author: GASCH, District Judge.

text:
    BLACKS IN GOVERNMENT, Plaintiff, v. NATIONAL ASSOCIATION OF BLACKS WITHIN GOVERNMENT, Defendant.
    Civ. A. No. 83-0057.
    United States District Court, District of Columbia.
    Oct. 1, 1983.

      Pearson Liddell, Jr. and Gloria Washington Liddell, Washington, D.C., for plaintiff.
    Leonard McCants, Silver Spring, Md., for defendant.
   MEMORANDUM

GASCH, District Judge.

Plaintiff, an organization known as Blacks in Government (BIG), is seeking a preliminary and permanent injunction against the defendant, National Association of Blacks Within Government (NABWG). Pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure (FRCP) and the agreement of the parties, the Court consolidated the hearing on plaintiff’s motion for a preliminary injunction with the trial on the merits as to two of the claims contained in plaintiff’s complaint. For the reasons discussed below, the Court denies plaintiff’s request for injunctive relief. This memorandum constitutes the Court’s findings of fact and conclusions of law as required by Rule 52(a) of the FRCP.

I. BACKGROUND

Plaintiff is a nonprofit, tax exempt, District of Columbia corporation. Its avowed purpose is to enhance the employment opportunities of black government employees on the federal, state and local levels. The organization was established in 1976 and has over 85 chapters in at least 20 states and the District of Columbia. Plaintiff has spent large amounts of time and money promoting its goals under the trade name of Blacks in Government and its acronym BIG. Defendant was incorporated in Delaware in 1982 for the purpose of providing a “mechanism for the inclusion, growth and power for all present and future blacks employed at all levels of federal, state and local governments.”

NABWG came into existence after an internal disagreement occurred between some of BIG’s more prominent members. Several of these disgruntled individuals left the organization in order to form a new group — NABWG. Plaintiff filed its- complaint in this case some six months after the formation of the new splinter organization. Plaintiff seeks relief on essentially four separate grounds. It claims that the use of the name National Association of Blacks Within Government by the defendant is confusingly similar to its trade name and is, therefore, a violation of Section 43 of the Federal Trademark Act of 1946 (Lanham Act, 15 U.S.C. § 1125). Plaintiff also contends that defendant’s use of this name constitutes common law trade name infringement and unfair competition. Counts three and four of the complaint (dealing with claims of conversion and libel) were not addressed by the parties during the hearings on plaintiff’s motions for a temporary restraining order and preliminary and permanent injunction and are, therefore, not addressed in this opinion.

II. ANALYSIS OF THE TRADE NAME INFRINGEMENT AND UNFAIR COMPETITION CLAIMS

A. Introduction

Plaintiff does not seek to have this Court enjoin the existence of the defendant’s organization. It merely objects to the use of a trade name (National Association of Blacks Within Government) contending that is confusingly similar to its own (Blacks in Government). The key issue that the Court must examine in this case on both the statutory and common law claims is whether the adoption of the trade name National Association of Blacks Within Government by the defendant has resulted in a “likelihood of confusion” on the part of the public. 1 J. McCarthy Trademarks and Unfair Competition § 2:3 (1973). Before this issue is analyzed, the Court will discuss briefly certain basic trademark law principles. It should be noted at this point that the law protecting trademark infringement is essentially the same as that protecting commercial and corporate trade names. See American Steel Foundries v. Robertson, 269 U.S. 372, 380, 46 S.Ct. 160, 162, 70 L.Ed. 317 (1926). A trade name symbolizes the business as a whole, while a trademark identifies and distinguishes the products or services sold by that business.

B. Legal Significance of Types of Marks

“Arbitrary,” “fanciful,” “generic,” and “descriptive” are some of the many different categories of trademarks and trade names. The strongest type of mark meriting legal protection is the fanciful trademark. A fanciful mark is a word that has been invented by a manufacturer for the express purpose of functioning as a trademark or trade name like “Xerox” or “Exxon”. An arbitrary mark is also accorded preferential. treatment under the law. Such a mark is a word commonly used in everyday language but which is arbitrarily applied to the goods or services in question. Arbitrary and fanciful marks are considered “inherently distinctive” and are given legal protection immediately upon their adoption and use. 1 J. McCarthy § 11.2.

If, however, the name of a product or organization is not inherently distinctive, it will be protected as a trademark or trade name only if the user can prove that through time and usage it has become distinctive. This acquisition of distinctiveness is called “secondary meaning.” Both parties in this case apparently agree with the Court’s conclusion that Blacks in Government must be considered a descriptive trade name. In order for plaintiff to prevail, it, therefore, will have to show (1) that the name Blacks in Government is so widely recognized that it has acquired secondary meaning and (2) that the two trade names are so similar that there exists a likelihood of confusion. For the reasons discussed below, the Court concludes that plaintiff has not carried its burden on either of these issues.

C. Secondary Meaning

Secondary meaning has been defined in different ways by many different courts. It is actually nothing more than a mental association in the consumers’ minds between the name in question and the source of the product. Secondary meaning has been said to exist when the trademark or trade name “has come to indicate that the goods in connection with which it is used are the goods manufactured by the [alleged owner]”, Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 305 U.S. 315, 336, 59 S.Ct. 191, 201, 83 L.Ed. 195 (1938); if the mark is “closely identified with the goods of one particular producer or has otherwise gained public recognition”, Carter-Wallace, Inc. v. Proctor & Gamble Co., 434 F.2d 794, 800 (9th Cir. 1970); or when “the public has learned to identify the name of the product with its source”, Field Enterprises Educational Corp. v. Cove Industries, Inc., 297 F.Supp. 989, 994 (S.D.N.Y.1969). One of the most widely cited explanations of secondary meaning states that:

There is nothing abstruse or complicated about this theory, however difficult its application may sometimes be. It contemplates that a word or phrase originally, and in that sense primarily, incapable of exclusive appropriation with reference to an article on the market, ... might nevertheless have been used so long and so exclusively by one producer with reference to his article that, in that trade and to that branch of the purchasing public, the word or phrase had come to mean that the article was his product; in other words, had come to be, to them, his trademark. So it was said that the word had come to have a secondary meaning. ...

G. & C. Merriam Co. v. Saalfield, 198 F. 369, 373 (6th Cir.1912).

As mentioned above, the Court concludes that plaintiff has not proved by a preponderance of the evidence that the name Blacks in Government has attained secondary meaning. Because the overlapping central issue in a trade name infringement and unfair competition case is the issue of likelihood of confusion (addressed in part D below), the Court will only briefly discuss its reasons for holding that secondary meaning has not been proved. Plaintiff has attempted to prove secondary meaning largely through the use of circumstantial evidence. When the circumstantial evidence is persuasive, many courts have held that secondary meaning exists.

As the factfinder in this case, however, this Court holds that plaintiff has not met its burden. Basically, plaintiff has emphasized its age, its size, the amount of media attention it has received over the years, the amount of advertising and promotion it has done, the attention it has received from government officials, and the various training conferences it has sponsored as proof that the name Blacks in Government has become identified by the public as the provider of such services. This evidence, however, falls short of actually proving the state of mind of the members of the public and the degree to which it recognizes the name Blacks in Government.

D. Likelihood of Confusion

Even if the plaintiff had proved secondary meaning, the Court would still rule in defendant’s favor because it does not feel that there is a likelihood of confusion between the two names. “Likelihood of confusion” is the basic underlying test of common law trademark infringement, federal statutory trademark infringement and the broader category of unfair competition claims. Determining whether a competitor has adopted a trade name that produces a likelihood of confusion is a highly subjective judgment. Many cases that have considered the issue emphasize that precedent is of minor value. The former Court of Customs and Patent Appeals has stated that the issue is a “subjective evaluation” in which prior decisions provide “but meager assistance.” Star Watch Case Co. v. Junghans, 46 C.C.P.A. 929, 267 F.2d 950, 952 (1959); Colgate-Palmolive Co. v. Carter-Wallace, Inc., 58 C.C.P.A. 735, 432 F.2d 1400, 1402 (1970). See also Curtice-Burns, Inc. v. Northwest Sanitation Products, Inc., 530 F.2d 1396 (Cust. & Pat. App.1976). Some judges have even stated that deciding whether there is a likelihood of confusion is impossible to describe or rationalize in words:

This determination that I am called upon to make — whether confusion is or is not likely to arise — does not lend itself to resolution by scientific appraisement or comparison. Rather, a finding on infringement is by necessity a subjective determination by the trial judge based on his visceral reactions____

Societe Anomyme de la Gande Distillerie v. Julius Wile Sons & Co., 161 F.Supp. 545, 547 (S.D.N.Y.1958). Legal precedent, however, may indeed be useful as a guide for the Court in many circumstances.

In Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492 (2d Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961), Judge Friendly discussed some of the factors that enter into such a determination. These include the strength of the mark (whether it is fanciful, arbitrary or descriptive), the degree of similarity between the two marks, the proximity of the products, actual confusion, defendant’s good faith in adopting the mark and the sophistication of the consumer group in question. Id. at 495. While the Second Restatement of Torts has deleted any reference to this area, see Introductory note to part 9 of the Restatement Second, the original Restatement provided the factfinder with still other criteria to be considered.

Clearly, it is not necessary that every word in two trade names be identical for a court to hold that an infringement has occurred. Similarly, it is not necessary that the plaintiff provide the Court with instances of actual confusion (although such evidence would definitely be probative of the issue). The plaintiff merely must show that confusion is likely or probable.

Applying the criteria discussed above to the instant situation requires the Court to conclude that the risk of confusion is low. Since the trade name Blacks in Government is descriptive, it is a weak mark (see part IIA above). While the two names appear to be somewhat similar, there are significant distinguishing features between them. Plaintiff is quite concerned that the defendant will eventually drop the first two words of its name (or that common usage of the name will result in this happening) leaving merely the words Blacks Within Government. Plaintiff, however, has introduced little evidence that would tend to support this fear.

Plaintiff has submitted several affidavits from individuals who claim to have been actually confused upon hearing the name National Association of Blacks Within Government believing that the organization was Blacks in Government. At least one of these affidavits, however, states that upon closer examination, the individual realized the difference between the two groups. See Affidavit of William O. Jones. On the whole, these instances of actual confusion appear to be rather minor. It should also be noted that plaintiff is often referred to by its acronym BIG. This is a strong distinguishing factor between the two organizations. One factor that does weigh heavily in plaintiffs favor is that the two organizations provide quite similar services and have the same potential members. This would definitely increase the danger of confusion. This factor, however, is not sufficient to outweigh the other weaknesses in plaintiffs case.

III. CONCLUSION

Thus, for the reasons discussed above, plaintiffs case must fail primarily because it has not shown by a preponderance of the evidence that there is a likelihood of confusion between the trade names National Association of Blacks Within Government and Blacks in Government. An appropriate order denying injunctive relief accompanies this memorandum.

      . Thus, to prove a case for trade name infringement or unfair competition, plaintiff must show the existence of two elements. First, it must show that the public recognizes its trade name as identifying its services and second, it must convince the Court that defendant's adoption of the name National Association of Blacks Within Government caused a likelihood of confusion among the potential members of plaintiffs organization. The first element can be shown in one of two ways: either that (1) plaintiffs name is fanciful or arbitrary (which it is not) or that (2) if it is not, that the name has become distinctive because it has attained secondary meaning. See 1 J. McCarthy § 15:1 at 514.


source: Caselaw Access Project

author: NEESE, Senior District Judge,

license: Public Domain

text:
    Alfred E. GRIZZELL, Petitioner, v. STATE OF TENNESSEE, et al., Respondents.
    Civ. A. No. 3-84-0063.
    United States District Court, M.D. Tennessee, Nashville Division.
    Jan. 20, 1984.
    Opinion on Denial of Rehearing Feb. 9, 1984.
    Orders on Various Motions July 27, 1984 and Aug. 14,1984.

      Alfred E. Grizzell, pro se.
    William M. Leech, Jr., Atty. Gen., and James Charles, Metro Legal Dept., Nashville, Tenn., for respondents.
   MEMORANDUM OPINION, ORDERS AND CERTIFICATE

NEESE, Senior District Judge,

Sitting by Designation and Assignment.

The petitioner Mr. Alfred E. Grizzell, who was apparently convicted of robbery and kidnapping on June 23, 1977 in the Criminal Court of Davidson County, Tennessee, seeks the federal writ of habeas corpus. 28 U.S.C. § 2254. The basis therefor is his contention that the state of Tennessee violated the Interstate Agreement on Detainers (Agreement), Art. 111(a), by not commencing his trial within the mandatory 180 days. That claim is not cognizable in this proceeding:

The rights created by such Agreement “ * * * are statutory, not fundamental, constitutional, or jurisdictional in nature. * * * ” Greathouse v. United States, 655 F.2d 1032, 1034 (10th Cir.1981). Nonconstitutional claims can be raised on collateral review only if the alleged error constituted a fundamental defect which inherently results in a complete miscarriage of justice. Stone v. Powell, 428 U.S. 465, 477, n. 10, 96 S.Ct. 3037, 3044, n. 10, 49 L.Ed.2d 1067 (1976), reh. den., 429 U.S. 874, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976).

This Court is satisfied that any violation of the Agreement by the state of Tennessee did not constitute such a fundamental defect in the state proceedings against Mr. Grizzell as to be cognizable in this federal habeas corpus proceeding. Mars v. United States, 615 F.2d 704, 707[1] (6th Cir.1980), cert. den., 449 U.S. 849, 101 S.Ct. 138, 66 L.Ed.2d 60 (1980), distinguishing Stroble v. Anderson, 587 F.2d 830 (6th Cir.1978), cert. den., 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979); see Kowalak v. United States, 645 F.2d 534, 536-537 (6th Cir.1981); cf. Bracey v. State of Tennessee, 616 F.2d 268 (6th Cir.1980). The petitioner makes no claim that any failure to commence his trial within 180 days in any way affected or impugned the integrity of the factfinding process at his trial or that it caused him any actual prejudice. He does not claim that his convictions were the product of, or were affected by, any violation of the Agreement. In fact, he avers in his petition that the Tennessee trial judge “Dismissed the Indictments”!

It appearing plainly on preliminary consideration, Rule 4, 28 U.S.C. fol. § 2254, from the face of the applicant’s petition that he is entitled to no relief in this Court now, it hereby is

ORDERED:

(1) that his petition is DISMISSED summarily, id.;

(2) that the clerk so notify the petitioner forthwith, id.; and,

(3) that copies of such petition be served with copies of this order forthwith by certified mail on the respondent-sheriff and the attorney general and reporter of the state of Tennessee, id.

Should the applicant give timely notice of an appeal from this order and the judgment to be entered herein, Rule 58(1), F.R.Civ.P., he is authorized to proceed thereon in for-ma pauperis. Rule 24(a), F.R.App.P. Any such notice will be treated also as an application for a certificate of probable cause. Rule 22(b), F.R.App.P.

As the petitioner plainly has not stated a claim cognizable under 28 U.S.C. § 2254, such certificate will not issue. Id.

On Motion For Rehearing

The petitioner seeks a rehearing herein on the ground that the Court misconstrued the allegations of his petition and ignored the holding of Cuyler v. Adams, 449 U.S. 433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981). His application for a rehearing lacks merit, and same hereby is

DENIED.

Further insight into the applicant’s claim can be gleaned from the reported decision of State v. Grizzell, 584 S.W.2d 678 (Tenn.Cr.App.1979), cert. den. by Sup.Ct. of Tenn. (1979), cert. den., 444 U.S. 993, 100 S.Ct. 527, 62 L.Ed.2d 423 (1979). This Court adheres to its view that the claimed violation of the Interstate Agreement on Detainers (Agreement) is not cognizable in this habeas corpus proceeding; Cuyler v. Adams, supra, indicates nothing to the contrary. Mr. Grizzell cannot create a federal-constitutional claim by making merely the conclusory allegation that Tennessee’s violation of the Agreement deprived him of due process and equal protection of the law.

ORDER

This Court ruled previously that the petitioner’s claimed violation by the state of Tennessee of the Interstate Agreement on Detainers is not cognizable in a federal habeas corpus proceeding. Alfred E. Grizzell, petitioner, v. State of Tennessee, et al., respondents, civil action no. 3:84-0063, memorandum opinion, orders and certificate of January 20, 1984. Subsequently, the Court reiterated such ruling. Id., memorandum opinion of February 9, 1984, notice of appeal filed February 28, 1984.

Once again, this Court adheres to its prior view and, therefore, the petition herein hereby is

DISMISSED summarily. Rule 4, 28 U.S.C. fol. § 2254. For the reasons assigned previously, a certificate of probable cause will NOT issue herein.

ORDERS ON VARIOUS MOTIONS

This Court has ruled that a certificate of probable-cause will not issue herein. Order herein of July 27, 1984. Any further request therefor should be addressed to a circuit judge. See 28 U.S.C. § 2253; Rule 22(b), F.R.App.P.

Likewise, since jurisdiction of this action was transferred from this Court to the Court of Appeals on August 8, 1984, the petitioner’s application for the appointment of counsel is more appropriately addressed to the latter Court.

The motion of the petitioner for leave to proceed on appeal in forma pauperis hereby is

GRANTED. Rule 24(a), F.R.App.P.

      . Annexed to the applicant’s petition is his affidavit that he is unable to pay the costs of this proceeding or give security therefor and his statement of his belief that he is entitled to redress. 28 U.S.C. § 1915(a). He hereby is AUTHORIZED, therefore, to commence and prosecute this proceeding without prepayment of fees or costs or giving security therefor. Id.

        . “Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party State, and whenever during the continuance of the term of imprisonment there is pending in any other party State any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint * * Art. 111(a), supra.

      Both Florida and Tennessee are signatories to the Agreement. See West’s F.S.A. §§ 941.45— 941.50, inclusive: T.C.A. §§ 40-3901 — 40-3908, inclusive.

       Even if it were cognizable, Mr. Grizzell would be confronted with the finding of the state appellate court, State v. Grizzell, supra, that any default on the part of the state of Tennessee was attributable solely to the conduct of Mr. Grizzell in attempting to bypass the plain procedure set up by the Agreement. See 28 U.S.C. § 2254(d); Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 850[2], 74 L.Ed.2d 646 (1983).


author: HAROLD A. ACKERMAN, District Judge.

text:
    EMPLOYERS ASSOCIATION OF NEW JERSEY, Plaintiff, v. STATE OF NEW JERSEY and Joseph F. Murphy, Commissioner Department of Insurance, State of New Jersey, Defendants.
    Civ. A. No. 84-1429.
    United States District Court, D. New Jersey.
    Jan. 24, 1985.

      Francis A. Mastro, Apruzzese, McDermott, Mastro & Murphy, Springfield, N.J., John F. Pilles, Jr., Schlesinger, Schlosser, Foy & Harrington-, Mount Holly, N.J., for intervening party plaintiff New Jersey State AFL-CIO.
    John J. Hayden, Deputy Atty. Gen., State of N.J., Dept, of Law & Public Safety, Div. of Law, Trenton, N.J., for defendants.
   OPINION

HAROLD A. ACKERMAN, District Judge.

In this action, the plaintiff, Employers Association of New Jersey, seeks declaratory and injunctive relief invalidating certain provisions of the New Jersey Automobile Insurance Freedom of Choice and Cost Containment Act of 1984, N.J.Stat.Ann. § 39:6A-1 et seq. as pre-empted by federal law. Plaintiff is a nonprofit, tax exempt organization consisting of more than 700 employers having facilities in New Jersey and engaging in such undertakings within this state as manufacturing, utilities, pharmaceuticals, petrochemicals, insurance and banking. Defendants are the State of New Jersey and Joseph F. Murphy, Commissioner of Insurance of New Jersey. I note that Mr. Murphy was subsequently replaced by Acting Commissioner Kenneth D. Merin,

This case is presently before me on three motions: plaintiffs motion for summary judgment, defendant’s cross motion for summary judgment or dismissal and a motion by the New Jersey state AFL-CIO, representing the interests of employees, to intervene as a party plaintiff for the purpose of submitting a brief on behalf of plaintiff Employers Association. For the reasons set forth below, I have decided to grant the motion to intervene, to deny plaintiffs action for summary judgment and to grant summary judgment in favor of the defendants herein.

The undisputed facts are as follows. Since 1973, New Jersey has required that every owner of an automobile registered or principally garaged in this state maintain liability coverage in specified minimum limits, N.J.Stat.Ann. § 39:6A-3 (West 1973); N.J.Stat.Ann. § 39:6B-1 et seq. (West 1973); every automobile liability policy was required to provide, in addition to liability coverage, Personal Injury Protection (“PIP”) benefits which were payable to an insured who was injured as a result of an auto accident without regard to negligence or fault. N.J.Stat.Ann. § 39:6A-4 (West 1973 Supp.1984). This additional coverage, known as “No-Fault,” provided benefits for medical expenses, income continuation, essential services, survivor payments and funeral expenses. Motorists were required to purchase this complete package of coverage regardless of the individual’s need, even if the person were paying for the same or similar coverage from another source. Since PIP coverage was considered “primary” in most instances (only workers’ compensation, temporary disability and medicare benefits were deductible from PIP recoveries, N.J.Stat.Ann. § 39:6A-6 (West 1973 Supp.1984)) comprehensive health coverage provided by employers or others could not be used with respect to injuries arising from auto accidents. This was so because PIP provided “first dollar” coverage (i.e., no deductible amount applied) and was not limited by any maximum payment.

The only option available to motorists was the option to purchase even greater non-medical PIP coverage. Section 39:6A-10 of the Act permitted insureds to purchase increased income continuation, essential services, death and funeral expense benefits at increased premiums.

New Jersey also maintains a system whereby persons injured as a result of an automobile accident may be compensated when the injured person is not covered by his automobile insurance (and is not legally required to have maintained such insuranee) and the person liable for the accident is either unknown (as in a hit-and-run situation) or is uninsured and has no assets. Under these circumstances, the injured party can claim against the Unsatisfied Claim and Judgment Fund established pursuant to N.J.Stat.Ann. § 39:6-61 et seq. (West 1973). If successful, the claimant may recover from the Fund the unsatisfied portion of his claim up to the minimum limits of liability coverage required by law, N.J. Stat.Ann. § 39:6-73 (West 1973) and the minimum PIP benefits, N.J.Stat.Ann. § 39:6-86.1 (West 1973).

On or about October 4, 1983, New Jersey enacted a series of automobile insurance reforms known as the “New Jersey Automobile Insurance Freedom of Choice and Cost Containment Act of 1984.” The primary purpose of the Act was to help reduce the high cost of mandatory automobile insurance in this State. The Act created options which the individual policy holder could elect to significantly reduce his insurance premiums. The Act requires auto insurers to offer insureds (a) three deductible options (in amounts of $500, $1,000 and $2,000) with respect to the PIP medical expense coverage; (b) the option to exclude all of the non-medical PIP coverages, and (c) the option to reimburse the insurer for medical expenses paid on behalf of the insured in the event the insured later recovers a “pain-and-suffering” judgment against the at-fault driver. Curiously, plaintiff does not challenge these substantive changes in the insured’s options under the New Jersey Scheme.

The Act further contains the following provisions challenged by the plaintiff herein. Section 4 of the Act, N.J.Stat.Ann. § 39:6-86.2 (West 1973 Supp.1984) states:

The benefits provided in sections 7 and 10, shall be payable as loss accrues, upon written notice of such loss except that benefits collectible under:
* * * * * *
b. Any hospital, medical or dental benefits plan or policy coverage with benefits similar to those provided under section 7, in an amount not to exceed $2,500.00 for any one claim for any one person, shall be deducted from the benefits collectible under sections 7 and 10.

This provision rendered personal injury benefits available from the Unsatisfied Claim and Judgment Fund secondary up to a maximum of $2,500.00. Of course, amounts in excess of $2,500.00, or of the chosen deductible, are compensable as before from the Fund. Section 17(a) of the Act, NJ.Stat.Ann. 39:6A-23(a) (West 1973 & Supp.1984) requires that “written notice identifying and containing a brief description of all available policy coverages and benefit limits, and identifying which coverages are mandatory and which are optional under state law, as well as all deductible, exclusion, set off and tort limitation options offered by the insurer” be provided to all policy holders and accompany all applications for new policies or renewals. Further, “[t]he insurer shall identify the percentage of premium rate credit for each option as the case may be”. Lastly, the notice must “also contain a statement on the possible coordination of other health benefits coverages with the personal injury protection coverage options, the form and contents of which shall be prescribed by the Commissioner of Insurance”. Subsection (c) requires the Commissioner to “promulgate standards for the written notice and buyers guide required to be provided under this section”.

Pursuant to this enabling legislation, the Commissioner has adopted the following regulations pertinent to the instant action:

a) In accord with section 17(a) of [the Act] the written notice and buyer’s guide are to contain a statement on the possible coordination of other health benefit coverages with the personal injury protection [PIP] medical expense deductible options,____
1. For purposes of this statment, ‘coordination’ shall mean the potential use of other health benefit coverages, including Medicare, as sources of full or partial payment or reimbursement for any personal injury protection medical expense benefit deductible selected.
2. When a PIP deductible has been selected and the insured has other applicable health benefits, such health benefits shall be the sole source of coverage up to the amount of the PIP deductible. Thereafter, the insured’s PIP coverage shall apply for the payment of medical expenses.

N.J.Admin.Code Tit. II § 3-15.7.

It is further undisputed that in November, 1983, Blue Cross and Blue Shield sought the approval of the Commissioner of Insurance for a change in group health policies issued by them which would exclude from coverage benefits for injuries arising out of automobile accidents. The change was denied on the basis of the Act and on the basis of the statutory standards applicable to such a change: the Commissioner may disapprove such amendments if they are contrary to law, oppressive or calculated to mislead the public. N.J.Stat. Ann. § 17:48-8 (West 1963) (Blue Cross statute); N.J.Stat.Ann. § 17:48A-9 (West 1963) (Blue Shield statute). Commercial carriers were similarly advised that similar exclusions would be denied, under the Act and under statutes authorizing the disapproval of group policy forms which are “unjust, unfair, inequitable, misleading, contrary to law or to the public policy of this state.” N.J.Stat.Ann. § 17B:27-25 (West 1973 Supp.1984) (group life forms); N.J.Stat.Ann. § 17B:27-49 (West 1973 Supp.1984) (group health forms). Neither of these determinations are challenged by the plaintiff herein. No application has been made or denied, formally or informally, by the “Blues” or by a commercial carrier, for approval of a change in deductible amounts required by group health policies and no application for inclusion of a “coordination of benefits” provision, in a contract where none previously existed, has been made or denied and neither of these issues is before the Court.

Before considering the pending cross motions for summary judgment, I turn first to the motion by the New Jersey State AFL-CIO to intervene as a party plaintiff. This motion is unopposed and under the standards set forth in Rule 24 of the Federal Rules of Civil Procedure I find that the AFL-CIO should be permitted to intervene in this action and to submit a brief in support of the instant motion by plaintiff. I will, therefore, consider their brief along with other written submissions of the parties.

I turn now to the cross motions for summary judgment before me. As noted supra, plaintiff and intervenor plaintiff contend that the provisions of the New Jersey Cost Containment Act of 1984 quoted above are pre-empted by the Labor Management Relations Act, 29 U.S.C. § 141 et. seq. (LMRA) and/or by the Employee Retirement Income Security Act, 29 U.S.C. § 1144(a) (ERISA). In support of their cross motion, defendants contend (1) that plaintiff lacks standing to raise these claims and consequently that this court has no subject matter jurisdiction under Article III of the United States Constitution; (2) that federal law specifically exempts state law regulating insurance from the arguably pre-emptive effects of other federal statutes and (3) that neither declaratory nor injunctive relief are appropriate at this time in the instant case.

I turn first to the arguments raised by plaintiffs which are addressed to the case or controversy limit to the jurisdiction of this court under Article III. Plaintiff contends that its members either presently or in the future will be financially affected by the provisions of the New Jersey Act at issue herein. Plaintiff argues that forty percent of its member employers have collective bargaining relationships with labor organizations representing their employees. Many of these employers maintain, through the purchase of insurance, a plan or program for the purpose of providing for their employee participants and their families medical, surgical and hospital benefits in the event of accident, sickness or disability. Plaintiff contends that these plans are employee benefits plans within the meaning of ERISA. Some of these plans, purchased from private insurance carriers, contain a coordination of benefits provision stating that the plan will not reimburse expenses covered by New Jersey “No-Fault” automobile insurance. Fourteen member employers maintain such plans, some of which are collectively bargained with labor organizations and none of which exclude from coverage claims for medical, surgical or hospital care benefits arising from motor vehicle accidents.

The crux of plaintiff’s concern is that the effect of the cost containment measures challenged in the instant action will be to shift the coverage of personal injury resulting from automobile accidents from the mandatory automobile insurance policies and No-Fault system to the general health benefit policies held by individuals or, more relevantly, held by employee groups. Plaintiff contends that the coordination of benefits provision of the Act together with the increased deductible options and the Commissioner’s refusal to permit the exclusion of coverage for injury resulting from automobile accidents in policies offered by private carriers, combine to increase the risk of loss which inheres in existing health insurance policies and benefit plans. In short, an individual may opt for a high auto policy deductible to lower her premium and in the event of personal injury due to an automobile accident will submit a claim in the amount of the deductible to her health insurance carrier instead. While the health insurer will be subject to greater liability, to the extent that this increase in claims manifests itself in increased premiums, this financial burden may be borne in whole or in part, by employers purchasing insurance for their employees pursuant to collective bargaining agreements or otherwise.

Defendants contend that there is no evidence that premiums have in fact been raised. Defendants also contend that the numbers of individuals opting for higher auto policy deductibles is not known. Further, defendants argue that any increase in premium which may be born by the employers is a function not of the challenged provisions of the Act but of the employers’ decision to purchase insurance benefits for their employees. In sum, defendants argue that plaintiff lacks standing to sue based on these facts.

No party disputes that “Article III requires the party who invokes the court’s authority to ‘show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant’, Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979), and that the injury ‘fairly can be traced to the challenged action’ and ‘is likely to be redressed by a favorable decision’, Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976)”. Valley Forge College v. Americans United, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (emphasis added) (footnote omitted). Although it may be “threatened” rather than “actual”, the injury alleged must be “distinct and palpable” and “likely to be redressed if the requested relief is granted”. See id. at 475, 102 S.Ct. at 760; Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975).

“The question whether future injury is sufficient is at times addressed as a question of standing, at times as a question of ripeness____” 13 Wright, Miller & Cooper, Federal Practice and Procedure § 3531.4 at 434-35 (1984). Ripeness is a concept addressed to the presence of a case or controversy under Article III. The doctrine prevents “premature adjudication” and insures that constitutional decisions are based on concrete, not abstract, factual contexts and legal issues. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681 (1967). The determination “turns on ‘the fitness of the issues for judicial decision’ and ‘the hardship to the parties of withholding court consideration. Id. at 149 [87 S.Ct. at 1515].” Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Commission, 461 U.S. 190, 200, 103 S.Ct. 1713, 1720, 75 L.Ed.2d 752 (1983). Similarly, a case is ripe for declaratory relief under the Declaratory Judgment Act, 28 U.S.C. § 2201 where “there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment”. Lake Carriers Association v. MacMullan, 406 U.S. 498, 506, 92 S.Ct. 1749, 1755, 32 L.Ed.2d 257 (1972) quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941).

It is clear under this case law, that where the injury alleged is too remote the case may not be justiciable under Article III standards. This may be because the proponent of a legal claim can not show a distinct, palpable real or threatened injury giving her a stake in the controversy sufficient for standing under Article III. Similarly, this may be because the case has not sufficiently ripened into a concrete controversy with sharply defined adverse legal interest and a known factual context so as to avoid the dangers which inhere in advisory opinions. However, it is also clear that threatened injury is sufficient for standing and that a case may be ripe for preventive relief without compelling litigants “to await the consummation of threatened injury”. Pacific Gas & Electric Co., 461 U.S. at 201, 103 S.Ct. at 1721 quoting Rail Reorganization Act Cases, 419 U.S. 102, 144, 95 S.Ct. 335, 359, 42 L.Ed.2d 320 (1974) (quotations omitted).

I am not persuaded that the contingencies which lie between the present and a potential increase in premiums charged to plaintiff’s members by private insurance carriers are sufficient to deprive plaintiff of standing to sue or to make this case unripe for disposition by an Article III Court. The controversy is concrete it is not abstract. The threatened injury is neither speculative nor remote. Waiting until the threat of higher premiums becomes a reality will add nothing to the clarity of the legal issues not already before this court. Nor will it add to plaintiff’s stake in the controversy stated herein. Finally, where the merits of the case involve the predominantly legal question of pre-emption, to the extent that prudential concerns of constitutional adjudication are implicated, a trial on the factual issues which underlie justiciability would be senseless. See generally, Pacific Gas & Electric Co. 461 U.S. at 201, 103 S.Ct. at 1720. Because it has standing and because this case is ripe for decision, this court has jurisdiction under Article III.

I turn now to the merits of the pending cross motions for summary judgment on the question of pre-emption. Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment shall not be granted unless, drawing all reasonable inferences in favor of the non-moving party, there are no genuine issues of material fact such that the moving party is entitled to judgment as a matter of law. See Sames v. Gable, 732 F.2d 49, 51 (3d Cir. 1984). The parties are agreed that no genuine issues of fact material to the disposition of plaintiff’s pre-emption claims preclude the final adjudication of this case pursuant to Rule 56. For the reasons which follow, I hold that the challenged portions of the Cost Containment Act of 1984 are pre-empted neither by the LMRA nor by ERISA.

The Supreme Court has recently summarized the law of federal pre-emption:

When federal pre-emption is invoked under the directive of the Supremacy Clause, it falls to this Court to examine the presumed intent of Congress. See Fidelity Federal Savings & Loans Assn. v. De la Cuesta, 458 U.S. 141, 152-153 [102 S.Ct. 3014, 3021-3022, 73 L.Ed.2d 664] (1982). Our task is quite simple if, in the federal enactment, Congress has explicitly mandated the pre-emption of state law, see Shaw v. Delta Air Lines, 463 U.S. [85,-, 103 S.Ct. 2890,-, 77 L.Ed.2d 490] (1983), or has adequately indicated an intent to occupy the field of regulation, thereby displacing all state laws on the same subject, Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 [67 S.Ct. 1146, 1152, 91 L.Ed.2d 1447] (1947). Even in the absence of such express language or implied congressional intent to occupy the field, we may nevertheless find state law to be displaced to the extent that it actually conflicts with federal law. Such actual conflict between state and federal law exists when ‘compliance with both federal and state regulations is a physical impossibility/ Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 [83 S.Ct. 1210, 1217-1218, 10 L.Ed.2d 248] (1963), or when state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' Hines v. Davidowitz, 312 U.S. 52, 67 [61 S.Ct. 399, 404, 85 L.Ed. 581] (1941). See Michigan Canners and Freezers Assn. v. Agricultural Board, 467 U.S. [-,-, 104 S.Ct. 2518,-, 81 L.Ed.2d 399] (1984); Fidelity Federal Savings & Loan Assn. v. De la Cuesta, supra.

Brown v. Hotel and Restaurant Employees & Bartenders, — U.S.-, 104 S.Ct. 3179, 3185, 82 L.Ed.2d 373 (1984).

It is clear that Congress has not manifested an express or implicit intent to preempt state laws regulating insurance or to occupy the field of insurance regulation generally. To the contrary, the McCarranFerguson Act states:

No act of Congress shall be construed to invalidate, impair or supersede any law enacted by any state for the purpose of regulating the business of insurance ... unless such Act specifically relates to the business of insurance____

15 U.S.C. § 1012(b). It is self evident that the LMRA is not an Act specifically relating to the business of insurance for purposes of this Section. See Wadsworth v. Whaland, 562 F.2d 70, 79 n. 44 (1st Cir. 1977). I therefore conclude that Congress intended that states be free to regulate the terms of insurance coverage and the relations between insurers and their insureds even if that regulation has some indirect effect on the collective bargaining process and the terms of employee benefit plans. In light of this explicit congressional intent not to pre-empt state law in this field, I find that the challenged provisions of New Jersey law are not pre-empted either by the express or implied intent of Congress embodied in the LMRA.

As noted in Brown, however, in the absence of congressional intent to occupy the field, a state law may still be pre-empted if “it actually conflicts with federal laws”, 104 S.Ct. at 3185. Actual conflict can be shown if compliance with both laws is a “physical impossibility” or where state law is found to be “an obstacle to the accomplishment and execution of the full purposes and objectives of congress”. Id. (citations omitted). Plaintiff contends that the state law in this case burdens the right and duty to bargain under the federal labor laws. It contends that the New Jersey Cost Containment statute mandates the terms of the collective bargaining agreements between plaintiffs members and their employees. I do not agree. Nothing in the New Jersey statute challenged herein mandates that employers provide health benefits for their employees, nor does it mandate that private insurers raise their premiums. The Commissioner has indeed denied Blue Cross and Blue Shield the right to exclude coverage of personal injury resulting from auto accidents because pursuant to state authority the Commissioner has determined that such an exclusion would be against public policy. This is precisely the sort of regulation Congress had in mind when it passed the McCarranFerguson Act quoted supra. I do not believe that Congress in passing the federal labor laws intended that employees and employers have the right to bargain for health benefit plans which contain an exclusion such as that requested by Blue Cross and Blue Shield at resulting lower premiums where the state has determined that such an exclusion would be against public policy.

Moreover, I am not persuaded that the cases cited by plaintiff mandate a contrary result. These cases do not deal with conflict between the federal labor laws and state laws regulating insurance and preemption will not be implied where Congress has explicitly indicated that state law should continue to govern a particular area. See Malone v. White Motor Corp., 435 U.S. 497, 98 S.Ct. 1185, 55 L.Ed.2d 443 (1978). The McCarran-Ferguson Act specifically indicates Congress’ intent in this regard. See discussion supra.

With regard to plaintiff’s argument that the challenged portions of New Jersey’s auto accident insurance scheme are pre-empted by ERISA, I am similarly unpersuaded. It is true that ERISA is an Act specifically relating to the business of insurance and it is true that ERISA was enacted subsequent to the McCarran-Ferguson Act. It is also true that ERISA specifically provides that “the provisions of this [Act] ... shall supersede any and all state laws in insofar as they may now or hereafter relate to any employee benefit plan____” 29 U.S.C. § 1144(a). However, Section 1144 goes on to state that “[e]xcept as provided in subparagraph (B), nothing in this subchapter shall be construed to exempt or relieve any person from any law of any state which regulates insurance____” 29 U.S.C. § 1144(b)(2)(A). The sole exception to this exemption from the pre-emptive effect of the Act under § 1144(a) is that “[n]either an employee benefit plan ... nor any trust under such a plan, shall be deemed to be an insurance company or other insurer ... or to be engaged in the business of insurance ... for purposes of any law of any state purporting to regulate insurance companies [or] insurance contracts. ...” 29 U.S.C. § 1144(b)(2)(B).

The challenged portions of the New Jersey law are not directed at employee benefit plans or trust funds. Instead, the Act deals with deductibles available in state-mandated auto insurance, notice to insureds of these options, and a coordination of benefits scheme providing that such auto insurance policies will not cover personal injury loss up to the amount of the deductible if covered by other health benefits held by the individual. These provisions regulate insurers and insurance with at most indirect effects on the cost of insurance charged to employers purchasing benefits for employees. Giving full consideration to the exception embodied in § 1144(b)(2)(B), I do not have any doubt that New Jersey's Cost Containment Act of 1984 and the regulations promulgated thereunder are state laws regulating insurance under § 1144(b)(2)(A) and are thus expressly exempt from the pre-emptive scope of § 1144(a).

Plaintiff cites this court to cases in which state laws have been invalidated under ER-ISA. However, in all of these cases, the state law at issue, either directly or indirectly, purported to regulate employee benefit plans and not solely to regulate insurance as in the instant case. See, e.g., Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983) (state law imposing requirements on employers offering benefit plans); Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 101 S.Ct. 1895, 68 L.Ed.2d 402 (1981) (state workers compensation statute precluding employers from utilizing a particular method of competing pension benefits); Dawson v. Whaland, 529 F.Supp. 626 (D.N.H.1982) (state insurance statute explicitly made applicable to employee benefits plans). The challenged portions of the New Jersey law herein by its terms regulates insurance. It affects only the potential cost of purchasing comparable employee benefits through private insurance carriers and then only if the insurers chose to raise their premiums due to an increase in personal injury claims.

Plaintiffs have also cited this court to Attorney General v. Travelers Insurance Co. et al, 385 Mass. 598, 433 N.E.2d 1223 (1982) in which the Massachusetts Supreme Court found that a state statute mandating that hospital and surgical insurance policies provide mental health care benefits was not pre-empted by ERISA (or, for that matter, the LMRA). Plaintiff directs this court’s attention to the fact that the case was remanded by the Supreme Court for consideration in light of Shaw, — U.S.-, 103 S.Ct. 3563, 77 L.Ed. 1405, and that after a decision on remand, the Supreme Court noted probable jurisdiction to appeal under 28 U.S.C. § 1257(2). Plaintiff contends that this is an indication that the United States Supreme Court may be intending to reverse the Massachusetts Supreme Court on the pre-emption issue. This argument does not affect the instant case. The state statutes at issue in Shaw and in Travelers specifically required that employers provide particular benefits to their employees or that all health insurance policies with the express inclusion of “employees health and welfare fund[s] which provide hospital expense and surgical expense benefits” provide particular coverage. See Shaw, 463 U.S. 85 at-, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490; Travelers Insurance, 433 N.E.2d at 1224 n. 2. The statutory provisions challenged herein do not mandate certain types of coverage. At most, the acts of the Commissioner pursuant to this statutory authority serve to prohibit certain exclusion in insurance policies as against public policy on a state wide basis. They would thus be unaffected by a reversal of Travelers in light of the Shaw case. Further, in Shaw, no argument was made that the exemption for regulation of insurance applied. I find that it does apply here.

I therefore conclude that the challenged provisions of the Cost Containment Act of 1984 are not pre-empted by either the LMRA or ERISA.

For the reasons set forth above in my discussion of ripeness, I find that declaratory relief to this effect is appropriate. Because I have decided to grant defendant’s motion for summary judgment, I need not address defendant’s argument that plaintiff’s request for injunctive relief does not meet the governing legal standards for such relief.


author: HOBBS, District Judge.

text:
    Kenny WILDER, Plaintiff, v. COMMISSIONER OF INTERNAL REVENUE, Defendant.
    Civ. A. No. 83-H-709-N.
    United States District Court, M.D. Alabama, N.D.
    April 6, 1984.

      Kenny Wilder, pro se.
    John C. Bell, U.S. Atty., Kenneth E. Vines, Asst. U.S. Atty., Montgomery, Ala., Edward J. Snyder, J. Brian Ferrel and Jefferson K. Fox, Attys., Tax Div., U.S. Dept, of Justice, Washington, D.C., for defendant.
   MEMORANDUM OPINION

HOBBS, District Judge.

Plaintiff, proceeding pro se, filed this action under the Freedom of Information Act seeking disclosure of the Agreement on Coordination of Tax Administration between the Alabama Department of Revenue and the Internal Revenue Service, and of the Implementing Agreement thereof. Defendant has furnished to plaintiff all of these documents with the exception of a few deletions. Defendant now has moved for summary judgment, claiming that the matters deleted are exempt from disclosure. Plaintiff has filed no response to defendant’s motion. For the reasons stated below, the Court agrees with defendant.

Plaintiff originally wrote to defendant on April 13, 1983, requesting disclosure of the Tax Treaty between Alabama and the Internal Revenue Service, a request which defendant has since determined to cover the Agreement on Coordination and the Implementing Agreement. Plaintiff received no response. Plaintiff then sent a letter of appeal on May 24, 1983, and again received no response. See 5 U.S.C. § 522(a)(6)(A). Plaintiff filed this action on July 8, 1983. On August 3, defendant sent to plaintiff the Agreement on Coordination and parts of the Implementing Agreement. Defendant omitted the portions of the latter agreement that explain when information will be transmitted by one of the parties to the other. In other words, those portions explain when the I.R.S. and the Alabama Department of Revenue “will not exchange information relevant to potential violations of the applicable tax laws.”

Defendant contends that this information is exempt from disclosure under § 552(b)(2). That subsection excludes matters “related solely to the internal personnel rules and practices of an agency.” Defendant asserts that this extends to disclosures that might facilitate the circumvention of agency regulations. Several cases support defendant’s interpretation.

In Crooker v. Bureau of Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C.Cir. 1981), the court exempted portions of the bureau’s manual that referred to investigative techniques. The court reasoned that the matters at issue were “not written to regulate the public,” and thus were internal. Id. at 1073. Furthermore, the court found “that public disclosure would risk circumvention of agency regulations.” Id. The court rejected the limitation of Exemption 2 to “rules and practices that concern relations among the employees of an agency.” Id. (quoting Jordan v. Department of Justice, 591 F.2d 753, 763 (D.C.Cir. 1978)). Crooker was a retreat from Jordan v. Department of Justice, 591 F.2d 753, 771 (D.C.Cir.1978), in which the same court concluded that Exemption 2 only covered items in which the public has no interest.

In Caplan v. Bureau of Alcohol, Tobacco & Firearms, 587 F.2d 544 (2d Cir.1978), the court refused to order disclosure of material describing the bureau’s procedures for apprehending suspects. The court agreed with plaintiff that “secret law is an abomination,” but found that the material at issue did “not purport to set forth the bureau’s interpretation of substantive or procedural law.” Id. at 548. Furthermore, disclosure might have risked circumvention of agency regulation. Id.; accord, Hardy v. Bureau of Alcohol, Tobacco & Firearms, 631 F.2d 653 (9th Cir.1980) (same material as in Caplan).

Defendant’s position also finds support from dicta of the Fifth Circuit. In Stokes v. Brennan, 476 F.2d 699 (5th Cir.1973), the court stated, “Secrecy can be justified ... only to the extent that it protects policies governing enforcement methods which, if disclosed, would tend to defeat the purpose of inducing maximum voluntary compliance by revealing classes or types of violations which must be left undetected or unremedied because of limited resources.” Id. at 702. See Sladek v. Bensinger, 605 F.2d 899, 902 (5th Cir.1979) (noting that Department of the Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976), left this issue open).

The Court concludes that the materials at issue here fall within Exemption 2. The materials are not defendant’s interpretation of substantive law applicable to the public, but rather are internal procedures simply governing the exchange of information. This is analogous to the circumstances in Crooker, Caplan, and Hardy, where the material prescribed procedures for enforcing the law. Furthermore, disclosure of this material would risk circumvention of agency regulation. It fits precisely into the Stokes dictum, because it governs when violators will not be pursued. Thus, defendant is entitled to summary judgment.

Plaintiff in his complaint has requested that the Court enter a finding that the circumstances “raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding.” § 552(a)(4)(F). Although defendant delayed in making disclosure, defendant did disclose all non-exempt material without a court order, and so the Court cannot enter such a finding. Id.

Plaintiff also has asked for awards of costs and attorney’s fees. Such an award is authorized where a plaintiff “has substantially prevailed,” § 552(a)(4)(E), as plaintiff here did. Although plaintiff is entitled to his costs, he is not entitled to attorney’s fees, as he proceeded pro se. Clarkson v. I.R.S., 678 F.2d 1368, 1371 (11th Cir.1982).

A separate judgment will be entered in accordance with this memorandum opinion.

JUDGMENT

In accordance with the attached memorandum opinion, it is hereby

ORDERED that defendant’s motion for summary judgment is granted.

It is further ORDERED, ADJUDGED, and DECREED that plaintiff’s complaint be and the same is hereby dismissed, that plaintiff have and receive nothing on his claim for attorney’s fees, and that costs be taxed against defendant.