author: HAROLD H. GREENE, District Judge.

text:
    NATIONAL COAL ASSOCIATION, et al., Plaintiffs, v. Donald P. HODEL, et al., Defendants.
    Civ. A. No. 83-2985.
    United States District Court, District of Columbia.
    Aug. 28, 1985.

      Arnold Levy, Jerome H. Simonds, John S. Lopatto, III, Freedman, Levy, Kroll & Simonds, Washington, D.C. (Robert Stauffer, Peter Gabauer, Nat. Coal Ass’n, Washington, D.C., of counsel), and Thomas Altmeyer, Washington, D.C., Mining and Reclamation Council of America, for plaintiffs Nat. Coal Ass’n and Mining and Reclamation Council of America.
    Robert D. Daniel, Special Litigation Counsel, Land & Natural Resources Div., U.S. Dept, of Justice, Washington, D.C. (John J. McHale, Atty. Advisor, Energy and Resources, Office of Solicitor, U.S. Dept, of Interior, Washington, D.C., of counsel), for Federal defendants.
    Russell H. Carpenter, Jr., Laird Hart, Covington & Burling, Washington, D.C., for defendants Rocky Mountain Energy Co., et al.
   OPINION

HAROLD H. GREENE, District Judge.

This case of first impression concerns the power of the Secretary of the Interior to engage in and approve land exchanges containing coal reserves where the exchange may, at least in part, benefit common carrier railroads. Ultimately, the decision turns, as do so many others in other contexts, on the meaning of the ubiquitous yet elusive phrase “the public interest.” The issues are complicated by the fact that the exchanges are sought by three kinds of entities — Princeton University and other eleemosynary institutions; the subsidiary of a railroad empire; and the National Park Service. Opposed to the exchanges are coal mining interests.

I

Plaintiffs, which are trade associations representing coal mine operators who collectively produce most of the coal mined annually in the United States, brought this action challenging a determination of the Secretary of the Interior issued in 1983 that the so-called “Corral Canyon” land exchange was in the “public interest” and therefore permissible under section 206 of the Federal Land Policy and Management Act of 1976 (FLPMA). They seek an order (1) enjoining the Secretary and private defendant Rocky Mountain Energy Company to rescind the land exchange, and (2) declaring the Secretary’s interpretation and application of section 206 to be contrary to law and invalid. Defendants have moved to dismiss or for summary judgment; plaintiffs have opposed defendants’ motions and have cross-moved for summary judgment. After carefully considering the claims asserted by plaintiffs, and the papers and oral arguments submitted by the parties, the Court concludes that plaintiffs’ claims lack merit, and it will accordingly grant defendants’ motions and order the case dismissed.

II

The material facts are not in dispute. The land exchange challenged in this litigation was part of a three-way land swap arranged by Princeton University. During the years 1980 to 1982, Princeton received a series of charitable donations of privately owned lands located within the confines of Grand Teton National Park in the State of Wyoming. Seeking to convert this gift of real property into cash, Princeton offered to sell the land to the National Park Service, which had acquired similar tracts in the past to protect Grand Teton Park against commercial development. The Park Service responded that lack of funds for new parkland purchases precluded it from accepting Princeton’s otherwise very attractive offer. When subsequent negotiations between Princeton and other conservation-oriented prospective purchasers proved equally unsuccessful, the University devised an imaginative solution to the problem: a three-way land exchange in which Princeton would sell the bequest lands to a private energy development company, which would then exchange them for federal lands located outside the park that were suitable for commercial mining and energy development. Such an exchange would simultaneously provide Princeton with the cash it needed, prevent the commercial exploitation of the donated land, create additional parkland at no financial cost to the federal government, and provide tangible economic benefits to the private energy company.

In conjunction with three other eleemosynary institutions which were experiencing similar difficulties in disposing of land bequests, Princeton reached an agreement with Rocky Mountain Energy Company (“Rocky Mountain”) under which that company would purchase the Grand Teton properties owned by all four institutions and exchange them for federal coal lands in Wyoming’s Corral Canyon that were contiguous to other tracts owned by Rocky Mountain. In December 1981, Rocky Mountain wrote to the Wyoming State Office of the Bureau of Land Management (BLM) of the Department of the Interior proposing the fee exchange of the private, Grand Teton lands for the Corral Canyon coal lands under section 206 of the FLPMA. The National Park Service and the BLM jointly prepared an Environmental Assessment which concluded that the proposed exchange was consistent with both the Park Service’s land management objectives for Grand Teton National Park and the BLM’s land use and resource management objectives for the Corral Canyon area. The BLM District Manager thereafter prepared a Land Report and Initial Recommendation in which he concluded that the public interest would be served by completing the exchange. In accordance with these decisions, the BLM continued to process the land exchange application.

Notice of the proposed exchange was published in the Federal Register and public comments were invited in accordance with departmental regulations. Numerous organizations and individuals submitted comments, the overwhelming majority of which strongly endorsed the proposed exchange. The supporters of the exchange included such diverse groups as Rocky Mountain and the institutional landowners (with their financial interests), environmental organizations (such as the Wyoming Wildlife Federation and the Wyoming Chapter of the Sierra Club), the Governor of Wyoming, the entire Wyoming congressional delegation, and various Wyoming State agencies.

The only comments opposing the proposed exchange were those filed by plaintiffs and by an affiliate of two other energy companies. The thrust of the opposing comments was that the proposed land exchange violated various federal statutes prohibiting affiliates of common carrier railroads, such as Rocky Mountain, from leasing federal coal reserves for commercial development and prohibiting railroads from transporting coal mined by their affiliates. Plaintiffs contended that the proposed exchange, which would transfer to Rocky Mountain ownership federal coal lands that would otherwise remain available for leasing, was inconsistent with the spirit, if not the letter, of the statutory common-carrier coal leasing and transportation prohibitions, and that it therefore did not satisfy the “public interest” requirement of section 206 of the FLPMA. Finally, plaintiffs argued that the proposed exchange did not comply with the requirements of FLPMA section 206(b) that the land exchanged either be of equal value or that any discrepancy in valuation be made up with a cash payment.

On January 5, 1983, the BLM District Manager rejected plaintiffs’ protests. Plaintiffs timely appealed that decision. On June 2, 1983, the BLM State Director, acting with the concurrence of the Assistant Secretary of the Interior, again rejected plaintiffs’ protests in a memorandum decision that responded point-by-point to plaintiffs’ objections. This action followed.

Ill

The parties appear to agree that, to the extent that judicial review of the Secretary’s decision is available, the appropriate standard is that provided in the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), which authorizes a reviewing court to “set aside agency action ... found to be (a) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” Id.

The defendants have mounted several threshold objections to judicial review in this case, however. The federal defendants contend that plaintiffs lack standing to challenge the Interior Secretary’s decision. The private defendants (Rocky Mountain, et al.) contend that Interior Department decisions concerning federal land management are committed to agency discretion and are therefore unreviewable. The Court finds neither of these objections persuasive, and it concludes that judicial review under the § 706(2)(A) standard is appropriate.

To establish their standing to sue, plaintiffs must establish (1) that they have suffered injury in fact, and (2) that they are within the zone of interests to be protected by the relevant legislation. Association of Data Processing Service Orgs., Inc. v. Camp, 397 U.S. 150, 151-52, 90 S.Ct. 827, 828-29, 25 L.Ed.2d 184 (1970). Here, plaintiffs have alleged that they have suffered significant, albeit limited, economic injury due to the Secretary’s withdrawal of federal coal lands from the competitive leasing system, and that they will suffer even more severe economic injury if the Secretary is permitted to implement his alleged new policy of permitting railroads to gain access to federal coal lands. These allegations of present and future economic injury are sufficiently concrete to satisfy the injury in fact requirement.

As for plaintiffs’ membership in the protected class, the language and legislative history of the Mineral Lands Leasing Act, and particularly of section 2(c), provide abundant evidence that Congress intended the prohibition on railroad access to federal coal lease to protect independent coal companies such as plaintiff organizations’ members from unfair competition. Accordingly, the Court concludes that, taking the plaintiffs’ allegations to be true, they have established their standing to sue.

The contention of the private defendants that the Interior Department’s “public interest” determination is committed by law to agency discretion, and therefore unreviewable, is equally unpersuasive. The Supreme Court has repeatedly held that executive agency determinations are presumptively subject to judicial review, except where a statute is drawn in such broad terms that there is no law to apply or where there is evidence of a clear legislative intent to preclude review by the courts. Here the statutory language of FLPMA section 206 provides specific criteria to be applied in making public interest determinations, and the statute also explicitly reflects the congressional intent that “judicial review of public land adjudication decisions be provided by law.” The Court plainly has the authority to review the Secretary’s decision to determine whether it complied with these explicit statutory standards.

IV

On the merits, plaintiffs have challenged the Secretary’s decision on essentially three grounds. First, they contend that the FLPMA is merely an enabling statute that only governs land exchanges authorized under other statutes and that the Secretary lacked the authority under the FLPMA to approve the Corral Canyon exchange. Second, they contend, as they did before the agency, that provisions in the Mineral Lands Leasing Act (MLA), 30 U.S.C. § 202, and the Interstate Commerce Act, 49 U.S.C. § 10746, which respectively prohibit railroad affiliates from obtaining federal coal leases and prohibit common carriers from transporting commodities that they mine or produce, are implicitly incorporated in the FLPMA and that the Secretary’s decision therefore violated the statute. Finally, they contend that even if the Secretary possessed authority under the FLPMA to approve the land exchange, his public interest evaluation constituted an abuse of discretion because it failed to consider adequately the potential anticompetitive effect of the exchange on western coal production.

A.

The contention that an exchange of this sort is not authorized under the FLPMA is so lacking in support that it can only be characterized as frivolous. The statute provides in plain language that “A tract of public land or interests therein may be disposed of by exchange by the Secretary under this Act ...” FLPMA section 206, 43 U.S.C. § 1716(a) (emphasis added), and it refers in the next paragraph to “the exchange authority granted by subsection (a) of this section, 43 U.S.C. § 1716(b) (emphasis added). Plaintiffs’ interpretation of the FLPMA would ignore this explicit statutory language and render the emphasized words superfluous.

Such a reading would violate fundamental principles of statutory construction requiring fidelity to the plain meaning of statutory language and favoring constructions that give meaning to every word of a statutory enactment. Moreover, plaintiffs have identified no legislative history that contradicts this clear statutory language. There is, therefore, simply no question that the FLPMA grants to the Secretary the authority to undertake land exchanges of the sort challenged here.

B.

Plaintiffs’ contention that the MLA and Interstate Commerce Act provisions must be read into the FLPMA is likewise unsupported by statutory language. Nothing in the language of the FLPMA, which involves fee land exchanges only, incorporates, by reference or otherwise, the restrictions placed by these other statutes on the leasing, mining, or transportation of coal by common carriers. Conversely, nothing in the language of the MLA or the Interstate Commerce Act directs that the restrictions contained in these statutes shall also apply to fee land and coal exchanges under the FLPMA. Indeed, the MLA explicitly exempts FLPMA section 206 exchanges from the restrictions on disposition contained in the MLA. Section 37 of the MLA provides in relevant part that “The deposits of coal ... herein referred to, in lands valuable for such minerals, ... shall be subject to disposition only in the form and manner provided in this chapter, except as provided in sections 1716 and 1719 of Title 43 ...” 30 U.S.C. § 193 (emphasis added).

Plaintiffs attempt to explain away the absence of a textual linkage between the three statutes on the basis that the laws are linked by logic, and they further contend that failure to read the MLA and Interstate Commerce Act restrictions into the FLPMA effectively would create a vast loophole which would permit the wholesale evasion of the MLA’s restriction on coal leasing by railroad affiliates through the use of the FLPMA fee exchange provision. Noting that implied repealers of legislation are disfavored (see Tennessee Valley Authority v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978)), and that the FLPMA itself specifically states that “Nothing in this Act shall be deemed to repeal any existing law by implication,” FLPMA § 701(f), 43 U.S.C. § 1701 note, plaintiffs assert that Congress could not have intended such an anomalous result, and that harmonious construction of the three statutes requires the reading of the MLA restrictions into the FLPMA.

The critical flaw in plaintiffs’ argument is that it ignores the significant limitations placed on the Secretary’s discretion by the express terms of the FLPMA. Section 206 of that statute requires the Secretary to conduct a detailed public interest analysis prior to approving each proposed fee exchange. It does not give him carte blanche to approve wholesale transfers of federal or other coal lands to railroad affiliates. The Court is confident that the restrictions imposed by the public interest requirement are more than adequate to prevent the use of the FLPMA as a means of evading the coal-leasing prohibitions contained in the MLA.

While, to be sure, some tension exists between these various congressional enactments, the Court is unprepared to conclude that harmonious construction of these statutes requires the substantial alteration by implication of the FLPMA’s explicit statutory language. Accordingly, the Court holds that the MLA’s ban on coal-leasing by common-carrier railroad affiliates is not incorporated in the FLPMA and does not extend to FLPMA fee exchanges.

C.

Plaintiffs’ final objection to the Corral Canyon land exchange is that, on the merits, the exchange is not in the public interest as required by the FLPMA. When viewed through a practical prism, nothing could be more in the public interest: Princeton and its sister institutions receive capital for their educational or health-providing ventures; parkland in the Grand Te-ton will remain unspoiled; and a private energy company receives land outside the national parks for commercial mining. However, plaintiffs assert that the Court should regard as paramount the potential anticompetitive effects of the proposed exchange, and that the Secretary failed properly to perform such an evaluation or to weigh its results in making his final public interest determination. Accordingly, they urge the Court to hold that the Secretary abused his discretion in approving the Corral Canyon exchange under the FLPMA.

The defendants have noted, correctly, that the FLPMA public interest provision does not include potential anticompetitive effects among the panoply of factors that the Secretary of the Interior must take into account in reading his public interest determination. The statute provides only:

That when considering public interest the Secretary concerned shall give full consideration to better Federal land management and the needs of State and local people, including needs for lands for the economy, community expansion, recreation areas, food, fiber, minerals, and fish and wildlife and the Secretary concerned finds that the values and the objectives which Federal lands or interests to be conveyed may serve if retained in Federal ownership are not more than the value of the non-Federal lands or interests and the public objectives they could serve if acquired.

43 U.S.C. § 1716(a). There is no mention at all of a requirement that the Secretary of Interior take into account in his public interest determination the antitrust implications of a proposed exchange. It can therefore be argued, as the Secretary did during the administrative proceedings below, that under the familiar principle of expressio unius est exclusio alterius Congress’ failure to include potential anticompetitive effects among the enumerated categories of factors to be considered by the Secretary suggests that the FLPMA should be construed not to require such an analysis.

The Court need not reach that issue, however, for whatever may be the proper resolution of this important question of statutory construction, it is appropriately left to another day. It is clear that here the Secretary did, in fact, proceed to consider the potential anticompetitive effect of the Corral Canyon exchange, and he properly found that it was not significant enough to preclude a determination that the exchange was in the public interest. Officials of the Bureau of Land Management’s Wyoming office noted that the federal coal reserves disposed of through the Corral Canyon exchange “represent^ less than 3% of the federal coal disposed of through lease in Wyoming alone in [Fiscal Year] 1982.” BLM Decision of June 2, 1983 (Rocky Mountain Ex. B-13) at 4. They also noted that FLPMA exchanges were, and are, considered case-by-case, on an ad hoc basis, and that the Corral Canyon exchange did not “represent a change in departmental policy for exchange rather than lease sale as the preferred method for disposing of federal coal nor does it set a precedent for such disposition.” Id. As the BLM officials’ response makes clear, the Corral Canyon exchange could have had only de minimus effects on competition within the coal industry, and any other potential effects were at best speculative. Accordingly, the Court finds that, assuming the Secretary was required under the FLPMA to consider the potential anticompetitive effects of the Corral Canyon exchange, his evaluation was adequate and his decision was not an abuse of discretion under the statute.

V

To sum up, the FLPMA grants the Secretary of the Interior broad authority to approve proposed federal land exchanges that are consistent with statutory requirements and which are in the public interest as defined by FLPMA section 206. The Secretary properly evaluated the proposed Corral Canyon exchange under these standards, and his determination that the exchange satisfied these statutory prerequisites is abundantly supported by substantial record evidence. Nothing in any of the statutes cited by plaintiffs precludes the Secretary from approving the Corral Canyon exchange. In short, it is clear that the Secretary’s decision was neither arbitrary and capricious nor contrary to law, and that it therefore must be affirmed.

      . This section of the FLPMA is codified at 43 U.S.C. § 1716(a) (1983). The FLPMA as a whole is codified at 43 U.S.C. § 1701 et seq.

      . The other institutions were Dartmouth College, Vermont Law School, and the Memorial Sloan-Kettering Cancer Center.

      . 47 Fed.Reg. 40,912 (September 16, 1982).

      . See 43 C.F.R. § 2200.1(c) (1981).

      . Rocky Mountain is an affiliate of a common-carrier railroad, defendant Union Pacific Railroad. Both Rocky Mountain and the Union Pacific Railroad are wholly owned subsidiaries of defendant Union Pacific Corporation.

      . Plaintiffs cited section 2(c) of the Mineral Lands Leasing Act of 1920, codified at 30 U.S.C. § 202, which provides that "[n]o company or corporation operating a common carrier railroad shall be given or hold a [federal coal] permit or lease under the provisions of this chapter for any coal deposits except for its own use for railroad purposes.”

      . Plaintiffs cited the Commodities Clause of the Interstate Commerce Act, 49 U.S.C. § 10746, which prohibits a common carrier under Interstate Commerce Commission jurisdiction from transporting in interstate commerce an article or commodity that is manufactured, mined or produced by the carrier or under its authority, or which it owns or in which it has an interest. Id.

      . The FLPMA provides that:
      The values of the lands exchanged by the Secretary under this Act ... either shall be equal, or if they are not equal, the values shall be equalized by the payment of money to the grantor or to the Secretary concerned as the circumstances require so long as payment does not exceed 25 per centum of the total value of the lands or interests transferred out of Federal ownership. The Secretary concerned shall try to reduce the amount of the payment of money to as small an amount as possible.
      43 U.S.C. § 1716(b).

      . See, e.g., Cong.Rec. 4739 (1919) (Sen. LaFollette); see generally, U.S. Department of Justice, Competition in the Coal Industry, (November 1980) at 83-85.

      . United States v. SCRAP, 412 U.S. 669, 689, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254 (1973).

      . See Morris v. Gressette, 432 U.S. 491, 501, 97 S.Ct. 2411, 2418, 53 L.Ed.2d 506 (1977); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971); Abbott Laboratories v. Gardner, 387 U.S. 136, 139-41, 87 S.Ct. 1507, 1510-12, 18 L.Ed.2d 681 (1967); See also, Gott v. Walters, 756 F.2d 902, 906 (D.C.Cir.1985).

      . The FLPMA provides that: “when considering the public interest the Secretary concerned shall give full consideration to better Federal land management and the needs of State and local people, including needs for lands for the economy, community expansion, recreation areas, food, fiber, minerals, and fish and wildlife and the Secretary concerned finds that the values and the objectives which Federal lands of interests to be conveyed may serve if retained in Federal ownership are not more than the value of the non-Federal lands of interests and the public objectives they could serve if acquired.” 43 U.S.C. § 1716(a).

      . FLPMA § 102(a)(6), 43 U.S.C. § 1701(a)(6).

      . The three claims discussed below constitute the principal claims in the veritable fusillade of challenges that plaintiffs have launched against the Secretary’s decision. The Court has considered the more minor salvos as well, and it has concluded that they, too, miss the marks at which they are aimed.

      . See United States v. Oregon, 366 U.S. 643, 648, 81 S.Ct. 1278, 1280, 6 L.Ed.2d 575 (1961); United Mine Workers Ass’n v. Federal Mine Safety and Health Review Comm., 671 F.2d 615, 621 (D.C.Cir.1982); Aviation Consumer Action Project v. Washburn, 535 F.2d 101, 106-07 (D.C. Cir.1976).

      . See Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 2331, 60 L.Ed.2d 931 (1979); United States v. Menashe, 348 U.S. 528, 538-39, 75 S.Ct. 513, 519-20, 99 L.Ed. 615 (1955).

      . The legislative history cited by plaintiffs either (1) relates to the FLPMA but is neither in point nor illuminating, or (2) relates to other statutes, e.g., the 1978 amendments to the Mineral Leasing Act (P.L. No. 95-554). See Plaintiffs’ Opposition at 22-33. While the Court recognizes that individual congressional enactments are to be construed harmoniously, and that an understanding of the complex regulatory scheme established by the legislature may facilitate such harmonious construction, it is equally obvious that the legislative history of different, subsequent legislation is weak authority for ignoring the plain language of the statute to be construed.

      . Plaintiffs assign great weight to a 1980 observation in a Department of Justice Report that the FLPMA "apparently does not provide substantive authorization for exchanges and indeed may conflict with federal coal leasing legislation.” U.S. Dept, of Justice, Report on Competition in the Coal Industry (1980) at 93. However, this analysis, which the Department has apparently subsequently repudiated, is neither authoritative nor persuasive.
      The analysis is not a contemporaneous statutory construction by the agency charged with administering the statute. Moreover, the quoted language itself suggests that the matter is hardly free from doubt, and the contemporaneous interpretation of the FLPMA by the Department of the Interior, the administering agency (see 43 U.S.C. § 1702(g)) should be obviously entitled to considerable deference.
      Finally, and perhaps most significantly, the Report's conclusion rests upon a significant misreading of the relevant statutory language. The Report’s analysis attaches great significance to the fact that the FLPMA authorizes exchanges “under applicable law,” which the Report interprets as meaning that "FLPMA thus seems to provide a procedure for exchanges only if authorized by other statutes.” Report at 92 note 249. However, the "applicable law” language quoted by the Report appears in a portion of the statute affecting National Forest System exchanges by the Secretary of Agriculture that is most logically read disjunctively from the immediately preceding section (quoted in the text supra), which grants the Secretary of the Interi- or authority to dispose of lands “under this Act."
      Less truncated, the FLPMA statute provides that “A tract of public land or interests therein may be disposed of by exchange by the Secretary under this Act and a tract of land or interests therein within the National Forest System may be disposed of by exchange by the Secretary of Agriculture under applicable law where the Secretary concerned determines that the public interest will be well served ...” 43 U.S.C. § 1716(a). Both the parallel structure of the sentence, and the final reference to “the Secretary concerned” suggest that the statute grants two different sorts of authority to two different Secretaries. That being so, it is obviously a misreading of the statute to read the grant of authority to one Secretary, and restrictions on that authority, as applying to the grant of authority to the other Secretary. That, however, appears to be precisely what the Justice Department Report does: it reads the restriction on the Agriculture Secretary’s land exchange authority to apply to exchanges made under the Interior Secretary’s authority.
      Given the generally different responsibilities of the two Secretaries, and the fact that primary responsibility for federal land management policy is vested in the Interior Secretary, see 43 U.S.C. § 1702(g), it is understandable that Congress would have granted broad authority to the Interior Secretary, while granting more restricted authority to the Agriculture Secretary. It appears to the Court that this is the more logical and correct reading of the statute, and that the alternative construction in the Justice Department Report distorts the statutory language and must therefore be rejected.

      . 43 U.S.C. § 1701(a); see supra note 13 and the discussion in section III-C, infra.

      . Plaintiffs have cited numerous cases in which federal courts have held that agencies’ public interest evaluations must include analyses of potential anticompetitive effects. See, e.g., Sabin v. Butz, 515 F.2d 1061 (10th Cir. 1975). These cases are distinguishable, however, because antitrust considerations were central to the agency’s regulatory mission and, more importantly, because the statutory public interest requirement was otherwise undefined. In contrast, the FLPMA specifically defines the relevant factors to be considered by the Secretary in making a public interest determination, and it is also clear that these factors focus primarily on environmental and community development concerns, not antitrust concerns. Under such circumstances, it seems far more likely that the Interior Department is not required to assess the potential anticompetitive effects of land exchanges under the FLPMA. See NAACP v. Federal Power Commission, 425 U.S. 662, 669, 96 S.Ct. 1806, 1811, 48 L.Ed.2d 284 (1976) (phrase "public interest” takes meaning from the regulatory purposes of the legislation).

      . The Corral Canyon tract contains 22.3 million tons of federal coal, a paltry figure compared to the estimated 856.8 million tons of federal coal involved in 1982 federal coal leases in the state of Wyoming alone and the estimated 19.672 billion tons of federal coal for which leases were in effect as of 1982. BLM Decision, supra, at 4.

      . See 43 C.F.R. § 2200.0-6 (providing for individual, ad hoc, case by case review of proposed FLPMA § 206 land exchanges).

      . Even if the Secretary had found that the proposed exchange would have significant potential anticompetitive effects, he could properly have found that these were outweighed by the other relevant public interest factors listed above which strongly favored the proposed exchange. See supra p. 587.


source: Caselaw Access Project

author: RICHARD L.. WILLIAMS, District Judge.

license: Public Domain

text:
    Herbert Daniel DETTMER, Plaintiff, v. Robert LANDON, Director of Corrections, Defendant.
    Civ. A. No. 84-1090-A.
    United States District Court, E.D. Virginia, Alexandria Division.
    Aug. 28, 1985.

      Herbert Daniel Dettmer, pro se.
    Peter H. Rudy, Asst. Atty. Gen., Richmond, Va., for defendant.
   MEMORANDUM OPINION

RICHARD L.. WILLIAMS, District Judge.

This matter comes before the Court on a trial to the bench on August 26, 1985. Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the Court makes the following findings of fact and conclusions of law.

Facts

Plaintiff Herbert Dettmer is a 29 year old inmate incarcerated at the Powhatan Correctional Center in State Farm, Virginia. Dettmer claims that his first amendment right to the free exercise of his religion, the Church of Wicca (more commonly known as witchcraft), is being violated by prison officials who have refused to give him any access to his religion’s worship materials. Prison security officials contend that the worship materials that Dettmer seeks — candles, a statue, a white robe, incense and either sulfur, sea salt or uniodized salt — would be hazardous to prison security. Furthermore, the prison officials contend that the Church of Wicca is not a religion entitled to first amendment protection.

The “Wiccan Craeft,” or “Church of Wicca,” is an ancient faith which enjoyed a fairly substantial following in Northern Europe around the 10th and 11th centuries. Although the Craft declined in popularity and became much less visible with the growth of Christianity and various “witch hunts,” the Church of Wicca has survived in isolated locations and has enjoyed a modest revival in popularity during the last few decades. There are currently an estimated 10,000 — 50,000 followers of the Church of Wicca in the United States.

Wiccans generally meet for worship in automonous groups known as covens. Specific principles of belief vary widely from group to group, depending upon the ethnic roots and traditions of the particular coven. However, Wiccan followers are generally guided by a belief structure which appears to relate to “ultimate” concerns in a manner similar to the belief structures of more conventional religions. Other features of the group — its ceremonial use of meditation, prayer, incense, robes and candles, its worship of “gods,” its emphasis on the spiritual development of its members, and its extensive literature and folklore— are not unlike features of other religious groups.

Plaintiff Dettmer first became acquainted with the Church of Wicca over six years ago by reading various pieces of literature about the organization. In 1982, Dettmer contacted a Wiccan organization for more information about the group, and has purchased a variety of materials from that organization over the past few years. It is clear from the uncontradicted testimony introduced at trial that Dettmer has been a sincere member of the Wiccan faith for about two years. Although Dettmer has had some isolated difficulties at Powhatan in receiving Wiccan literature, the prison has generally given Dettmer free access to the organization’s books and pamphlets.

During the past two years, Dettmer has repeatedly sought permission to obtain certain items — sulfur, a hooded white robe, incense, candles, a timer, and a statue— that are essential to Wiccan worship services. Prison officials, understandably sensitive to potential security problems, denied each request, asserting that the items pose a threat to the security of the institution. For example, the prison officials stated that incense could be used to mask the odor of drugs, a statue could be used as a weapon, sulfur could be used to make gunpowder, and a hooded robe could be used to hide a prisoner’s face in an escape attempt.

Recognizing that the prison officials had legitimate security concerns with several of the items, Dettmer consulted his religious leaders and offered to substitute sea salt or uniodized salt for the sulfur, to remove the hood from the robe, and to use a plastic statue rather than a wooden or ceramic one. Dettmer also offered to perform his worship services in the chapel under the supervision of prison security officers at times most convenient to the prison. However, despite Dettmer’s efforts to provide a workable solution, and even though officials never questioned the sincerity of Dettmer’s beliefs, the prison still denied Dettmer access to the items. At the same time, prisoners worshipping more conventional religions such as Catholicism and Hinduism were given access to candles, incense, and crosses, and all prisoners were routinely given access to bathrobes and boxing robes.

Conclusions of Law

Initially, the Court must determine whether the Church of Wicca is a “religion” for purposes of the first amendment. Each individual has a different, and often highly personal conception of a “religion,” and the various religions of the world have their own unique, frequently complex system of beliefs and practices. Because religion is so highly personal and private, dealing with spiritual rather than temporal matters, courts have traditionally been reluctant to examine and pass judgment upon these beliefs. However, when confronted with a dispute between religious conviction and the needs of the state, courts have a duty to make at least some inquiry into the nature of the faith to ensure that purely secular beliefs and practices are not accorded the special protection afforded by the first amendment.

The first amendment of the Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This assertion reflects our nation’s deeply rooted belief that private conscience and choice, not official coercion, must govern religious belief and conduct. Such freedom of religious conviction, which must necessarily be extended to beliefs not shared by a large number of individuals, is the backbone of the pluralism essential to a healthy, diverse society.

In order to come within the protection afforded by the first amendment, the plaintiff must establish that his beliefs are “religious” in nature, or at least “arguably religious.” See International Society for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430 (2nd Cir.1981); see also L. Tribe, American Constitutional Law § 14-6, at 828 (1978). Because the concept of a “religious belief” cannot be defined (and thereby limited) with any real precision, courts must accept a belief as “religious” so long as it is sincere, it occupies a meaningful position in the individual’s life, and it relates to that individual’s “ultimate concern.” An individual’s concerns may be described as “ultimate” when they go beyond purely intellectual matters of self interest to touch concerns that are in some sense “spiritual.” The protection of the free exercise clause in no way depends upon the objective truth or veracity of the belief, nor upon the logic or consistency of the belief. See Thomas v. Review Board, 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); see also U.S. v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965) (analysis of term “religious belief” for purposes of statutory interpretation). While the historical longevity, the number of devotees, and the existance of leaders, religious literature, ceremonies and holidays are not essential elements of a religion, they are factors that should not be ignored. See Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (Amish tradition).

With the above principles in mind, the Court thinks that the Church of Wicca is clearly a religion for first amendment purposes. Members of the Church sincerely adhere to a fairly complex set of doctrines relating to the spiritual aspect of their lives, and in doing so they have “ultimate concerns” in much the same way as followers of more accepted religions. Their ceremonies and leader structure, their rather elaborate set of articulated doctrine, their belief in the concept of another world, and their broad concern for improving the quality of life for others gives them at least some facial similarity to other more widely recognized religions. While there are certainly aspects of Wiccan philosophy that may strike most people as strange or incomprehensible, the mere fact that a belief may be unusual does not strip it of constitutional protection. Accordingly, the Court concludes that the Church of Wicca, of which the plaintiff is a sincere follower, is a religion for the purpose of the free exercise clause.

After concluding that the Church of Wicca is a religion protected by the first amendment, and that the items sought by the plaintiff are an essential and central part of Wiccan worship, the Court now turns to the second, more difficult inquiry — whether the prison’s prohibition on candles, salt or sulfur, incense, a kitchen timer, and white robes impermissibly infringes upon Dettmer’s right to freely exercise his religion. In order to overcome plaintiff’s interest in practicing his religion, the state must show (1) a “compelling state interest” to justify the governmental interference with a religious practice; and (2) the unavailability of a less restrictive alternative which would adequately resolve the conflict. Thomas v. Review Board, 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963).

In resolving free exercise claims of a person incarcerated in a penal facility, the Court recognizes as a preliminary matter that prison officials must be accorded some latitude in the administration of prison affairs. Sweet v. South Carolina Department of Corrections, 529 F.2d 854 (4th Cir.1975) (prison authorities’ refusal to allow prisoner to attend regular worship services with other prisoners, based upon the prison’s security concerns, did not violate prisoner’s constitutional rights when individual religious counselling was provided to the prisoner); Ross v. Blackledge, 477 F.2d 616 (4th Cir.1973). Howéver, while prisoners may necessarily lose many privileges and rights as a consequence of their incarceration, an inmate is not stripped of all rights while imprisoned. A prisoner retains his right to freely worship while in prison, and restrictions on this right must be reasonably and substantially justified by legitimate considerations for prison discipline and security. If such regulations are overbroad or lacking in substance, they are unconstitutional. Gallaban v. Hollyfield, 670 F.2d 1345 (4th Cir.1982) (prison regulation requiring prisoners to have their hair cut at a certain length held unconstitutional as applied to a devout member of the Cherokee religious order whose religious tenets forbade him from cutting his hair).

The items which the defendant has refused Dettmer to possess here — salt or sulfur, a white robe, a candle, a statue, a timer, and incense — are an essential part of his Wiccan worship services. Defendant attempts to justify this prohibition by claiming that the items pose a threat to prison security. The Court finds that the asserted justifications for denying Dettmer these items are either overly broad or total-' ly lacking in substance. While it is conceivable that a few of the items sought could be used for some nefarious purpose, the Court finds that the items pose no more of a hazard to prison security and discipline than other items already available to prisoners, either for their own personal use or for worship purposes.

To the extent that any of the prison’s asserted justifications are legitimate, they are not warranted in this instance because less restrictive alternatives are available to the state. Prison authorities may simply keep the controversial items in a safe location, and make them available to the plaintiff at reasonable intervals as plaintiff may require them, and under such supervision as the defendant believes is necessary to promote prison security.

Accordingly, defendant is hereby ENJOINED from denying plaintiff access to the following items, with the conditions as set out below:

(1) : Sulfur, sea salt or uniodized salt: Because plaintiff has indicated that any one of these three items would be equally acceptable, the prison may designate which item plaintiff may be allowed to use.

(2) : Quartz clock with alarm: Plaintiff has indicated that a quartz clock with an alarm would be an acceptable substitute for the kitchen timer, since prison officials expressed the concern that a timer could be used as a detonator.

(3) : Candles.

(4) : Incense.

(5) : A white robe without a hood.

(6) : The prison may take general custody of the above items, and simply make them available to the plaintiff at reasonable times for plaintiff’s worship services, which the prison may supervise. The plaintiff has agreed to provide a secure box for the purpose of storing the items.

      . Although some extreme sects of the Wiccan church apparently engage in devil worship or "black witchcraft," Dettmer and the religious organization to which he belongs, as “white witches,” are not associated with those sects.

      . While the "athame,” or ceremonial dagger, is usually a part of Wiccan worship ceremonies, Dettmer recognizes that such an item could not be kept within a prison facility, and he does not seek access to that item.

      . Even though the distinction between religious beliefs and religious actions may be somewhat illusory, only the former is entitled to absolute protection. Sherbert v. Verner, 374 U.S. 398, 402, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965 (1963).


author: WILLIAM C. LEE, District Judge.

text:
    Bill WILLIAMS, Plaintiff, v. Jack R. DUCKWORTH, et al., Defendants.
    Civ. No. S 85-116.
    United States District Court, N.D. Indiana, South Bend Division.
    Aug. 29, 1985.

      Bill Williams, pro se.
    Robert B. Wente, Deputy Atty. Gen., Indianapolis, Ind., for defendants.
   ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on a Motion to Dismiss filed by all defendants. Plaintiff has had the opportunity to respond, but has chosen not to respond to the defendants’ motion. For the following reasons, defendants’ motion to dismiss will be granted.

Plaintiff is proceeding pro se. Plaintiff is a prisoner incarcerated in the Indiana State Prison at Michigan City, Indiana. Where, as here, the non-moving party is proceeding pro se, the court must be especially cautious, for the pleadings, by definition, are drafted by a non-lawyer. See Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Thus, as a general rule, a pro se complaint will not be dismissed unless “it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which will entitle him to relief.’ ” Haines, 404 U.S. at 519-20, 92 S.Ct. at 596 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957)). Pro se pleadings are to be liberally construed; the district court’s role is to ensure that the claims of pro se litigants are given “fair and meaningful consideration.” Matzker v. Herr, 748 F.2d 1142, 1146 (7th Cir.1984); Caruth v. Pinkney, 683 F.2d 1044, 1050 (7th Cir.1982). This court also recognizes that federal courts have historically exercised great tolerance to ensure that an impartial forum remains available to plaintiffs invoking the jurisdiction of the court without the guidance of trained counsel. Recognizing the liberality which must be afforded pro se pleadings, this court will now address the defendants’ motion to dismiss.

The Seventh Circuit articulated the three elements of a successful res judicata defense in Lee v. City of Peoria, 685 F.2d 196, 199 (7th Cir.1982):

The doctrine of res judicata is that a final judgment on the merits in a court of competent jurisdiction bars the same parties or their privies from relitigating not only the issues which were in fact raised and decided but also all other issues which could have been raised in the prior action____ The essential elements of the doctrine are generally stated to be: (1) a final judgment on the merits in an earlier action; (2) an identity of the cause of action in both the earlier and the later suit; and (3) an identity of parties or their privies in the two suits.

Id. at 199 (citations omitted) quoted in Mandarino v. Pollard, 718 F.2d 845, 849 (7th Cir.1983), cert. denied, — U.S.-, 105 S.Ct. 116, 83 L.Ed.2d 59 (1984). See also Kremer v. Chemical Construction Corp., 456 U.S. 461, 466 n. 6, 102 S.Ct. 1883, 1889-90 n. 6, 72 L.Ed.2d 262 (1982); Vandenplas v. City of Muskego, 753 F.2d 555, 559 (7th Cir.1985).

Williams raises in this lawsuit, Civil No. S 85-116, the same issues raised by Williams in an earlier suit, Civil No. S 84-75. Just as in S 84-75, this complaint centers on two or possibly three occasions where various defendants entered Williams’ prison cell and confiscated certain articles of Williams’ personal property, including legal papers. Williams asserts that the confiscation of certain personal articles by the defendants constitutes violations of his fourth amendment, fifth amendment and fourteenth amendment rights. In S 84-75, plaintiff argued that the same confiscation of articles constituted violations of his first amendment, fifth amendment, sixth amendment, eighth amendment and fourteenth amendment rights. The court, in disposing of S 84-75 on the merits, noted that it was an alleged fourth amendment violation upon which all the other violations of the constitutional amendments rested.

On December 3, 1984, this court entered an order granting the defendants’ motion for summary judgment. Plaintiff was notified and had ample opportunity to respond to the defendants’ motion in S 84-75. Indeed, plaintiff did respond to the defendants’ motion for summary judgment in that case. This court’s order of December 3, 1984 in S 84-75 disposed of Williams’ claims on their merits. The court determined in that order that no constitutional violations occurred in the taking from Williams of certain personal articles. The court determined that the events occurred in accordance with applicable rules and regulations of the correctional facility and were related to discrete and identifiable needs of the correctional authorities. Williams did not choose to take an appeal of this court’s order of December 3, 1984, in S 84-75. Therefore, this court’s judgment in S 84-75 became final January 3, 1985. Plaintiff filed his current case, S 85-116, on February 8, 1985.

This case, S 85-116, presents the identical factual situation and basically the same allegations of constitutional amendment violations. Plaintiff does raise an additional issue in S 85-116 which is the issue of whether the defendants have the right to open plaintiff’s legal correspondence. This additional issue is based on the same fact pattern of the earlier case, S 84-75. The doctrine of res judicata “applies to § 1983 actions with respect to the issues actually litigated and also issues which could have been but were not litigated in the [earlier] proceedings.” Vandenplas, 753 F.2d at 559 (citing Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984); Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); Lee, 685 F.2d at 198-99). This issue is, according to Williams, also being litigated in a class action suit in this court, S 83-4.

All of the essential elements of the doctrine of res judicata are present in this case. First, a final judgment on the merits occurred in an earlier action, S 84-75. In that earlier case, the court entered judgment on behalf of the defendants after examining the same facts and same allegations of constitutional violations. Williams did not appeal that disposition; that disposition is final. Second, an identity of the cause of action in both the earlier and this later suit exists. Basically, Williams believes he has been wronged by the actions of the defendants in attempting to carry out the important correctional goal of preserving internal order and discipline to maintain institutional security. The additional allegation of the opening of plaintiff’s legal mail does not alter the conclusion that the causes of action are identical. Such an issue was known to plaintiff at the time he filed his earlier suit, S 84-75, and the issue could have been litigated in the earlier matter, and is, apparently, being litigated in another action in this court. Plaintiff is foreclosed from raising the additional issue in this later suit just as he is barred from relitigating the issues raised, on the same facts, in the earlier action. Finally, there is an identity of parties in the two suits.

This case requires a classic textbook application of the doctrine of res judicata. Williams is attempting to use the court to relitigate facts and allegations which have already been thoroughly examined and disposed of by the court. Williams is attempting to frustrate “the purpose for which civil courts have been established, the conclusive resolution of disputes within their jurisdiction.” Kremer, 456 U.S. at 466 n. 6, 102 S.Ct. at 1890 n. 6. The dispute which is the subject of this current lawsuit was finally and conclusively resolved by this court on December 3, 1984 in the earlier action of Civil No. S 84-75. Williams’ action is barred by the doctrine of res judicata.

The fact that plaintiff’s claims in this lawsuit were issues which were either actually litigated in an earlier suit or could have been litigated, but were not in the earlier suit, mandates a further response from this court. The Seventh Circuit clearly states that insistence on litigating a question in the face of controlling precedent which removes every colorable basis in law for a litigant’s position amounts to bad faith justifying the imposition of sanctions. Reid v. United States, 715 F.2d 1148, 1154 (7th Cir.1983); Analytica, Inc. v. NPD Research, Inc., 708 F.2d 1263, 1269-70 (7th Cir.1983). Here, plaintiff attempts to reassert his claims against the various prison authorities who were defendants in the earlier case, despite the fact that this court previously held that plaintiff’s claims against the defendants were meritless. Controlling precedent and the earlier lawsuit have removed every colorable basis in law for Williams’ position. “[T]he law may be so clear and well established that persistence in the course of litigation could be evidence of bad faith.” Reid, 715 F.2d at 1154. Williams’ persistence is, indeed, evidence of bad faith. Thus, this court has sufficient equitable power to assess sanctions because it finds that plaintiff’s suit is pursued in bad faith. See Bittner v. Sadoff & Rudoy Industries, 728 F.2d 820, 828 (7th Cir.1984); Benner v. Negley, 725 F.2d 446, 449 (7th Cir.1984).

A recent Seventh Circuit case further crystallized the standard for assessing sanctions when actions are brought in bad faith:

A district court, however, may award fees when the losing litigant has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258-59, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141 (1975). Bad faith has been defined as conduct without at least a colorable basis in law. (Citation omitted). Thus, the filing of a frivolous lawsuit may demonstrate bad faith where the suit is so completely without hope of succeeding that the court can infer that the plaintiff brought the suit to harass the defendants rather than to obtain a favorable judgment. (Citations omitted.)

Glick v. Koenig, 766 F.2d 265, 270 (7th Cir.1985). It is abundantly clear to this court that plaintiff knew, when he filed this lawsuit on February 8, 1985, that the suit was completely without hope of succeeding. From that fact, the court can readily infer that the plaintiff brought the suit solely to harass the defendants rather than to obtain a favorable judgment.

When plaintiff filed this lawsuit, he was aware that the earlier lawsuit, presenting identical issues and presenting the opportunity to raise the legal mail issue, had been resolved in favor of the defendants. In fact, the court, in that earlier judgment, had pointed out repeatedly that controlling precedent had removed every colorable basis in law for the litigant’s position. This current lawsuit can only be characterized as “a transparent attempt to bully the administration of justice.” Id. at 270.

In addition, Rule 11 of the Federal Rules of Civil Procedure creates a second source of power to impose sanctions. Rule 11, which governs the signing of pleadings and motions, requires that each pleading or motion be signed by an attorney or the party if the party is proceeding pro se. The rule then provides:

The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

If a pleading violates this rule the court “shall impose” an “appropriate sanction,” which may include the amount of reasonable expenses and attorney fees incurred by the other party because of the filing of the pleading or motion.

The notes of the Advisory Committee on the Federal Rules make clear that Rule ll’s provisions are designed to “discourage dilatory or abusive tactics and [to] help streamline the litigation process by lessening frivolous claims or defenses.” The rule applies to anyone who signs a pleading, motion, or other paper and the same standards apply to pro se litigants, although the concerns of Haines v. Kerner, 404 U.S. at 519, 92 S.Ct. at 594, should be taken into account.

The core of Rule 11 is that the signature on the pleading certifies that “to the best of his knowledge, information and belief formed after reasonable inquiry it [the pleading, motion or paper] is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law[.]” What is important to note is that this language requires more than just a belief that the law is or should be a certain way; as the Advisory Committee states, “what constitutes a reasonable inquiry may depend on ... whether the pleading, motion, or other paper was based on a plausible view of the law,” and is, thus, a “more stringent” standard than good faith.

This court has assessed Rule 11 sanctions for filing meritless lawsuits, e.g., Snyder v. IRS, 596 F.Supp. 240 (N.D.Ind. 1984); Cameron v. IRS, 593 F.Supp. 1540 (N.D.Ind.1984), for litigating an issue which the court had in a previous order declared to be meritless, Hilgeford v. Peoples Bank, Portland, Indiana, 607 F.Supp. 536 (N.D.Ind. 1985), and for duplicative litigation of potentially meritorious claims, Sanders v. City of Fort Wayne, 616 F.Supp. 467, 471 (N.D.Ind.1985). This court has the power to impose Rule 11 sanctions for Williams’ attempt to relitigate issues already conclusively determined and declared to be meritless.

Applying an objective standard, the court concludes that this lawsuit was brought in bad faith; this lawsuit is dilatory, frivolous, and a transparent attempt to harass the defendants. Such conduct is bad faith justifying an award of attorney fees and a fine payable to the Clerk of this court. While this court will readily entertain any lawsuit advancing meritorious claims, it will not countenance multiple lawsuits on the same facts. Such suits waste judicial resources and require duplicative efforts by both court and defendants alike.

Plaintiff files suit in the Northern District of Indiana on a regular basis. Since December 6, 1977, Williams has been successful in filing sixteen cases, twelve of which are civil rights suits and four of which are habeas corpus actions. Most of the suits involved the defendants herein. Each of the lawsuits have required counsel for defendants to expend amounts of time in developing intelligent responses. In this particular suit, counsel for defendants had to spend time defending against causes of action already conclusively determined to be without merit. Plaintiff filed four motions, in addition to the complaint, for which investigation and research were necessary in order to respond in good faith. Defendants had to move for a protective order on discovery while the motion to dismiss, clearly well taken, was under advisement; that motion required time and effort on the part of counsel for defendants. A very conservative estimate of the fees incurred in dealing with this frivolous lawsuit is Two Hundred Dollars ($200.00). The court will therefore award such an amount to counsel for the defendants under Rule 11.

The burden on this court in dealing with this frivolous lawsuit is as great as that on defense counsel. This suit has forced a significant expenditure of judicial resources in order to deal fairly with a groundless, frivolous, dilatory and merit-less claim. An appropriate sanction under Rule 11 can include a fine payable to the Clerk of this court. The court finds that a fine of One Hundred Dollars ($100.00) is an appropriate and justified sanction under Rule 11.

In order to avoid further duplicative lawsuits or motions, the court hereby puts plaintiff on notice that, should he attempt to relitigate issues already disposed of by the court, he will do so with full knowledge that this court will impose Rule 11 sanctions upon him. The court reiterates that it stands ready to accept meritorious cases. However, this court will not accept duplicative lawsuits that force the unnecessary expenditure of judicial resources.

Accordingly, on the basis of the foregoing, defendants’ Motion to Dismiss is hereby GRANTED. Plaintiff is also hereby ORDERED to pay Two Hundred Dollars ($200.00) to defense counsel as attorney fees as a Rule 11 sanction for filing this lawsuit. In addition, plaintiff is also hereby ORDERED to pay a fine of One Hundred Dollars ($100.00) to the Clerk of this court as an additional Rule 11 sanction.

      . Also pending before this court is Williams’ motion to amend his complaint and motion to extend time to respond, filed, respectively, March 7, 1985, and March 26, 1985. Williams' motion to amend is GRANTED and the subject matter of that amendment, further elaboration of facts regarding the legal mail issue, is treated herein in detail. In his motion to extend time, plaintiff asked to have until June 4, 1985; that motion is granted, by implication, due to the passage of time. This case was not assigned to the undersigned until July 11, 1985 and was not able to be reached until August, 1985. Plaintiff had ample opportunity to make a response to defendants' motion, but chose not to make a response, although he did file another motion in this case.

      . Even if this court were to address the additional legal issue raised in this action regarding the opening of Williams’ legal correspondence on its merits, the court would resolve the issue in favor of the defendants. This court addressed and resolved the issue of the prison authorities' right to open legal mail in McChristion v. Duckworth, 610 F.Supp. 791 (N.D.Ind. 1985). The court therein concluded that prison authorities have the right to open legal mail as long as the authorities comply with the strictures set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Id. at 795-96. There is absolutely nothing in this record to show that any violation of Wolff requirements occurred; Williams’ generalized complaint about his legal mail is that it is being opened. The defendants clearly possess the right to open legal mail.

      . In Williams’ granted motion to amend pleadings, he refers to a class action suit in which he is, apparently, a party, that also raises the legal mail issue. The sixteen cases noted involve only Williams individually; thus, it is likely Williams has successfully filed seventeen cases in this court, thirteen of which are civil rights suits.


author: BARRINGTON D. PARKER, District Judge.

text:
    The WASHINGTON POST COMPANY, Plaintiff, v. U.S. DEPARTMENT OF the AIR FORCE, Defendant.
    Civ. A. No. 85-0153.
    United States District Court, District of Columbia.
    Aug. 29, 1985.

      Boisfeuillet Jones, Jr. and Patrick J. Carome, Washington, D.C., for plaintiff.
    Robert E.L. Eaton, Jr., Asst. U.S. Atty., Washington, D.C., for defendant.
   MEMORANDUM

BARRINGTON D. PARKER, District Judge.

Before the Court are plaintiff’s motion for partial summary judgment and defendant’s motion for summary judgment in the above-captioned matter. Plaintiff is a newspaper of general circulation which has filed suit pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 to compel disclosure of a document compiled by the Inspector General of the Air Force. Jurisdiction of this action lies under 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1361. For the reasons set forth below, plaintiffs motion for partial summary judgment is granted, and defendant’s motion for summary judgment is denied.

I.

BACKGROUND

On June 15, 1984, the Secretary of the Air Force issued a press release describing an inquiry undertaken by the Inspector General of the Air Force to determine the effectiveness of inventory practices implemented by the Air Force. The result of this inquiry was the compilation of a “Functional Management Inspection of Supply Retention and Excess Policy PN 84-6-8, 1 December 83 — 14 June 84” (“FMI”). The document is seventy-six pages in length and divided into three parts. The first of these three parts, a four page executive summary of the FMI, was disclosed to the public in the June 15 press release.

On June 19, 1984, plaintiff submitted a FOIA request, seeking disclosure of the entire text of the report. Defendant denied plaintiff's request on August 22, 1984, on the grounds that the material was exempt under 5 U.S.C. § 552(b)(5). On October 3, 1984, plaintiff filed an administrative appeal, which was denied on November 27, 1984. Having thus exhausted the administrative remedies available to it, plaintiff commenced this action on January 16, 1985.

II.

PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

The Air Force denied plaintiff’s request on the basis of the exemption provided for in 5 U.S.C. § 552(b)(5) (“Exemption 5”). This section exempts from FOIA disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency ...” The purpose of this exemption is to encourage free expression of ideas within the government during the process of deliberation, to protect against premature disclosures of proposed policies, and to protect against public confusion by disclosing rationales that were not the basis for agency action. Coastal States Gas Corporation v. Department of Energy, 617 F.2d 854, 866 (D.C.Cir.1980) (“Coastal States”); United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973); Soucie v. David, 448 F.2d 1067 (D.C. Cir.1971); Bristol-Meyers Company v. Federal Trade Commission, 424 F.2d 935 (D.C.Cir.1970).

A. Application of the Executive Privilege Undér Exemption 5

Among those privileges encompassed by Exemption 5 is the executive or deliberative process privilege. National Labor Relations Board v. Sears, Roebuck and Company, 421 U.S. 132, 150, 95 S.Ct. 1504, 1516, 44 L.Ed.2d 29 (1975) (“Sears”). This privilege protects advice, recommendations, and opinions which are part of the deliberative decision making processes of government. Id. However, the privilege is to be narrowly construed to the extent such a construction is consistent with the efficient operation of the government. Soucie v. David, 448 F.2d 1067, 1078 (D.C. Cir.1971).

It is clear to the Court that at least some portions of the FMI were initially protected from disclosure under the deliberative process privilege. The inspection initiated by the Air Force of its own policies and procedures was an effort to discover, evaluate, and remedy specific problem areas. Such an internal self-evaluative program is protected under Exemption 5. Ashley v. Department of Labor, 589 F.Supp. 901, 909 (D.D.C.1983) (quoting Sears, 421 U.S. at 151 n. 18, 95 S.Ct. at 1517 n. 18).

However, a corollary to the deliberative process privilege,is the rule that the adoption of a report’s recommendations as official policy vitiates the privilege. In Sears, the Court noted that

if an agency chooses expressly to adopt or incorporate by reference an intraagency memorandum previously covered by Exemption 5 in what would otherwise be a final opinion, that memorandum may be withheld only on the ground that it falls within the coverage of some exemption other than Exemption 5.

Id. at 161, 95 S.Ct. at 1521. In Coastal States, the court of appeals similarly noted that “even if the document is predecisional at the time it is prepared, it can lose that status if it is adopted, formally or informally, as the agency position on the issue or is used by the agency in its dealings with the public.” Id. at 866. In this case, whatever executive privilege was enjoyed by the Air Force at the time the Inspector General compiled the FMI, that privilege was lost when the Air Force decided to adopt the recommendations of the FMI as its official policies. The press release that announced the decision of the Air Force to revise its supply retention policies describes the findings of the Inspector General in the FMI and illustrates that the basis for the agency action is the FMI report. Moreover, the press release stated that the FMI recommendations had been adopted in the five-point program initiated by the Secretary. Therefore, those parts of the FMI which were adopted by the Air Force as official policy are not within Exemption 5.

B. Application of the Doctrine of Waiver

Plaintiffs argue that the revelations of the Air Force to date constitute a waiver of the protection afforded under Exemption 5. Specifically, plaintiff notes that the executive summary is based on and summarizes the information contained in the FMI. Thus, plaintiffs argue that there is no cognizable policy served by continued withholding of the factual material underlying the information released in the executive summary. See Mead Data Central, Inc. v. United States Department of the Air Force, 566 F.2d 242, 257-58 (D.C.Cir.1977) (neither of the policy objectives which Exemption 5 is designed to serve is relevant to a claim of secrecy for information which has already been disclosed to persons outside the agency).

Defendant counters that the executive summary does not constitute a waiver because it summarizes merely the nature of the findings and recommendations and not the findings and recommendations themselves. Defendant also asserts that if the Court were to adopt plaintiff’s reading of the case law, executive agencies would become more cautious in what information they disclosed.

Although the policy objectives presented by defendant are relevant, it appears from the executive summary that the Inspector General has presented in outline form the entire contents of the FMI, albeit in summary form, omitting only the details supporting the conclusions set forth in the summary. For example, Part 4(c) of the executive summary states that at all locations under consideration, “parts were found that could have been repaired but were instead sent to disposal.” Were one to examine the detailed findings and recommendations with respect to this statement, one would expect to find a list of parts that had been found at various locations which could have been repaired, including the kinds of parts, the quantity, the locations at which they were found, and perhaps information concerning the decision to dispose of the parts. It strains the bounds of reason to argue that only the nature of the findings and recommendations were included in the summary. Therefore, with respect to those parts of the executive summary which disclose information concerning findings and recommendations contained in the FMI, the Air Force has waived any privilege under Exemption 5 by releasing the executive summary.

III.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Defendant, has advanced two independent bases in support of its motion for summary judgment. First, defendant urges that non-exempt factual portions of the FMI are so intertwined with deliberative material that the factual items are not segregable and thus are protected under Exemption 5. Second, defendant argues that it enjoys a privilege for confidential witness statements. Neither of these bases support granting summary judgment for defendants.

A. Whether the Factual Materials are Segregable

As a general rule, regardless of whatever other privileges may apply, factual material must be disclosed while advisory material may be withheld. Mead Data Central, Inc. v. United States Department of the Air Force, 566 F.2d 242, 256 (D.C.Cir.1977). The Air Force has alleged the factual material in the FMI is “inex-, tricably intertwined” with the predecisional, advisory portions of the document. Ryan v. Department of Justice, 617 F.2d 781, 790-91 (D.C.Cir.1980). Of course, to some extent it does not matter whether the factual information is inextricably intertwined with the deliberative material, if the deliberative material is not privileged. However,. with respect to the remaining material that may be privileged, defendant has not satisfied its burden of proving that the factual information cannot be severed. Defendant has merely stated:

We attempted to segregate the ‘factual’ material from the deliberative material. However, it was not possible to segregate factual material originating from witnesses from that originating from computer documentation since one leads to the other and vice versa. The report itself frequently makes no distinction as to where the information originated. The inspection methodology precludes us from unraveling the facts from opinions to provide plaintiff with a statement of fact. Functionally, it is also impossible to segregate the facts from the deliberative material since to do so would reveal each recommendation supported by the accompanying facts.

First Hatch Declaration, par. 6.

Although it is difficult from the description provided by defendant to determine whether its assertion is accurate, it has provided little empirical support for its position. Given that the FMI is the result of a series of fact-finding missions, there is reason to conclude that the FMI is largely — if not primarily — factual in nature. Indeed, the executive summary strongly suggests that the underlying document is highly fact-intensive. Yet, the Air Force has done little more than to state conclusorily allegations that the facts cannot be severed from the opinions. A greater showing would be required by defendant in order to prevail on its claim of exemption. Playboy Enterprises, Inc. v. Department of Justice, 677 F.2d 931, 935 (D.C.Cir.1982). Surely, moré is to be expected from the government upon its own motion for summary judgment. Therefore, the government has not demonstrated that it is entitled to judgment as a matter of law with respect to this issue.

B. Whether Defendant Enjoys a Privilege for Confidential Witness Statements

Defendant claims that it enjoys a privilege with respect to the FMI because the report is based in part on confidential statements made by witnesses. Machin v. Zuckert, 316 F.2d 336 (D.C.Cir.1963), cert. denied, 375 U.S. 896, 84 S.Ct. 172, 11 L.Ed.2d 124 (1963). Machín and its progeny held that statements included in an investigative report would be privileged if made to air crash investigators upon assurances of confidentiality. The rationale for this rule is that the privilege encourages those with pertinent information to cooperate with disaster investigators. The privilege was applied in an Exemption 5 context in United States v. Weber Aircraft Corporation, 465 U.S. 792, 104 S.Ct. 1488, 79 L.Ed.2d 814 (1984).

However, even though the privilege may be legally available in the instant case, it is factually inappropriate. It appears from the executive summary and from the statements of General Hatch that it would be impossible to determine even from the full FMI the source of any particular information.

We attempted to segregate the ‘factual’ material from the deliberative material. However, it was not possible to segregate factual material originating from witnesses from that originating from computer documentation since one leads to the other and vice versa. The report itself frequently makes no distinction as to where the information originated.

First Hatch Declaration, par. 6 (emphasis added).

This anonymous format appears to be sufficient to guarantee that disclosure of the FMI will not breach any assurances of non-attribution or discourage those with information relevant to subsequent Air Force internal investigations to cooperate with the investigators. If defendant, however, can identify particular instances where disclosure would breach a protectible confidence, it may specify to the Court the particular circumstances. Absent a more specific showing, the Air Force is not entitled to summary judgment as to this issue.

IV.

CONCLUSION

For the reasons detailed above, plaintiff is entitled to summary judgment with respect to those parts of the FMI that have been adopted as official Air Force policy and with respect to those findings and recommendations which have been effectively disclosed by virtue of the release of the Executive Summary. Defendant is expected to make a good faith effort to release this information pursuant to this Court’s Memorandum and Order.

With respect to the issue of factual segregation, defendant has not met its burden of demonstrating that it is entitled to judgment as a matter of law. It appears that a genuine issue of material fact exists as to whether the factual material in the FMI can be segregated from the deliberative material. With respect to the issue of confidential witness statements, there exists at the very least a genuine issue of material fact as to whether any confidential assurances given in the course of compiling the FMI would in fact be breached by disclosure of the remainder of the document.

Therefore, it is by the Court this 29th day of August, 1985,

ORDERED

That plaintiff’s motion for partial summary judgment is granted; and

That defendant’s motion for summary judgment is denied; and

That defendant shall prepare and file with the Court by September 23, 1985 a detailed Vaughn index of the document at issue.


author: BARBOUR, District Judge.

text:
    CANTON BRANCH, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al., Plaintiffs, v. Sidney RUNNELS, Mayor, et al., Defendants.
    Civ. A. No. J85-0201(B).
    United States District Court, S.D. Mississippi, Jackson Division.
    Aug. 30, 1985.

      Edward Blackmon, Jr., Canton, Miss., for plaintiffs.
    C.R. Montgomery, Rebecca B. Cowan, Canton, Miss., for defendants.
   MEMORANDUM OPINION AND ORDER

BARBOUR, District Judge.

This matter is before the Court upon the Motion of Defendants, Mayor and Board of Aldermen of the City of Canton, Mississippi (“City”), for Summary Judgment.

FACTS

Plaintiffs, the Canton Branch of the NAACP and other similarly situated black residents of Canton, sued the Defendants for injunctive relief, claiming violations of 42 U.S.C. §§ 1981, 1982, 1983 and the Fifth, Ninth, Thirteenth and Fourteenth Amendments as a result of the Defendants’ alleged practice of providing free water and sewer services to Levi Strauss and Company, North American Plastics, Inc., Mississippi State Tax Commission (ABC Warehouse) and DeBeukeleur, Inc., companies located in the Central Mississippi Industrial Center in Madison County, Mississippi (“Industrial Center”), in violation of Miss. Code Ann. § 21-27-27 (1972). Plaintiffs allege that Defendants’ conduct discriminates against them. Specifically, Plaintiffs allege that Defendants’ use of public funds to subsidize the free delivery of water and sewer service to the Industrial Center and other private individuals residing in the Industrial Center has had a disproportionate economic impact on Plaintiffs. Plaintiffs claim that they have had to defray the cost of the free service provided to the Industrial Center by paying higher utility rates which they are, on occasion, unable to do. As a result, Plaintiffs allege that some of their members have had their utility services terminated and that the Canton Branch of the NAACP has had to raise funds to have the terminated services reconnected.

Defendants claim entitlement to summary judgment on the basis that Plaintiffs cannot prove discriminatory purpose as required for violations of §§ 1981, 1983 and the Thirteenth and Fourteenth Amendments. In support of their Motion, Defendants submitted the Affidavit of John M. Wallace, Manager of Canton Municipal Utilities from 1977 to the present.

In his Affidavit, Mr. Wallace explains that the City is not providing free water and sewer services to the Industrial Center. According to Mr. Wallace, the City has delayed billing the Industrial Center for these services as a result of a dispute between the City and Bear Creek Water Association, a rural water utility association, regarding which entity has the right to provide water and sewer service to the Industrial Center. The City delayed billing the Industrial Center for water and sewer services to avoid liability to Bear Creek Water Association for violation of the Bear Creek Certificate of Public Convenience and Necessity.

Mr. Wallace also states that the City has not raised its utility rates to defray the cost of the delayed billings to the Industrial Center. Mr. Wallace states that in June 1982, the City unilaterally increased its rates approximately 20%. However, Mr. Wallace states that this 20% increase was not “related to or caused by any water and sewer services provided to” the Industrial Center. According to Mr. Wallace, any other increases in rates resulted from a rate increase imposed on the City by the City’s utility supplier.

Mr. Wallace further states that the City has incurred $15,768.69 in operating expenses as a result of providing services to the Industrial Center since April 1981. Mr. Wallace also states that gross income of Canton Municipal Utilities since April 1981 is over $30,000,000.00. Moreover, the statement of estimated operating expenses of Canton Municipal Utilities for services provided to the Industrial Center indicates that Levi Strauss and Company paid Canton Municipal Utilities $5,000.00 on October 10, 1983, leaving a balance of $10,768.69 in total operating expenses incurred by Canton Municipal Utilities in providing services to the Industrial Center. Accordingly, assuming a gross income to the Canton Municipal Utilities of $30,000,000.00 since April 1981, the net expense of providing utilities to the Industrial Center was insignificant.

Finally, Mr. Wallace states that, based upon his personal knowledge, the City did not purposefully discriminate against any class of persons in deciding to delay billing the Industrial Center for water and sewer services. Mr. Wallace also states that the City did not charge any class of persons for the cost of providing services to the Industrial Center or require any of its residents to pay more or less for their utility services than any other resident or provide funds to help pay overdue bills of any of its residents.

In essence, Mr. Wallace’s Affidavit indicates that the City’s decision to delay billing the Industrial Center for water services was basically economic rather than discriminatory. If the City had billed for water services provided the Industrial Center as they were incurred, the City may have been exposed to liability to Bear Creek Water Association for violation of the Bear Creek Certificate of Public Convenience and Necessity.

In response to Defendants’ Motion for Summary Judgment, Plaintiffs submit that disproportionate impact is sufficient to establish a violation of their constitutional rights. To support their allegations that the City’s practice of delayed billings to the Industrial Center has had a disparate impact on black residents of the City, Plaintiffs submitted the Affidavit of Rev. L.S. Johnson, President of the Canton Branch of the NAACP.

According to Rev. Johnson, during the fall and winter of 1983 and 1984, the NAACP raised funds to restore utility service to more than 45 black residents of Canton whose utility services had been terminated for non-payment. Rev. Johnson states that these residents were not allowed to defer payment of their utility bills while “white individuals or white institutions were allowed to do so.” Presumably, Rev. Johnson refers here to the delayed billings to the Industrial Center. Rev. Johnson continues, stating that blacks have been “disproportionately affected” by the City’s policy of not charging the Industrial Center for utilities because blacks with less financial resources have had to subsidize the City’s failure to collect for utilities provided to the Industrial Center.

Plaintiffs also claim that to prove a violation of § 1981 they need only show that they were unlawfully denied a protected constitutional right and that proof of discriminatory intent is not necessary. According to Plaintiffs, a violation of § 1981 can be proved by evidence of disparate impact or treatment. Finally, Plaintiff’s claim that under Hawkins v. Town of Shaw, Mississippi, 461 F.2d 1171 (5th Cir. 1972), they have established a violation of the Equal Protection Clause of the Fourteenth Amendment by virtue of the City’s “arbitrary quality of thoughtlessness.” Id. at 1172.

LAW

As a result of the decisions of the United States Supreme Court in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) and Village of Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), it is crystal clear that “official action will not be held unconstitutional solely because it results in a racially disproportionate impact.” 429 U.S. at 264-65, 97 S.Ct. at 562-63. As stated in Washington v. Davis, 426 U.S. at 242, 96 S.Ct. at 2049,

[djisproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination.

Indeed, it is well settled that proof of racially discriminatory intent or purpose is required to show a violation of the equal protection clause. 429 U.S. at 265, 97 S.Ct. at 563.

To determine whether a discriminatory purpose was a motivating factor, Arlington Heights demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. 429 U.S. at 266, 97 S.Ct. at 564. Although Arlington Heights recognizes that the impact of the official action may provide an important starting point, “impact alone is not determinative,” and the court must look to other evidence absent a clear pattern of discrimination having no other explanation than discriminatory intent. Id.

According to Arlington Heights, other indicia of discriminatory intent may be found in the historical background of the decision, particularly if it reveals a “series of official actions taken for invidious purposes.” Id. at 267, 97 S.Ct. at 564. Additionally, “the specific sequence of events leading up to the challenged decision” may reveal the decision maker’s discriminatory purpose. Id. Or, a departure from the normal sequence of events may reveal an improper purpose.

Plaintiffs rely upon Hawkins v. Town of Shaw, supra, for the proposition that discriminatory intent need not be established for liability under § 1983. Yet, in Washington v. Davis, the Supreme Court, specifically citing Hawkins and others, stated:

... With all due respect, to the extent that those cases rested on or expressed a view that proof of discriminatory racial purpose is unnecessary in making out an equal protection violation, we are in disagreement.

426 U.S. at 245 and n. 12, 96 S.Ct. at 2050 and n. 12. Consequently, Plaintiffs’ reliance on Hawkins is misplaced.

Based upon Washington v. Davis and Arlington Heights, proof of discriminatory intent is mandatory to establish violations of the Fifth and Fourteenth Amendments. Likewise, proof of discriminatory intent is mandatory to establish a § 1981 claim based on a violation of the Thirteenth Amendment. General Building Contractors Association, Inc. v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982). Additionally, according to Coleman v. Franklin Parrish School Board, 702 F.2d 74, 76 (5th Cir.1983),

[i]n order to state a claim for relief under §§ 1981 and 1983, the plaintiffs must allege purposeful discrimination. (citing Baldwin v. Birmingham Board of Education, 648 F.2d 950, 954 (5th Cir.1981)).

Accordingly, whether the Plaintiffs’ cause of action for discrimination arises under the Fifth, Thirteenth or Fourteenth Amendments and is asserted pursuant to § 1981 or § 1983, discriminatory intent is required.

Now, having allayed all doubts concerning the necessity of proof of discriminatory intent in discrimination suits, this Court, pursuant to Rule 56 of the Federal Rules of Civil Procedure, must determine whether the Plaintiffs, the respondents to this Motion for Summary Judgment, have set forth specific facts showing that there is a genuine issue for trial concerning whether the City’s delayed billings for water and sewer services provided to the Industrial Center was motivated by invidious discrimination.

The Affidavit of Mr. Wallace, submitted by Defendants in support of their Motion, establishes that:

1. The City delayed billing the Industrial Center for water and sewer services because of a dispute between the City and Bear Creek Water Association concerning which entity has the right to service the Industrial Center;
2. Delayed billings to the Industrial Center were not motivated by discriminatory purposes;
3. Any rate increases were not the result of the delayed billings to the Industrial Center; and
4. The City has not provided any funds to any of its residents to help pay overdue utility bills nor has it required any of its residents to pay more or less for utilities than any other resident.

In response, Rev. Johnson made conclusory allegations regarding the disproportionate effect of the delayed billing by the City of the Industrial Center.

The Court finds this case substantially similar to Givens v. Delta Electric Power Association, 572 F.Supp. 555 (N.D.Miss. 1983). In Givens, black residents complained that street lights in black neighborhoods were disconnected while street lights in white neighborhoods were left burning. The Court noted that deposition testimony of the black residents established only that some of the street lights in the black neighborhoods had been cut off while an affidavit submitted by the defendants established that some of the street lights in the black neighborhoods, which had been provided by defendants free of charge, had been cut off as an economy measure. Defendants further established that although black residents now pay for some street lights in their neighborhoods, white residents pay for all street lights in their neighborhoods. Accordingly, the Court found that

Plaintiffs have wholly failed to come forward with any probative evidence to support the disparate services allegations in their complaint. Mere recitation of the facts that some ... street lights ... have been disconnected is insufficient to support claims of racially motivated disparate treatment with regard to electrical services where defendants have produced uncontradicted evidence fully explaining [defendants’] ... street light disconnection policies.

572 F.Supp. at 560. Since the plaintiffs had “utterly failed” to demonstrate the existence of a genuine issue of any material fact, the Court granted summary judgment against the plaintiffs.

This Court concludes that these Plaintiffs have “utterly failed” to demonstrate the existence of a genuine issue of material fact. As in Givens, the Plaintiffs’ mere recitation of the facts that some blacks had been disparately affected by the City’s delayed billings of the Industrial Center is insufficient to raise a genuine issue of a material fact in light of the Defendants’ uncontradicted affidavit fully explaining the basis for the City’s delayed billings of the Industrial Center.

Indeed, Plaintiffs have failed to rebut the sworn statement of the City that its residents have not had to defray the cost of the delayed billings to the Industrial Center and that any utility rate increases were not the result of delayed billings to the Industrial Center. Since the Plaintiffs, the non-moving parties, have failed to rebut the Defendants’ Motion with “significant probative evidence” of discriminatory intent, see, e.g., Ferguson v. National Broadcasting Company, 584 F.2d 111, 114 (5th Cir. 1978); Givens, supra, at 559, Defendants’ Motion for Summary Judgment is appropriate and is hereby granted.

In accordance with Rule 58 of the Federal Rules of Civil Procedure, a separate final judgment will be entered.

      . The record indicates that Plaintiffs have not moved, pursuant to Rule 23 of the Federal Rules of Civil Procedure, to certify the class allegedly consisting of "all other black resident citizens of Canton, Mississippi, who are similarly situated and affected by the policy, practice, custom and usage complained of herein.” Consequently, the Court does not address the issue of the propriety of class certification.

      . The Court does not consider Plaintiffs’ Complaint to allege a violation of 42 U.S.C. § 1982 which protects a person’s right to "inherit, purchase, lease, sell, hold, and convey real and personal property.” Accordingly, Plaintiffs’ § 1982 claim will not be considered.

      . As Defendants note, the Ninth Amendment does not specify any substantive constitutional rights and is considered to be a savings clause to the United States Constitution. Consequently, since the Ninth Amendment does not secure any constitutional rights, no cause of action exists solely for a violation of the Ninth Amendment. Charles v. Brown, 495 F.Supp. 862, 863 (N.D.Ala. 1980).