author: GLASSER, District Judge:

text:
    In the Matter of AN APPLICATION FOR APPOINTMENT OF INDEPENDENT COUNSEL.
    No. 84 Civ. 3886.
    United States District Court, E.D. New York.
    Nov. 6, 1984.
    Monroe H. Freedman, Hempstead, N.Y., Orenstein, Snitow & Pauley, P.C., New York City, for applicants.
    Asst. Atty. Gen. Stephen A. Trott, Dept, of Justice, Washington, D.C., William C. Bryson, Dept, of Justice, Washington, D.C., Paul J. Larkin, Jr., Dept, of Justice, Washington, D.C., for the government.
   MEMORANDUM AND ORDER

GLASSER, District Judge:

An application was submitted to this Court on behalf of Ronald A. Schiavone and the Schiavone Construction Company (the “Applicants”), requesting the Court to appoint one or more members of the Bar of the Court to serve as independent counsel, to investigate whether Mario Montuoro gave false evidence and made false statements in violation of Federal law and to prosecute for any violation of Federal criminal law warranted by that investigation. During the course of oral argument, the Government moved for leave to intervene, which was granted.

The application is based upon the following allegations:

Mario Montuoro has a criminal record that includes four arrests, one in 1969 for possession of heroin, and one in 1974 for possession of a gun;
Montuoro has an established relationship with the United States Department of Justice as an informer. For example, in an organized crime case in 1981, Montuoro was a witness on behalf of the prosecution, and the defendant was convicted;
Montuoro’s cooperation with the Justice Department might have stemmed from motives of revenge against people about whom he has given information, and, in view of his criminal record, from a desire to ingratiate himself with the prosecutor’s office;
In 1979 and thereafter, Montuoro told Federal agents, including members of the Federal Organized Crime Strike Force in Brooklyn, that Raymond J. Donovan and Ronald A. Schiavone, as officers of Schiavone Construction Company, were guilty of participating in an illegal cash payment to a union officer. The payment was said to have been made at a luncheon at Prudenti’s Restaurant in May or June of 1977;
In 1981, Raymond J. Donovan became Secretary of Labor of the United States. Later the same year, a division of the United States Court of Appeals for the District of Columbia Circuit appointed Leon Silverman Special Prosecutor, expressly to investigate Montuoro’s allegation about the luncheon at Prudenti’s;
Under an order of the United States District Court for the Eastern District of New York, issued at the request of the Special Prosecutor, Montuoro testified before a grand jury, and repeated the allegation regarding the luncheon at Prudenti’s. The grand jury unanimously returned a no true bill on the allegation;
After an exhaustive investigation of Montuoro’s allegation, the Special Prosecutor found that Montuoro’s specifications of dates were “inconsistent,” that his attempts to relate the luncheon to other events “proved to be illusory,” and that there is “no evidence corroborating Montuoro’s assertion that any Prudenti’s lunch attended by Messrs. Donovan, DiCarolis, Schiavone, Lugori, Sanzo, and Montuoro himself occurred at or near the time he alleged or, for that matter, at any other time examined in the course of this investigation.” In short, the Special Prosecutor concluded that “no credible evidence exists that a luncheon as alleged by Montuoro ever occurred;”
Montuoro’s conduct, as described in the preceding paragraphs, would justify indictments against him for several federal crimes, including Perjury (18 U.S.C. § 1621), False Declaration Before a Grand Jury (18 U.S.C. § 1623), False Statements (18 U.S.C. § 1001), Obstruction of Justice (18 U.S.C. § 1505), and/or Contempt (18 U.S.C. § 401);
Although formal requests have been made of the Justice Department by Ronald Schiavone that Montuoro be prosecuted, the Department has not sought any indictment of Montuoro. The statute of limitations has now run on Criminal Contempt, but has not yet run on the other crimes.

Affidavits by six persons characterized as highly qualified experts on the professional responsibilities of prosecutors are submitted in support of the application. Those persons are unanimous in their conclusion that members of the Department of Justice have a conflict of interest in violation of applicable standards of professional conduct with regard to investigating and prosecuting Mario Montuoro and that this Court should resolve the conflict of interest by appointing independent counsel to investigate and, if warranted, prosecute Montuoro. Federal authority for such an appointment in a case such as this is not furnished in any of those affidavits.

I.

A variety of arguments are urged upon the Court to move it to grant the requested relief. Only those deemed relevant to the crucial question of the jurisdiction and authority of the Court to grant the application will be considered.

A. Inherent Power of the Court

The Applicants leap from the conflict of interest postulate to the inherent power of the Court to appoint a special prosecutor to resolve the conflict. That inherent power, it is argued, has a long common law tradition, antedating the Constitution. The authority advanced are state cases in many of which the courts are authorized by statute to appoint special prosecutors and others where the state courts have, indeed, asserted power to appoint special prosecutors where the official prosecutor was sick or otherwise disqualified. The concept of “inherent power” is like a ghost that is seen in the law but is elusive to the grasp. In Smith v. Gallagher, 408 Pa. 551, 574, 185 A.2d 135, 146 (1962), Justice Musmanno, in responding to the argument that a court had inherent power to convene a special grand jury in a “highly specialized situation,” characterized it as follows: “This is an argument which sails a sea glittering with generalities, from which there emerges not a solid rock of jurisprudence on which one can stand and assert a tangible rule, or palpable principle, recognizable in law.” Notwithstanding such state authority as there may be for the Application, there is no federal authority, either statutory or judicial, that would support it in a case such as this.

In addition, the Applicants assert that from the earliest days of the common law “an aggrieved party has had the right in England to prosecute criminally, for the vindication of private as well as public wrongs.” It should be noted in this regard that in England the prosecution of offenses was left entirely to private persons or to public officers who acted in their capacity of private persons and who had hardly any legal powers beyond those which belonged to private persons. 1 F. Stephen, A History of the Criminal Law of England, 490-96 (1883). The power to institute prosecutions did not carry with it unlimited control over them when they were instituted. When a charge was made, the maker of it was usually bound over to prosecute and when the bill was sent before the Grand Jury the matter was entirely out of the original prosecutor’s hands and must run its course unless the Attorney General, as the representative of the Crown, enters a nolle prosequi which operates as a stay of the proceedings. 1 F. Stephen, supra, 496. The Attorney General’s discretion to enter a nolle prosequi was unfettered and never interfered with by the English courts even if in doing so, he abused his power. Regina v. Allen, 121 Eng.Rep. 929, 931 (K.B. 1862).

The English practice of private prosecution never took root in American soil. The public prosecution of crime in the United States antedated the independence of the Colonies. The early settlers, dissatisfied with the shortcomings of a system of private prosecution, recognized the necessity of having criminal prosecutions conducted by impartial government officials rather than by interested private parties. See, The Outmoded Concept of Private Prosecution, 25 American University Law Rev. 754, 756-65 (1976); see also The Special Prosecutor in the Federal System: A Proposal, 11 American Cr.L.Rev. 577, 604 (1973); Private Prosecution: A Remedy for District Attorneys’ Unwarranted Inaction, 65 Yale L.J. 209, 223 (1955); Linda R.S. v. Richard., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1972) (“[I]n American jurisprudence at least a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another”).

B. Appointment of Prosecuting Attorneys in Civil Cases

The Applicants find succor in the civil cases of which Musidor B.V. v. Great American Screen, 658 F.2d 60 (2d Cir. 1981) is a paradigm, in which courts have appointed the attorney for one party to prosecute criminal charges (contempt) against the other party without a finding that the United States Attorney is unable to act. Those cases are clearly distinguishable and the basis for the distinction is readily to be found in a reading of them. In the oft-cited case of McCann v. New York Stock Exchange, 80 F.2d 211 (2d Cir.1935), Judge L. Hand had occasion to comment upon some differences between criminal and civil contempt in these terms:

Criminal prosecutions, that is, those which result in a punishment, vindictive as opposed to remedial, are prosecuted either by the United States or by the court to assert its authority. The first are easily ascertainable; they will be openly prosecuted by the district attorney; it would not seem to be of consequence how they are entitled when that is true. In the second the court may proceed sua sponte without the assistance of any attorney, as in the case of disorder in the courtroom; there can be little doubt about the kind of proceeding when that is done. But the judge may prefer to use the attorney of a party, who will indeed ordinarily be his only means of information when the contempt is not in his presence. There is no reason why he should not do so, and every reason why he should, (emphasis added).

Id. at 214.

Rule 42(b) Fed.R.Cr.P. was intended, in part, to follow the suggestions made in McCann. The gloss put upon the language of McCann in Musidor makes plain the limited circumstance in which the appointment of prosecuting counsel is contemplated. “The practicalities of the situation,” said the Court, “where the criminal contempt occurs outside the presence of the court but in civil litigation require that the court be permitted to appoint counsel for the opposing party to prosecute the contempt.” Musidor, B. V. v. Great American Screen, 658 F.2d 60, 65 (2d Cir.1981) (emphasis added).

The other arguments advanced by the Applicants either do not warrant extended discussion or will be noted hereafter.

II.

During the days of anguish over which the Watergate affair extended, a motion to intervene for the limited purpose of applying for the appointment of a Special Prosecutor was filed in the United States District Court for the District of Columbia. The appointment of a special prosecutor was sought to investigate the events surrounding the notorious Watergate break-in. The novelty of the motion was succinctly noted in the order of Judge Charles R. Richy denying it, as follows: “... there is no statute under our Federal System which authorizes this Court to appoint a special prosecutor. Such statutory authority as exists applies only to the authority of the Attorney General of the United States to appoint ‘special attorneys’ in the exercise of his discretion. 28 U.S.C. 515, and____ Petitioners have cited no federal case law which directly supports their proposition that this Court has the inherent power to appoint a special prosecutor in this action.” Findings of Fact and Order, O’Brien v. The Finance Committee to Re-Elect the President, et al., Civ. No. 1233-72 (D.D.C. Sept. 25, 1972). A motion for similar relief was subsequently filed by John F. Banzhaf III and Peter H. Meyers in United States v. Liddy, and similarly denied by Judge John J. Sirica with a terse “there exists no basis upon which petitioner’s motion might be granted.” United States v. Liddy, Crim. No. 1827-72 (D.D.C. November 21, 1972). Although in each case the judge simply found no basis upon which the requested relief could be granted, there were considerable bases upon which the denial of such relief could rest. The variety of reasons advanced for denying such relief will be briefly discussed.

A. Absence of Statutory Authority

It is beyond dispute that there is no federal statute providing for the appointment of a special prosecutor or independent counsel in a case of this sort.

In 1978 Congress enacted 28 U.S.C. §§ 591-598, known as the Ethics in Government Act. That Act defines with meticulous specificity the circumstances under which a special prosecutor may be appointed by a division of the Court established for that purpose by 28 U.S.C. § 49. The facts prompting this application are not embraced by the Ethics in Government Act which is, therefore, not applicable here. The enactment of that legislation, however, suggests a different view of the inherent power of federal courts than that advanced by the applicant. If the power to appoint special prosecutors were inherent, then it would seem that the Ethics in Government Act was superfluous.

Little, if any, reliance can be placed upon 28 U.S.C. § 547(1) which provides that “each United States Attorney ... shall (1) prosecute for all offenses against the United States; ...” (emphasis added). The language of that statute “has never been thought to preclude the exercise of prosecutorial discretion.” Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375 (2d Cir.1973). That case raised the question of whether the federal judiciary should, at the instance of victims, compel federal and state officials to investigate and prosecute persons who allegedly violated federal and state criminal statutes. The question was answered in the negative.

B. Separation of Powers

Article II, section 1 of the United States Constitution vests the executive power in the President of the United States who, in section 3, is directed to “take care that the laws be faithfully executed, ...” The Attorney General is the alter-ego of the President in taking care that the laws be faithfully executed. Ponzi v. Fessenden, 258 U.S. 254, 262, 42 S.Ct. 309, 311, 66 L.Ed. 607, (1922). Neither the Congress in Article I nor the courts in Article III are directed or empowered to enforce the laws. That fundamental principle of separation of powers has been affirmed in numerous federal decisions in a variety of contexts. One of the most frequently cited is United States v. Cox, 342 F.2d 167 (5th Cir.1965), in which the question presented was whether a United States Attorney could be judicially compelled to sign an indictment returned by a grand jury. At page 171, the court said:

Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as. an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions.”

The law in this circuit supports that view, adopting that reasoning in Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 379 (2d Cir.1973).

In Newman v. United States, 382 F.2d 479 (D.C.Cir.1967), the United States Attorney consented to a guilty plea tendered by one co-defendant for a lesser included offense under indictment while refusing to consent to the same plea by the defendant who contended that he was thus denied his constitutional rights of due process and equal protection. Chief Justice (then Circuit Judge) Burger wrote:

In the United States Attorney’s capacity as agent and attorney for the Executive, he is responsible to his principal and the courts have no power over the exercise of his discretion or his motives as they relate to the execution of his duty within the framework of his professional employment____ It is assumed that the United States Attorney will perform his duties and exercise his powers consistent with his oath; and while this discretion is subject to abuse or misuse just as is judicial discretion, deviations from his duty as an agent of the Executive are to be dealt with by his superiors.
The remedy lies ultimately within the establishment where power and discretion reside. The President has abudant supervisory and disciplinary powers — including summary dismissal — to deal with misconduct of his subordinates; it is not the function of the judiciary to review the exercise of executive discretion whether it be that of the President himself or those to whom he has delegated certain of his powers.
The concurring opinion would reserve judicial power to review ‘irrational’ decisions of the prosecutor. We do our assigned task of appellate review best if we stay within our own limits, recognizing that we are neither omnipotent so as to have our mandates run without limit, nor omniscient so as to be able to direct all branches of government. The Constitution places on the Executive the duty to see that the ‘laws are faithfully executed’ and the responsibility must reside with that power.

Newman v. United States, supra, at 481, 482 n. 9.

C. Prosecutorial Discretion

... federal courts have traditionally and, to our knowledge, uniformly refrained from overturning, at the instance of a private person, discretionary decisions of federal prosecuting authorities not to prosecute persons regarding whom a complaint of criminal conduct is made.
This judicial reluctance to direct federal prosecutions at the instance of a private party asserting the failure of United States officials to prosecute alleged criminal violations has been applied even in cases ... where, ... serious questions are raised as to the protection of the civil rights and physical security of a definable class of victims of crime and as to the fair administration of the justice system.

Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 379 (2d Cir. 1973). The court went on to consider at 380-381 the manifold imponderables which enter into the prosecutor’s decision to prosecute or not to prosecute and concluded that “On balance, we believe that the substitution of a court’s decision to compel prosecution for the United States Attorney’s decision not to prosecute, even upon an abuse of discretion ^standard of review and even if limited to directing that a prosecution be undertaken in good faith, ... would be unwise.” See also, Pugach v. Klein, 193 F.Supp. 630, 635 (S.D.N.Y.1961).

The Applicants would distinguish the cases in which a federal court was petitioned to coerce the prosecutor to institute an investigation or to pursue a criminal prosecution. They argue that they are not seeking such relief. They merely ask that the United States Attorney be supplanted by the appointment of an independent counsel who, in this case, “would be an aid to the public prosecutors in ‘carrying out their responsibilities, because it would relieve them of an undesirable and unseemly conflict of interest.’ ” That argument is not persuasive.

In Nathan v. Smith, 737 F.2d 1069 (D.C. Cir.1984), the District Court granted plaintiff’s motion for summary judgment in a mandamus action and ordered the Attorney General to conduct a preliminary investigation pursuant to 28 U.S.C. § 592 of the Ethics in Government Act. The Attorney General sought reversal of the court’s order and the plaintiff cross-appealed from the court’s refusal to direct the Attorney General to apply for the appointment of a special prosecutor (now independent counsel). The order of the District Court was reversed. The concurring opinion by Judge Bork is relevant and instructive. He wrote, at 737 F.2d 1079 as follows:

It may be thought that neither the relief granted by the district court nor that sought by the plaintiffs falls within the principle of Executive control of decisions to prosecute. The district court ordered the Attorney General to initiate a preliminary investigation; the plaintiffs seek to compel an application for the appointment of an independent counsel. The distinction between these remedies and the principle [of Executive control of decisions to prosecute] has no significance, however---- The preliminary investigation is thus the first stage of the prosecutorial process and the district court has undertaken to control that stage.
Plaintiffs would have the district court control the next stage as well ordering the Attorney General to apply to the special division of the court for the appointment of an independent counsel. It is no answer to say that the courts, under either form of relief, would not control the final prosecutorial decision since that would be made by the independent counsel. There are at least two flaws in that reasoning. The first is that the principle of Executive control extends to all phases of the prosecutorial process. Thus, were this a case about an ordinary prosecution under a federal criminal statute, a plaintiff could not escape the principle discussed by demanding only an order that the Attorney General present facts to a grand jury but leaving the decision whether to sign an indictment to him. Second, if private plaintiffs have the legal ability to require an investigation of criminal charges, it is difficult to understand by what principle they could be denied a cause of action to compel the independent counsel to prosecute if that counsel had sufficient evidence to do so under the policies of the Department of Justice, which the Act requires him to follow____ If the execution of the laws is lodged by the Constitution in the President, that execution may not be divided up into segments, some of which courts may control and some of which the President’s delegate may control.

Given the views expressed regarding the merits of this application, no useful purpose would be served by burdening this decision further with a consideration of the issue of standing. See e.g., Linda R.S. v. Richard D, 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1972); Dohaish v. Tooley, 670 F.2d 934 (10th Cir.1982); Pugach v. Klein, 193 F.Supp. 630, 635 (S.D.N.Y.1961).

For the foregoing reasons, the Application for the appointment of independent counsel is denied.

SO ORDERED.

      . David T. Austern was as Federal prosecutor (Chief of Grand Jury/Intake Unit and Chief of Felony Trials), a New York County prosecutor (Rackets Bureau), and the Bar Counsel for the District of Columbia Board on Professional Responsibility. He was himself a court-appointed Special Prosecutor (with Jacob Stein) in the Investigation of the Appointment of Edwin Meese to be Attorney General.
      Barbara Allen Babcock was an Assistant Attorney General of the United States, the Director of the Public Defender Service of the District of Columbia, and a member of the ABA’s Criminal Justice Council. She is now a Professor at Stanford Law School, where she teaches Criminal Procedure and Professional Responsibility.
      Samuel Dash was the Chief Counsel for the Senate Watergate Committee, the District Attorney for Philadelphia, a Special Consultant to the Advisory Committee on the ABA Standards Relating to the Defense and Prosecution Functions, and the Chairman of the ABA Section on Criminal Law. He is now a Professor at Georgetown Law School, where he teaches Criminal Law, Criminal Procedure, and Professional Responsibility.
      Geoffrey C. Hazard, Jr. was the Reporter and principal draftsman of the ABA Model Rules of Professional Conduct ("Kutak Code”), which was adopted the ABA House of Delegates in 1983. He is now the Director of the American Law Institute, and a Professor at Yale Law School, where he teaches Professional Responsibility.
      Norman Lefstein was the Reporter and principal draftsman for the ABA Standards Relating to the Prosecution Function. He is now the Vice Chairman of the ABA Criminal Justice Section, and a Professor at North Carolina Law School, where he teaches Criminal Law, Criminal Procedure, and Professional Responsibility.
      James P. Manak was the Director of the National District Attorneys Association Project on Standards and Goals, which produced the NDAA’s National Prosecution Standards, and was the Reporter for the Prosecution Volume, Juvenile Justice Standards, ABA/Institute for Judicial Administration. He has also held offices in the National District Attorneys Association, the International Association of Chiefs of Police, and Americans for Effective Law Enforcement, which files amicus briefs before the Supreme Court and other courts on behalf of law enforcement groups.

      . See, The Special Prosecutor in the Federal System: A Proposal, 11 American Criminal Law Review 577, 579-581 (1973).

      . In Regina v. Allen, the question before the court was whether the Attorney General has power to enter a nolle prosequi on an indictment without calling upon the prosecutor to show cause why that should not be done, and, where he has done so, should the Court interfere. Also before the court was the question of whether the nolle prosqui would put an end to the prosecution altogether. The court decided that the Attorney General had the power with which the Court would not interfere and having exercised that power the prosecution was terminated. Chief Judge Cockburn expressed the rule thus:
      It is an undoubted power of the Attorney General, as representative of the Crown in matters of criminal judicature, to enter a nolle prosequi, and thereby to stay proceedings in any indictment or criminal proceeding. No instance has been cited, and therefore it may be presumed that none can be found, in which after a nolle prosequi has been entered by the fiat of the Attorney General, this Court has taken upon itself to award fresh process or has allowed any further proceedings to be taken on the indictment____ Suppose it possible that there could be an abuse of power by the Attorney General, or injustice in the exercise of it, the remedy is by holding him responsible for his acts before the great tribunal of this country, the High Court of Parliament. I have no doubt that the Attorney General has this power; and this Court has never interfered with it.

        Regina v. Allen, supra, at 931.
      Judge Crompton stated the principle as follows:
      It would be very mischievous, by granting a rule nisi, to raise any doubt in so clear a matter. In this country, where private individuals are allowed to prefer indictments in the name of the Crown, it is very desirable that there should be some tribunal having authority to say whether it is proper to proceed further in a prosecution. That power is vested by the constitution in the Attorney General and not in this Court.

        Regina v. Allen, supra, at 931.
      Judge Blackburn wrote:
      But the power of determining whether the prosecution of an indictment shall go on or not, is entrusted to the Attorney General, who is the great law officer of the Crown; and whether he is right or wrong this Court cannot interfere.

        Regina v. Allen, supra, at 932.
      Finally, Judge Mellor observed:
      If we were to interfere in the manner suggested, a serious conflict might arise between the jurisdiction of this Court and the functions of the Attorney General.

        Regina v. Allen, supra, at 932.
      The judges of the Court of Kings Bench might have been writing for American courts more than a century later in cases such as United States v. Cox, Newman v. United States, and Inmates of Attica Correctional Facility v. Rockefeller, infra.

      . See, Memorandum of Points and Authorities in Support of Application for Appointment of Independent Counsel, p. 19.
      The principal reason advanced in support of this application, buttressed by the affidavits of qualified commentators on professional responsibility, is the conflict of interest which allegedly infects the relationship between the United States Attorney and the informant, Mario Montuoro. In paragraph numbered 12 of the Application for Appointment of Independent Counsel, the court is asked to consider the appointment of the attorneys representing Ronald A. Schiavone and the Schiavone Construction Company in this proceeding. I am puzzled by the absence of conflict of interest a request to consider their appointment clearly implies. See, e.g., The Outmoded Concept of Private Prosecution, 25 American U.L.R. 754, 768, et seq. (1976). See also page 29 of the transcript.

      . By letter dated October 31, 1984 and received by the Court on November 2, 1984 (argument on the application was heard on October 26, 1984), Applicants’ counsel claims surprise by the suggestion of the Governments attorney upon oral argument that the factual premise of the application was being challenged. Relying upon his understanding of the Government's oral presentation, he writes: "Apparently, Mr. Larkin's contention is in two parts: first, that the Special Prosecutor did not determine that Mario Montuoro had committed perjury; second, that even if the Special Prosecutor determined that Montuoro had committed perjury, the Special Prosecutor decided, on the merits, that prosecution was nevertheless unwarranted ____
      "One might suggest a number of explanations for the fact that Mr. Silverman made no referral to the Department of Justice, but speculation would be inappropriate and is unnecessary. At the hearing Mr. Larkin was granted leave to supplement the record, belatedly, in this regard. We respectfully submit that fairness requires that Applicant be granted a similar right.
      "Applicant then requests leave of the court to supplement the record by a brief deposition of Mr. Silverman, an affidavit from him, or simply by a letter from him to the Court, responding to the following questions:
      "1. Whether he concluded that Mario Montuoro made false statements to Federal Agents and/or committed perjury before the Grand Jury with respect to the President's allegations?
      “2. If so, why he refrained from referring the evidence of Montuoro’s false statements and/or perjury to the Department of Justice?”
      At the conclusion of oral argument, the Attorney for the Government offered to furnish the Court and counsel with page 294 of Vol. 1 of the Report of the Special Prosecutor. To date, that page has not been furnished and the record has not been supplemented by the Government. In any event, in the light of the reasons advanced for the denial of the application, I fail to see the relevance of Mr. Silverman’s responses to the proposed questions. They would not affect the principle of separation of powers, prosecutorial discretion nor cure the absence of statutory or judicial authority for the relief requested. The belated request by the Applicant for leave to supplement the record by a limited inquiry of Leon Silverman, Esq., is denied.
      I express no view as to whether independent counsel could himself have initiated and conducted the prosecution of Montuoro for perjury, assuming such action was warranted. See, e.g., 28 U.S.C. §§ 593(b), 594(a)(9)(e), (f); 1978 U.S. Code Cong. & Ad.News 4216, 4280-4286; 1982 U.S.Code Cong. & Ad.News 3537, 3538, 3545, 3550-3553. If the independent counsel could have initiated and conducted such a prosecution, then the cases discussed pertaining to prosecutorial discretion and separation of powers are clearly dispositive.


source: Caselaw Access Project

author: WEINSHIENK, Judge.

license: Public Domain

text:
    Maurice J. WIESER and Patricia Wieser, Plaintiffs, v. The FIRESTONE TIRE AND RUBBER COMPANY, an Ohio corporation, Defendant.
    Civ. A. No. 82-Z-848.
    United States District Court, D. Colorado.
    Nov. 6, 1984.

      John L. Breit, Michael S. Porter, Hansen & Breit, P.C., Denver, Colo., for plaintiffs.
    R. Eric Peterson, White & Steele, P.C., Denver, Colo., for defendant.
   ORDER GRANTING PARTIAL SUMMARY JUDGMENT

WEINSHIENK, Judge.

This is a products liability action based upon a claim of defective design and manufacture of a multi-piece truck tire wheel and rim assembly. Plaintiffs’ Complaint alleges that Maurice J. Wieser was injured on June 17, 1981, while mounting the rim assembly, a portion of which defendant has admitted manufacturing in November 1965. Jurisdiction is based on diversity of the parties, 28 U.S.C. § 1332.

Plaintiffs’ six claims for relief are based on the following theories: strict products liability (First Claim for Relief); failure to warn; (Second Claim for Relief); breach of a duty to design and manufacture a safe and merchantable product (Third Claim for Relief); breach of implied warranties (Fourth Claim for Relief); misrepresentation as to the safety of the product (Fifth Claim for Relief); and reckless and wanton misconduct (Sixth Claim for Relief).

The matter now before the Court is defendant’s Motion for Summary Judgment, which seeks summary judgment on all claims based upon the Colorado statute of limitations for contract claims under the Uniform Commercial Code (UCC). Defendant’s Brief, however, addresses only plaintiffs’ Third, Fourth and Fifth Claims. The Court has considered the Motion, the parties’ briefs with attached exhibits, the facts and circumstances of the case and the relevant law and is now fully advised and prepared to rule.

Defendant’s Brief asserts that plaintiffs’ Third, Fourth, and Fifth Claims for Relief are barred by the four-year limitations period of Colo.Rev.Stat. § 4-2-725 (1983). Defendant characterizes these as contract claims based on express and implied warranties, and points out that a cause of action governed by § 4-2-725 accrues when tender of delivery is made by the seller. Plaintiffs’ position is that neither the Third nor Fifth Claims for Relief are based on warranty theories, and that the contract limitations period of § 4-2-725 does not apply to their Fourth Claim for Relief because this is an action for personal injuries by third parties who did not contract directly with the defendant. Plaintiff urges that the Court should apply the products liability statute of limitations, Colo. Rev.Stat. § 13-80-127.5 (1983), which sets a three-year limit that begins to run at the time of the injury to plaintiff.

In Colorado, § 13-80-127.5 must be applied to products liability actions regardless of the legal theory advanced. The statute requires, however, that the Court distinguish those actions governed instead by § 4-2-725, the UCC limitations period.

Courts in other jurisdictions have reached varying conclusions as to when an action is governed by the limitations period of the UCC. See generally Johnson v. Hockessin Tractor, Inc., 420 A.2d 154, 157-58 (Del.1980). The majority rule is that the UCC limitations period applies to all actions for breach of warranties, regardless of whether the plaintiff seeks personal injury damages or economic and contractual damages. Hockessin, supra. A second approach distinguishes actions for personal injury damages, which are governed by general tort limitations periods, from actions seeking economic and contractual damages, which are governed by the UCC limitations period. See Parish v. B.F. Goodrich Co., 235 N.W.2d 570, 573-74 (Mich.1975). A third view is that the UCC period governs breach of warranty actions unless there is no privity between the parties, in which case a tort limitations period applies. See Plouffe v. Goodyear Tire & Rubber Co., 118 R.I. 288, 373 A.2d 492, 495 (1977).

This Court concludes that the majority rule should be followed in interpreting the Colorado statutes. For purposes of § 13-80-127.5, actions or claims for breach of express and implied warranties under the UCC are governed by the UCC limitations period set forth in § 4-2-725. As the Delaware Supreme Court reasoned in the Hockessin case, it is completely logical that remedies under the UCC should be governed by the limitations period of the same statute. Hockessin at 158. A rule based solely upon the type of damages claimed is deficient, because the consequential damages provision of the UCC covers personal injury and property damages in breach of warranty cases in addition to more traditional economic or contract damages. See Colo.Rev.Stat. § 4-2-715 (1983). A rule based upon privity is also unsatisfactory, because the UCC contains a provision extending a seller’s express and implied warranties to foreseeable users and consumers of a product. See Colo.Rev.Stat. § 4-2-318 (1983).

In order to apply the majority rule and § 13-80-127.5, the Court must differentiate claims based upon breach of express and implied warranties under the UCC from other products liability claims, which are governed by § 13-80-127.5. Compare Colorado Jury Instructions (C.J.I.) Civ.2d 14:6 and 14:8 with C.J.I. Civ.2d 14:1 and 14:18. In this case, plaintiffs’ Complaint appears to include both warranty claims under the UCC and products liability claims.

According to plaintiffs’ Brief, the Third Claim is based on a negligence theory, yet the word “negligence” appears nowhere in the Complaint. The Third Claim states that defendant breached a duty to plaintiffs to design, manufacture and sell truck wheels and rims that were reasonably safe, fit and merchantable for their foreseeable use. The Court agrees with defendant that this appears to state a claim for breach of an implied warranty of merchantability, which is governed by § 4-2-725. Should plaintiffs wish to pursue a products liability claim based on negligence, they may amend their Complaint to state clearly such a cause of action. See C.J.I.-Civ.2d 14:18 (1980).

Plaintiffs’ Fourth Claim asserts that defendant’s manufacture and sale of the product created “implied warranties that said wheel and rim were safe, fit and merchantable for their intended use.” It is not apparent from plaintiffs’ Complaint whether the Fourth Claim for Relief is intended to state a contractual warranty claim distinct from plaintiffs’ strict products liability claims. There is no indication in the Complaint of a contract or buyer-seller relationship between the plaintiffs and defendant, and no reference at all to any provision of the Uniform Commercial Code. Plaintiffs’ Brief, however, refers to § 4-2-318 to support this claim, suggesting that it is intended to state a cause of action under the UCC. Alternatively, plaintiffs may have intended the Fourth Claim merely to articulate the implied warranty concept which is a part of the theory of strict products liability actions. If the latter is the case, however, there is no need for a separate claim for relief in the Complaint.

Plaintiffs’ Fifth Claim, alleging misrepresentations by defendant of the safety of its product, is not a contract warranty claim and not governed by § 4-2-725.

To the extent that plaintiffs’ Third and Fourth Claims for Relief state causes of action under the Uniform Commercial Code for breach of contractual warranties, they are barred by the limitations period of § 4-2-725. Accordingly, it is

ORDERED that defendant’s Motion for Summary Judgment is granted as to plaintiffs’ Third and Fourth Claims for Relief and denied as to plaintiffs’ First, Second, Fifth and Sixth Claims for Relief. It is

FURTHER ORDERED that plaintiffs may amend their Complaint by November 26, 1984, to state a products liability claim based upon negligence. It is

FURTHER ORDERED that plaintiffs’ Third and Fourth Claims for Relief are dismissed without prejudice.

      . Section 13-80-127.5(1) provides:
      notwithstanding any other statutory provisions to the contrary, all actions except those governed by 4-2-725, C.R.S., brought against a manufacturer or seller of a product, regardless of the substantive legal theory or theories upon which the action is brought, for or on account of personal injury, death, or property damage caused by or resulting from the manufacture, construction, design, formula, installation, preparation, assembly, testing, packaging, labeling, or sale of any product, or the failure to warn or protect against a danger or hazard in the use, misuse, or intended use of any product, or the failure to provide proper instructions for the use of any product shall be brought within three years after the claim for relief arises and not thereafter.

      . Note that in these jurisdictions the courts must typically decide whether an action is governed by the UCC limitations period or a general tort statute of limitations. Colorado statutes, which incorporate a specific limitations period for products liability actions, permit a more limited inquiry.

      . For a discussion of this distinction, see generally the dissenting opinion filed in Parish v. B.F. Goodrich Co., 235 N.W.2d 570, 576-581 (Mich. 1975) (Williams, J.).

      . Query whether this claim is within the scope of § 13-80-127.5(1).


author: WEXLER, District Judge.

text:
    PEERLESS PETROCHEMICALS, INC., Plaintiff, v. GETTY REFINING AND MARKETING COMPANY, Defendant.
    No. CV 82-0434.
    United States District Court, E.D. New York.
    Nov. 7, 1984.

      Ober, Grimes & Shriver, New York City, for plaintiff.
    Dechert, Price & Rhoads, New York City, for defendant.
   MEMORANDUM AND ORDER

WEXLER, District Judge.

This is an action for overcharges under Section 210(b) of the Economic Stabilization Act of 1970, 12 U.S.C. Section 1904 note, as incorporated in the Emergency Petroleum Allocation Act, 15 U.S.C. Section 751 et seq. Plaintiff has moved for partial summary judgment, and defendant has cross-moved for summary judgment.

I. PRELIMINARY STATEMENT OF FACTS

This case primarily concerns events which took place in 1979. At that time, the Department of Energy maintained a Buy/Sell Program, under which major integrated refiners were required to sell a portion of their crude oil supplies to small buyers at limited prices. See 10 C.F.R. Section 211.65 (1981). Plaintiff was identified by the Department of Energy as an eligible refiner-buyer under the Program and provided an emergency allocation of crude oil for the months of November and December 1979. Defendant was identified by the Department as a refiner-seller under the Program. Plaintiff and defendant entered into a contract whereby defendant would sell plaintiff a certain quantity of crude oil, at the maximum legal price. Plaintiff then assigned the contract to Derby Distributors, Inc. There existed an arrangement between plaintiff and Derby whereby Derby agreed to facilitate the purchase of oil by plaintiff. Under this arrangement, oil intended for ultimate sale to plaintiff would be paid for initially by Derby, which would take title to the oil. Ultimately, plaintiff would take title to the oil, paying Derby for Derby’s expenses, plus interest and a flat fee per barrel. Both defendant and the Department of Energy were aware of this arrangement.

Derby paid defendant for the oil in question. Derby then billed plaintiff. Plaintiff protested to Derby regarding the amount of Derby’s payment to defendant. On August 21, 1981, plaintiff and Derby agreed that plaintiff, prior to commencing suit against defendant, would place the disputed amount in an escrow account, and that any recovery by Derby from defendant resulting from claims asserted by plaintiff would be remitted by Derby to plaintiff. Plaintiff now contends that the amount which defendant charged Derby was in excess of that allowed under the relevant Department of Energy regulation, 10 C.F.R. Section 212.94(b) (1981), as amended by Special Rule No. 2, 10 C.F.R. Part 212, Subpart F, Appendix A (1981), 44 Fed.Reg. 9375, Feb. 13, 1979.

II. STANDING

The first issue is whether plaintiff has standing to sue defendant.

Defendant argues that plaintiff is an indirect purchaser of the oil in question, having purchased the oil from Derby rather than from defendant, and that plaintiff therefore lacks standing to sue defendant.

Defendant relies upon Gulf Oil Corp. v. Dyke, 734 F.2d 797, 807 (T.E.C.A.1984). In that case, an arrangement existed under which defendant Gulf would sell gasoline to Tesoro Petroleum Corporation, which would in turn sell the gasoline to plaintiff Fletcher at a fixed markup. Regulations were then promulgated requiring Gulf to supply gasoline at limited prices to “all wholesale purchaser-resellers ... which purchased or obtained” gasoline from Gulf during a certain base period. See 10 C.F.R. Section 211.9(a) (1981). The arrangement continued. The Court held that since plaintiff Fletcher purchased gasoline from Tesoro rather than from defendant Gulf, Fletcher was an “indirect purchaser” and so lacked standing to sue Gulf for overcharges. The Court rejected the view that the transactions in question in substance constituted the sale of oil by Gulf to Fletcher.

There is an important distinction between Gulf Oil, supra, and the instant case. In Gulf Oil, under the facts of the case it was arguable that Tesoro rather than Fletcher had “purchased or obtained” gasoline from Gulf within the meaning of 10 C.F.R. Section 211.9(a) (1981) during the relevant base period, and that Gulfs obligation to sell gasoline at limited prices therefore ran to Tesoro rather than to Fletcher. Consequently, the Court’s decision to treat Fletcher as an “indirect purchaser” lacking standing to sue left the door open for a suit by Tesoro, which was arguably the party which the regulations sought to protect. In the instant case, by contrast, defendant’s obligation to sell oil at limited prices under 10 C.F.R. Section 211.65 (1981) clearly ran to plaintiff, the party which was designated by the Department of Energy as an eligible refiner-buyer and which entered into a contract with defendant. Consequently, if we treat plaintiff as an “indirect purchaser” lacking standing to sue, we will deny recovery to the party which the regulations seek to protect. Further, Derby will also lack standing to sue, since Derby is not an eligible refiner-buyer and so has no rights against defendant under 10 C.F.R. Section 211.65 (1981), so that defendant will suffer no legal consequences for any overcharges it may have committed. These results would be especially improper in light of the fact that both defendant and the Department of Energy were aware of plaintiff’s assignment of the contract to Derby and neither at any time suggested that the assignment would alter the essential nature of the contemplated transaction as the sale of oil by defendant to plaintiff pursuant to 10 C.F.R. Section 211.65 (1981). We therefore hold that the instant sale of oil by defendant to Derby constituted the sale of 011 by defendant to plaintiff for the purposes of 10 C.F.R. Section 211.65 (1981), and that plaintiff therefore has standing to sue defendant for overcharges.

Defendant contends that plaintiff, by assigning the contract to Derby, thereby assigned to Derby plaintiff’s potential right to sue for any overcharges. We reject this contention, as we see nothing in the regulations to suggest that a refiner-buyer can assign its right to sue for overcharges to a third party prior to the occurrence of such overcharges. Even if we were to accept this contention, however, we would find that Derby reassigned the right to sue for overcharges back to plaintiff by means of the settlement agreement between plaintiff and Derby. Admittedly, the settlement agreement by its terms provided simply that if claims asserted by plaintiff against defendant resulted in a recovery by Derby, Derby would remit such recovery to plaintiff. However, we believe that the intent of the parties to the settlement agreement was that Derby would transfer to plaintiff all rights of Derby against defendant resulting from the transaction in question.

For the above reasons, we find that plaintiff has standing to sue defendant.

III. THE MERITS

Having determined that plaintiff has standing to sue defendant, we may now proceed to discuss the nature of the alleged overcharges.

A. DOMESTIC GATHERING AND TRANSPORTATION FEE

Defendant supplied Union Oil Company with domestic crude oil. In exchange, Union supplied defendant with Nigerian crude oil. It is this Nigerian crude oil which defendant sold to Derby (and hence in effect sold to plaintiff). Defendant charged Derby a fee representing the cost to defendant of gathering and transporting to Oklahoma the domestic crude oil which defendant gave Union in exchange for the Nigerian crude oil. Plaintiff contends that this fee was not authorized by the applicable regulation, 10 C.F.R. Section 212.94(b) (1981). Defendant responds that, pursuant to 10 C.F.R. Section 212.94(b)(2)® (1981), defendant is authorized to make certain price adjustments for transportation expenses, and that, pursuant to Section 212.-94(b)(2)(h), “[f]or purposes of calculating transportation adjustments under this paragraph (2)(i), a refiner-seller shall include ... exchange differentials ... paid to deliver the domestic or imported crude oil to the refiner-buyer’s refinery.”

Defendant’s argument fails on two points.

First, the cost to defendant of gathering and transporting to Oklahoma the domestic oil given Union in exchange for Nigerian crude oil does not constitute an “exchange differential”. An “exchange differential” is the cash payment made pursuant to an exchange, less that portion of the cash payment constituting reimbursement for services. 10 C.F.R. Section 212.96(c) (1981).

Second, 10 C.F.R. Section 212.94(b)(2)® speaks only of price adjustments for the cost of transporting oil sold pursuant to the Buy/Sell Program under Section 211.65. Nothing is said about the cost of transporting other oil, such as the domestic oil given by defendant to Union in exchange for the Nigerian oil which defendant then sold pursuant to the Buy/Sell Program.

For the above reasons, we find that defendant, by charging Derby (and hence effectively charging plaintiff) a fee for gathering and transporting to Oklahoma the domestic oil given Union in exchange for Nigerian crude oil, violated 10 C.F.R. Section 212.94(b), and hence committed an overcharge under Section 210(b) of the Economic Stabilization Act of 1970, 12 U.S.C. Section 1904 note, as incorporated in the Emergency Petroleum Allocation Act, 15 U.S.C. Section 751 et seq.

B. TIMING OF INCLUSION OF IMPORTED OIL CARGOES

During December 1979, the maximum price that could be charged by a refiner-seller under the Buy/Sell Program was set forth in 10 C.F.R. Section 212.94®)(1) (1981), as amended by Special Rule 2, 10 C.F.R. Part 212, Subpart F, Appendix A:

[T]he price at which low sulfur and high sulfur crude oil, respectively, shall be sold ... shall not exceed the refiner-seller’s weighted average per barrel landed cost (as defined in Section 212.82, but utilizing the volumes of imported crude oil at the time of importation thereof into the United States), less the average cost of domestic transportation to the refiner-seller’s refinery(ies), of all low sulfur or high sulfur imported crude oil, respectively ... delivered to the refiner-seller in the month in which the sale is made, plus a handling fee of five cents per barrel, and any transportation, gravity and sulfur content adjustments ...

“Landed cost” was defined for purposes relevant to this case as “the purchase price ... plus the cost of transportation, if any, ... from the point of delivery to the firm to the U.S. port of entry ..., plus the cost of domestic transportation to the refinery, plus import fees and duties incurred.” 10 C.F.R. Section 212.82, definition of “landed cost” no. 5. Further, “the landed cost shall be considered to be incurred when the cost is recognized as having been incurred by application of the refiner’s customary accounting procedures generally accepted and consistently and historically applied.” Id.

Defendant’s regular accounting practice was to recognize the cost of foreign crude oil at the time such oil was loaded in a foreign port, rather than at the time such oil reached the United States. Similarly, defendant’s practice was to include the cost of acquiring a particular imported crude oil cargo in its Buy/Sell price calculation for the month in which the cargo was loaded in a foreign port. Plaintiff contends that defendant should have included the cost of acquiring any given imported crude oil cargo in defendant’s Buy/Sell calculation for the month in which the cargo reached the United States.

A refiner-seller, such as defendant, should include the cost of acquiring a given cargo in its Buy/Sell price calculation for the month in which the refiner-seller recognizes the cost of acquiring such cargo for financial accounting purposes, unless the regulations direct a different result. Shepherd Oil, Inc. v. Atlantic Richfield Co., 734 F.2d 23, 34 (T.E.C.A.1984).

Plaintiff cites Shepherd, supra, for the proposition that the cost of acquiring a given imported crude oil cargo should be included in a refiner-seller’s Buy/Sell price calculation for the month in which such cargo is unloaded in the United States. Shepherd, however, stands merely for the proposition that this should be done if the refiner-seller recognizes the cost of acquiring the cargo in the month of unloading.

Plaintiff argues that since the regulations require a refiner-seller to calculate the weighted average per barrel landed cost of imported crude oil delivered to the refiner-seller in a given month, and since oil is not “imported” until it reaches the United States, a refiner-seller should not include the cost of a cargo in the Buy/Sell price calculation for a month prior to the month in which the cargo reaches the United States. However, the fact that oil is not “imported” until it reaches the United States does not imply that the cost of oil should not be included in a Buy/Sell price calculation for a month prior to the month in which the cargo reaches the United States. Of course, oil cannot be included in a Buy/Sell price calculation unless it eventually reaches the United States, but it does not follow that the month of importation must precede or coincide with the month of inclusion in a calculation. Cf. Shepherd, supra, 34 (holding that month of importation may precede and need not coincide with month of inclusion in a calculation).

The regulations appear by their terms to require that the landed cost of a given cargo of oil be included in a refiner-seller’s Buy/Sell price calculation for the month in which the cargo is “delivered to the refiner-seller”, whatever the term “delivered” may mean. However, the Temporary Emergency Court of Appeals appears to have adopted a different analysis in Shepherd, supra. There, the Court appears to have drawn a sharp distinction between the question of whether a given cargo is to be included in any Buy/Sell price calculation at all, and the question of which monthly Buy/Sell price calculation a given cargo is to be included in. Whether a given cargo is to be included in any Buy/Sell price calculation at all depends upon whether the cargo has been imported and delivered. Id. at 33. “Delivery” for this purpose occurs if the refiner-seller takes actual or constructive possession of the cargo, id. at 32, and can occur outside the United States, id. at 33. Which monthly Buy/Sell price calculation a given cargo is to be included in depends upon which month the refiner-seller recognizes the cost of acquiring such cargo for financial accounting purposes, unless the regulations direct a different result. Id. at 34. Were it not for the Shepherd opinion, we would find that the landed cost of a given cargo should be included in the Buy/Sell price calculation for the month in which the cargo is delivered to the refiner-seller, and might well find that such “delivery” can occur only in the United States, a position strongly supported by regulatory history cited by plaintiff. However, given the Shepherd opinion, we are forced to find that, since defendant recognized the cost of a cargo for financial accounting purposes in the month of loading, defendant acted properly in including such cargo in the Buy/Sell price calculation for the month of loading, and that no overcharge resulted from this practice.

IV. CONCLUSION

Plaintiff is granted partial summary judgment with respect to plaintiffs claim regarding the domestic gathering and transportation fee. Defendant is granted partial summary judgment with respect to plaintiffs claim regarding the timing of inclusion of cargoes in the Buy/Sell price calculations. The issue of treble damages remains for trial. The Clerk shall not enter judgment at this time.

SO ORDERED.


author: MAZZONE, District Judge.

text:
    Robert T. DEVERAUX, et al., Plaintiffs, v. William J. GEARY, et al., Defendants.
    Civ. A. No. 84-2181-MA.
    United States District Court, D. Massachusetts.
    Nov. 7, 1984.

      Gabriel O. Dumont, Jr., Grady, Dumont & Dwyer, Boston, Mass., for plaintiffs.
    Despena F. Billings, Asst. Atty. Gen., Boston, Mass., for defendants.
    James H. Wexler, Herrick & Smith, Boston, Mass., for intervenors.
   MEMORANDUM AND ORDER

MAZZONE, District Judge.

The issue in this procedurally complicated case is straightforward: does a recent Supreme Court decision so change Title VII law as to require modification of a five year old consent decree in a racial discrimination case? The plaintiffs in this case argue that the decision, Firefighters Local Union No. 1784 v. Stotts, — U.S. -, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984) brings into question the validity of the consent decree in this and other affirmative action cases.

I.

The plaintiffs in this case are five white police officers employed by the Metropolitan District Commission (MDC), an agency of the Commonwealth of Massachusetts. On April 23, 1983, they took a competitive examination to determine their eligibility for promotion to captain. In early June, 1984, one temporary captain position became available. On July 6,1984, Donald E. Callender (Callender), a black police officer, was awarded the position, although his score on the examination was lower than those of the plaintiffs. Callender was awarded the job as a result of the MDC’s efforts to comply with the “minority employment objectives” established by a consent decree entered by this Court on August 27, 1979 in Culbreath v. Dukakis (D.Mass., No. 74-2463-MA). That consent decree entered in response to a class action brought by plaintiffs who alleged significant under-representation of minorities in several Massachusetts agencies, including the MDC. The decree included a stipulation that it was designed to remedy the widespread discriminatory employment practices alleged in the complaint.

The mechanics of the decree were as follows. Each affected state agency was to establish two separate civil service eligibility lists for each job title covered by the decree. The first list would be the usual list required by state law. The second would be a special minority eligibility list, from which the agency was to select applicants until the “annual minority hiring objective” for the job category and department was met.

In the present case, the MDC had failed to meet its annual minority hiring objective for the position of Provisional MDC Police Captain as of the date the position became available in June, 1984. The MDC apparently selected Callender from the special minority eligibility list in an effort to comply with the requirements of the consent decree.

The plaintiffs filed suit against William J. Geary, Commissioner of the MDC, and Thomas E. Keogh, Superintendent of the MDC (collectively, the defendants) on July 16, 1984. They claim that the defendants have violated their civil rights, specifically their right of equal protection as guaranteed by the Fourteenth Amendment and 42 U.S.C. § 1981. But for their race, they claim, one of them would have been awarded the position given to Callender.

On August 8, 1984, the defendants filed a motion to dismiss pursuant to Fed.R. Civ.P. 12(b)(1) and 12(b)(6), claiming the following. First, this Court lacks jurisdiction because the Eleventh Amendment bars a federal court from ordering state officials to conform their actions to state law. The substance of the claim, they argue, is that the MDC officials did not comply with the state civil service hiring and promotion guidelines. Second, the plaintiffs have failed to state a claim upon which relief can be granted because (a) they lack standing; (b) the claims are barred by the doctrine of res judicata; and (c) the state defendants were complying with the Culbreath consent decree.

On August 16, 1984, representatives on behalf of the plaintiff class in Culbreath (the Class) moved to intervene pursuant to Fed.R.Civ.P. 24(a). The Class claims that it has a substantial interest relating to the subject of the litigation in that the ultimate relief sought by the plaintiffs would have the effect of vacating Culbreath and would therefore have a substantially adverse impact on the interests of the Class. It also claims that the present defendants cannot adequately represent the interests of the Class in this case. The Class filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), claiming that (a) the defendants’ action was consistent with the consent decree and (b) the plaintiffs’ claims are barred by the doctrine of res judicata.

On August 30, 1984, the plaintiffs filed their opposition to the defendants’ motion to dismiss. To date, the plaintiffs have not opposed the motion of the Class to intervene in this ease. The case is therefore before this Court on the defendants’ motion to dismiss and the unopposed motion of the Class to intervene in this case.

II.

Although filed as a separate suit, it is apparent that this suit is in essence an attack on the Culbreath consent decree. The plaintiffs themselves have stated:

Assuming that the instant proceeding is more properly viewed as an effort to intervene in the Culbreath case, such intervention should be permitted. In this regard ... Stotts represents a significant and substantial shift in Title VII law.

Plaintiffs’ brief at 10. Both the defendants and the Class have filed memoranda arguing that this suit constitutes an attempt to intervene in the Culbreath case. Defendants’ brief at 9; Class’ brief at 3. Since the present action directly attacks this Court’s order in Culbreath and seeks to interfere with the goals established by the consent decree, I find that it constitutes an attempt to intervene in that case. As such, this Court’s decision is guided by the First Circuit opinion affirming this Court’s refusal to permit a prior intervention in the Culbreath case. Culbreath v. Dukakis, 630 F.2d 15 (1980).

In that opinion, the court adopted the test set forth in Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir.1977). Stall-worth sets forth four factors to be considered in determining the propriety of permitting intervention: (1) the length of time the intervenor knew or reasonably should have known of his interest before he petitioned to intervene; (2) prejudice to existing parties due to the plaintiffs’ failure to petition for intervention promptly; (3) the prejudice the plaintiffs would suffer if they are not allowed to intervene; and (4) the existence of unusual circumstances militating either for or against intervention. I treat these factors seriatim.

1. Length of time the intervenor knew or reasonably should have known of this interest before he petitioned to intervene.

The facts presently before this Court are virtually identical to those before the Circuit Court in 1980, with the exception of the existence of the Stotts opinion. It is clear that if it was unreasonable for the labor unions in that case to intervene more than four years after the complaint was filed, it is even more unreasonable to permit the plaintiffs to intervene now, more than ten years after the complaint was filed. In their brief, the plaintiffs make the puzzling statement that they “were not potential intervenors” in Culbreath. Plaintiffs’ brief at 10. The basis of this statement is not altogether clear to me. The brief states that the Massachusetts Law Enforcement Council (MLEC), one of the unions barred from intervening in 1980, was no longer the official statewide law enforcement bargaining unit as of November 22, 1977. Even if MLEC did not represent police officers as of the date its petition to intervene was denied, the goals and mechanisms sought by the complaint in Culbreatk were well publicized. Culbreath, 630 F.2d at 21. It is inconceivable that the plaintiffs did not previously know of the consent decree and its impact on their rights given that it has been five years since the decree was approved and implemented. The plaintiffs’ brief offers no indication of why these police officers were not aware of and should not be bound by the Culbreatk decree. Like the Circuit Court, I “see no excuse for the failure [of the plaintiffs] to learn of a suit and reported decisions so related to [their] promotion prospects____” Id.

2. Prejudice to existing parties due to the plaintiffs’failure to petition for intervention promptly.

If the plaintiffs in this case are successful, the effect will be to disallow implementation of the consent decree. Nothing could more clearly prejudice the interests of the existing parties. The plaintiffs’ success would constitute an extreme example of “last minute disruption of painstaking work by the parties and the court.” Id. at 22 (citations omitted).

3. The prejudice the plaintiffs would suffer if they are not allowed to intervene.

Because the present plaintiffs’ claims of prejudice are identical to those raised by the unions in the First Circuit’s Culbreatk decision, the discussion of this issue in that case is particularly helpful:

The unions’ second claim of prejudice, that the minority employment and promotion mechanisms of the consent decree violate the fourteenth amendment and sections 703(h) and (j) of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2(h) and (j), has caused us more concern. While this is not an unusual argument in a race discrimination case, the tenuous posture of the unions gives it added importance. If we affirm the district court’s denial of intervention for untimeliness, the unions and their members may be forever foreclosed from challenging the goal mechanisms of the decree. Collateral attack on the decree will be impossible because only the district court supervising implementation of the decree will have subject matter jurisdiction to modify the decree. Intervention to modify the decree, the proper procedural recourse under the circumstances, will be barred by the doctrine of res judicata.
The essence of the timeliness determination, however, is whether the unions received such notice and opportunity to be heard as to satisfy the due process rights to be accorded persons so situated. The record shows that the district court entered the consent decree on August 27, 1979. We must assume that it determined that the settlement secured by the consent decree was fair, adequate and reasonable. In reviewing the decree, the district court was undoubtedly aware that racial preference schemes are an accepted means of remedying past discrimination in our society. The only serious question before the district court would have been whether the stipulation of facts constituted a finding of past discrimination sufficient to justify the use of racial preferences at the expense of innocent persons. Although the entry of the consent decree does not constitute a finding of facts or a ruling of law, it is a determination of probability of success on the merits. Moreover, we note that none of the intervenors appear to have disputed the statistical evidence of racial discrimination in the employment and promotion practices of the defendant agencies. The stipulation of facts would have been a powerful and conclusive admission of the facts contained therein under Fed.R.Civ.P. 36(b). Viewing these facts from a position considerably enhanced by our extensive exposure to the Massachusetts civil service system, we have no difficulty in upholding the district court's conclusion that plaintiffs enjoyed a substantial probability of success on the merits. We consider the prejudice flowing to the unions from denial of intervention to be as slight as the unions’ prob ability of success on the merits of the issues they would raise upon intervention.

Id. at 22-23, citations and footnotes omitted. Absent some unusual circumstance, this holding in Culbreath must govern this case. I too find the prejudice to the plaintiffs flowing from denial of intervention to be as slight as their likelihood of success on the merits.

4. The existence of some unusual circumstances militating either for or against intervention.

This fourth and final consideration is at the heart of this case. The plaintiffs’ argument is that the change in Title VII law made by Stotts is an unusual circumstance that requires this Court to reconsider the validity of the consent decree. See Plaintiff’s brief at 10. The basis of the present claim is as follows:

As relates to the instant case, there can be no dispute that the Culbreath consent decree establishes racial quotas relative to the appointment of individuals to positions covered by the decree. In addition, the Stipulation of Facts in Culbreath indicates that the judicial authority for these quotas is founded on Title VII. Since ... such quotas are no longer permissable [sic] under Title VII and since the Supreme Court has stated that the terms of a consent decree should be modified to reflect changes in applicable law, the Culbreath consent decree must be modified so as to eliminate the racial quotas and correspondingly any bar to the instant action.

Plaintiffs’ brief at 9. This Court is therefore called upon to try to determine the scope of the holding in Stotts. I note that, to date, few other courts have faced this question.

The facts of Stotts are simple and familiar. The complaint in that case stated that officials of the City of Memphis were engaged in a pattern or practice of making hiring and promotion decisions on the basis of race in violation of Title VII of the Civil Rights Act and 42 U.S.C. §§ 1981 and 1983. The district court certified a class action and eventually approved a consent decree on April 25, 1980.

The decree adopted a long-term goal of increasing the proportion of minority representation in numerous job classifications. The City explicitly stated that it did not, by signing the decree, admit the allegations of the complaint concerning any violations of law. Neither the decree nor a prior, 1974 City-wide decree mentioned what was to happen in the event of any layoffs or reductions in rank. Neither decree awarded any competitive seniority.

In 1981, projected budget deficits required the City to announce layoffs of nonessential personnel. These layoffs were to be made on the “last hired, first hired” rule applicable generally to all City employees. A black firefighter thereupon sought and received from the district court a temporary restraining order forbidding the layoff of any black employee. Shortly thereafter, the district court entered an injunction, noting that the decree did not contemplate the method to be used for reductions in rank or layoffs. The court explicitly found that the layoff policy was not adopted with any intent to discriminate, but that nonetheless it would have a racially discriminatory effect. The court ordered the City not to apply the seniority policy so as to decrease the percentage of black employees in several categories. Layoffs occurred in compliance with the injunction, and in some instances resulted in the layoff of non-minority employees with more seniority than minority employees.

The Court of Appeals for the Sixth Circuit affirmed, despite its conclusion that the district court was wrong in holding that the city’s seniority system was not bona fide. On June 12,1984, the Supreme Court reversed the judgment of the Court of Appeals.

The Supreme Court’s discussion in Stotts is divided into two parts. Part A discusses the Circuit Court’s finding that the injunction did no more than enforce the agreed-upon terms of the decree. The Court noted that the decree itself did not mention layoffs or demotions and there was no suggestion of any intention to depart from the existing system. In contrast, in the present case the express terms of the decree contemplate hiring conducted in exactly the way that occurred and for exactly the same reasons.

In the same part of the opinion, the Stotts Court at least implied that it still considered the affirmative action program instituted by the decree to be a permissible remedy under Title VII:

The decree went on to provide the agreed-upon remedy, but as we have indicated, that remedy did not include the displacement of white employees with seniority over blacks. Furthermore, it is reasonable to believe that the “remedy”, which it was the purpose of the decree to provide, would not exceed the bounds of the remedies that are appropriate under Title VII, at least absent some express provision to that effect.

Id., — U.S.-, 104 S.Ct. at 2586. Had the Court meant to rewrite Title VII law to mean that all affirmative action programs are improper absent a finding of actual past discrimination, it would have said so here. See Culbreath, 630 F.2d at 23, citing United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979); University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); United States v. City of Miami, 614 F.2d 1322 (5th Cir.1980); Boston Chapter NAACP, Inc. v. Beecher, 504 F.2d 1017 (1st Cir.1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975); Associated General Contractors of Massachusetts, Inc. v. Altshuler, 490 F.2d 9 (1st Cir.1973), cert. denied, 416 U.S. 957, 94 S.Ct. 1971, 40 L.Ed.2d 307 (1974). The clear implication of the above language is that the actual remedy that was provided by the decree was valid and did not exceed the bounds of Title VII, although the subsequent displacement of white employees was invalid.

Part B of the Court’s opinion discussed the authority of the district court to modify the consent decree in light of unexpected layoffs. The Court found that the City’s seniority system was a bona fide plan that did not have as its purpose an intent to discriminate on the basis of race. The Court then went on to discuss a district court’s authority to contravene the provisions of such a bona fide plan in order to enforce Title VII rights. The Court reiterated its ruling in Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) that a district court may award competitive seniority only when the beneficiary of the award has actually been a victim of illegal discrimination. The Court went on to support the holding in that case by referring to the legislative history of Title VII. It quoted or cited the remarks of Senators Humphrey, Ervin, Hill, Robertson, Smathers, Stennis, Tower, Clark, and Case. Id., —- U.S. -, 104 S.Ct. at 2589-90. At least some of those remarks, as the plaintiffs in this case have pointed out, are extremely broad reaching. Read literally, they could be interpreted to require a finding of actual discrimination prior to entry of any affirmative action plan. The context of the Court’s discussion, however, is a consideration of a competitive seniority award. The Court did not question the validity of the underlying decree. Had the Court intended to radically change its interpretation of Title VII law so as to require a finding of actual discrimination in any affirmative action case, I believe it would have said so. In the absence of clearer authority, I decline to read such an expansive meaning into an opinion limited to a discussion of layoffs made in violation of a bona fide seniority system. The plaintiffs here seek too broad a rule from too narrow a set of facts.

In short, neither Part A nor Part B of the Stotts opinion supports the plaintiffs’ claim in this case that Title VII law has so substantially changed as to invalidate the Culbreath consent decree. Stotts is simply inapplicable to this ease. It therefore cannot form the kind of unusual circumstance that would militate in favor of granting a motion to intervene. As a result, I find that the plaintiffs’ attempt to intervene in the Culbreath case by means of this complaint is untimely and must be denied. See Culbreath, 630 F.2d at 24. The defendants’ motion to dismiss for failure to state a claim is therefore granted.

Although the motion of the Class to intervene in this case might be considered moot in light of the above ruling, I consider the motion because the Class may wish to participate in any appellate review of this order. I find that the Class has a significant interest in the outcome of this action and that resolution of the case in favor of the plaintiffs would have a substantially adverse impact on the interests of the Class. I further find that the present state defendants cannot adequately represent the interests of the Class in this case. The motion to intervene is therefore allowed.

CONCLUSION

For the reasons stated above, the motion of the defendants to dismiss the case for failure to state a claim is allowed. The motion of the Class to intervene is allowed.

SO ORDERED.

      . In light of the disposition of this case made below, I do not reach the defendants' argument that this Court lacks jurisdiction due to the Eleventh Amendment.

      . I note that the Third Circuit recently discussed the continuing legality of an affirmative action program controlling the hiring of teachers in the Philadelphia public school system. Krom

        nick v. School District of Philadelphia, 739 F.2d 894 (3d Cir.1984). The opinion in that case implies that the court believed the holding in Stotts to be limited to situations involving seniority plans. Id. at 909-912. This decision by a Court of Appeals reinforces my belief that Stotts is inapplicable to the present case.