bought from a signatory employer was a successor.

Several facts in this case stand out. One is struck by the fact that when Eastover prepared the first contract, it inserted a provision which unequivocally bound Virginia City to assume all the contractual provisions of the BCOA Agreement. East-over and its associates interpreted their contract with UMWA the same way that UMWA now argues, that Virginia City was a successor within the meaning of the Agreement. Several other undisputed facts raise more questions than supply answers. For example, what difference does it make how long a company shuts down before a sale in determining whether the purchaser is a successor? This is a matter of form rather than substance, a meaningless ruse rather than a meaningful act. What difference does it make whether one buys the stock of a company or its assets in determining whether the purchaser is a successor? What difference does it make that a person says to those concerned, “I am not going to operate until the contract has expired” or “I am not going to operate for six months” or “I am not going to operate for five years”? The intention was to evade, rather than enter into a meaningful contract. Why would a company that does not intend to operate at all or for a lengthy period of time insist on including in its purchase an assignment of the mining permits? If a purchaser is not going to mine there is no need to obtain the mining permits at all. Even if there is some question as to what the word “successor” means, there is no question what the word “assignee” means. In this case, Virginia City was an assignee of the mining permits. The BCOA Agreement (Article I) applies to assignees as well as successors. The words are interchangeable. Mining permits are expensive and not easy to get. If a person does not intend to mine or to permit someone else to mine the property in the foreseeable future, the mining permits would expire and be of no value. It is revealing that Virginia City insisted upon an assignment of the mining permits at the same time it proclaimed having no intention of mining, at least during the life of the UMWA contract.

In the light of the Howard Johnson and Burns cases, it is clear that in 1974 UMWA wanted to avoid any post-sale litigation as to whether someone was a successor. The intention in the 1974 BCOA Agreement was to assure that successorship would be required before any contract of sale was made, to assure that signatories to the Agreement would pass their obligations on to purchasers so that UMWA would not be involved in litigation with the purchaser after the contract was made. If one accepts the argument made by the defendants, the successorship clause has no meaning, it is a nullity. Both the selling defendants and Virginia City admit that they were thoroughly familiar with Article I of the 1981 BCOA Agreement. Article I provides that the Agreement should be binding upon “successors and assigns” of all employers which were signatory to the Agreement. Virginia City without question was an assignee; since assignee or successor are used in the same context, Virginia City was also a successor.

The purpose of the successorship clause which was placed in the 1974 Agreement was to overcome the rulings of the United States Supreme Court set forth in Howard Johnson and Bums to the effect that a successor was not bound in the absence of an express assumption of the contract. UMWA sought the changes in the 1974 agreement to require an express assumption by a purchasing company. In light of this historical framework, it is clear that both the letter and spirit of Article I have been violated by the selling defendants because they have failed to carry out the purpose of the Agreement, which is to expressly bind the successors, assigns, purchasers, lessees, or transferees and to correct the ineffectual language in the previous agreement. Article I permits the successor or assignee to resist an assumption of the Agreement and provides that the UMWA will look to the successor or assignee for compliance with the terms of the Agreement. The contract of the selling defendants with Virginia City gives Virginia City the right to raise the question of whether they are successors, whereas they already retain this right under the BCOA Agreement. The selling defendants have not complied with their part of the Agreement in that they have not secured the agreement of the successor to assume their obligations. Therefore, the selling defendants have violated Article I of the BCOA Agreement.

COURT DECISIONS SINCE THE 1974 WAGE AGREEMENT

There is very little case law interpreting the separate successorship clause contained in Article I of the 1974 agreement. In District 17, District 29, Local Union 7113 and Local Union 6023, United Mine Workers of America, et al v. Allied Corp. and Armco, Inc., Shannon Pocahontas Coal Co., et al, 735 F.2d 121 (4th Cir.1984), the court found that Allied, a selling company, did not violate its obligations under the UMWA contract where it continued to pay health benefits throughout the term of the 1978 UMWA contract and Armco, Inc. and Shannon Pocahontas Coal Co., Inc., the transferee companies, did not qualify as “successors” since they did not assume the employer’s obligations to employer’s pensioners. In this case, “the District Court found that Allied breached Article I of the 1978 Wage Agreement by not ‘securing the agreement of its successors to assume Allied’s health benefit obligations to its retired employees under the agreement.’ ” Id. at 125. The Fourth Circuit found that even though it may be assumed that “Allied breached the 1978 agreement”, nevertheless Allied was not responsible for any damages; “because Article XX and Article I limit any rights and liabilities of the parties to the term of the contract, the parties could have reasonably foreseen that any damages would extend for the term of the contract until March 27, 1981.” Id. at 127 and 128. Noting that the 1978 Wage Agreement did not extend beyond three years, the court found that Allied was not liable beyond the terms of the contract it signed and that since it did not pass any obligations under the 1978 Wage Agreement to Armco and to Shannon Pocahontas, these two companies were not liable even though they later signed the collective bargaining agreement. The court went on to state as follows:

The District Court found Armco and Shannon-Pocahontas had breached Article I of the 1978 Wage Agreement by púrchasing mines from Allied and not assuming Allied’s obligations to the plaintiffs. The language of Article I is not susceptible to such construction. The clear language applies only to employers who sell, convey and transfer mines covered by the agreement. Buyers or purchasers of the mines are nowhere mentioned. At the time of the transfer, neither Shannon-Pocahontas nor its predecessor in name were signatory to the 1978 agreement. After acquiring the mines, Shannon-Pocahontas did execute the agreement.
Armco was a signatory at the time of the transfer of the Allied mine, but it does not follow that Armco is prevented from buying from Allied if it suspected Allied might be in violation of Article I which such violation caused no loss or damage to anyone.

Id. at 130.

The Fourth Circuit went on to point out that Armco and Shannon-Pocahontas could not be successors under the authority of Howard Johnson because in that case, the Supreme Court held that “the mere existence of a successor clause in a bargaining agreement did not bind Howard Johnson when it was perfectly clear that Howard Johnson refused to assume any obligations under the agreement.” Id. at 134.

It is significant that in Allied, the district court had determined “in its conclusion of law number 4, the court found that ‘Article I of the 1978 wage agreement prohibits a signatory employer from transferring a signatory coal operation to a successor or assign without the agreement of the successor or assign to assume the employer’s obligation under the wage agreement and any subsequent renewals of said wage agreement.’ ” Id. at 124, fn. 5. It is significant also that in Allied, the facts disclose that there was a sale of assets rather than a sale of stock. Furthermore, the transfer to the Shannon mine occurred in the following fashion: this mine was “transferred from Allied to Vera Mining Company, a wholly owned subsidiary of Allied Corporation. Through a merger, Vera became a wholly owned subsidiary of Royal Smokeless Coal Company, which is a subsidiary of A.T. Massey Coal Company. Vera subsequently changed its name to Shannon-Pocahontas.” Id. at 123, fn. 1. Thus, to summarize the Allied opinion as it relates to the instant case, the court did not disturb the finding that Allied had breached its agreement by failing to pass on its signatory coal operation to a successor or assign without securing the agreement of the successor or assign. The court simply held that Allied was not liable under any subsequent renewals of the same wage agreement and for this reason, reversed the district court. The majority opinion notes that Article I is not aimed at buyers or purchasers where there has been nothing passed on to them; it points out that only Allied could have breached the contract.

The dissenting opinion of Judge Sprouse serves to highlight the significance of the majority opinion in the case. Judge Sprouse puts the opinion in perspective as follows:

In Article I of the 1974 Wage Agreement, Allied agreed that its coal mining operations ‘... [would] not be sold, conveyed, or otherwise transferred ... to any successor without first securing the agreement of the successor to assume [Allied’s] obligations under this contract.’ It breached this agreement by selling its Harewood and McDowell County coal operations without passing along its pensioner obligations to the successors. The majority is not disturbed by this breach because Allied provided a form of alternative performance that guaranteed the pensioners’ benefits for the life of the 1978 contract. Article I of the 1978 Wage Agreement, however, guaranteed pensioners more than the rights of benefits for the life of the contract; ... Allied abided by the terms of Article I Armco and Shannon would have entered the 1981 negotiations as the last responsible employers of the retirees. As such, they would have been obligated to negotiate with the Union concerning the continual funding of the 1974 Benefit Fund. The companies may have succeeded in bargaining away these obligations or modifying the benefit arrangements but the pensioners’ rights would have been finally decided by the same process that created them, collective bargaining.

This court is of the opinion that, having the full thrust of Judge Sprouse’s thinking before them, the majority opinion in this case does not dispute the fact that Allied breached the contract when it failed to pass on the bargaining agreement to Armco and Shannon. In the contract now before this court, the selling defendants have done the same thing that Allied did; they have breached their contract because they failed to pass along the signatory agreement to the successor and assignee.

The case of Amax Coal Co. v. NLRB, 614 F.2d 872 (3rd Cir.1980), also supports the position heretofore outlined. In Amax, the court, among other decisions, determined that the successorship clause of Article I was not a violation of Section 8(e) of the National Labor Relations Act. In this regard, the court upheld the decision of NLRB. The court specifically held that the successorship clause of Article I of the BCOA Agreement was “lawful because its effect is primary.” The court goes on to give the purpose and understanding which the Third Circuit places on the successor-ship clause and states as follows:

The clause was clearly designed to assure that Amax’ own employees would retain their current contractual benefits in the event that their place of employment is sold to a new employer. The only obligation which the clause would place on Amax is to secure the purchaser’s agreement to adopt the contract before Amax sells the mining operations to the purchaser — that is, while the employees are still Amax’ employees. Once the mining operation is actually transferred, the clause would permit the Union to seek compliance only from the new employer who would have stepped into Amax’ shoes and thus become the primary employer of Amax’ former employees covered by the contract.

Id. at 886, 887.

It is to be noted that the Third Circuit in giving its interpretation of the successor-ship clause does not deem that the word “successor” has any peculiar meaning but simply refers to the fact that it would require the purchasers’ agreement to adopt the contract from the person selling the operation. Thus, the Third Circuit interprets the words “successor” and “assign” to mean the same as “purchaser.” The Fourth Circuit in Allied and the Third Circuit in Amax have deemed the words “successor” and “assign” to be equivalent to the word “purchaser.” Under the case law which has developed since 1974 in interpreting this clause, the selling defendants have clearly breached their contract. The court therefore grants partial summary judgment for the plaintiff against Eastover Mining Company, Eastern Land Company and Duke Power Company.

Count Three of the plaintiff’s complaint asserts an action against the buying defendant, Virginia City, for interference with contractual relations and for inducing the breach by Eastover of the 1981 BCOA Agreement. The complaint essentially alleges that Virginia City had knowledge of Eastover’s obligation under the Agreement to bind its successors, yet induced East-over’s breach by insisting on language which would violate the Agreement. As a result of Virginia City’s action, UMWA claims that its property rights were damaged. Virginia City has filed a motion to dismiss. The motion to dismiss is denied. However, summary judgment is not granted against Virginia City at this time.

The Clerk of this court is directed to send certified copies of this Memorandum Opinion and Order to all counsel of record.

      . Since this opinion was written and before entry, there has been an en banc decision in this case, reversing the panel decision. District 17, et al. v. Allied Corporation et al., No. 83-1117(L) (4th Cir. Feb. 11, 1985). The reversal enhances this court's opinion. The dissenting opinion in the en banc opinion adopts the panel majority opinion. It appears to be the unanimous view of the Court of Appeals for the Fourth Circuit that Allied breached Article I of its agreement with UMWA, as found by the district court.
      In the majority en banc opinion, Id., slip op. at p. 11, it is stated:
      The agreement, however, also anticipated that operators might withdraw from the coal business and, by Article I, obligated the seller of a coal mine to require the purchaser to assume the seller’s obligations under the agreement ... It is clear that Allied breached Article I of the agreement when it agreed with Armco and Shannon-Pocahontas that the latter, as successors, would not assume Allied's obligations under the 1978 agreement.
      In the above paragraph the Circuit Court uses the words "purchaser” and "successor” interchangeably.
      Citing Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), the court said, "The Supreme Court long ago recognized that collective bargaining agreements were not to be interpreted under traditional rules of contract but under a federal common law of collective bargaining." Id., slip op. at 13. The Allied en banc decision further states, "Allied’s breach occurred in 1980 when it transferred the mine to Armco and Shannon-Pocahontas without passing on all of its obligations as required by Article I of the 1978 collective bargaining agreement.” Id., slip op. at 19.


source: Caselaw Access Project

author: BILLINGS, District Judge.

license: Public Domain

text:
    Kathryn W. COBB v. DUFRESNE-HENRY, INC.
    Civ. No. 83-448.
    United States District Court, D. Vermont.
    March 1, 1985.

      Emily Joselson, and Peter Langrock, Langrock, Sperry, Parker & Wool, Middle-bury, Vt., for plaintiff.
    J. Garvan Murtha, Kristensen, Cummings, Murtha & Stewart, P.C., Brattleboro, Vt., for defendant.
   INTRODUCTION

BILLINGS, District Judge.

Plaintiff brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(f), on account of sexual harassment in employment, and pursuant to the Vermont Fair Employment Practices Act, 21 V.S.A. § 495(b). On August 4, 1983, the Equal Employment Opportunity Commission issued plaintiff a notice of right to sue.

FACTS

The defendant is an engineering firm with its principal office in Springfield, Vermont, and employs approximately ninety persons, of which ten to fifteen are female. On June 19, 1982, Robert Dufresne, a founder of the corporation, reassumed the president’s office, and office of chief executive officer, after a period of time in which another management team was in charge of the daily operations of the company. The plaintiff was employed by defendant at its Springfield office, commencing October 5, 1981, and terminating on August 11, 1982, as a clerical supervisor, her final salary being at the rate of $16,000 per year.

As of June, 1982, the defendant found no fault with the plaintiff’s technical work, although there had been concerns about her attitude and her association with other employees. There were at least two incidents which caused the president of the corporation to develop doubts about her veracity. As of June, 1984, the plaintiff’s immediate supervisor was changed and Andrew Coutermarsh was designated the personnel coordinator and thus became plaintiff’s immediate supervisor, or superior.

In early August, 1982, Robert Dufresne prepared and designed a poster, or flyer, to be distributed throughout the company announcing the annual company picnic, and it was posted in the Springfield office. The poster included, among other things, a notation to “bring your own bathing suits (women, either half)”. (Plaintiff’s exhibit 4.) One of the employees supervised by the plaintiff read it and was offended by it. She brought the poster to the attention of the plaintiff, who was likewise offended, and said: “Maybe it constitutes sexual harassment” and she immediately telephoned the Civil Rights Division of the Vermont Attorney General’s office. Following that conversation the plaintiff typed a memorandum addressed to her immediate superior, the memo being as follows:

To: Andrew Coutermarsh Personnel Coordinator,
From: Kathryn W. Cobb
Date: August 9, 1982
“In connection with the attached communication regarding the firm’s annual picnic, on behalf of myself and those whose signatures appear below, I respectfully request that you convey to Robert J. Dufresne, president of Dufresne-Henry, Inc., and any others responsible for this communication, that we find the wording ‘bathing suits — women either half’ to be offensive, and to constitute an incident of sexual harassment. We request the notice be removed from bulletin boards throughout the company where it has been posted, and replaced with a notice that does not contain this offensive phrase.”

The memorandum was signed by Kathryn W. Cobb and Elizabeth C. McKnight, plaintiff's former supervisor, and Janet Cody, an employee supervised by plaintiff, and the one who had brought the poster to the attention of plaintiff.

Just before twelve noon on August 9th, plaintiff stopped her supervisor, also the personnel and affirmative action coordinator, and stated that she was angry about the poster, that it was sexual harassment and that she was going to do something about it. Mr. Coutermarsh back-pedalled on the issue, and indicated that plaintiff would have to do as she felt. A little later plaintiff put on Coutermarsh’s desk the prepared memorandum, indicating at the time that she was sorry to have to involve him, but she must do it. He read the memorandum at approximately 2:00 p.m. He then contacted plaintiff, in the presence of Elizabeth McKnight, and returned the memo to plaintiff, asking whether she really wanted to do this, and whether she was aware of and prepared to take the consequences. Plaintiff was angry. Later, Coutermarsh came back to plaintiff and said he would give the memorandum to Robert Dufresne, the president. The plaintiff, although then calm, said it was too late and refused to return the memo.

On August 10, 1982, plaintiff called the president, Robert Dufresne, and asked to see him. At 1:00 p.m. plaintiff and Dufresne met in his office, and she expressed her concern over the poster, although she did not bring the memorandum with her. She indicated that the poster was offensive, degrading, and in poor taste. Dufresne, who thought the poster was humorous, was surprised, but he was extremely polite, apologized and said that he had not meant to offend anyone, and suggested three alternative courses of action:

1. Remove and replace the poster, excising the offensive material;
2. Circulate a company-wide retraction; or
3. Forget the whole matter.

Plaintiff understood at that time that Mr. Dufresne did not mean to offend anyone, and so agreed that it was best to forget the matter since plaintiff thought this was one incident, and did not constitute sexual harassment. Plaintiff then returned to her workplace and conversed with other employees, explaining the incident and conveying Mr. Dufresne’s apologies.

During the afternoon, Mr. Dufresne heard from at least two other employees that the plaintiff was using the term “sexual harassment.” As a result, Dufresne called plaintiff into his office at approximately 4:30 p.m. and asked her if she had accused him of sexual harassment, and whether she had used the term. Plaintiff denied that she had used the term, and denied accusing Dufresne of any such conduct, and said she did not know where the term came from, and was surprised by the inquiry. The meeting lasted a very short time.

Early on August 11, 1982, Dufresne met with Coutermarsh and asked if he knew anything about the incident and Coutermarsh told him about the memorandum, the use of the term “sexual harrassment” included therein, and about his conversations with plaintiff on August 9,1982. Dufresne then told Coutermarsh that he was going to call plaintiff again to his office that morning, and wanted Coutermarsh present and he was again going to inquire if she had used the term “sexual harrassment” and indicated that if she lied to him he would probably fire her. At a little after 8:00 a.m. on August 11, 1982, plaintiff, Coutermarsh and Dufresne met in the latter’s office. Dufresne then informed plaintiff that he had information indicating that not only was she using the term “sexual harrassment” but that she was circulating a memoranda or petition containing the term. Plaintiff again denied using the term, despite Coutermarsh indicating at the time that he had seen the memoranda with the term therein. Dufresne said that the matter could then be solved by plaintiff showing him the memoranda, and plaintiff then said she didn’t have the memoranda and that it had been destroyed, but that she could repeat it orally, which she proceeded to do, but leaving out the term “sexual harrassment.” (The memoranda subsequently surfaced as a result of an Unemployment Compensation Commission hearing regarding plaintiff’s former supervisor, and as indicated aforesaid, the term was contained therein.)

Dufresne then said to plaintiff that she was lying and that he could stand a feminist and even an antagonist, but not a liar. Plaintiff denied the accusation and launched into a tirade that no one wanted her in the company; that this was what women have to put up with, and that she didn’t have to put up with it. Dufresne indicated that she was correct. Plaintiff then asked if she was fired and Dufresne said yes.

Plaintiff left, and that same day drove to Montpelier to file a charge of sexual harassment with the Vermont Attorney General’s office. On August 30, 1982, plaintiff signed the charge, (plaintiff’s exhibit 1), wherein she stated under oath that she again denied using the term sexual harassment, despite the fact that at trial she testified that she admitted using the term to Dufresne. Further, at trial, she claimed that she did not know the reason why she was fired, whereas in her sworn harassment charge she stated that Dufresne stated that his reason for firing was “that he could stand a feminist, even an antagonist, but not a liar.” The Court finds that plaintiff was fired for lying to Mr. Dufresne about whether she had used the term “sexual harassment” in connection with the offensive language on the poster.

DISCUSSION

The standards and burdens of proof applicable under Title VII employment discrimination cases were set forth by the United States Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and clarified in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). In cases involving allegation of retaliatory discharge, it is now well settled that the plaintiff has the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. If plaintiff succeeds in proving his or her prima facie case, the burden of production of evidence then shifts to the defendant to “articulate some legitimate, non-discriminatory reason” for the alleged retaliatory conduct. Finally, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. See Burdine, supra, and McCluney v. Joseph Schlitz Brewing Company, 728 F.2d 924 (7th Cir.1984). The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Burdine, supra, 450 U.S. at 253, 101 S.Ct. at 1093.

In an action alleging retaliatory discharge, a plaintiff must establish her prima facie case by proving that she was discharged for conduct protected by Title VII. Pouncy v. Prudential Insurance Company of America, 668 F.2d 795, 798 (5th Cir.1982). Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. If the trier of fact believes plaintiffs evidence, and if the employer is silent in the face of the presumption, the Court must enter judgment for the plaintiff, because no issue of fact remains in the case. Burdine, supra, 450 U.S. at 254, 101 S.Ct. at 1094.

To rebut the presumption raised by the plaintiffs prima facie case, the defendant is not required to prove that it did not illegally discriminate in discharging the plaintiff. The defendant need only articulate legitimate, non-discriminatory reasons. The defendant need not persuade the Court that it was actually motivated by the proffered reasons — it is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.

Once defendant has successfully articulated legitimate, non-discriminatory reasons for the discharge, the burden of persuasion falls back on the plaintiff to prove the reasons given by the defendant are a mere pretext for discrimination. In retaliatory discharge cases a plaintiff must prove, through admissible evidence presented at trial:

(I) That he or she was engaged in an activity protected by Title VII;
(II) That he or she was discharged, and
(III) That there was a causal connection between the participation in the protected activity and the discharge.

If defendant challenges causation, either by introducing evidence of no causal link, or of other cause, the burden is on the plaintiff to show that, “but for” the protected activity, no action would have taken place. That is, the employee need not prove that her activity was the sole basis for the employer’s action, but the employee must prove that “but for” the activity, he or she would not have been fired. McDonald v. Santa Fe Trail Transportation Company, 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976). If the defendant fails to persuade the fact finder to dismiss the action for lack of a prima facie case at the close of the plaintiff’s evidence, and if the defendant goes forward and offers evidence of the reason for the plaintiff’s dismissal, the fact finder must decide the ultimate question of discrimination vel non. McCluney, supra, at 926.

In addition to charges brought under Title VII, plaintiff’s complaint alleges that defendant’s actions violated the Vermont Fair Employment Practices Act, Title 21, V.S.A. § 495(a)(5). The Vermont statute is patterned on Title VII, and the legal analysis to be followed derives from McDonnell Douglas Corporation v. Green, supra. See State of Vermont v. Whitingham School Board, et al, 138 Vt. 15, 410 A.2d 996 (1979). The standards and burdens of proof under state law are identical to those existing under federal law.

In the absence of a contract of employment, where employment is terminable at will, an employer may fire an employee at any time. Jones v. Keogh, 137 Vt. 562, 409 A.2d 581 (1979).

In this case, as in any case, the credibility of a witness and the worth of the evidence is for the trier of fact to determine.

From the credible evidence in this case, the defendant has articulated legitimate, non-discriminatory reasons and business objectives for terminating plaintiff, in that plaintiff deliberately lied, and the plaintiff has failed to show that the legitimate, non-discriminatory reasons articulated by defendant were a mere pretext for discrimination. Plaintiff in the case at bar has failed to satisfy her burden of persuading the Court that defendant intentionally discriminated against her.

The defendant is entitled to attorney’s fees if the Court finds that the plaintiff’s action was frivolous. 42 U.S.C. § 2000e-5(f)(1), (K). In assessing the factors for determining whether plaintiff’s claims were frivolous, the letter finding that reasonable cause exists to believe that the charges are true, issued by the Equal Employment Opportunity Commission, must be considered, as well as subjective bad faith, and in this case the Court finds that the plaintiff’s claim was not frivolous, and defendant is not entitled to any attorney’s fees. See Badillo v. Central Steam and Wire Company, 717 F.2d 1160 (7th Cir.1983). See also Christiansburg Garment Co. v. E.E.O.C. 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978); Carrion v. Yeshiva University, 535 F.2d 722, 727 (2d Cir.1976).

Judgment is entered for the defendant.

SO ORDERED.

      . Plaintiff correctly asserts that where a Title VII claimant establishes discriminatory discharge by direct evidence, and the Court accepts that evidence as credible, the ultimate issue of discrimination is proved and the Court need not pursue the McDonnell Douglas analysis. Bell v. Birmingham Linen Service, 715 F.2d 1552, 1557 (11th Cir.1983). This standard, while correct, is inapplicable in this case, as there is little, if any, credible direct evidence that plaintiff was fired for stating that the poster amounted to sexual harassment.


author: JUNE L. GREEN, District Judge.

text:
    Richard D. McINTYRE, et al., Plaintiffs, v. Thomas P. O'NEILL, Jr., et al., Defendants.
    Civ. A. No. 85-528.
    United States District Court, District of Columbia.
    March 1, 1985.
    Order on Remand May 9, 1985.

      John R. Bolton, Michael J. Coursey, Covington & Burling, Washington, D.C., Theodore Lockyear, Loekyear & Kornblum, Evansville, Ind., Lawrence J. Halloran, Legal Counsel, National Republican Congressional Committee, Washington, D.C., for plaintiffs.
    Steven R. Ross, Charles Tiefer, Michael L. Murray, U.S. House of Representatives, Washington, D.C., for defendants.
   MEMORANDUM OPINION

JUNE L. GREEN, District Judge.

This matter is before the Court on defendants’ motion to dismiss, plaintiffs’ opposition thereto, defendants’ reply to plaintiffs’ opposition, oral argument on the motion, and the entire record herein. For the reasons set forth below, the Court grants defendants’ motion and dismisses this action.

Plaintiffs Richard D. McIntyre and Everett Robertson, Jr., on February 11, 1985, brought suit against two hundred and forty-seven Democratic Party members of the United States House of Representatives, and three officers of the House of Representatives. Plaintiffs seek to have the Court issue a permanent injunction restraining all defendants from taking any action which would deny plaintiff McIntyre the right to be seated as the Representative of the Eighth Congressional District to the 99th Congress. Complaint at ¶ 276(3)(A). Plaintiffs also seek to have the Court enjoin defendant Thomas P. O’Neill, Jr., Speaker of the House of Representatives, from refusing to administer the oath of office to plaintiff McIntyre as a Member of the 99th Congress; enjoin defendant Benjamin J. Gutherie, Clerk of the House of Representatives, from excluding plaintiff McIntyre from an office in a House office building and from denying him any of the rights and privileges to which he claims he is entitled as a Member of the 99th Congress; enjoin defendant Jack Russ, Sergeant-at-Arms of the House of Representatives, from refusing to perform for plaintiff McIntyre such duties and services he is allegedly required to perform for plaintiff; and enjoin defendant James T. Malloy, Doorkeeper of the House of Representatives, from refusing to admit plaintiff McIntyre to the floor of the House of Representatives for the purposes of voting and addressing the Members of the House. Complaint at ¶¶ 276(3)(B), (C), (D), (E).

Defendants, in response to plaintiffs’ complaint, filed on February 13, 1985, a motion to dismiss for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, respectively.

I.

The following allegations have been asserted in plaintiffs’ complaint.

On November 6, 1984, Indiana’s Eighth Congressional District held its election for United States Representative.

On December 13, 1984, the Indiana Secretary of State certified plaintiff McIntyre as the winner of the election. Also on December 13, the Indiana Governor signed plaintiff McIntyre’s certificate of election and forwarded it to defendant Gutherie.

On January 3, 1985, before plaintiff McIntyre could be sworn in as a Member of the House of Representatives, the House passed House of Representatives Resolution Number 1 (“House Resolution 1”), which states:

Resolved. That the question of the right of Frank McCloskey or Richard McIntyre to a seat in the Ninety-ninth Congress from the Eighth Congressional District of Indiana shall be referred to the Committee on House Administration, when elected, and neither Frank McCloskey nor Richard McIntyre shall be sworn until the Committee on House Administration reports upon and the House decides such question. For each day during the period beginning on the date on which this resolution is agreed to and ending on the day before the date on which the House decides such question, Frank McCloskey and Richard McIntyre shall each be paid an amount equal to the daily equivalent of the annual rate of basic pay payable to a Member of the House. For the period beginning on the date on which this resolution is agreed to and ending on the date on which the House decides such question, the Clerk of the House shall provide for clerical assistants in the manner provided by law for the case of death or resignation of a Member and shall otherwise perform full administrative functions with respect to the Eighth Congressional District of Indiana. There shall be paid from the contingent fund of the House such sums as may be necessary to carry out this resolution.

Complaint at If 264; Cong.Rec. H4-5 (daily ed. Jan. 3, 1985).

The vote on House Resolution 1 was Yeas 238 to Nays 177. The vote was strictly along party lines.

Since the passage of House Resolution 1, plaintiff McIntyre has attempted to fulfill the duties of a Member of the House of Representatives but has been prohibited from doing so.

On February 7, 1985, Minority Leader Robert H. Michel introduced House of Representatives Resolution Number 52 (“House Resolution 52”) which provides:

Whereas, Richard D. McIntyre won the November 6, 1984, election in the Eighth Congressional District of Indiana by 34 votes according to the certificates of election filed by the county clerks from the District’s 15 counties; and
Whereas, the Indiana Secretary of State, Edwin J. Simcox, acting in accordance with his duties as set forth in the Indiana Code (Ann. Sec. 3-1-26-9), certified Richard D. McIntyre as the Representative from Indiana’s Eighth Congressional District; and
Whereas the Clerk of the House stated on January 3, 1985 in opening the 99th Congress that he had “prepared the official roll of the Representatives-elect” which included McIntyre’s name. The Clerk stated: “Certificates of election covering the 435 seats in the 99th Congress have been received by the Clerk of the House of Representatives, and the names of these persons whose credentials show that they were regularly elected as Representatives in accordance with the laws of their respective States and of the United States will be called.” McIntyre’s name was called and he cast his vote for Robert H. Michel as Speaker of the House of Representatives; and
Whereas the majority of the House of Representatives on January 3, 1985 voted in House Resolution 1 not to seat Richard D. McIntyre as Representative from Indiana’s Eighth Congressional District despite has [sic] certificate of election issued pursuant to the laws of Indiana; and
Whereas House Resolution 1 is contrary to the precedents of the House of Representatives in that the holder of a certificate of election not tainted by fraud or irregularities has previously been granted a prima facie right to a seat with the final right being referred to the Committee on House Administration; and
Whereas Richard D. McIntyre received 418 votes more than Francis X. McCloskey in a recount of the ballots cast in Indiana’s Eighth Congressional District pursuant to Indiana Code (Ann.Sec. 3-1-27 et seq.); Now, therefore be it
Resolved, That the Speaker is hereby authorized and directed to administer the oath of office to the gentleman from Indiana, Mr. Richard D. McIntyre.
Resolved, That the question of the final right of Mr. McIntyre to a seat in the 99th Congress is referred to the Committee on House Administration.

Complaint at ¶ 267, Cong.Rec. H334 (daily ed. Feb. 7, 1985).

Defendant Wright moved to refer House Resolution 52 to the Committee on House Administration. His motion was adopted by a vote of 221 to 180. Again, this vote was done along party lines with all 221 Yeas cast by Democratic Members of the House. As of the date of this opinion, plaintiff McIntyre has not been seated as a Member of the House.

On February 11, 1985, plaintiff McIntyre and plaintiff Robertson, a registered voter in the Eighth Congressional District of Indiana, filed'suit in this Court. In Count I of the complaint plaintiffs allege that the House defendants failed to follow due-process requirements in violation of the Fifth Amendment and of Article I, Section 5, Clause 1 of the Constitution by departing from House precedent and failing to seat plaintiff McIntyre.

Plaintiffs further allege in Count II of the complaint that defendants’ failure to seat plaintiff McIntyre denies plaintiff Robertson, and all other citizens of the Eighth Congressional District of Indiana, the rights of free speech and association and due process of law by denying them their right to be represented in the 99th Congress.

II.

In their motion to dismiss defendants argue that the Court does not have jurisdiction over the subject matter of this case and that plaintiffs assert a claim for which relief cannot be granted because the matter involved is a nonjusticiable political question.

A. Jurisdiction

Plaintiffs assert as basis for jurisdiction in this matter, inter alia, section 1331 of Title 28, United States Code. That section provides: “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States.” 28 U.S.C. § 1331. There can be no dispute that plaintiffs’ cause of action “aris[es] under the Constitution.” Id.

In the complaint plaintiffs set forth three constitutional claims, alleging that defendants violated plaintiffs’ right to due process as protected by the fifth amendment, and rights to free speech and association as protected by the first amendment. They further allege that defendants violated Article I, Section 5, Clause 1 of the Constitution which resulted in plaintiff McIntyre’s failure to be seated as a Member of the House. “Since the complaint plainly sets forth a case arising under the Constitution, the subject matter is within the federal judicial power defined in Art. III, § 2, and so within the power of Congress to assign to the jurisdiction of the District Courts. Congress has exercised that power in [28 U.S.C. § 1331].” See Baker v. Carr, 369 U.S. 186, 200, 82 S.Ct. 691, 700, 7 L.Ed.2d 663 (1962). Accordingly, the Court has subject-matter jurisdiction over this action.

B. Justiciability

Merely because a court has determined that it has jurisdiction over an action, that does not end its inquiry as to whether it may address the merits of the case. A court must also determine whether the action is justiciable or, more specifically with reference to this case, whether the matter involves a political question which should not be resolved by a Federal court. See Metzenbaum v. FERC, 675 F.2d 1282, 1287 (D.C.Cir.1982) (“the political question doctrine ... is concerned with whether an issue is ‘appropriate for judicial deliberation.’ ” (citation omitted)). “ ‘In determining whether a question falls within [the political question] category, the appropriateness under our system of government of attributing finality to the action of the political departments ... [is a] dominant consideration ].’ ... The nonjusticiability of a political question is primarily a function of the separation of powers.” Baker v. Carr, 369 U.S. at 210, 82 S.Ct. at 706 (citation omitted); see also Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3534.1 (“Political question doctrine takes its name from the conclusion that in the separation of federal powers, certain matters are confined to the political branches.”) In analyzing the political question doctrine a court must always be mindful of the constitutional principle of separation of powers between coordinate branches of government.

On the surface of any case held to involve a political question there must be at least one of the following “formulations”:

a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Baker v. Carr, 369 U.S. at 217, 82 S.Ct. at 710.

The Court’s principal focus is on the first criterion as set forth above: whether in the Constitution there is a “textually demonstrable commitment”, id., to the House of Representatives which gives it the power to deny Mr. McIntyre a seat in the House with all the rights and privileges associated with that position.

In looking to the Constitution, Article I, Section 5, Clause 1 provides: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members....” U.S. Const. Art. I, § 5, cl. 1. On their face, plaintiffs’ claims do involve express provisions of the Constitution. Further, numerous courts have found specifically that the judgment of election to office of congressmen resides within that House of Congress. Rayner v. The Chicago Board of Election Commissioners, No. 78 C 5116, slip op. (N.D.Ill. Mar. 14, 1979), aff’d mem., 636 F.2d 1222 (7th Cir.1980); Manion v. Holzman, 379 F.2d 843, 845 (7th Cir.), cert. denied, 389 U.S. 976, 88 S.Ct. 479, 19 L.Ed.2d 470 (1967); Johnson v. Stevenson, 170 F.2d 108, 109 (5th Cir.1948), cert. denied, 336 U.S. 904, 69 S.Ct. 491, 93 L.Ed. 1069 (1949); Application of James, 241 F.Supp. 858, 860 (S.D.N.Y.1965); Peterson v. Sears, 238 F.Supp. 12, 13 (N.D.Iowa 1964); Keogh v. Homer, 8 F.Supp. 933, 934-35 (S.D.Ill.1934); see also McCloskey v. McIntyre, Nos. TH 85-7-C, EV 85-12-C, slip op. at 19-20 (S.D.Ind. Feb. 7, 1985) (appeal pending). Cf. Metzenbaum v. FERC, 675 F.2d at 1287 (Article I, Section 5, Clause 2 textually commits to the Houses of Congress exclusive rulemaking authority as to “the Rules of ... Proceedings” (citation omitted)); Williams v. Bush, No. 81-2839, slip op. (D.D.C. Feb. 3, 1982) (“Article I, Section 5, Clause 2 ... textually commits to the Senate the power to ... ‘expel a member.’ ” (citation omitted)). Therefore, the issues which plaintiffs seek to have the Court resolve in this action fall squarely within a “textually demonstrable constitutional commitment of the issue” to the House and makes it a nonjustieiable political question. See Baker v. Carr, 369 U.S. at 217, 82 S.Ct. at 710.

The only remaining “formulation” outlined in Baker v. Carr that is relevant here is whether a decision on the merits in this action would result in “the impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate branches of government....” Id. To make an inquiry and address the merits of plaintiffs’ claim would surely demonstrate a lack of respect to the House of Representatives, particularly in light of numerous decisions which have determined that in Article I, Section 5 of the Constitution rests the dominion of each House of Congress as “[j]udge[s] of the Elections, Returns and Qualifications of its own Members....” U.S. Const. Art. I, § 5, cl. 1. Further, the House has determined specifically how it wishes to proceed in judging the election of one of its Members. Accordingly, the Court finds that the issues it is asked to resolve in this case are nonjustieiable in that they involve political questions.

Although plaintiffs do not dispute seriously the argument that Members of the' House have the express authority to “judge” the election of its Members, they claim that the House must make this determination within the bounds of the Constitution. Plaintiffs contend that if, when judging the election of one of its Members, the House violates the due process clause of the fifth amendment or the freedom of speech and association provisions of the first amendment, those violations must be able to be redressed in Federal court. The Court disagrees with plaintiffs’ assertions.

The very nature of the political question doctrine demands that a court abstain from interfering with a coordinate branch of government whose responsibility it is to make independent political choices. The doctrine demands that a court not immerse itself in a political matter which is principally in the dominion of a political branch of government. Although plaintiffs have alleged constitutional violations, the Court, in assessing these claims, must balance the strong institutional interests of separation of powers against the alleged constitutional deprivations. If the Court were to address the merits of plaintiffs’ claim, it would, in effect, be substituting its judgment for that of the House of Representatives. The Court cannot and should not make that determination.

Further, plaintiffs’ due process claims cannot withstand minimal scrutiny. Surely, the only due process which plaintiff McIntyre is due, is that which is provided by the House as “[j]udge[s] of the [ejections ... of its own Members.” U.S. Const. Art. I, § 5, cl. 1.

In addressing the first amendment claim, the Court concludes that it would be impossible for the House to make a determination as to the election of one of its Members without some temporary deprivation of first amendment rights. As the Supreme Court in Barry v. United States ex rel. Cunningham, 279 U.S. 597, 49 S.Ct. 452, 73 L.Ed. 867 (1929) noted in addressing the “equal representation” clause found in Article 5 of the Constitution, “the temporary deprivation of equal representation which results from the refusal of the Senate to seat a member pending inquiry as to his election or qualifications is the necessary consequence of the exercise of constitutional power.” Id. at 616, 49 S.Ct. at 456.

The Court must also look at this case from a practical point of view. How can it stand side by side with the House of Representatives in making a decision in an area which has been specifically designated by the Constitution as a political question? Certainly, political arguments must be confined to the political arena. Here lies the essence of the political question doctrine.

For the reasons outlined above, the Court cannot interject itself into a matter which is within the primary dominion of the House of Representatives to judge the election of its Members.

Accordingly, the Court must dismiss this case for failure to state a claim upon which relief can be granted.

ORDER ON REMAND

Pursuant to the United States Court of Appeals for the District of Columbia’s order of May 7, 1985, with instructions for this Court to dismiss plaintiffs’ complaint as moot, it is by the Court this 8th day of May 1985,

ORDERED that this action is dismissed on grounds of mootness.

      . On February 12, 1985, plaintiffs noticed a voluntary dismissal of twenty-six defendants pursuant to Rule 41(a) of the Federal Rules of Civil Procedure.

        . On February 13, 1985, defendants also filed a motion for expedited schedule, requesting a prompt hearing on its motion to dismiss. Plaintiffs did not oppose this motion, and the parties entered a stipulation as to an expedited briefing and hearing schedule to resolve the questions raised in the motion to dismiss.
      On March 1, 1985, the date of the hearing for defendants’ motion to dismiss, plaintiffs moved to postpone oral argument on the motion. The Court orally denied plaintiffs’ motion, believing that because this matter involves a challenge to the powers of the House of Representatives, defendants' motion to dismiss should "be given the most expeditious treatment by [the] [C]ourt[]....’’ See Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 511 n. 17, 95 S.Ct. 1813, 1825 n. 17, 44 L.Ed.2d 324 (1975).

      . In evaluating a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure and for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must accept as true all material facts alleged in the complaint. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Smith v. Gross, 604 F.2d 639, 641 n. 1 (9th Cir.1979); Asociacian De Reclamantes v. United Mexican States, 561 F.Supp. 1190, 1192 (D.D.C. 1983), aff'd, 735 F.2d 1517 (D.C.Cir.1984).

      . The respect due a coordinate branch of government is not without limitation. Cf. Barry v. United States ex rel. Cunningham, 279 U.S. 597, 49 S.Ct. 452, 73 L.Ed. 867 (1929). If, for example, the House completely abdicated its responsibilities as "[j]udge of the [e]lections” and this abdication failed to be corrected by the political process, a federal court, as the "department [designated] to say what the law is”, Marbury v. Madison, 5 U.S. 137, 177, 1 Cranch 137, 177, 2 L.Ed. 60 (1803), could interject. See Metzenbaum v. FERC, 675 F.2d at 1287. What plaintiffs have alleged on the face of their complaint, however, cannot be considered such an abdication of responsibility. See infra at 1059-1060.

      . The Court notes in passing that the Supreme Court in Barry v. United States ex rel. Cunningham, 279 U.S. 597 stated that “[w]hether, pending this adjudication, the credentials should be accepted, the oath administered, and the full right accorded to participate in the business of the Senate, was a matter within the discretion of the Senate. This has been the practical construction of the power by both Houses of Congress....” Id., 279 U.S. at 614-15, 49 S.Ct. at 455 (footnote omitted). The Supreme Court apparently believed that whatever a House of Congress decides as the appropriate process for determining the election of its Members, passes Constitutional muster.