author: WINDER, District Judge.

text:
    Christine J. AMOS, Judy Bawden, Deniece Kanon, April Joyce Reding, Arthur Frank Mayson, Ruth Arriola, Shellen Adamson and Ralph L. Whitaker on behalf of themselves and others similarly situated, Plaintiffs, v. The CORPORATION OF the PRESIDING BISHOP OF the CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, and the Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, Defendants.
    Civ. No. C-83-0492W.
    United States District Court, D. Utah, C.D.
    Sept. 18, 1985.

      Elizabeth T. Dunning, David B. Watkiss, Molly -B. Kenny, Salt Lake City, Utah, for plaintiffs.
    Dan S. Bushnell, M. Karlynn Hinman, David P. Farnsworth, Salt Lake City, Utah, for defendants.
   MEMORANDUM DECISION AND ORDER

WINDER, District Judge.

The plaintiffs’ motion for summary judgment and reconsideration and defendants’ motion to strike were argued orally on May 17, 1985. The plaintiffs were represented by Elizabeth T. Dunning, David B. Watkiss and John E. Harvey. The defendants were represented by Wilford W. Kirton and Richard Boyle. Prior to the hearing, the court read carefully all memoranda of counsel. After the hearing, the court took the matter under advisement and has since reviewed the memoranda and depositions and has read all relevant authorities. Based on those materials and oral argument, the court renders the following decision and order.

I. Background

A. History of This Case

The court is governed by its previous decision in this case, Amos v. Corporation of Presiding Bishop, 594 F.Supp. 791 (D.Utah 1984) (hereinafter referred to as “Amos I”). At that time, the court ruled on defendants’ motion to dismiss or in the alternative for summary judgment. That action was initiated when plaintiffs brought suit claiming violations of federal and state antidiscrimination laws. They claimed their termination from employment was based on their inability or refusal to satisfy worthiness requirements of the Mormon Church for temple recommends. Contending they were employees performing non-religious activities, they challenged the constitutionality of federal and state exemptions from antidiscrimination laws, 42 U.S.C. § 2000e-l and Utah Code Ann. § 34-35-2(5), respectively. In addition, plaintiffs claimed the defendants wrongfully and intentionally inflicted extreme mental and emotional injury and distress on the plaintiffs by requiring them to be interviewed by church leaders concerning their eligibility for temple recommends.

In Amos I, the court set forth an analytical framework for determining whether an activity is religious in religious discrimination suits. That framework consists of a three prong test. Because that test must be applied to defendants’ activities in the present motions, the court reiterates it in full here.

First, the court must look at the tie between the religious organization and the activity at issue with regard to areas such as financial affairs, day-to-day operations and management. Second, whether or not there is a close and substantial tie between the two, the court next must examine the nexus between the primary function of the activity in question and the religious rituals or tenets of the religious organization or matters of church administration. If there is a substantial connection between the activity in question and the religious organization’s religious tenets or matters of church administration and the tie under the first part of the test is close, the court does not need to proceed any further and may declare the activity religious____ However, where the tie between the religious entity and activity in question is either close or remote under the first prong of the test and the nexus between the primary function of the activity in question and the religious tenets or rituals of the religious organization or matters of church administration is tenuous or nonexistent, the court must engage in a third inquiry. It must consider the relationship between the nature of the job the employee is performing and the religious rituals or tenets of the religious organization or matters of church administration. If there is a substantial relationship between the employee’s job and church administration or the religious organization’s rituals or tenets, the court must find that the activity in question is religious. If the relationship is not substantial, the activity is not religious.

594 F.Supp. at 799.

The court in Amos I applied that test to the activities of Deseret Gymnasium (“Deseret”) and more specifically, to plaintiff Mayson’s position there as a building engineer. The court concluded that the nature of Deseret’s activities could not be considered to be religious. 594 F.Supp. at 802. Because the court concluded that Deseret’s activities were not religious, the court considered the constitutionality of the exemption from Title VII, contained in Section 702, for employees performing secular, non-religious jobs. After a thorough review of the legislative history of that law and the Supreme Court pronouncements on the Religion Clauses of the first amendment, this court held that exemption to be unconstitutional. It found that “the direct and immediate effect of the exemption of religious organizations from Title VII for religious discrimination in secular, non-religious activities is to advance religion in violation of the establishment clause of the first amendment to the United States Constitution.” 594 F.Supp. at 828.

The court in Amos I also considered whether Beehive Clothing Mills (“Beehive”) and the jobs of the plaintiffs Amos, Bawden, Kanon and Riding who were employed there, were religious in nature. The court determined that the issue could not be decided on the record that existed at that time. It therefore delayed ruling on Beehive until further discovery could be made. 594 F.Supp. at 803. The court also dismissed plaintiffs’ cause of action for intentional infliction of emotional distress. The court determined that defendants’ conduct regarding the worthiness requirements and subsequent firing did not rise to the level of “outrageous and intolerable conduct” required under Utah law. 594 F.Supp. at 831.

After the court’s decision in Amos I, the parties stipulated that plaintiffs could file a Second Amended complaint adding Ralph L. Whitaker as a named plaintiff. Mr. Whitaker, a former employee of another of the defendants’ divisions, Deseret Industries, was employed as a truck driver by Industries from October 1977 until March 1983, when he was fired for failure to satisfy the worthiness requirement.

B. Current Motions

At issue in plaintiffs’ motion for summary judgment is the application of the three-prong test to the activity of Beehive Clothing Mills, and to the activity of Deseret Industries. If the court determines that summary judgment is appropriate, it must determine whether the facts demonstrate that the activities at issue are religious in nature. The question of whether defendants violated Title YII when they terminated the plaintiffs from their employment will follow, of course, from the determination of the secular or religious nature of the activities.

The court must also determine the appropriate remedy for the unlawful employment discrimination of plaintiff Mayson as well as for other plaintiffs if it determines that other unlawful employment discrimination has occurred. Plaintiffs contend that they are entitled under Title VII to back pay.

Finally, plaintiffs move for reconsideration of the dismissal of their fourth claim for relief. That claim asserted a cause of action for intentional infliction of emotional distress and for invasion of privacy. Plaintiffs also move for attorney’s fees and costs as the prevailing parties under 42 U.S.C. § 2000e-5(k).

II. Motion for Summary Judgment

A. Beehive — Application of three-prong test

The court must ascertain whether any genuine issues of material fact exist which would make the rendering of summary judgment inappropriate. The defendants have opposed the motion for summary judgment on the grounds that factual disputes remain. Each party has listed its statement of facts pursuant to U.S.Dist.Ct., D.Utah Civ.R. 5(e). Defendants have identified a number of facts which they believe remain in dispute.

The court has considered carefully both parties’ statements of facts and the depositions, affidavits and answers to interrogatories. From this review, the court concludes that several genuine issues of material fact remain which preclude summary judgment as to Beehive. Pursuant to Fed. R.Civ.P. 56(d), however, the court has sifted the issues and has determined which material facts remain at issue for trial. The court has determined that many of those claimed to be in dispute by the defendants are not material to the issue at hand or are disputed by the defendants because the defendants seek to state legal conclusions as facts. In large measure, however, there is substantial agreement among the parties regarding many of the factual issues. The court therefore will state those facts which it has found established as well as specify those narrow areas of factual dispute which remain for trial.

Factual Background

The Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints (“CPB”) and the Corporation of the President of the Church of Jesus Christ of Latter-day Saints (“COP”) are corporations soles organized pursuant to the laws of Utah, Utah Code Ann. § 16-7-1 to 11 (1973). The COP is the incorporation of the office of the President of the Church of Jesus Christ of Latter-day Saints (“the Mormon Church” or “the Church”) and the CPB is the incorporation of the office of the Presiding Bishop of the Mormon Church. Beehive Clothing Mills (“Beehive”) and Deseret Industries (“Industries”) are unincorporated divisions of the Corporations.

Plaintiff Christine J. Amos (“Amos”) was employed in the personnel department of Beehive from April 26, 1976 through August 25, 1982. 594 F.Supp. at 796. Judy L. Bawden (“Bawden”) worked as a seamstress at Beehive from 1971 to April 28, 1982. Id. Deniece Kanon (“Kanon”) was employed as a seamstress at Beehive from 1978 to May 14, 1982. Id. April Joyce Riding (“Riding”) worked as a seamstress at Beehive from 1974 to May 28, 1982. Id. Plaintiff Ruth Arriola (“Arriola”) was employed at Beehive from 1980 through September 22, 1982. Shelleen Adamson was employed at Beehive from 1980 through September 22, 1982.

The Mormon Church is a religious association with headquarters in Salt Lake City, Utah and with members in various parts of the world. Although the Church conducts a variety of activities as well as worship services in chapels and meeting-houses, certain ceremonies and activities are reserved for the Church’s temples. The temples are used for worship, prayer, instruction, ordinances and ceremonies such as baptisms and marriages. Temples are open to only those members of the Church who have met the worthiness requirements and have been granted a temple recommend after a series of interviews with Church leaders.

Among the beliefs of the Mormon Church is that a member must make covenants with God during the temple ordinances. Temple garments and temple clothing must be worn when those covenants are made. Members of the Mormon Church are required to wear the garments throughout their lives once they have participated in the ceremonies and covenants. The garments are marked with symbols whose significance is known to those who have participated in temple ceremonies. The Church regards the marks on garments as perhaps their most sacred feature. Supp.Ans. 14. Garments are considered to be more sacred after they are marked. Id.

Beehive Clothing Mills manufactures temple clothing, garments and temple veils. Determining whether Beehive’s activities are religious is, of course, the crux of the issue at hand.

In 1936, the Mormon Church set up an operation to manufacture garments called Deseret Clothing Factory. From 1938 to 1960, four commercial companies, not owned by or affiliated with the Mormon Church, also manufactured garments in the United States under restrictive licenses from the Church. These licenses forbade sale to non-members, display, or advertising of the garment.

The four commercial companies performed all necessary steps in the manufacture of the garments prior to their being marked with the religious symbols. Marking was authorized to be done by the Mormon Church member who purchased the garment, by the Relief Society of the Church or by Church members assigned to be at the commercial companies to mark the garments. No religious requirement of any kind was imposed on any employee of the four commercial companies. Until 1965, garments were distributed through the Mormon Church and also through certain department stores under restrictive licenses which forbade sale to non-members and prohibited display or advertising of garments.

When Beehive took over the manufacturing operations of the commercial companies in 1960, it continued to employ a number of the companies’ employees. Among them were some who were not eligible for a temple recommend, (“ineligible members”) and some who were not members of the Mormon Church. Supplemental Answers to Plaintiffs’ Third Set of Interrogatories and Second Request for Production of Documents, December 14, 1984 (“Supp.Ans.”) No. 8. At least some of the non-members or ineligible member employees were retained by agreement under an arrangement with the companies. Deposition of Harold Goldthorpe, January 18, 1985 (“Goldthorpe Depo.”) at 190. From 1960 until at least 1983, Beehive has employed a few nonmembers and some members ineligible to receive a temple recommend. Affidavit of John Russell Homer, April 12, 1985, (“Homer Affidavit”) Paragraph 5. Non-Mormon employees and members of the Church who were ineligible for a temple recommend have performed a variety of tasks at Beehive, including cutting, sewing and marking garments, packing and shipping garments and temple clothing. Supp.Ans. Exhibit (“Ex.”) 15, Goldthorpe Depo at 82-92. Supp.Ans. No. 27 & Ex. 18.

In 1980 and 1981, Beehive contracted on a job lot basis with a number of commercial companies in Utah and Arizona as it could not meet the immediate demand for garments created when a new design of garment was introduced. Supp.Ans. No. 24; Goldthorpe Depo. at 71. Under its arrangement with these commercial manufacturers, cutting, marking, packaging, and distribution were done at Beehive. The commercial companies did the sewing of the pre-cut pieces. No religious requirement of any kind was imposed on any of these commercial companies’ employees.

At present, three commercial companies outside of the United States, not owned by or affiliated with the Mormon Church, also produce garments. They are Jockey, Inc., in the Phillipines, I-Way Manufacturing in the United Kingdom, and Canterbury Manufacturing in New Zealand. I-Way Manufacturing has been producing garments since 1979, Jockey, Inc. has been producing garments since 1984, and Canterbury Manufacturing has been engaged since approximately 1982. Supp.Ans. No. 24; Affidavit of Keith B. McMullin, April 11, 1985 (“McMullin Affidavit”) paragraph 15. In each case, the commercial company cuts, and sews the garment up to the marking stage. Marking, packaging, and distribution are done by the Mormon Church. Supp.Ans. No. 24. No religious requirement of any kind is imposed upon the employees of these foreign companies who cut and sew garments. Recently, the Mormon Church has contracted with companies in Taiwan and Korea to manufacture garments. McMullin Affidavit, paragraph 14.

Beehive is an unincorporated division of the Materials Management Department of the Mormon Church. Its daily operations are supervised by a general manager who reports to the managing director of the Materials Management Department. Beehive operates under the direction of a special Church committee composed of General Authorities, department and division management representatives and other Church leaders. Employees of Beehive are paid by the Mormon Church through the COP. Beehive’s facilities are owned by the Mormon Church through the CPB.

Beehive’s banking and accounting are handled through the Mormon Church. Beehive sells the garments and temple clothing it manufactures to members at no profit. The religious veils made at Beehive are used exclusively in temples and are not sold. Beehive’s general operations are regularly subsidized by the Mormon Church from its general funds. Beehive’s operation and facilities are tax exempt. The general authorities of the Mormon Church must approve changes in the way garments and temple clothing are manufactured and must approve who manufactures the garments.

Amos worked as an employee service aide, a personnel assistant, for Beehive from August 30, 1979 to August 25, 1982. As part of her duties, she interviewed job applicants and oriented new hires to the terms of employment at Beehive. She also processed insurance, retirement, tax and payroll forms. She did not make hiring or firing decisions.

In August 1979, when Amos was being trained, she was told by the Personnel Manager of Beehive that job applicants did not have to be active in the Mormon Church to be hired. Amos was instructed only to ask if an applicant was a baptized member of the Mormon Church and if he or she observed certain dietary and health laws of the Mormon Church, called the Word of Wisdom.

The employment policy of Beehive at the present time is administered by the Personnel Department of the Mormon Church. Prior to 1981, however, the Church’s Personnel Department did not fully supervise the employment policies of Beehive. Homer Affidavit, paragraphs 3 and 4, Affidavit of Christine Amos, March 16, 1985, (“Amos Affidavit”) paragraph 5. Prior to December 1981, the employment application at Beehive asked whether the applicant kept the standards of the Mormon Church. At least one applicant was hired who answered no to that question. Amos Affidavit, paragraph 5. Homer Affidavit, paragraphs 8 and 10. After December 1981, the employment application form contained a pledge to be signed by the applicant to live so ás to be eligible to hold a temple recommend. Homer Affidavit, paragraph 8.

The Mormon Church adopted personnel policies and procedures in 1969 which stated that “continued employment in the Church is dependent on the employees living their lives so as to be worthy of a temple recommend.” These policies were not strictly applied to Beehive until it came within the full administration of the Personnel Department after 1980. Homer Affidavit, paragraphs 3 and 4. Plaintiffs Amos, Kanon, and Riding were given copies of Beehive’s personnel manual during their employment. Each signed a statement indicating that she had read it. In the manual is included the following statement:

As Latter-day Saints we have certain standards that the First Presidency has asked us to abide by. All employees are expected to conform to the teachings of the Church of Jesus Christ of Latter-day Saints. Serious violations of these teachings will result in an employee being terminated.

Pursuant to directions from the Personnel Department, a review of various Church departments and division employees was begun in 1980 to determine compliance with Church personnel policy. Homer Affidavit, paragraph 6. A formal review to determine whether all employees at Beehive were worthy of a temple recommend was conducted in the Spring of 1982. Goldthorpe Depo. at 33. Homer Affidavit, paragraph 7. No such similar formal review had occurred in the preceeding ten years. Goldthorpe Depo. at 7, 33. The review was announced at a regularly scheduled Monday morning devotional meeting.

During the 1982 review of the 399 employees at Beehive, plaintiffs Amos, Bawden, Kanon, Riding, Arriola and Adamson and 78 other employees were identified as employees who were not worthy of a temple recommend. Plaintiffs and thirteen other employees were terminated after refusing to complete or failing to complete satisfactorily a probationary period to become eligible members. Sixty-eight other employees who were found ineligible became eligible during their probationary period. Two employees who were former employees of the commercial companies were retained although they were not members.

Plaintiffs Bawden, Kanon, and Riding were employed as seamstresses. Plaintiff Arriola was employed as a cutter of temple clothing at the time of her termination. Adamson was employed as a cutter of garments. Amos was employed as an employee service aid. At no time did any of the plaintiff’s positions of employment require any of them to describe, explain or proselytize the doctrine and beliefs of the Mormon Church. At no time did any of plaintiff’s positions require any of them to engage in worship, ritual or ministerial duties of the Mormon Church nor in matters of Mormon Church administration.

Factual Issues in Dispute or in Need of Development

Both parties agree that step one of the three-prong test is not at issue here. Plaintiffs concede that the tie between Beehive and the Mormon Church in such areas as financial affairs, day-to-day operations and management is close and substantial.

Several factual issues remain to be clarified before the court can proceed to apply the three-prong test. Both parties agree that the jobs performed by the plaintiffs at Beehive do not in and of themselves involve worship, ritual or ministerial duties of the Mormon Church. Plaintiffs argue that because the individual jobs such as cutting or sewing the garments are not religious and because the Mormon Church has relied and currently relies on non-Mormon owned companies to manufacture garments, Beehive can not be considered a religious activity. Plaintiffs believe the facts indicate that there is no sincerely held religious belief or tenet that only members of the Mormon Church or those members who are eligible for a temple recommend can be employed manufacturing garments.

The defendants, however, insist that the facts indicate that they are moving toward direct production of all garments by Mormon Church-owned manufacturing facilities. They assert that Church control of the entire manufacturing process is necessary in order to shield the Church’s sacred objects from ridicule by non-Mormons. They state that only eligible members are currently employed at Beehive. Past practices of allowing non-members or ineligible members to be employed were necessitated by the Church’s agreements with the companies they took over or by necessity when a sudden demand for new styled garments temporarily overwhelmed Beehive’s capabilities.

Defendants also contend that the manner of supplying garments to Church members outside of the United States is not relevant to the issue at hand. They state that even if foreign garment operations are pertinent, requirements that workers abroad be temple worthy and that companies be owned and controlled by the Mormon Church is not feasible. Defendants cite four major reasons for not imposing Church membership requirements similar to those imposed on United States employees on those who manufacture garments abroad. They are: (1) government restrictions preclude import; (2) local laws do not recognize religious preference; (3) volumes do not justify the high costs of the creation of Church facilities and; (4) there are insufficient numbers of skilled Church members capable of being employed. McMullin Affidavit, paragraph 13.

In summary, defendants assert that Beehive and the plaintiffs’ jobs are religious activities because garments and temple clothing are an essential element of temple worship. The manufacturing of garments and temple clothing is a “religious necessity and its achievement can only be held to be a religious activity.” Defendants’ Memorandum in Opposition to Motion for Summary Judgment at 69.

Plaintiffs contest not only defendants’ conclusion but also the consistency of defendants’ asserted belief that only eligible members can manufacture temple wear. They dispute that there are laws which do not recognize religious preference in employment in any countries where garments are being manufactured by commercial firms. They point to the testimony of Harold Goldthorpe, manager of the International Materials Management division of the Mormon Church, which they believe suggests that there are no such laws. See Goldthorpe Depo. at 109-110, 113. Plaintiffs also assert that Beehive’s history of employing ineligible and non-member employees until 1983 indicates that the manufacturing of garments is not a religious activity. Plaintiffs note, for example, that between 1973 and 1983, the Mormon Church produced garments at its own facility in England. Goldthorpe Depo. at 54-56. It now contracts with a non-Mormon commercial company in England, I-Way Manufacturing, to manufacture garments.

The court believes two narrow but significant factual areas remain in dispute or are unclear in the record. Evidence needs to be presented in court to resolve them before summary judgment is appropriate. The first area involves Beehive’s hiring practices regarding applicants who answered “no” to the question of whether they kept the standards of the Church. The plaintiffs claim that several applicants were hired who answered “no.” The defendants assert that only one was hired. Evidence should be presented regarding the numbers of such individuals hired and the circumstances, if any, prompting the hiring of non-members or ineligible members.

The second area of factual dispute that necessitates a hearing involves the defendants’ contention that circumstances exist that preclude the manufacture abroad of garments and clothing by Mormon owned companies or eligible Mormon Church members. The defendants have asserted in the affidavit of McMullin that certain factors abroad hinder or prevent the imposition of religiously based employment practices in other countries.

The following facts need to be determined regarding the manufacture of temple garments and clothing for each foreign situation:

1. What specific laws are in existence that relate to the issue of religious preference in hiring? How do they impact the manufacture of garments?
2. What are the specific laws or regulations that preclude import of garments?
3. What is the volume of garments manufactured in the country? What is the cost per garment or unit and how does that impact upon the manufacture of garments?
4. What are other critical factors associated with the manufacture of garments that result in their manufacture by commercial companies rather than by a Mormon-owned facility or individual Mormon seamstresses?

Despite the defendants’ contention that the facts surrounding the foreign manufacture of garments is not critical to the resolution of American constitutional rights, the court believes otherwise. The Mormon Church asserts that the manufacture of garments and temple clothing is a religious activity. If it believes that the manufacture of garments should be done by Mormons if at all possible, then the manufacture of garments throughout the world should be reflective of that belief. Practices resting “solely upon considerations of policy, pragmatism, or expediency”, Welsh v. United States, 398 U.S. 333, 342-43, 90 S.Ct. 1792, 1797-98, 26 L.Ed.2d 308 (1970) (plurality opinion of Black, J.) will not support a finding that they are religiously motivated.

B. Deseret Industries

Although defendants have not made a motion for summary judgment in their favor, the court can find no genuine issue of material fact regarding Deseret Industries. Each parties’ statement of facts pursuant to U.S.Dist.Ct., D.Utah Civ.R. 5(e) is similar. Defendants have listed additional facts regarding the relationship between Deseret Industries and the Mormon Church which the plaintiffs have not disputed.

The court has considered carefully both parties’ statements of facts as well as the depositions, answers to interrogatories and affidavits and concludes that summary judgment is appropriate under the standards of Fed.Rule Civ.P. 56. No genuine issues of material fact exist and the court can rule as a matter of law.

Although defendants have not filed a cross-motion for summary judgment, the court nonetheless grants summary judgment in their favor. This is appropriate where there is no genuine issue of material fact and, on the established facts, the principles of substantive law warrant judgment in their favor. See 6 (Part 2) James Moore and Jeremy Wicker, Moore’s Federal Practice ¶ 56.15(8).

Factual Background

Deseret Industries (“Industries”) is a division of the Mormon Church’s Welfare Services Department. Deseret Industries operates a number of thrift stores throughout Utah which sell used clothing and refurbished goods to the general public. In doing so, Industries provides employment and training to handicapped and mentally retarded persons through a federally certified sheltered workshop program. Deseret Industries also provides jobs for people who are unable to find other remunerative work.

These handicapped and previously unemployed employees are employed on the basis of a referral from a Mormon bishop and are therefore categorized by Deseret Industries as “client referrals.” The client referrals refurbish donated goods as well as perform tasks related to the contracting work which Deseret Industries undertakes from time to time for outside companies, such as sorting or performing routine assembly tasks.

Deseret Industries also employes “staff” employees. While staff employees are frequently managers, supervisors, or trainers, staff employees may perform tasks with less supervisory responsibilities. Some positions, such as that of a repairman, for example, may be occupied by either a staff or a client referral employees.

All of the staff employees of Deseret Industries are required to be eligible Church members. A very high percentage of the client referral employees are also Mormon Church members. A client referral becomes employed when the individual’s biship refers that person to Industries to see if training or employment can be made available. Non-Church member referrals are occasionally made when that referral is a part of the assistance given to the nonmember’s family who are Church members.

Deseret Industries solicits used goods and customers from the general public through public advertisements. In addition to revenues generated by the sale of refurbished goods and contracted services, Deseret Industries is regularly subsidized by the Mormon Church and by fast offerings contributed by Church members. Industries’ operations are exempt from federal and state taxes. Bishops of the Mormon Church have authority to requisition from Deseret Industries items necessary to meet the needs of needy members of the Mormon Church at no cost to the recipient. All employees at Deseret Industries are encouraged to attend one of several Mormon devotional services held daily at each facility.

Plaintiff Whitaker was employed as a truck driver at a Deseret Industries store in October, 1977, pursuant to a referral from his Mormon bishop. In November, 1977, he was excommunicated from the Mormon Church; a fact of which the manager of the Deseret Industries store was aware. Whitaker was considered to be a good worker, however, and was retained as a truck driver. He also supervised a handicapped trainee. Sometime between 1982 and 1983, the status of Whitaker’s position was changed from a referral to a staff position. In early 1983, Whitaker was informed that because he could not be worthy of a temple recommend, he would be terminated and he was accordingly fired on March 15, 1983.

Whitaker’s job as a truck driver did not require him to describe, explain or proselytize the doctrines and beliefs of the Mormon Church nor to engage in worship or ritual. Except for his responsibilities as the trainer of a' handicapped individual, his job did not involve other supervisory responsibilities.

When Whitaker was referred to Deseret Industries in 1977, he completed and signed an employment application which included a paragraph stating that he would adhere to Mormon Church standards.

Discussion

It is clear from the facts that religion was the key factor in Whitaker’s discharge. The task before the court is to determine whether Deseret Industries’ activities are religious in nature. If they are, Deseret Industries is permitted to discriminate on the basis of religion both under the free exercise clause of the First Amendment and pursuant to the exemption provided by section 702 of Title VII. If Deseret Industries’ activities are secular, however, it can not rely on the exemption provided under section 702 because of this court’s decision in Amos I.

The legal standards for examining whether Deseret Industries’ activities are religious have been set forth in Amos I in the three-prong test. 594 F.Supp. at 799. That test has been stated in full above. Both parties agree that step one of the test is not at issue in the present case. The tie between Deseret Industries and the Mormon Church with regard to areas such as financial affairs, day-to-day operations and management is a close and substantial one. Deseret Industries was established by the Mormon Church and is a part of the Mormon Welfare Services Department. Deseret Industries’ operations and facilities are subsidized by the fast offerings of Church members and by general Church funds. Deseret Industries is managed by a general manager who in turn reports to a governing board. That governing board is composed of General Authorities, members of the General Boards of Church ladies’ and mens’ auxiliary organizations and other priesthood leaders.

The dispute between the parties is focused on the second step of the test outlined in Amos I. That prong requires the court to “examine the nexus between the primary function of the activity in question and the religious rituals or tenets of the religious organization or matter of Church administration.” 594 F.Supp. at 799. The court concludes that the nexus between the primary function of Deseret Industries and the religious tenets of the Mormon Church is close and substantial. Accordingly, Deseret Industries is a religious activity and the Mormon Church may determine religious qualifications for Deseret Industries’ employees.

In Amos I, this court rejected the plaintiffs’ contention that the court should focus only on the type of jobs that the plaintiffs were performing and not on the general nature of the entities involved. 594 F.Supp. at 798. Instead, the court developed a more comprehensive approach. The three-prong test includes an analysis of the general nature of the activity in relation to the religious tenets of the organization, its relationship administratively to the religious organization and an analysis of the individual job in question. Prong two which examines the primary function of the activity in relationship to the religious beliefs of the religious organization, requires a much broader view of the activity in question than simply an examination of the individual’s job. An examination of the function of an activity necessarily implies a consideration of the activity's purpose that it serves or the particular kind of work it is intended to perform. See Webster’s New Collegiate Dictionary, (1979). That definite end or purpose must be measured against the religious rituals or tenets of the organization or against matters of Church administration. There must be a substantial connection between the two to satisfy the second prong.

The present-day Welfare System of the Mormon Church, of which Deseret Industries is a part, was established in 1936. At that time, the president of the Church stated the primary purpose of the welfare plan to be:

to set up, in so far as it might be possible, a system under which the curse of idleness would be done away with, the evils of a dole abolished, and independence, industry, thrift and self respect be once more established among our people. The aim of the Church is to help the people to help themselves. Work is to be reenthroned as the ruling principle of the lives of our Church membership.

Heber J. Grant, Conference Report, October 1936, p. 3, quoted in Welfare Services Resource Handbook.

The founder and prophet of the Mormon Church, Joseph Smith, stressed the importance of welfare work in Mormon beliefs. He stated:

You must continue to bear in mind that the temporal and the spiritual are blended. They are not separate. One cannot be carried on without the other, so long as we are here in mortality.
The Latter-day Saints believe not only in the gospel of spiritual salvation____ We do not feel that it is possible for men to be really good and faithful Christian people unless they can also be good, faithful, honest and industrious people. Therefore, we preach the gospel of industry, the gospel of economy, the gospel of sobriety.

Gospel Doctrine, Deseret Book Company, p. 208. (quoted in Welfare Services Resource Handbook, p. 4.)

Various passages of Mormon scripture also indicate the importance the religion places on charity and work. The Book of Mormon, Moroni 7:47 states that “charity is the pure love of Christ, and it endureth forever; and whoso is found possessed of it at the last day, it shall be well with him.” The Doctrine and Covenants (Section 52:40) requires that the Mormon Church and its members “remember in all things the poor and the needy, the sick and the afflicted, for he that doeth not these things, the same is not my disciple.”

The Welfare System of the Mormon Church is multifaceted. The Church operates a system of bishops’ storehouses to provide commodities and work opportunities at the local level. Local wards and stakes are encouraged to undertake and develop projects which will produce goods for the welfare system including goods for the bishops’ storehouses. These projects can take the form of working farms and manufacturing plants. The Church also operates employment centers and social welfare services for use by Church members. As part of its teachings on self-sufficiency, the Mormon Church urges members to store a year’s supply of food, clothing and fuel. See Welfare Services Resource Handbook.

The Welfare Services Resource Handbook (“Handbook ”) produced for local Church leaders states that “the ultimate aim of welfare services’ principles, programs, and activities is to develop Christlike character in Church members, thus preparing them to live in a society where men and women are of ‘one heart and one mind,’ where they live in ‘righteousness’ and there are ‘no poor among them’.” Handbook at 1. The 1985 Priesthood Manual distributed to all men in the Mormon Church states: “As we willingly accept welfare assignments and give a generous fast offering, we play a vital part in the Lord’s work. As we offer both our time and our means, we develop “the pure love of Christ” (Moronia 7:47) and thus qualify to “become the sons of God” (Moroni 7:48). See Affidavit of Glen Pace, April 12, 1985, paragraphs 3 and 4.

Deseret Industries is a part of the Mormon Church’s welfare services program. The specific objectives of Deseret Industries are set forth in the Handbook. The objectives are to:

(1) provide meaningful employment and work training within the storehouse resource system, insofar as it is possible, for those who cannot otherwise obtain employment. This includes rehabilitating some needy members by providing work and training in an environment which will enable them to become self-sustaining;
(2) produce quality items for use by bishops, and low cost items for sale to the public;
(3) provide opportunities for individuals to share their means and talents with those who need such help;
(4) provide a means whereby goods can be recycled or renovated, thus avoiding waste.

Plaintiffs contend that these objectives of Deseret Industries indicate that it is not a religious activity. They concede that all the activities of Deseret Industries are motivated by the Mormon Church’s belief in charity and rendering assistance to the needy. Plaintiffs assert, however, that religious motivation alone is not sufficient to make an activity religious.

Plaintiffs draw the court’s attention to Denver Post of the Nat’l Socy of the Volunteers of America v. N.L.R.B., 732 F.2d 769 (10th Cir.1984). In that case, the court rejected a finding that the VOA’s charitable operations were religious. In reaching its finding, the court focused on the nature of the activities of the VOA programs. It found that although the VOA claimed its programs were an expression of its religious philosophy, it was not clear that religion played a central role in them. The court noted that the VOA did not require the staff to have any particular religious background nor were religious activities conducted at the program’s facilities. Moreover, many of the programs’ employees were unaware of the VOA’s religious missions. The court concluded that the VOA’s programs “function in essentially a secular fashion.” Denver Post of VOA, 732 F.2d at 772.

Plaintiffs assert that Deseret Industries also operates in a secular fashion. They note that the program solicits used goods from the public at large and that its stores are open to all. Deseret Industries advertises to the general public and its advertisements do not refer to Industries’ religious nature. In addition, plaintiffs assert that its employees are not involved in proselytizing or advocating the Mormon religion.

The court, however, finds that there are significant differences between the functioning of the VOA programs in VOA supra, and Deseret Industries. Deseret Industries’ employees are for the most part, Church members and have been since its inception. All staff and management positions are filled by Church members. All client referral employees are employed only after a Mormon Church bishop has made the referral. Non-Church members are hired only if referred by a Mormon Church bishop. Although Deseret Industries operates sheltered workshops, those who are employed there are almost exclusively Church members. Industries does not provide employment for the public at large.

The thrift shops also serve Church needs. The bishops of the Mormon Church as ecclessiastical leaders at the local neighborhood level have the ability to requisition goods at no cost from Deseret Industries for Church members in need. Deseret Industries does not similarly give away its goods to members of the general public. The fact that it offers refurbished goods to the public at low cost does not necessarily mean that the organization is functioning in a secular fashion. “A religious activity of a religious organization does not lose that special status merely because it holds some interest for persons not members of the faith, or occupies a position of respect in the secular world at large.” Feldstein v. Christian Science Monitor, 555 F.Supp. 974, 976 (D.Mass.1983).

All employees of Deseret Industries are aware of its relationship with the Mormon Church. Daily devotional services are held on the premises. In addition, Deseret Industries is dependent on the Mormon Church for its financial support.

Plaintiffs contend that the approach used by the Tenth Circuit in VOA, however, focuses solely on the nature of the activities in question and disregards religious motivation if the particular activities do not appear to be overtly religious. More particularly, plaintiffs suggest that only those activities which obviously involve the propogation of religion or the performance of religious worship can be considered to be religious. That characterization of the court’s reasoning in VOA, however, is incomplete. It is true that with respect to the religious nature of Deseret Industries, the court must consider “the activity at issue by reference to objectively ascertainable facts concerning their nature and scope.” See Tony and Susan Alamo Foundation v. Secretary of Labor, — U.S. -, 105 S.Ct. 1953, 1960-61, 85 L.Ed.2d 278 (1985). But that does not mean that the court must ignore an inquiry into the belief system that informs the particular actions in question. Implicit in the court’s analysis in VOA and critical to the second prong of the Amos I test is the relationship between the objectively identifiable activities of the organization and its religious beliefs and tenets (or matters of Church administration). That relationship must be close and substantial in order for the organization to meet the second prong of the test. Moreover, even if the relationship under prong two is close and substantial, there must also be either a close tie between the activity in question and the administrative day-to-day functionings of the religious beliefs or tenets to render the activity “religious.”

Under the three-prong test of Amos I and Supreme Court pronouncements, an organization’s activities need not be limited strictly to propagation or advocation of religious beliefs to be found religious. Such a restricted view of what is “religious” would drastically curtail the scope of protection provided by the first amendment. Religious beliefs may dictate a wide range of conduct beyond simply that involved in proselytization or worship. Determining whether or not adherence' to a particular philosophy constitutes a religious belief entitled to constitutional protection is “more often than not a difficult and delicate task.” Thomas v. Review Board of Indiana Employment Sec. Div., 450 U.S. 707, 714, 101 S.Ct. 1425, 1430, 67 L.Ed.2d 624 (1981). Whether a belief is religious does not depend on whether the belief is true or false, United States v. Ballard, 322 U.S. 78, 86-88, 64 S.Ct. 882, 886-87, 88 L.Ed. 1148 (1944) or whether the belief is “acceptable, logical, consistent, or comprehensible to others ...” Thomas, 450 U.S. at 714, 101 S.Ct. at 1430. The religious nature of a belief depends on whether the belief is based on a theory “of mans nature or his place in the Universe,” Founding Church of Scientology v. United States, 409 F.2d 1146, 1160, (D.C.Cir.1969) cert. denied, 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d 427 (1969) or represents “[A] sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God” of orthodox believers. United States v. Seeger, 380 U.S. 163, 176, 85 S.Ct. 850, 859, 13 L.Ed.2d 733 (1965). A religious belief must be sincerely held. United States v. Seeger, 380 U.S. at 185, 85 S.Ct. at 863-64; Theriault v. Carlson, 495 F.2d 390, 394 (5th Cir.1974), cert. denied, 419 U.S. 1003, 95 S.Ct. 323, 42 L.Ed.2d 279 (1974). Religious beliefs may have their source in scripture or tradition, revelation or meditation. They may be institutionalized or “be of a recent vintage or formed instantaneously.” Brown v. Dade Christian Schools, 556 F.2d 310, at 313 (5th Cir.1977) cert. denied, 434 U.S. 1063, 98 S.Ct. 1235, 55 L.Ed.2d 763 (1978). “Religion” must be defined broadly to secure protections guaranteed in the first amendment’s free exercise clause. See Note, “Toward a Constitutional Definition of Religion,” 91 Harvard L.Rev. 105 (1978). In such an intensely personal matter, the claimant’s assertion “that his belief is an essential part of a religious faith must be given great weight.” United States v. Seeger, 380 U.S. 163, 184, 85 S.Ct. 850, 863, 13 L.Ed.2d 733 (1964).

The close ties that exist between the function of Deseret Industries and the religious tenets and beliefs of the Mormon Church are inescapable. Deseret Industries was founded by the Mormon Church. It functions to provide both meaningful employment and training to Mormon Church members as well to provide the resources for bishops to utilize when helping needy Church members. It is clear from the record that the Mormon Church believes in providing charity to its members and believes that spiritual well-being and temporal well-being go hand in hand. The raison d’etre of Deseret Industries is to carry out the Mormon Church’s aim to help members help themselves and in so doing to fulfill the admonition of its founder, Joseph Smith, to “develop the pure love of Christ.” The court finds that Deseret Industries is a religious activity as there is an intimate connection between Industries and the defendants and the Mormon Church and between the primary function of Industries and the religious tenets of the Church. The court does not need, therefore, to consider the third step of the test.

III. Title VII Remedies — Backpay

The only plaintiff presently entitled to a remedy under Title VII is Frank Mayson. Because of this court’s decision in Amos I, it is clear that defendants unlawfully discriminated against Mayson when they terminated his employment from Deseret Gymnasium on religious grounds. Plaintiff urges that he be awarded backpay with interest from the date of his firing plus contributions to his pension and that he be reinstated to his former position.

Awarding backpay under Title VII, as provided in 42 U.S.C. § 2000e-5, is not mandatory. Albemarle Paper Co. v. Moody, 422 U.S. 405, 415, 95 S.Ct. 2362, 2370, 45 L.Ed.2d 280 (1975). In determining whether backpay is appropriate, the district court must exercise its discretion in order to further the twin statutory goals of “eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.” Albemarle, 422 U.S. at 421, 95 S.Ct. at 2373. See also United States v. Lee Way Motor Freight, Inc., 625 F.2d 918, 931 (10th Cir.1979). (Back pay is an “effort to make the aggrieved persons whole insofar as possible ...”). In spite of the equitable nature of the remedy, however, the Supreme Court has stressed that there is a strong presumption in favor of a backpay award. Albemarle, 422 U.S. at 421, 95 S.Ct. at 2373; City of Los Angeles, Department of Water and Power v. Manhart, 435 U.S. 702, 723, 98 S.Ct. 1370, 1383, 55 L.Ed.2d 657 (1978). The fact that an employer’s breach has not been made in bad faith is an insufficient reason for denying backpay because “Title VII is not concerned with the employer’s good intent”____ Rather, the thrust of Title VII is directed “ ‘to the consequences of employment practices, not simply the motivation.’ ” Albemarle, 422 U.S. at 422, 95 S.Ct. at 2374, quoting Griggs v. Duke Power Co., 401 U.S. 424 at 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971) (emphasis in the original).

Defendants argue that it would be unfair for the court to grant retroactive relief in this situation. They contend that they relied justifiably on the plain language of the exemption provided by section 702 when they imposed their employment standards. Defendants make the legitimate argument that legislative acts are presumed to be constitutional and no court until now has directly confronted the constitutional issues posed by that exemption.

Defendants rely on City of Los Angeles v. Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978) to support their contention that it would be unjust for this court to award backpay under these rather unique circumstances. In Manhart, the employer withheld more from its female employees’ checks for pension contributions than from its male employees because women as a class live longer than men. Although the Court held that this practice violated Title VII, it did not uphold the awarding of backpay. It recognized that the administrators of the pension plan may well have assumed their requirements were lawful. The Court reasoned that the deterrent effect of imposing backpay would be unnecessary in that situation, while its imposition could threaten the solvency of the overall plan. The Court in Manhart stressed, however, that their decision “did not qualify the force of the Albemarle presumption” in favor of backpay. Manhart, 435 U.S. at 723, 98 S.Ct. at 1383.

This court has considered carefully the Manhart decision and finds the considerations presented there which argued against backpay are not so strongly present here. The court acknowledges the forcefulness of the defendants’ argument and finds the decision on backpay to be a close one. Nonetheless, on careful reflection upon the objectives of Title VII, the court concludes that retroactive relief is appropriate here. It is true that the denial of backpay in this instance would probably not “frustrate the central statutory purpose of eradicating discrimination throughout the economy.” See Albemarle, 422 U.S. at 421, 95 S.Ct. at 2373. But the denial of backpay would frustrate the Act’s purpose of making Frank Mayson whole for his injuries incurred through Deseret’s past discrimination. Mayson’s termination from employment at Deseret resulted in a substantial pay cut and impacted negatively upon his prospective pension benefits. The thrust of the remedial actions of the court must be directed at the employment practices’ consequences, not at their motivation. Al bemarle, 422 U.S. at 422, 95 S.Ct. at 2373-74. The statutory directive to make the employee whole tips the equities in favor of the awarding of retroactive relief.

Accordingly, Frank Mayson is entitled to an award of backpay representing the difference between what he has earned subsequent to his termination on April 10, 1981 through the date of this order and what he would have earned if he had not been fired. This figure must include an estimate of the annual increases that May-son would reasonably have received as well as compensation for lost vacation time (the difference in vacation days provided by Deseret and his subsequent employers). Defendants must also contribute the appropriate annual amounts to Mayson’s pension account from April 10, 1981. U.S. v. Lee Way Motor Freight, Inc., 625 F.2d 918 (10th Cir.1979). Mayson is also entitled to prejudgment interest on his award of back-pay calculated pursuant to the adjusted prime rate of the Internal Revenue Service. A number of courts have applied the § 6621 of the Internal Revenue Code rate of interest to backpay awards. See, e.g. Ass’n. Against Discrimination v. City of Bridgeport, 572 F.Supp. 494-95 (D.Conn.1983) and cases listed therein.

The specific amount of Mayson’s award cannot be stated by the court at this time. Although plaintiffs have submitted detailed facts regarding the amount of Mayson’s total adjusted lost earnings as of May 17, 1985, defendants have not. It is hoped that the parties can stipulate to the award based on the court’s statements above. If there is a need for an evidentiary hearing to be held to determine the amount of backpay award, the parties should request a hearing.

Plaintiff Mayson has also requested that he be reinstated at Deseret. That remedy is within the discretion of the court pursuant to 42 U.S.C. § 2000e-5(g). Defendants have not opposed Mayson’s reinstatement. Accordingly, the court orders that Mayson be reinstated.

IV. Reconsideration of Dismissal of Plaintiffs’ Fourth Claim for Relief

Plaintiffs have moved for reconsideration of the court’s dismissal in Amos I of their claim for intentional infliction of emotional distress. The plaintiffs’ motion is based on the addition of allegations made in their amended complaint. Plaintiffs now also claim that the allegations state a cause of action for invasion of privacy.

Plaintiffs’ allegations are set forth in Amos I, 594 F.Supp. at 830. In addition, plaintiffs now allege:

The manner in which the CORPORATIONS imposed the worthiness requirement on plaintiffs and thereafter fired plaintiffs due to their inability or unwillingness to satisfy that requirement was highly public and calculated to subject plaintiffs to humiliation and scorn from their fellow employees.

(Amended Complaint, paragraph 53). Plaintiffs have submitted the affidavits of Amos, Kanon and Mayson in support of their new allegations. Defendants have moved to strike those affidavits on the basis that the affidavits do not support a finding that the affiants have personal knowledge of the matters in their affidavits. It is the opinion of the court that the affidavits should be considered and defendants’ motion to strike should be denied. However, considering the averments of both the affidavits and the fourth claim for relief of the amended complaint, the court finds as a matter of law that they do not state that level of “outrageous and intolerable” conduct contemplated by the Utah Supreme Court. See 594 F.Supp. 830-31. The court also finds as a matter of law that they do not state a claim for invasion of privacy. See Restatement (2d) of Torts § 625D comments a and c (1977). Thus, the plaintiffs’ motion for reconsideration is denied.

V. Attorney’s Fees

The court reserves the question of attorney’s fees until all matters in this case are concluded.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiffs’ motion for summary judgment regarding Beehive Clothing Mills is denied as genuine issues of material fact remain;

2. Plaintiff’s motion for summary judgment regarding Deseret Industries is denied. The court grants summary judgment in favor of defendants.

3. Plaintiff Mayson is granted backpay with interest and fringe benefits and is ordered to be reinstated at Deseret Gymnasium.

4. Defendants’ motion to strike is denied and plaintiffs’ motion for reconsideration of the dismissal of plaintiffs’ fourth claim for relief is also denied.

5. Plaintiffs’ motion for attorney’s fees and costs is reserved until the conclusion of the trial in this case.

      . Adamson and Arriola who were also employees at Beehive were added as plaintiffs by stipulation of the parties on October 24, 1983.

      . The court stated that plaintiffs were entitled to conduct discovery in the following areas:
      (1) the manufacturing of garments prior to 1960 and any subsequent changes; (2) the distribution of garments prior to 1960 and any subsequent changes; (3) the tax exempt status of Beehive; (4) the past and current employees who were or are non-members of the Mormon Church; (5) Beehive's contracts, both past and current, with private commercial enterprises for the production of garments; and (6) current hiring practices of the defendants’ garment and temple clothing manufacturing plants in Mexico and England. 594 F.Supp. at 803.

      . The court will recite those facts which are crucial to the issue at hand. The parties have agreed on additional facts which are not stated herein.

      . The court cites the source of particular factual findings only when the facts have been asserted as disputed or when the facts have been unclear. Although the court has not engaged in “fact finding" it has considered the general proposition that a deposition is more reliable than an affidavit. See 6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice ¶ 56.11(4) (2d ed. 1985).

      . The ecclesiastical leader of the Mormon Church is its President, who is recognized by Mormon members as a prophet, seer and revelator chosen by Jesus Christ. The President and his counselors constitute the First Presidency of the Mormon Church.

      . The First Presidency is assisted in administering the affairs of the Mormon Church by priesthood quorums and counsels which include the Presiding Bishopric. The Members of the First Presidency, Presiding Bishopric and the quorums constitute what the Mormon Church refers to as its "General Authorities”. The General Authorities make all ecclesiastical, administrative and policy decisions in the Church.

      . Members are asked a variety of questions to determine if they live according to Mormon Church standards and support the Church’s leadership.

      . Temple garments are a white undergarment which covers the body from the knee to the neck. Temple clothing consists of special ceremonial robes and head coverings worn during specific portions of the Temple ceremony.

      . The companies were Lady Gay Manufacturing, Salt Lake Knitting Works, Ogden Knitting Works and Security Knitting Works. In addition to garments. Lady Gay Manufacturing manufactured other types of clothing of no religious significance for other customers. The other three commercial companies manufactured only garments.

      . See supra, note 3.

      . Whether plaintiff Arriola received a copy of the manual is disputed.

      . Devotional services are held weekly at Beehive and all employees are encouraged to attend.

      . A bishop is the church or “priesthood” leader with responsibilities over the local "ward” of the Mormon Church. A bishop is chosen or approved in his position by the General Authorities of the Church.

      . Mormon doctrine requires each faithful member to fast for a period of time each month and contribute the savings to the Mormon Church. The Church uses the funds to assist the needy through a variety of programs including Deseret Industries.

      . The VOA operated social programs in Denver which included "facilities that provided temporary shelter, care, and counseling for women and children." Denver Post of VOA, Til F.2d at 770.

      . 42 U.S.C. § 2000e-5 states:
      If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay ...

      . This court's holding was foreshadowed by discussions in King’s Garden, Inc. v. F.C.C., 498 F.2d 51 (D.C.Cir.), cert. denied, 419 U.S. 996, 95 S.Ct. 309, 42 L.Ed.2d 469 (1974) and Feldstein v. Christian Science Monitor, 555 F.Supp. 974, 978-79 (D.Mass., 1983). This does not mean, however, that defendants were not justified in relying on the section 702 exemption.

      . The court does not believe that the exemption from backpay provided by section 713 of Title VII, 42 U.S.C. § 2000e-12 is applicable here. That narrow exemption pertains to an employment practice in good faith conformity with and reliance upon a written opinion of the Equal Employment Opportunity Commission.

      . Plaintiffs were granted leave to amend after the court ruled in Amos I.


source: Caselaw Access Project

author: QUACKENBUSH, District Judge.

license: Public Domain

text:
    Elbert B. SCHINMANN and Teddie Schinmann, Plaintiffs, v. UNITED STATES of America, Defendant. H.F. ALLEN ORCHARDS, INC., et al., Plaintiffs, v. UNITED STATES of America, Defendant.
    Nos. C-82-064JLQ, C-82-093JLQ.
    United States District Court, E.D. Washington.
    Sept. 18, 1985.
    Bryan G. Evenson, Yakima, Wash., Burton J. Goldstein, San Francisco, Cal., for plaintiffs.
    Robert Sweeney, Asst. U.S. Atty., Spokane, Wash., for defendant.
   ORDER GRANTING GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT

QUACKENBUSH, District Judge.

BEFORE THE COURT is the government’s Motion for Summary Judgment (Ct.Rec. 21), which came on for hearing with oral argument as scheduled September 9, 1985. Plaintiffs were represented by Bryan G. Evenson and Burton J. Goldstein; Assistant United States Attorney Robert M. Sweeney appeared on behalf of the government.

FACTUAL BACKGROUND

This is a case brought under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., by about 159 farmers and irrigation system users in the Yakima Valley of South Central Washington for miscalculation by the Bureau of Reclamation of their irrigation water supply for 1977. The suit seeks recovery for losses arising from the irrigation users’ alteration of farm operations in reliance upon the Bureau’s 1977 water supply forecast.

Plaintiffs in these actions are members of irrigation districts in the Yakima River Valley who receive irrigation water under contracts between the districts and the United States, through the Bureau of Reclamation’s Yakima Project. The facilities of the Yakima Project, which include six (6) storage reservoirs and related dams, canals and pumping plants, are used to supply water in monthly allocations to irrigation districts, which then convey the water in their own canals for distribution to member farmers and ranchers. The water is supplied subject to the water rights of the various districts established in a Consent Decree entered on January 31, 1945, in Kittitas Reclamation District v. Sunny-side Valley Irrigation District (Eastern District of Washington, Southern Division, Civil Action No. 21) (Appendix Document 1, Ct.Rec. 22).

The Consent Decree established, among other things, the obligation of the United States to distribute irrigation water according to a defined formula in a period of insufficient supply. For purposes of distributing water in a “dry” year, the irrigation districts were classified as either “nonproratables” holding senior water rights or “proratables” holding junior rights. In a year of short supply, the rights of non-proratables were to be fully satisfied from the available supply before the proratables received any water. Two of the larger districts within the Yakima Project, the Kittitas Reclamation District and the Roza Irrigation District, held water rights that were one hundred percent proratable. The Wapato Irrigation Project held rights that were fifty percent proratable and fifty percent non-proratable. Most of the rights of the Sunnyside Valley and Yakima-Tieton Irrigation Districts were non-proratable rights. Of the approximately 13,000 individual water users in the Yakima Project, about one-half were supplied with non-proratable water and the rest received water subject to proration during periods of shortage. The 159 plaintiffs herein are members of districts having proratable water rights (Ct.Rec. 35, pp. 7-8).

Paragraph 18 of the Consent Decree provided a method for calculating the amount of irrigation water available in any given year, which figure was known as the “total water supply available” (TWSA).

For purposes of this judgment “total water supply available” is defined as that amount of water available in any year from natural flow of the Yakima River, and its tributaries, from storage’ in the various Government reservoirs on the Yakima watershed and from other sources, to supply the contract obligations of the United States to deliver water and to supply claimed rights to the use of the water on the Yakima River, and its tributaries, heretofore recognized by the United States.

Thus, there are three components in the calculation of TWSA: water from the natural flow of the Yakima River and its tributaries; from storage in government reservoirs; and from “other sources,” which refer primarily to “return flow,” i.e., the amount returning to the river system after being diverted for irrigation purposes. Miscalculation of the latter component, return flow, was central in the events leading to this litigation.

Drought conditions in the Yakima River basin in the fall of 1976 and early 1977 caused the Bureau of Reclamation to invoke, for the first time in 32 years, the provisions of the Consent Decree regarding allocation of water between proratable and non-proratable users. In order to do so, the Bureau made a TWSA calculation which was announced on February 7, 1977 (the government has alleged that the Consent Decree did not specify that the Bureau was to make and communicate such calculation, but that Bureau employees determined it was logical and necessary to do so). This first forecast, which Bureau hydrologists allege they couched in a “worst possible scenario” context, projected a total water supply for the 1977 irrigation season of 1,220,000 acre feet. With the non-pro-ratable water rights to be supplied first, proratable water users were told that they would receive, under the forecast, only seven percent (7%) of their normal water supply (Ct.Rec. 34, p. 13).

On March 18, 1977, the Roza Irrigation District filed a motion in United States District Court, Eastern District of Washington, asking the court to reopen the 1945 Consent Decree, enjoin the Bureau from allocating water from the Yakima Project in accordance with the Bureau’s interpretation of the Decree, and order a “more just and equitable” distribution of the water. The motion was denied on April 26, 1977 (Ct.Rec. 25, pp. 10-11).

Meanwhile, on April 7, 1977, the Bureau revised its TWSA figure to approximately 1,490,000 acre feet, which had the effect of increasing the proratable supply from about seven percent (7%) to thirteen percent (13%). The ostensible reason for the increased estimate was improved precipitation (Ct.Rec. 25, p. 11) but deposition testimony indicated that the increase was effected when the Bureau’s Yakima and Boise offices, in a bureaucratic dispute about the proper projected TWSA, “split the difference” between the projections of the two offices (Ct.Rec. 34, pp. 18-19).

In April and May, Bureau hydrologists discovered more water in the Yakima River system than estimated and recalculated the TWSA, for the first time adding return flow as a distinct element. Proratable users were now to receive fifty percent of their normal supply. The Bureau maintains that it previously could not have added return flow separately because of a lack of data about actual diversions being made and reports of water actually returning to the river system after diversion (Ct.Rec. 25, pp. 11-12). Plaintiffs, on the other hand, contend that the Bureau’s failure from the outset to isolate return flow from its runoff figures, and to include return flow as a “double entry” was negligent; “the source of the error was not insufficiency of empirical data, but the Bureau’s conceptual misunderstanding ...” (Ct.Rec. 34, p. 21). An affidavit by plaintiffs’ expert, John A. Dracup, explains that

... return flow is water which originates as natural flow or precipitation which has been diverted once for irrigation, but which has returned to the river system for a second or third, etc., subsequent downstream diversion and is thus reused possibly numerous times. Therefore, in an irrigation water supply computation, return flow must be separately added as a “double entry” or in effect as an artificial tributary to the river system.

(Ct.Rec. 33, p. 8). Mr. Dracup stated his belief that “the Bureau of Reclamation employees failed to act as reasonable and prudent hydrologists and water managers” in failing to separately add return flow to pre-May 1977 computations and in assuming that runoff measurements included return flow (Id.).

In June, a fourth TWSA was issued, this one increasing the estimated supply available to proratable water users to seventy percent (70%); by year’s end, according to plaintiffs, the proratable districts got about eighty-three percent (83%) of the water to which they were entitled, adequate to meet one hundred percent (100%) of prior actual historical use (Ct.Rec. 34, p. 23). The government says the Bureau delivered 2.070.000 acre feet of water through the Yakima Project for the entire 1977 irrigation season (Ct.Rec. 25, p. 12). Of the increase over the initial estimate — 850,000 acre feet — the government says 350,000 resulted from return flows and the other 500.000 from favorable precipitation, lower ambient temperatures reducing the demand for water, less-than-usual water diversions, and increased efficiency by the irrigation districts and water users in conveying and applying their water (Ct.Rec. 25, pp. 12-13). However, plaintiffs question the government’s figures and contend that precipitation could not account for the “tremendous upward adjustment of the TWSA upon discovery of the return flow omissions” (Ct.Rec. 25, p. 8).

Following the 1977 irrigation season, plaintiffs filed administrative claims with the Bureau of Reclamation as required by 28 U.S.C. § 2675(a). After the claims were denied by the Solicitor of the Department of the Interior, these actions were filed. While the original Schinmann complaint included allegations that the government had failed to enlarge its water storage facilities “equivalent to [its] contractual commitment to deliver irrigation water,” that claim appears to have been discarded in favor of the claim of a negligently-forecast water supply.

Plaintiffs previously filed a Tucker Act action based upon similar facts in the United States Court of Claims but proceeded to file this action “to preserve plaintiffs’ remedies” (Ct.Rec. 1). The Court of Claims action was dismissed on the government’s motion for summary judgment, and dismissal was affirmed by the Ninth Circuit Court of Appeals which agreed that the Consent Decree did not expressly obligate the Bureau to inform farmers of available water in a time of shortage. H.F. Allen Orchards v. United States, 749 F.2d 1571 (9th Cir.1984). Most of the materials submitted by plaintiffs in opposition to the present summary judgment motion are discovery from the Court of Claims action.

SUMMARY OF PARTIES’ CONTENTIONS

The government has filed a motion for summary judgment for failure to state a claim upon which relief can be granted and lack of jurisdiction under the Federal Tort Claims Act. Specifically, the government alleges three bases on which it claims summary judgment is appropriate. It says the claim is barred (1) by the misrepresentation exception of 28 U.S.C. § 2680(h); (2) by the discretionary acts exception of 28 U.S.C. § 2680(a); and (3) by the exculpatory clauses of the contracts between the United States and the irrigation districts (Ct.Rec. 24). The government has submitted, in support of its motion, the affidavits of William Gray, former superintendent of the Yakima Project (Ct.Rec. 30), Onni Perala, chief of hydrology at the Yakima Project during the relevant period herein (Ct.Rec. 29) and Daniel Yribar, river operations coordinator at the Bureau’s regional office in Boise (Ct.Rec. 28). These affidavits state, in general, that the Bureau operated the Yakima Project in compliance with the Consent Decree and the District Court’s April, 1977 Order; that the Bureau’s miscalculations were caused by a number of unknown variables and lack of empirical data; and that changes in the TWSA were necessitated by abnormal weather conditions and the difficulties inherent in interpreting, for the first time, the relevant Consent Decree provisions.

Plaintiffs respond, in essence, that neither statutory exception nor the exculpatory clauses apply to shield the government from suit under the present circumstances. They allege that the Bureau’s miscalculations — “operational” rather than discretionary tasks — came not from lack of data, an ambiguous Consent Decree or abnormal weather conditions, but from “gross conceptual error” (Ct.Rec. 34, p. 15). Plaintiffs claim there was an existing, historically sound rule that the Bureau could have used to project return flow (Ct.Rec. 34, p. 20) but instead the government ignored return flow as the primary “other source” of water which was required by the Consent Decree to be separately added in computing TWSA. Plaintiffs further allege that Yakima Project officials were led astray by the regional office in Boise, which tried to apply flood control principles to the problems of estimating irrigation water supply. They also cite depositions of Bureau employees in an attempt to establish that the employees knowingly engaged in “guesstimates,” refusing to apply their own scientific evidence (Ct.Rec. 34, pp. 11-23).

Plaintiffs claim the primary disputed material facts include: (1) whether the Bureau hydrologists had sufficient information to make an initial return flow computation; (2) whether the subsequent increases in estimates of water supply were due to the negligence of the Bureau or to unseasonable rains and other unforeseeable variables; (3) whether the Consent Decree’s formula was actually unique and difficult to apply; and, (4) whether the Bureau’s hydrologists engaged in conceptual error which deviated from a required standard of care (Ct.Rec. 35).

In its Reply Memorandum, the government concedes that upon this motion the court should accept as true plaintiffs’ allegations of negligence in the Bureau’s calculation of the 1977 irrigation water supply (Ct.Rec. 38, p. 5). However, “even if the water supply forecast was negligently calculated, the plaintiffs’ claims are still barred by the misrepresentation and discretionary function exceptions to the Federal Tort Claims Act” (the government has placed secondary emphasis on its exculpatory clause defense).

Summary judgment is appropriate where, viewing the evidence and the inferences arising therefrom in favor of the non-movant, there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.; Cardwell v. Kurtz, 765 F.2d 776, 778 (9th Cir.1985). In the present case the court must assume, for the purposes of this motion, that the government acted negligently in its calculation of the 1977 water supply forecast. However, it must still be determined whether the misrepresentation and discretionary exceptions of 28 U.S.C. § 2680(h) and (a), respectively, apply entitling the government to judgment as a matter of law.

THE MISREPRESENTATION EXCEPTION

The United States argues that the misrepresentation exception to federal liability under 28 U.S.C. § 2680(h) immunizes it from liability in this suit. Under the pertinent part of that section:

The provisions of this chapter and section 1346(b) of this title shall not apply to—
(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contract rights;

While plaintiffs claim the negligence of the Bureau was not in the issuance of the inaccurate forecast but in the negligent manner in which it was calculated, “[t]he government submits ... that the essential ingredient of plaintiffs’ claim is the communication of inaccurate information upon which they relied to their economic detriment” (Ct.Rec. 24, p. 9). Because the Bureau ultimately delivered as much water as required, “[wjithout the communication of the information, the plaintiffs would have no claim ...” (Id.).

The government relies upon two key cases in its misrepresentation defense: United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961) and Block v. Neal; 460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983). In Neustadt, the high court held that the misrepresentation exception applied to shield the government from liability where home buyers had been furnished a statement reporting the results of an inaccurate FHA inspection and appraisal, and in reliance thereon paid a purchase price in excess of the property’s fair market value. Neustadt found that the misrepresentation exception encompassed negligent, as well as wilful, misrepresentations, 366 U.S. at 702, 81 S.Ct. at 1298, and disagreed with the Fourth Circuit’s opinion that the misrepresentation was “merely incidental” to the “gravamen” of the claim, i.e., “the careless making of an excessive appraisal.” 366 U.S. at 704, 81 S.Ct. at 1299.

To say, as the Fourth Circuit did, that a claim arises out of “negligence” rather than “misrepresentation,” when the loss suffered by the injured party is caused by the breach of a “specific duty” owed by the Government to him, i.e., the duty to use due care in obtaining and communicating information on which that party may reasonably be expected to rely in the conduct of his economic affairs, is only to state the traditional and commonly understood definition of the tort of “negligent misrepresentation,” as is clearly, if not conclusively, shown by the authorities set forth in the margin [here the court refers to the Restatement of Torts, § 522].

366 U.S. at 706, 81 S.Ct. at 1300. Neustadt observed that misrepresentation, as opposed to other torts, has been confined largely to the invasion of economic interests. 366 U.S. at 711, n. 26, 81 S.Ct. at 1302 n. 26. The government alleges that “[t]he claims of the farmers and ranchers in these proceedings fit squarely within the concept of negligent misrepresentation” explained in the Restatement and Neustadt. (Ct.Rec. 24, p. 13).

Plaintiffs in the instant case assert that Neustadt has been modified by Block v. Neal, supra (Ct.Rec. 34, p. 31). This does not appear to be the case. In Block v. Neal, respondent had purchased a home built with a subsidized rural housing loan from the Farmers Home Administration (FmHA). The house had a number of defects discovered after respondent moved in, and she had sued the government under the Federal Tort Claims Act for negligent supervision and inspection of the house’s construction. The court found that the suit was not barred by the misrepresentation exception because Mrs. Neal’s action was based solely on negligent supervision and inspection, not on the statements of FmHA officials. The court distinguished Neustadt, observing that Neustadt had “alleged no injury that he would have suffered independently of his reliance on the erroneous appraisal.” 460 U.S. at 296, 103 S.Ct. at 1093. Block v. Neal noted that:

[S]ection 2680(h) thus relieves the Government of tort liability for pecuniary injuries which are wholly attributable to reliance on the Government’s negligent misstatements. As a result, the statutory exception undoubtedly preserves sovereign immunity with respect to a broad range of Government actions. But it does not bar negligence actions which focus not on the Government’s failure to use due care in communicating information, but rather on the Government’s breach of a different duty.

460 U.S. at 297, 103 S.Ct. at 1093.

Block v. Neal thus indicates that a determining factor in the applicability of the misrepresentation exception is the gravamen of the claim. In the case at bar, the government asserts that the essential element of plaintiffs’ claim is “the communication of inaccurate information and without this element the farmers and ranchers would have no claim at all” (Ct.Rec. 24, p. 17). The government cites Guild v. United States, 685 F.2d 324 (9th Cir.1982), as an illustration of the difference between the performance of operational tasks and the communication of information. In Guild, the government was sued after the failure of a dam for which the Soil Conservation Service had done extensive work, including the surveying of sites, preparation of a topographic survey, recommendation of a site and provision of construction plans and specifications.

The key distinction in this area is between the performance of operational tasks and the communication of information. The Government is liable for injuries resulting from negligence in performance of operational tasks even though misrepresentations are collaterally involved. It is not liable, however, for injuries resulting from commercial decisions made in reliance on government representations.

685 F.2d at 325 (citations omitted). Plaintiffs cite Guild to support their contention that this case may be brought on a theory of “hydrological malpractice” akin to the “species of engineering malpractice” in Guild (Ct.Rec. 33, p. 57). As in Guild, plaintiff are arguing that the complained-of conduct is not the communication of information but the performance of operational tasks, here the computation of water supply estimates. However, as the government asserts, in the present case there would have been no loss absent the communications to the farmers; this distinguishes the present case from Guild.

Plaintiffs cite a number of cases illustrating their “operational tasks” argument. The opinion which they assert is perhaps “the leading case,” United Airlines v. Wiener, 335 F.2d 379 (9th Cir.1964) involved wrongful death actions arising out of the collision between a commercial airliner and an Air Force jet fighter. The court found that the misrepresentation exception did not bar suit against the government for alleged negligence including failure to adequately inform the commercial airliner of the government’s hazardous fighter activity, but distinguished its case from Neustadt.

Here, the gravamen of the action is not misrepresentation but the negligent performance of operational tasks, although such negligence consisted partly of a failure of a duty to warn.

335 F.2d at 398,

Ingham v. Eastern Air Lines, Inc., 373 F.2d 227 (2nd Cir.1967), another case cited by plaintiffs, refused to apply section 2680(h) to immunize the government against charges of negligent failure to provide an airliner with notice of adverse changes in the weather. However, Ingham, which, like Wiener, dealt with personal injuries and death, distinguished itself from Neustadt, which “involved business dealings of a financial or commercial character with the government, a totally different setting from the instant action.” 373 F.2d at 239.

Plaintiffs also cite as “another case closely in [sic] point”, Brown v. United States, 599 F.Supp. 877 (Mass.1984), an admiralty case involving deaths resulting from reliance on an inaccurate weather forecast which was the consequence of the government’s failure to repair a malfunctioning weather data buoy. Plaintiffs’ claim, held the court, was not based on the inaccurate forecasts but on the cause of the inaccuracy: the government’s negligent failure to perform the operational task it had assumed of maintaining the weather buoy. Thus the misrepresentation exception did not apply. However, Brown noted the language from Block v. Neal, supra, to the effect that § 2680(h) relieved the government of liability for pecuniary injuries attributable wholly to the misrepresentations of the government. 599 F.Supp. at 890 (emphasis added).

Plaintiffs also refer to Ausland v. United States, 488 F.Supp. 426 (S.D.1980). That case sets out a test to determine whether a claim is covered by the § 2680(h) exclusion for misrepresentation. The test

... is whether [the claim] is for personal injury or property damages arising from negligent performance of operational tasks ... [or] injury resulting from commercial decisions taken in reliance on governmental misrepresentations ... If the latter, a case is barred by § 2680(h).

488 F.Supp. at 431.

The Ninth Circuit has similarly held

... that the misrepresentation exception precludes liability where the plaintiff suffers economic loss as a result of a commercial decision which was based on a misrepresentation by government consisting either of false statements or a failure to provide information which it had a duty to provide.
... Where the plaintiffs’ injuries were not commercial, as for instance, in the airplane crash cases, and the medical services cases, courts have generally ruled that the exception does not preclude claims based on the government’s failure to inform. On the other hand, the exception has usually been held to bar claims for damages resulting from commercial decisions based on false or inadequate information.

Green v. United States, 629 F.2d 581 (9th Cir.1980) (citations omitted).

In the present case, plaintiffs argue that the “government’s misrepresentations were not commercial,” and that the misrepresentation exception should not apply (Ct.Rec. 34, p. 38). However, Green, supra, indicates that “the applicability of the exception depends upon the commercial setting within which the economic loss arose.” 629 F.2d at 584. It clearly appears that the decisions of farmers and ranchers in the present case — changing crops, selling cattle, investing in wells and additional irrigation equipment — were commercial or economic, within the scope of § 2680(h). Moreover, in ascertaining the gravamen of the present action it appears clear that, absent the communication of misinformation to plaintiffs, no damage would have ensued. Plaintiffs’ contention that “[t]he Bureau’s communication is collateral” to the improper computation of the water supply is not well taken. The proximate cause of the loss to the farmers appears to have been the misrepresentation or communication of misinformation, not the erroneous calculation of figures.

THE DISCRETIONARY FUNCTION EXCEPTION

The discretionary function exception of 28 U.S.C. Section 2680(a) states:

The provisions of this chapter and section 1346(b) of this title shall not apply to—
(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

The Government claims that this exception applies to the decision by Reclamation Bureau officials to issue a water supply forecast and to the content and wording of the forecast “for the reason that the Bureau of Reclamation was not obligated, contractually or statutorily, to provide the water users in the Valley with a forecast at all” (Ct.Rec. 24). In fact, although Bureau officials realized it was “logical, reasonable and appropriate” for the Bureau to formulate and issue the 1977 forecast, it was not obligated under the Consent Decree to do so (Ct.Rec. 24, pp. 23-24); see 749 F.2d 1571, supra.

Three cases provide primary guidance in determining whether the discretionary function exception should be applied in the present case. They are Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), United States v. S.A. Empressa da Viaco, etc., (Varig Airlines), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984), and the very recent case of Begay v. United States, 768 F.2d 1059 (9th Cir.1985).

Dalehite, a case involving explosions of ammonium nitrate fertilizer produced at the instance and under the control and specifications of the United States, described .the discretion protected by § 2680(a) as “the discretion of the executive or the administrator to act according to one’s best judgment of the best course,” 346 U.S. at 34, 73 S.Ct. at 967, and stated that the discretionary duty which is excluded from coverage under the Federal Tort Claims Act:

... includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable.

Id. at 36, 73 S.Ct. at 968. Plaintiffs cite Dalehite in an attempt to establish that the intent of Congress in creating the discretionary immunity exception was to immunize the government only where no negligence was present on the part of any government agent (Ct.Rec. 34, p. 43). However Dalehite noted that the second part of § 2680(a) excepting acts of discretion in the performance of government functions “whether or not the discretion involved be abused”

... connotes both negligence and wrongful acts in the exercise of the discretion because the Act itself covers only “negligent and wrongful act or omission of any employee,” “within the scope of his office” “where the United States, if a private person, would be liable.” 28 U.S.C. § 1346(b). The exercise of discretion could not be abused without negligence or a wrongful act. The Committee reports ... show this.

346 U.S. at 33, 73 S.Ct. at 966.

Plaintiffs also dispute that the government’s conduct involved judgment of a political, economic or social policy nature sufficient to invoke the discretionary functions exception (Ct.Rec. 34, p. 44; see Varig Airlines, supra). However, it appears that the Bureau’s decision to issue the forecast was an administrative decision “grounded in social [or] economic ... policy” for which Congress intended to prevent judicial “second guessing.” 467 U.S. at -, 104 S.Ct. at 2765.

It is also notable that a number of courts have held the discretionary function exception applicable to negligent weather forecasts and predictions of natural disasters. See National Manufacturing Co. v. United States, 210 F.2d 263 (8th Cir.1954) and Bartie v. United States, 216 F.Supp. 10 (W.D.La.1963).

Plaintiffs assert that even if the decisions to compute the water supply and announce it to the farmers were discretionary (which they do not concede), the United States is liable under the “good Samaritan” doctrine of Indian Towing Co., Inc. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955). In Indian Towing, plaintiffs alleged that their tugboat ran aground (with resulting damage to its cargo) because the Coast Guard had failed to inspect and repair a lighthouse. The Supreme Court, noting that the question was one of liability for negligence at the “operational level” of governmental activity, 350 U.S. at 64, 76 S.Ct. at 124, held that:

The Coast Guard need not undertake its lighthouse service. But once it exercised its discretion to operate a light ... and engendered reliance on the guidance afforded by the light, it was obligated to use due care to make certain that the light was kept in good working order; and, if the light did become extinguished, then the Coast Guard was further obligated to use due care to discover this fact and to repair the light to give warning that it was not functioning. If the Coast Guard failed in its duty and damage was thereby caused to petitioners, the United States is liable under the Tort Claims Act.

350 U.S. at 69, 76 S.Ct. at 126. Plaintiffs in the present case cite numerous opinions, “progeny of the Indian Towing decision,” where the government was held liable for the negligent performance of admittedly discretionary decisions (Ct.Rec. 33, pp. 47-48).

The Varig Airlines case, supra, discussed the “good Samaritan” rule in light of § 2680(a). In Varig (as, by implication, in the present case) it was alleged that Dalehite had been eroded if not overruled by Indian Towing and like cases. However, the court observed in Varig that Indian Towing could be distinguished; there, “the Government conceded that the discretionary function exception was not implicated, ... arguing instead that the Act contained an implied exception from liability for ‘uniquely governmental functions.’ ” 467 U.S. at -, 104 S.Ct. at 2764. In Varig, where it was alleged that the United States was negligent in inspecting certain aircraft modifications, the Supreme Court reversed the Ninth Circuit decision allowing plaintiffs to recover under California’s “good Samaritan” rule, and held that the discretionary function exception of the Federal Tort Claims Act barred the suit.

Varig set out several factors “useful in determining when the acts of a Government employee are protected from liability by § 2680(a)”:

First, it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case ... [T]he basic inquiry ... is whether the challenged acts of a Government employee — whatever his rank — are of the nature and quality that Congress intended to shield from tort liability.
Second, whatever else the discretionary function exception may include, it plainly was intended to encompass the discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals ... Congress wished to prevent judicial “second-guessing” of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort. By fashioning an exception for discretionary government functions, including regulatory activities, Congress took “steps to protect the Government from liability that would seriously handicap efficient government operations.”

467 U.S. at -, 104 S.Ct. at 2765 (citation omitted).

Begay, supra, gave the Ninth Circuit its “first opportunity to apply Varig to a case not involving strictly ‘regulatory’ action of an agency.” 768 F.2d at 1062. Begay involved Navajo Indians who sued the government under the Federal Tort Claims Act for personal injuries arising from alleged excessive exposure to radiation in uranium mines in Arizona. The Indians complained that various governmental agencies were negligent in failing to establish and enforce radiation safety standards, and that a study undertaken by the Public Health Service (PHS) was a “good Samaritan” undertaking which had been negligently performed because the miners were not warned of radiation exposure and its hazards.

However, the court, reviewing the Varig factors, found that the decision not to disclose the possible dangers of uranium mining to the Indians “was based on [a] judgment of what the best course of action was under the existing circumstances.” At 1064. It involved a policy decision — a decision to test for radiation exposure — which was “discretionary by its very nature.” Id. at 1064. Despite the fact that “this is the type of case that cries out of redress, ... the courts are not able to give it; Congress is the appropriate source in this instance.” Id. at 1065.

In the present case, regardless of alleged negligence on the part of Bureau officials and undisputed losses, it nonetheless appears that the conduct of the Bureau falls within the discretionary functions exception of Dalehite, Varig and Begay, rather than within the “good Samaritan” rule of Indian Towing.

THE EXCULPATORY CLAUSES

Because summary judgment appears appropriate under the two statutory exceptions, it is not necessary to construe the exculpatory clauses in the contracts between the United States and the various irrigation districts.

Therefore, having reviewed the record, heard the oral argument of counsel and being fully advised in this matter, IT IS HEREBY ORDERED:

1. The government’s Motion for Summary Judgment is GRANTED, for lack of jurisdiction under 28 U.S.C. § 2671 et seq., and failure to state a claim on which relief can be granted, and the complaint and the claims therein in Schinmann v. United States, C-82-064-JLQ and Allen Or chards, et al. v. United States, C-82-093-JLQ, are DISMISSED WITH PREJUDICE.

IT IS SO ORDERED. The Clerk is directed to enter this Order and forward copies to counsel.

      . All references herein to the record will use the court record numbers of the Allen Orchards case [C-82-093] rather than those of the consolidated Schinmann case. All pleadings relevant to this motion are identical in the two cases.

      . It should be noted that Begay, in a footnote, discarded the planning level/operational level dichotomy traditionally used in analyzing applicability of the discretionary function exception. The court decided that "the proper approach to determining when the exception applies is for the court to look to the nature of the conduct in question.” At 1062, n. 2.