author: JOHN P. MOORE, District Judge.

text:
    Patsi AYALA, et al., Plaintiffs, v. JOY MANUFACTURING COMPANY, a Pennsylvania corporation, et al., Defendants. Myra Lynn GUTHRIE, et al., Plaintiffs, v. JOY MANUFACTURING COMPANY, et al., Defendants.
    Civ. A. Nos. 83-JM-580, 82-JM-1907.
    United States District Court, D. Colorado.
    May 9, 1985.
    See also 580 F.Supp. 521.

      JWN, P.C. by James W. Nearen, Jr., Englewood, Colo., for plaintiffs.
    Hall & Evans by James A. Ruf, Bruce A. Menk, Denver, Colo., for defendant Joy Mfg. Co.
    Wood, Ris & Hames by Bruce F. Fest, Denver, Colo., for defendant Service Machine Corp.
    Madden and Strate, P.C. by William J. Madden, Wheat Ridge, Colo., for defendant Mine Safety Appliance Co.
    Office of the U.S. Atty. by Daniel S. Maus, Henry L. Solano, Asst. U.S. Atty., Denver, Colo., Brenda Moss Green, Trial Atty., Torts Branch, Civ. Div., Dept, of Justice, Washington, D.C., for defendant U.S.
    Fortune & Lawritson, P.C. by Lowell Fortune, Jon L. Lawritson, Denver, Colo., for defendant McJunkin Corp.
    Zarlengo, Mott and Zarlengo by Lynn P. Lyon, Albert E. Zarlengo, Denver, Colo., for defendant Bacharach Instrument Co.
   ORDER

JOHN P. MOORE, District Judge.

This matter is before me on defendant United States of America’s motion to dismiss plaintiffs’ second amended complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The issues presented have been fully briefed by the parties and oral argument would not serve to aid the court in resolving the questions presented. Jurisdiction is based both on 28 U.S.C. §§ 1331 and 1332.

These actions arise out of an accident which occurred on April 15, 1981, in a mine owned and operated by Mid-Continent Resources, Inc., near Redstone, Colorado. On that date, fifteen miners were killed in a methane and coal explosion in the Dutch Creek No. 1 mine. The amended complaints in the above-entitled actions bring claims for the alleged wrongful death of those miners. Defendants in these actions include the United States of America and the manufacturers of a continuous mining machine which allegedly caused the explosion. The claims against the manufacturers are products liability claims based on strict liability, negligence, and breach of express or implied warranty. The claim against the United States is brought pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) and § 2671 (1982). This claim asserts that the mine inspection conducted by the Mine Safety and Health Administration (MSHA) was negligently performed, and that coal mine electrical safety inspector Jack Marshall negligently directed the installation of the electrical components which caused the explosion.

The sole issue raised by the United States’ motion to dismiss is whether the discretionary function exception to the waiver of sovereign immunity embodied in the Federal Tort Claims Act bars plaintiffs’ amended claim that the “active negligence” of federal coal mine inspector Jack Marshall was the proximate cause of plaintiffs’ decedents’ deaths. It is the position of the United States that the Supreme Court’s recent opinion dealing with the discretionary function exception, United States v. S.A. Empresa De Viacao Aerea Rio Grandense (“Varig Airlines”), — U.S. -, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984), as well as the court’s summary remand of Hylin v. United States — U.S.-, 105 S.Ct. 65, 83 L.Ed.2d 16 (1984), mandate the dismissal of plaintiffs’ second amended complaint as against the United States. The United States denies that its inspector gave a “mandatory-nonoptional” instruction to draft the wiring diagram for installation of the electrical circuitry which is alleged to have caused the mine disaster. However, even if such an instruction was given, the United States argues that the acts of its inspector were clearly discretionary acts done in his regulatory capacity, and as such, were within the discretionary function exception to the waiver of sovereign immunity of the United States.

Plaintiffs concede that after Varig Airlines, supra, the discretionary function exception must apply to government activities which are “purely” regulatory in nature. Plaintiffs, however, take issue with defendant United States’ characterization of the coal mine electrical inspector’s actions in this case as being in any way “regulatory.” According to plaintiffs, Jack Marshall, the coal mine electrical inspector employed by the United States, provided “technical assistance” to Mid-Continent Resources, Inc. when he directed how electrical wiring connections should be made to install a complex lighting system to a continuous mining machine. Such “technical engineering assistance,” argues plaintiffs, constitutes “active negligence at the operational level,” and is not a protected regulatory or policing function within the meaning of the discretionary function exception to the Federal Tort Claims Act.

The question before the Supreme Court in Varig Airlines, supra, was whether the United States could be held liable for the Federal Aviation Administration’s (FAA) alleged negligent failure to inspect certain elements of aircraft type design before certificating the aircraft. Under the Act, the duty to ensure that an aircraft conforms to FAA safety regulations lies with the manufacturer and operator; the FAA’s duty consists solely of policing compliance with FAA safety regulations, a responsibility it has decided, in its discretion, to fulfill through implementation of a “spot check” program. Confronted with these facts, a unanimous court held that the alleged negligent acts of the FAA inspectors fell within the discretionary function exception to the Federal Tort Claims Act which applies to a claim “[bjased upon the exercise or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the government whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a) (1982).

In reaching this result, the court undertook a general discussion of the parameters of the discretionary function exception. Although it declined to define “with precision” every contour of the exception, the court did isolate two factors useful in determining whether acts of a government employee are protected from liability under § 2680(a). First, the court held that it is the nature of the conduct as opposed to the status of the actor that governs whether the discretionary function exception applies in a given case. Varig Airlines, supra, 104 S.Ct. at 2675. Second, the court concluded that the discretionary acts of the government acting in its role as regulator of the conduct of private individuals were clearly intended to be within the exception. In so finding, the Supreme Court observed that “by fashioning an exception for discretionary governmental functions, including regulatory activities, Congress took ‘steps to protect the government from liability that would seriously handicap efficient government operations.’ ” Varig Airlines, supra at 2785.

The Supreme Court’s ruling in Varig Airlines was followed by its action of summarily vacating the Seventh Circuit’s decision in Hylin v. United States, 715 F.2d 1206, vacated and remanded, — U.S. -, 105 S.Ct. 65, 83 L.Ed.2d 16 (1984). In Hylin, supra, plaintiff’s husband was electrocuted when he came in contact with a defective junction box. Plaintiff sued the United States under the FTCA alleging she was entitled to recover for the negligent failure of the Mine Enforcement Safety Administration (MESA) inspectors to inspect and cite for correction the defective junction box which caused the death. Plaintiff also claimed she should recover for the negligent enforcement of a mandatory safety standard requiring handrails along conveyors which narrowed the distance between the conveyor and the defective junction box, and thereby either created or enhanced the risk of injury from the defective junction box. In its initial opinion, the Seventh Circuit held the discretionary function exception inapplicable to the MESA inspectors’ orders to the mine operator to abate the violation of the mandatory safety standard on conveyors by erecting handrails, compliance with which negligently enhanced the risk of harm from the defective junction box.

On remand, the Seventh Circuit, relying on the Supreme Court’s Varig Airlines opinion, reversed its earlier ruling. Hylin v. United States, 755 F.2d 551 (7th Cir. 1985) (“Hylin II ”). In so doing, the court rejected its prior view that application of the discretionary function exception turns on the specific acts or omissions of the government employee. Hylin II, supra at 553. According to the Seventh Circuit, after Varig Airlines, whether the government was in fact negligent is irrelevant to the discretionary function analysis. Hylin II, supra at 553. Like the Supreme Court in Varig Airlines, supra, the Seventh Circuit emphasized that the proper inquiry is into the nature of the challenged governmental activity. “If the regulatory inspection and enforcement activities of an agency require its employees to exercise discretion in performing their duties, the discretionary function exception bars tort claims against the government based upon those performances.” Hylin II, supra at 553. Applying this analysis to the facts in Hylin, the Seventh Circuit found that under the Federal Metal and Nonmetallic Mine Safety Act of 1966, 30 U.S.C. § 721 et seq. (1976), MESA mine inspectors were given broad discretion in the performance of their regulatory and enforcement duties. As such, the Hylin II court had no trouble concluding that the enforcement activities of MESA were protected by the discretionary function exception. Hylin II, supra.

In the present case, mine safety inspectors operate pursuant to the Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 et seq., and the regulations promulgated thereunder, 30 C.F.R. § 75.1 et seq. (1984). Like its predecessor statute, the Federal Metal and Nonmetallic Mine Safety Act of 1966, supra, the Mine Safety Act is a regulatory statute whose primary concern is the safety of mine workers. United States v. Consolidation Coal Co., 560 F.2d 214 (6th Cir.1977); Holland v. United States, 464 F.Supp. 117 (W.D.Ky. 1978). As such, the Mine Safety Act expressly places responsibility for mine safety upon mine owners and operators. 30 U.S.C. § 801 (1982). Enforcement of the Act is delegated to the Secretary of Labor who has the power to promulgate rules and regulations governing the inspection of mines and the manner in which inspections are conducted. 30 U.S.C. § 811 (1982). Under 30 U.S.C. § 954 (1982), the Secretary, through the Mine Safety Health Administration (MSHA), can appoint personnel, including mine inspectors, and specify their duties. As with MESA inspectors, in fulfilling their inspection and enforcement duties, Mine Safety Act inspectors exercise considerable discretion. Hylin II, supra at 554; Consolidated Coal Co., supra; United States v. Holland, supra. Importantly, for the facts in this case, the Mine Safety Act also provides that as part of his regulatory and enforcement responsibilities, the Secretary, “shall, to the greatest extent possible, provide technical assistance to operators in meeting the requirements of [the Act] ... and in further improving the health and safety conditions and practices in coal and other mines.” 30 U.S.C. § 952(b) (1982) (Emphasis Added).

In light of the Mine Safety Act regulatory and enforcement scheme, as discussed above, and the Varig Airlines and Hylin II holdings, there can be no doubt but that the actions of coal mine electrical inspector Jack Marshall are within the broad discretion given MSHA inspectors in the performance of their regulatory and enforcement duties. Cf. 30 U.S.C. § 952(b) (1982). As discretionary acts of the government acting in its role as regulator of the conduct of Mid-Continental Resources, Inc., the acts of MSHA inspectors, like those of the FAA, and MESA, in Varig Airlines and Hylin II respectively, clearly fall within the discretionary function exceptions’s broad scope. Varig Airlines, supra, 104 S.Ct. at 2765. For these reasons, plaintiffs’ second amended complaint will be dismissed as against the United States.

Upon the foregoing, it is

ORDERED the motion of the United States to dismiss plaintiffs’ second amended complaint is granted, and the claims against the United States are dismissed.

FURTHER ORDERED defendant United States of America’s motion for oral argument, filed April 29, 1985, is denied as moot.

FURTHER ORDERED defendant Service Machine Co.’s motion for extension of time to submit supplemental expert report by a human factors analyst is granted. Defendant Service Machine Co. shall file this report on or before June 3, 1985.

      . The Act was repealed in 1977 and replaced by the Federal Mine Safety and Health Act of 1977, Pub.L. No. 95-164, 91 Stat. 1290, codified at 30 U.S.C. § 801 et seq. The FMSA was in effect when the accident in the present case occurred, and is similar to the previous Act.

      . In reaching this conclusion, I necessarily reject plaintiffs’ attempt to distinguish the facts in Varig Airlines, from those in this case. It is plaintiffs’ position that the cases are distinguishable on the ground that the alleged negligence in the present case constitutes ’’active’’ negligence while the negligence in Varig Airlines was simply a failure to discover or inspect. No such distinction was recognized, and none can be implied from the Varig opinion. As stated above, the Supreme Court in Varig Airlines held that the specific negligent acts and omissions of the government are irrelevant in determining whether the alleged negligent acts are within the discretionary function exception. Varig Airlines, supra at 2765. Instead, the analysis turns on whether regulatory and enforcement activities of an agency require its employees to exercise discretion in the performance of their duties. Varig Airlines, supra at 2765.
      Furthermore, plaintiffs’ argument has recently been rejected by the Seventh Circuit in Hylin II. In that case, despite the fact that plaintiff claimed both "passive” and "active” negligence on the part of MESA inspectors, the court read the claims together, and applied the Varig Airlines analysis: examining the nature of the regulatory and enforcement scheme involved as opposed to the specific negligent acts and omissions of the MESA inspectors. By so doing, the Seventh Circuit rejected the position that the Varig Airlines holding and analysis would be inapplicable to situations of alleged “active” negligence.


source: Caselaw Access Project

author: DALY, Chief Judge.

license: Public Domain

text:
    Kathy STUART, By and Through her mother and next friend, Joan STUART, et al., Plaintiffs, v. Pasquale NAPPI, et al., Defendants.
    Civ. No. B-77-381(TFGD).
    United States District Court, D. Connecticut.
    May 13, 1985.

      Richard McCarthy, Connecticut Legal Services, Inc., Bridgeport, Conn., for plaintiffs.
    William Narwold, Cummings & Lockwood, Hartford, Conn., for Local defendants.
    Marcia Speziale, Asst. Atty. Gen., Hartford, Conn., for State defendant.
   RULING ON PLAINTIFFS’ APPLICATION FOR ATTORNEY’S FEES

DALY, Chief Judge.

In January of 1978, the named plaintiff, Kathy Stuart, obtained from this Court a preliminary injunction which prevented the Danbury Board of Education from expelling her from high school and which ordered the Board to conduct an immediate review of her special education program under the Education for the Handicapped Act, 20 U.S.C. § 1401 et seq. (the “EHA”). For a discussion of the facts leading to the injunction, see Stuart v. Nappi, 443 F.Supp. 1235 (1978). Shortly after the issuance of the preliminary injunction, the Court granted a motion for class certification filed by the named plaintiff. Over the course of the next five years, the plaintiff class sought a permanent injunction and a declaratory judgment that the Danbury Board of Education was bound by the procedural requirements of the EHA if it desired to exclude a handicapped student from class attendance for longer than a ten day period. The class action was dismissed as moot, however, in early 1984 since Stuart had graduated from high school (and was, therefore, no longer a member of the class she purported to represent) and since there appeared to be no other members of the certified class. See Order of Dismissal dated February 1, 1984.

Plaintiffs now seek, pursuant to 42 U.S.C. § 1988, an award of attorneys’ fees totalling $57,631.80. Defendants argue that an award of fees is precluded by Smith v. Robinson, — U.S.-, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984). The Supreme Court in Smith held that an award of attorney’s fees under § 1988 was not available where a plaintiff made substantive equal protection claims under both 42 U.S.C. § 1983 and the EHA. Id., — U.S. at-, 104 S.Ct. at 3469. The court held that in such instances the EHA, which does not contain a fee-shifting provision, is the exclusive remedy available to the plaintiff. Id.

The court in Smith, however, was careful to distinguish claims which allege a violation of procedural due process:

... unlike an independent equal protection claim, maintenance of an independent due process challenge to state procedures would not be inconsistent with the EHA’s comprehensive scheme. Under either the EHA or § 1983, a plaintiff would be entitled to bypass the administrative process by obtaining injunctive relief only on a showing that irreparable harm otherwise would result. And, while Congress has apparently determined that local and state agencies should not be burdened with attorney’s fees to litigants who succeed, through resort to the procedures outlined in the EHA, in requiring those agencies to provide free schooling, there is no indication that the agencies should be exempt from a fee award where plaintiffs have had to resort to judicial relief to force the agencies to provide them the process they were constitutionally due.

Id., — U.S. at-n. 17, 104 S.Ct. at 3470 n. 17 (citation omitted) (emphasis supplied).

Lower courts since Smith have recognized this distinction. Of particular guidance to this Court is Rose v. Nebraska, 748 F.2d 1258 (8th Cir.1984). In Rose, the Eighth Circuit Court of Appeals relied on the above language in Smith and concluded that an award of attorney’s fees is not foreclosed by the EHA where a procedural due process challenge is made. Id. at 1263-1264. Similarly, in another case where violations of procedural due process were asserted, a district court rejected a state defendant’s argument that the EHA was the exclusive remedy and allowed the plaintiff to maintain a cause of action under § 1983. Stark v. Walter, No. C-2-83-1331, slip op. (S.D. Ohio September 11, 1984).

In the instant case, the plaintiffs’ claims were procedural in nature. “Although Miss Stuart’s educational placement in November, 1977, was inappropriate, the immediate purpose of this suit was to obtain procedural rather than substantive relief. Miss Stuart did not ask the court to order the defendants to provide her with any particular program of special education; rather, she asked the court to prevent local defendants from changing her placement by improper means and to require local defendants to use the proper procedure ... to improve her placement.” Plaintiffs’ Reply Memorandum at 5. Furthermore, the Court is satisfied that the plaintiffs’ original pleadings raised these procedural claims not only under the EHA but also § 1983 and the due process clause of the Fourteenth Amendment. See Complaint at H 3 & Prayer for Relief; Memorandum in Support of Plaintiffs’ Motion for a Preliminary Injunction at 7-10. Thus, based on the distinction articulated in Smith and Rose, it is the opinion of the Court that plaintiffs’ request for an award of attorneys’ fees is not preempted by the EHA and is allowable under § 1988.

Defendants argue that even if Smith does not preclude an award of fees in this case, plaintiffs cannot be deemed a prevailing party on their class action claims since those claims were ultimately dismissed as moot. However, in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), the Supreme Court held that where a plaintiff does not pursue unrelated claims, “the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” Id. at 435, 103 S.Ct. at 1940. Here, the class action claims were based on a “common core of facts” and involved “related legal theories.” Id. Plaintiffs were attempting to compel the Danbury School Board to abide by the procedural requirements of the EHA, both in the motion for a preliminary injunction and in the later class action proceedings seeking declaratory relief; the later class action claims were essentially a macrocosm of the individual claims of Miss Stuart aired at the preliminary injunction stage. Since the claims were related, the fact that the later class action claims were dismissed as moot does not bar an award of fees for the entire case — as long as success was achieved on the basis of the litigation as a whole. See Garrison, Attorney’s Fees Under Fee-Shifting Statutes, 58 Conn.B.J. 69, 70-71 (1984), and cases cited therein.

In looking to the litigation as a whole, it is evident that the plaintiffs have achieved success. The issuance of a preliminary injunction against the school board clearly benefited the named plaintiff Stuart in her individual capacity. Moreover, the deterrent and “catalytic” effect of the preliminary injunction benefited the class of those who might be subject to similar treatment by the defendants in the future — perhaps as much as any declaratory judgment or permanent injunction would have. Indeed, in light of this Court’s ruling, the Connecticut Department of Education has advised local school officials against expelling students who are in circumstances similar to those of Kathy Stuart. Appendix A to Plaintiff’s Memorandum in Support of their Application for Attorney’s Fees. Furthermore, the Court’s opinion on the preliminary injunction motion has had clear precedential value in this district, as well as others. In sum, since excellent results were achieved for the named plaintiff and indirectly for the class, plaintiffs may be deemed the “prevailing party” within the meaning of § 1988 with respect to the litigation as a whole. Plaintiffs are entitled, therefore, to a reasonable fee for hours reasonably expended by their attorneys.

For a total of 199.58 hours expended by their attorneys’ prior to 1981, plaintiffs’ request compensation at a rate of $90 per hour. Defendants maintain that this rate is unreasonable. However, in Johnson v. University of Bridgeport, No. B-75-66, slip op. at 2 (D.Conn. April 16, 1981), this Court found $90 to be a reasonable hourly rate for legal services rendered in 1978, 1979 and 1980. Furthermore, this case presented difficult issues of first impression and the plaintiffs’ claims were prosecuted on the highest professional level, particularly during the hard-fought preliminary injunction hearing. Plaintiffs’ request for compensation at the rate of $90 per hour for time expended prior to 1981 will therefore be allowed.

Both the local defendants and the state defendant argue that the plaintiffs’ request for a total of $57,631.80 in fees is excessive and unreasonable. The Court has carefully reviewed all of their arguments in this regard and does not find any of them compelling. Therefore, based on the representations in the plaintiffs’ affidavits, the Court determines the amount of the fee award as follows:

Prior to 1981:
199.58 hours at $90/hr....................$17,962.20
1/1/81 through 7/22/84:
281.33 hours at $120/hr...................$33,759.60
7/22/84 through 10/11/84:
49.25 hours at $120/hr....................$ 5,910.00
TOTAL: $57,631.80

Finally, local defendants argue that responsibility for payment of the fee award should be allocated equally between local defendants and the state defendant. However, the record developed in this case indicates that the state defendant was guilty of no more than passive acquiescence in his statutory role of “supervising” local defendants’ compliance vel non with the EHA. Cf. Jose P. v. Ambach, 669 F.2d 865, 871 (2d Cir.1982). Accordingly, as in Jose P. v. Ambach, an allocation of 80%/20% between local and state defendants is appropriate.

Conclusion

Plaintiff’s application for an award of attorney’s fees in the amount of $57,631.80 is GRANTED.

      . The later class action claims were also procedural in nature. See infra at 93.

      . The fact that the Court awarded injunctive relief on the basis of the EHA alone, and not any constitutional notions of due process, does not preclude an award of fees. Maher v. Gagne, 448 U.S. 122, 132-133, 100 S.Ct. 2570, 2576-2577, 65 L.Ed.2d 653 (1980).

      . See, e.g., Plaintiffs’ Memorandum in Support of their Second Motion for Summary Judgment at 17-18 ("plaintiffs are seeking relief which is procedural (the prevention of changes of placement by improper procedures) rather than substantive (the provision of appropriate special education).”).

      . See, e.g., Blue v. New Haven Board of Education, No. N-81-41, slip op. (D.Conn. March 23, 1981); Kaelin v. Grubbs, 682 F.2d 595 (6th Cir.1982).

      . State defendant Shedd contends that, since no court order was ever entered against him, the plaintiffs never prevailed against him and, therefore, he should not be responsible for any portion of the fee award. State Defendant's Memorandum in Opposition to Plaintiffs' Motion for an Award of Attorney’s Fees at 6-11. This argument is unavailing. "[I]t is the responsibility of the state board of education to supervise local boards of education and to make sure that they are living up to their obligations to handicapped students, 20 U.S.C. § 1412(6). When the court entered an order against the local defendants commanding them to observe plaintiffs’ rights under the Handicapped Act, the court was doing the state defendant’s job.” Plaintiffs' Memorandum in Reply at 2. Cf. Jose P. v. Ambach, 669 F.2d at 870-871.


author: GIERBOLINI, District Judge.

text:
    Oswald Evan PERKINS, et al., Plaintiffs, v. Juan Tomás PEÑAGARÍCANO SOLER, et al., Defendants.
    Civ. Nos. 84-2274 GG, 85-0138 GG.
    United States District Court, D. Puerto Rico.
    May 14, 1985.

      Oswald Evan Perkins Leverock, Ada F. Perkins, pro se and for other plaintiffs.
    C.A. Chavier Stevenson, San Juan, P.R., for defendants.
   OPINION AND ORDER

GIERBOLINI, District Judge.

These are actions brought pursuant to Title 42 U.S.C. §§ 1983, 1985 and 1986 alleging certain violations of plaintiffs’ due process rights guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. Jurisdiction is invoked under Title 28 U.S.C. § 1343.

I

The present controversy and the underlying factual background are very simple, in spite of the legal verbiage in which they have been clothed. Plaintiff, Oswald E. Perkins and others (Perkins) filed two tort actions in the Superior Court of Puerto Rico, San Juan Part, against several parties and their insurance companies as a result of an automobile accident that produced the death of Perkins’ daughter. Those actions were later consolidated.

For the prosecution of one of the actions, Civil Case No. 80-6385, Perkins, himself an attorney, engaged thé services of attorney Juan Tomás Peñagarícano, Jr. (Peñagarícano). Due to certain conflicts concerning legal strategy, problems soon developed between Perkins and Peñagarícano which climaxed in the withdrawal of the latter’s legal representation. At that time Superi- or Court Judge Edna Abruña, a co-defendant here, provided in a resolution approving the withdrawal of legal representation, that payment of attorney’s fees would be made at the time of adjudication of the case. Almost a year later a settlement was reached with Antilles Insurance Company, a co-defendant in Civil Case No. 83-589. In the judgment approving the stipulation, Superior Court Judge Marcos A. Rodriguez Estrada, also a codefendant here, provided that the settlement funds be consigned in the clerk’s office until a complete general release in the benefit of the insurance company was filed and a determination was made regarding Peñagarícano’s fees in the companion case, Civil No. 80-6385.

Thereafter, Perkins filed another suit in the Superior Court, San Juan Part, Civil Case No. 84-3365, seeking judgment declaring that Peñagarícano was not entitled to any attorney’s fees. Perkins also requested the vacating of the resolution entered by Judge Abruña providing that payment of attorney’s fees be made upon adjudication of the case. This request was denied by co-defendant Superior Court Judge William Fred Santiago.

In consolidated eases 80-6385 and 83-589, a hearing for the determination of the amount to be awarded as attorney’s fees to Peñagarícano has been scheduled. Pending the hearing, co-defendant Superior Court Judge Luzgarda Vázquez de Santiago ordered that the funds deposited by the insurance company in the clerk’s office of the state court be placed in a savings certificate at a banking institution offering the highest interest rates.

Dissatisfied with the determination that Peñagarícano had a right to be awarded attorney’s fees in Civil Case No. 80-6385, Perkins has filed the present civil right actions in this court seeking damages against Peñagarícano and all of the superi- or court judges who had any intervention during the course of those judicial proceedings. Plaintiffs argue, in synthesis, that the defendant judges, separately and in concert with Peñagarícano, conspired to grant him attorney’s fees in Civil Case No. 80-6385. It is further alleged that the judicial actions were taken without jurisdiction since in the absence of a written contract between plaintiffs and Peñagarícano for the latter’s professional services, the fees should have been the subject of a separate action pursuant to Title 31 L.P. R. A. § 4111. All this was purportedly done with the specific intention of favoring Peñagarícano, who is an “Ad Interin Judge”, while discriminating against plaintiffs and depriving them of their property rights without due process.

Noting several jurisdictional deficiencies in plaintiffs’ original complaint, we issued an order to show cause why Civil Case No. 84-2274 should not be dismissed. Plaintiffs filed a response and tendered an amended complaint which failed to cure the maladies alluded to in our order. Various defendants have filed motions to dismiss alleging, inter alia, failure to state a claim, judicial immunity and res judicata.

II

Crucial to plaintiffs’ cause of action under 42 U.S.C. § 1983 is the intended use of a civil right action to interfere with ongoing state proceedings.

A

The Supreme Court has long acknowledged the competence of state courts to adjudicate federal constitutional claims. Robb v. Connelly, 111 U.S. 624, 637, 4 S.Ct. 544, 551, 28 L.Ed. 542 (1884). See also, Sumner v. Mata, 449 U.S. 539, 549, 101 S.Ct. 764, 770, 66 L.Ed.2d 722 (1981); Allen v. McCurry, 449 U.S. 90,105,101 S.Ct. 411, 420, 66 L.Ed.2d 308 (1980); Swain v. Pressley, 430 U.S. 372, 383, 97 S.Ct. 1224, 1230, 51 L.Ed.2d 411 (1977); and has also established that state courts are the principal expositors of state law. Moore v. Sims, 442 U.S. 415, 429, 99 S.Ct. 2371, 2380, 60 L.Ed.2d 994 (1979). The seminal case of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) dictated a strong federal policy requiring federal courts to abstain from interfering with pending state criminal proceedings unless the plaintiff could demonstrate bad faith, harassment or any other extraordinary circumstances justifying immediate relief. The Younger rationale is now fully applicable to noncriminal judicial proceedings involving important státe interests. Middlesex Ethics Comm. v. Garden State Bar Ass’n., 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982); Moore, supra, 442 U.S. at 423, 99 S.Ct. at 2377; Huffman v. Pursue, Ltd., 420 U.S. 592, 604-605, 95 S.Ct. 1200, 1208, 43 L.Ed.2d 482 (1975), reh. denied, 421 U.S. 971, 95 S.Ct. 1969, 44 L.Ed.2d 463 (1975).

To allow federal intervention absent extraordinary circumstances would deprive the state of its legitimate function “of overseeing trial court dispositions of constitutional issues which arise in civil litigation over which they have jurisdiction.” Huffman, supra, 420 U.S. at 609, 95 S.Ct. at 1210. Such interference would also result in duplicative proceedings which could be interpreted as reflecting negatively upon the state court’s ability to enforce constitutional principles. Cf Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). Certainly, to permit plaintiffs to litigate in this court the issues presented by extant state proceedings would, aside from the inherent difficulties of such duplicative actions, militate against interests that the law seeks to protect.

Local trial and appellate courts are empowered to resolve constitutional issues and the mere possibility of an erroneous application of constitutional standards by a local tribunal will not amount, barring other circumstances, to the irreparable injury imperative to justify a disruption of orderly state proceedings. Dombrowski v. Pfister, 380 U.S. 479, 484-485, 85 S.Ct. 1116, 1119-1120, 14 L.Ed.2d 22 (1965). Plaintiffs need only be accorded an adequate opportunity to raise their constitutional claims and there is no indication here that state procedural law precluded the proper presentation and adjudication of their claims. Juidice v. Vail, 430 U.S. 327, 337, 97 S.Ct. 1211, 1218, 51 L.Ed.2d 376 (1977).

Clearly, plaintiffs have available the •remedy of appeal to the Supreme Court of Puerto Rico and thereafter may request a writ of certiorari from the United States Supreme Court. Fornaris v. Ridge Tool Co., 400 U.S. 41, 91 S.Ct. 156, 27 L.Ed.2d 174 (1970); 28 U.S.C. § 1258(3). Plaintiffs nevertheless argue that exhaustion of state appellate remedies should not be required because an appeal would be futile. According to plaintiffs, the Supreme Court of Puerto Rico could not afford them justice because its Chief Justice, the Honorable José A. Trias Monge, is a neighbor and friend of defendant Peñagarícano’s family, and Justice Antonio S. Negrón García is the brother of attorney Arturo Negrón García, who is married to the sister of Pefiagaricano. Notwithstanding, we find that plaintiffs appeal would not be doomed to failure for the reasons mentioned above. Principles of federalism, common courtesy and deference owed to local courts do not allow the evasion of the exhaustion requirement because a losing party in a state court may cogitate his chances of success are slim. Huffman, supra, 420 U.S. at 610, 95 S.Ct. at 1211. Thus, plaintiffs must first exhaust their state appellate remedies before seeking relief in this court, unless they can bring themselves within one of the recognized exceptions.

Even if plaintiffs were in fact appealing a final judgment of a state court, a federal district court lacks authority to review such a judgment since review lies exclusively in the United States Supreme Court. See 28 U.S.C. § 1257 (1982); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 103 S.Ct. 1303, 1311, 75 L.Ed.2d 206 (1983). As was cogently expressed in Atlantic Coast Line R. Co. v. Engineers, 398 U.S. 281, 296, 90 S.Ct. 1739, 1747, 26 L.Ed.2d 234 (1970), “lower federal courts possess no power whatever to sit in direct review of state court decisions.” Nor can the Civil Rights Act be used as a vehicle to collaterally attack final state court judgments, Bricker v. Crane, 468 F.2d 1228, 1231 (1st Cir. 1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1368, 35 L.Ed.2d 592 (1973). A writ of certiorari to the United States Supreme Court is the exclusive method for review of such a decision. Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923). It should also be stated that the Civil Rights Act was not intended to confer jurisdiction on the federal courts for mere irregularities in state court proceedings. Hurlburt v. Graham, 323 F.2d 723 (6th Cir.1963).

Specifically, plaintiffs claim that the grant of attorney’s fees to Pefiagaricano, without requiring him to file suit pursuant to 31 L.P.R.A. § 4111, deprived them of their property rights without due process of law. However, it is now well settled in our circuit that merely erroneous applications of state law do not present a question of federal constitutional magnitude when there is an adequate state remedy. Colón-Rivera v. P.R. Dept. of Social Services, 736 F.2d 804, 806 (1st Cir.1984) cert. denied, — U.S. -, 105 S.Ct. 795, 83 L.Ed.2d 788 (1985). See also Cloutier v. Town of Epping, 714 F.2d 1184 (1st Cir. 1983); Chiplin Enterprises v. City of Lebanon, 712 F.2d 1524 (1st Cir.1983). It does not suffice to merely give the state law claims constitutional labels such as “due process” or “equal protection” in order to raise a substantial federal question under Section 1983. Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir.1982), cert. denied, 459 U.S. 989, 103 S.Ct. 345, 74 L.Ed.2d 385 (1982). The violation of a state statute does not automatically give rise to a violation of constitutional rights nor does it necessarily signify that federal rights have been infringed. Crocker v. Hakes, 616 F.2d 237, 239 n. 2 (5th Cir.1980) (per curiam); Screws v. United States, 325 U.S. 91, 108-109, 65 S.Ct. 1031, 1038-1039, 89 L.Ed. 1495 (1945).

Even assuming arguendo, that there was an erroneous application of state law, there appears to be adequate state remedies to vindicate plaintiffs’ claims without resort to this court. See Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).

B

In order to constitute a cause of action under 42 U.S.C. § 1983, plaintiffs must demonstrate not only that they were deprived of rights secured by the Constitution, but also that such deprivation was achieved under color of state law. See Werle v. Rhode Island, 755 F.2d 195 (1st Cir.1985); Glaros v. Perse, 628 F.2d 679 (1st Cir.1980); Ponce v. Basketball Federation, 760 F.2d 375 (1st Cir.1985). The “under color of” state law requirement of Section 1983 is equivalent to the “state action” element of the Fourteenth Amendment, and accordingly Section 1983 is not invoked by purely private conduct. Briley v. California, 564 F.2d 849 (9th Cir.1977); Parish v. National Collegiate Athletic Association, 506 F.2d 1028 (5th Cir.1975). Although it does not require that defendants be officers of the state, they must be willing participants in joint action with the state or its agents. In this respect, the Supreme Court has expressed that “[private persons, jointly engaged with state officials in the challenged action, are acting ‘under color’ of law for purposes of Section 1983 actions.” Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186, 66 L.Ed.2d 185 (1980); Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 L.Ed.2d 142 (1970). However, it does not follow that resorting to the courts and being on the winning side of a lawsuit would make a party a co-conspirator or a joint actor with the judge. The relationship, connection or nature of cooperation between the state and a private individual must be pled in some detail. This is consonant with the requirement that specific facts in support of the existence of a conspiracy be pled in civil rights actions. McGillicuddy v. Clements, 746 F.2d 76 (1st Cir.1984); Francis-Sobel v. University of Maine, 597 F.2d 15, 17 (1st Cir.1979) cert. denied, 444 U.S. 949, 100 S.Ct. 421, 62 L.Ed.2d 319 (1979); Slotnick v. Staviskey, 560 F.2d 31, 33 (1st Cir.1977), cert, denied, 434 U.S. 1077, 98 S.Ct. 1268, 55 L.Ed.2d 783 (1978). Plaintiff’s complaint fails to meet these requirements. The fact that Peñagarícano obtained a favorable determination regarding his entitlement to attorney’s fees does not make him a co-conspirator with the judges, and, thus, his conduct was not under color of state law within the meaning of Section 1983. Consequently, plaintiffs have failed to state a claim under Section 1983 as to Peñagarícano.

Ill

Plaintiffs assert that they are also entitled to relief under Sections 1985(2), 1985(3), and 1986. However, plaintiffs have failed to overcome a formidable barrier to maintain their cause of action under 42 U.S.C. § 1985.

It has been consistently held that a complaint does not state a cause of action under Section 1985 if it fails to allege some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ actions. Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Creative Environments, supra, at 834-835 (1st Cir.1982); Dacey v. Dorsey, 568 F.2d 275, 277 (2d Cir.1978) cert. denied, 436 U.S. 906, 98 S.Ct. 2238, 56 L.Ed.2d 405 (1978); Kermit Const, v. Banco Crédito y Ahorro Ponecño, 547 F.2d 1 (1st Cir.1976); Briley v. State of California, 564 F.2d 849 (9th Cir.1977). The “class” of people allegedly discriminated against, according to plaintiffs in one of their many motions filed, are those who are not judges.

Clearly, these claims are without merit. The requirement that the discrimination in a Section 1985(3) case be class-based is not satisfied by an allegation that there was a conspiracy which affected the interests of a class of persons similarly situated with the plaintiffs. Rather, the complaint must allege in detail facts showing that the defendants conspired against the plaintiffs because of their membership in a class and that the criteria defining the class were invidious. Harrison v. Brooks, 519 F.2d 1358, 1360 (1st Cir.1975).

Plaintiffs in the instant case cannot nor do they assert membership in a class with other persons “similarly situated” or that they have been victims of class-based discrimination. In fact, plaintiffs have failed to define any definite class which satisfies the requirement of Section 1985, or to show that the criteria defining the class are invidious. This novel class in which plaintiffs assert membership is neither readily recognizable nor among those traditionally protected by the courts and the law. Bricker, supra, at 1233. Thus, in the absence of any racial or class-based discrimination, plaintiffs’ claims under Sections 1985(2) and 1985(3) cannot withstand scrutiny and must be dismissed.

Having dismissed the claim under Section 1985, the sister claim under Section 1986 must also suffer the same fate. Creative Environments, supra, at 834-835.

IV

Finally, we must determine whether the four co-defendants who are state court judges are immune from damages pursuant to the doctrine of judicial immunity.

Since Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1871), the Supreme Court has consistently ruled that judges enjoy absolute immunity from damages under Section 1983 for acts performed in the actual discharge of their judicial functions. See also, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), reh. denied, 436 U.S. 951, 98 S.Ct. 2862, 56 L.Ed.2d 795 (1978); Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 734-735, 100 S.Ct. 1967, 1975-1976, 64 L.Ed.2d 641 (1980).

A crucial determination in our inquiry is whether the judges acted within their jurisdiction. Clearly, a judge cannot be deprived of immunity because the action taken was in error, maliciously done, or was in excess of his authority. He can be subject to liability only when he has acted in the clear absence of all jurisdiction. Stump, supra, 435 U.S. at 357, 98 S.Ct. at 1105.

The Superior Court of Puerto Rico is a court of general jurisdiction and its judges are authorized to consider any issue arising from the cases before them. 4 L.P.R.A. § 121. As such, co-defendant judges may entertain any controversy concerning the payment of attorney’s fees in a civil case. Judges are absolutely immune from liability for their judicial acts even if their exercise of authority is tainted by the commission of serious procedural errors. Stump, supra, 359, 98 S.Ct. at 1106.

The record clearly indicates that the challenged actions — the issuance of resolutions, the granting or denying of motions and the scheduling of hearings to determine the amount of attorney’s fees to be awarded— are all acts taken by the judges in the proper discharge of their official duties as superior court judges. The acts complained of are all judicial ones. The fact that plaintiffs might disagree with the action taken by the judges does not justify depriving them of their immunity. To so hold would constitute a monumental absurdity since in each and every case tried before a court of law, there is always the possibility that at least one party may not be in agreement with the decision rendered by the judge. Judges need to be totally free to exercise their duties in accordance with their conscience without the fear of retaliation of any kind. Judicial immunity, the fount from which judicial independence emanates, cannot be so easily undermined. We find that defendant judges are absolutely immune from monetary liability under these circumstances.

V

WHEREFORE, in view of the foregoing, defendants’ motions to dismiss are granted and it is ordered that the above captioned cases be and are hereby dismissed.

The clerk shall enter judgment accordingly.

SO ORDERED.

      . Although Antilles Insurance Company is included as a defendant, it is only as a nominal party and no allegations have been formulated against it. It appears that Antilles has deposited the sum of $225,000 in the Superior Court of Puerto Rico, San Juan Part, in satisfaction of the settlement reached in Civil Case No. 83-589 filed there by the appearing plaintiffs.

        . There is no evidence in the record to support the allegation that Peñagarícano is or has even been a judge, a special judge, or an “Ad Interin Judge”, whatever this may be.

      . The relevant part of Section 1985(2) establishes a cause of action against two or more persons who “conspire for the purpose of impeding, hindering, obstructing or defeating, in any manner, the due court of justice in any State or Territory, with intent to deny any citizen the equal protection of the laws ..."

      . Section 1985(3) provides a cause of action for any person or class of persons injured by a conspiracy organized "for the purpose of depriving, either directly or indirectly, any person ... of the equal protection of the laws ...”

      . Section 1986 provides that anyone who has knowledge of a conspiracy which would violate Section 1985, has the power to prevent it, and fails to do so, is liable as a conspirator.


author: KEVIN THOMAS DUFFY, District Judge:

text:
    UNITED STATES of America v. Linda Sue EVANS, Defendant.
    No. 85 MAG. 922.
    United States District Court, S.D. New York.
    May 15, 1985.
    Rudolph W. Giuliani, U.S. Atty., for the S.D. of New York, New York City, for plaintiff; Patricia A. Williams, Asst. U.S. Atty., New York City, of counsel.
    Flood, Holmes & Tipograph, New York City, for defendant; Susan V. Tipograph, New York City, of counsel.
   ORDER

KEVIN THOMAS DUFFY, District Judge:

The defendant, Linda Sue Evans, is presently detained on a warrant issued in this District charging violation of 18 U.S.C. § 1071; harboring or concealing a person from arrest. It is alleged that during the period immediately preceding May 10, 1985 the defendant, Linda Sue Evans, harbored and concealed a fugitive, Marilyn Jean Buck. Apparently, on or about March 27, 1985 a warrant for a similar offense was issued by the District of Connecticut naming the same defendant and charging her with harboring the same fugitive.

It is alleged by the government that the defendant Evans and the fugitive Buck were living, immediately prior to their arrest, in Baltimore, Maryland, and a search warrant for the house in Maryland disclosed a quantity of weapons and bomb components, false identifications, and among other things a WANTED flier for Marilyn Jean Buck.

The government has moved to have the defendant detained without bail pursuant to section 3142(f)(2)(A). The government alleges that there is a serious risk that that defendant will flee as shown by the evidence that over the past few years she successfully assisted the concealment of the fugitive. The government’s proffer also shows that the defendant was in possession of a 9mm handgun at the time of her arrest and after the arrest a quantity of weapons and bomb components was found in the house where the defendant and the fugitive were assertedly staying in Baltimore, Maryland. The government also asserts that the defendant, Linda Sue Evans, was convicted in 1971 of Aggravated Battery and was discharged from probation by means of a Death Certificate which obviously does not pertain to this very live defendant. The probation discharge document, however, recites that all conditions of probation had been met by defendant from January 28, 1971 until the December 3, 1973.

The defense has stated that Linda Sue Evans has been indicted on two other occasions, each of those indictments having been dismissed. It was the defense’s position, unrebutted by the government, that Linda Sue Evans faithfully appeared as required under bond on each of those occasions. Indeed, it would appear in the documentation of the Battery conviction she had been released on bail after her arrest on those charges pending her plea of guilty. It would appear also that she was permitted a delayed surrender after her plea of guilty was accepted and her sentence imposed.

Counsel has further advised me of the following concerning the defendant’s family ties. Apparently, Linda Sue Evans was born May 11, 1947 to John and Rachel Evans, in Ft. Dodge, Iowa, where her parents still reside. Her brother is presently a contractor in California. She assertedly is a trained printer and graphic artist who was regularly employed both in Connecticut and in Maryland. Counsel for the defense has indicated that the defendant’s parents are willing to give her custody and co-sign any bond. The defense has suggested that a Personal Recognizance Bond would be appropriate. I do not agree.

It is the opinion of this judge, sitting as a “Committing Magistrate,” that there is a substantial risk of flight which would be caused by the release of Linda Sue Evans without substantial bail. She has assisted in the concealment of a fugitive apparently for many years. She appears to be knowledgeable in the manner and means used by such fugitive to elude capture. She would have access to those resources which might have been used by the fugitive to make good her escape. Thus, I believe it appropriate that a substantial amount of bail be posted so as to ensure that the defendant will return to face the harboring charges in this district or the harboring charges in Connecticut. I believe the appropriate amount is $500,000 Cash or Surety. I am setting this amount not to deny the defendant bail, but because I believe that amount, if posted by her family, would clearly impel her to return. Without further information concerning her family background, I am unable to say whether they will be able to post such amount, but that determination must await their arrival here.

The following specific conditions of release on bail are to be imposed on the defendant as required by section 3142(h):

(1) The defendant shall not commit any offense in violation of federal, state, or local law while on release in this case.
(2) The defendant shall advise the court prior to any change in address.
(3) The defendant shall appear at all proceedings as required and shall surrender for service of any sentence imposed as directed. The defendant shall next appear on May 22, 1985 before a Magistrate of this Court.
(4) The defendant shall agree to appear at all proceedings as required and to surrender for service of any sentence imposed.
(5) The defendant is placed in the custody of her parents who shall agree (a) to supervise the defendant in accordance with all conditions of release, (b) to use every effort to assure the appearance of the defendant at all scheduled court proceedings, and (c) to notify the court immediately in the event the defendant violates any conditions of release or disappears.
(6) The defendant shall maintain or actively seek employment.
(7) The defendant shall refrain from possessing a firearm, destructive device, or other dangerous weapon.
(8) The defendant shall report on a daily basis to the Pretrial Services Agency, 2 Lafayette Street, New York, New York.

Violation of any of the foregoing conditions of release may result in a revocation of release, an order of detention, as provided in 18 U.S.C. § 3148, and a prosecution for contempt as provided in 18 U.S.C. § 401 which could result in a possible term of imprisonment and/or a fine.

The commission of any offense while on pretrial release may result in an additional sentence upon conviction for such offense to a term of imprisonment of not less than two years nor more than ten years, if the offense is a felony or a term of imprisonment of not less than ninety days nor more than one year, if the offense is a misdemeanor. This sentence shall be consecutive to any other sentence and must be imposed in addition to the sentence received for the offense itself.

A violation of any of the foregoing conditions may result in the forfeiture of any bail posted, the revocation of any release order, and the immediate issuance of a warrant for the arrest of the defendant. The defendant shall acknowledge that she understands that 18 U.S.C. § 1503 makes it a criminal offense punishable by up to five years in jail and a $5,000 fine to intimidate or attempt to intimidate a witness, juror, or officer of the court; 18 U.S.C. § 1510 makes it a criminal offense punishable by up to five years in jail and a $5,000 fine to obstruct a criminal investigation; 18 U.S.C. § 1512 makes it a criminal offense punishable by up to ten years in prison and a $250,00 fine to tamper with a witness, victim or informant; and 18 U.S.C. § 1513 makes it a criminal offense punishable by up to ten years in jail and a $250,000 fine to retaliate against a witness, victim or informant.

The defendant shall further acknowledge that it is a criminal offense under 18 U.S.C. § 3146, if, after having been released, the defendant knowingly fails to appear as required by the conditions of release, or to surrender for the service of sentence pursuant to a court order. If the defendant was released in connection with a charge of, or while awaiting sentence, surrender for the service of a sentence, or appeal or certiorari after conviction, for—

(1) an offense punishable by death, life imprisonment, or imprisonment for a term of fifteen years or more, the defendant shall be fined not more than $25,000 or imprisoned for not more than ten years, or both;
(2) an offense punishable by imprisonment for a term of five years or more, but less than fifteen years, the defendant shall be fined not more than $10,000 or imprisoned for not more than five years, or both;
(3) any other felony, the defendant shall be fined not more than $5,000 or imprisoned not more than two years, or both; or
(4) a misdemeanor, the defendant shall be fined not more than $2,000 or imprisoned not more than one year, or both.

A term of imprisonment imposed for failure to appear or surrender shall be consecutive to the sentence of imprisonment for any other offense.

It is the intention of this “Committing Magistrate” that this bail and these bail conditions are to cover both the harboring complaint in this district and the Rule 40 proceeding to remove the defendant to the District of Connecticut on the other harboring charge. No other charges are presently outstanding against this defendant.

SO ORDERED.


author: EDWARD C. REED, Jr., District Judge.

text:
    John M. TWEET, Donna P. Tweet, Danniele Middleton and David Middleton, Plaintiffs, v. Raymond A. WEBSTER, California State Automobile Association, and Farmers Insurance Exchange, Defendants.
    No. CV-R-84-47-ECR.
    United States District Court, D. Nevada.
    May 15, 1985.
    Reconsideration Denied Aug. 8,1985.
    G.C. Backus, Reno, Nev., for plaintiffs.
    David R. Grundy, Hibbs, Roberts, Lemons & Grundy, Reno, Nev., for Farmers Ins. Exchange.
    Bruce R. Laxalt, Reno, Nev., for California Auto. Ass’n and Raymond A. Webster.
   ORDER

EDWARD C. REED, Jr., District Judge.

California State Automobile Association (CSAA) moves this Court, pursuant to Fed. R.Civ.P. 56, for summary judgment on all of the claims stated against it on the ground that there exists no material issue of fact and CSAA is entitled to judgment as a matter of law.

The case was brought as a diversity action. Plaintiffs are residents of Nevada and defendants Farmers Insurance Exchange (Farmers) and CSAA are corporations having their principal places of business in California. Defendant Webster, no longer a party to this action pursuant to order of this Court on September 18, 1984, quashing service of process on him for lack of personal jurisdiction, also is a resident of California. 596 F.Supp. 130.

The action arose out of an automobile collision on February 18, 1983, in Portola, California, between a vehicle owned and driven by Webster, and one owned and driven by John Tweet (Tweet) and occupied by the other plaintiffs, all members of his family. Farmers was the principal insurer of Tweet and CSAA insured Webster.

The Tweets’ vehicle, a 1979 Subaru, was damaged in the collision and, following estimates from a local garage for repairs, Tweet looked to CSAA for payment for the property damage. Negotiations between Tweet and CSAA over the amount of Tweet’s claim broke down when Tweet requested $3,200 and CSAA offered only $2,315 net. Tweet then turned to Farmers, his first-party insurer, and collected a net payment of $2,337 for his loss. In endorsing Farmers’ cheek for this amount, Tweet agreed to release Farmers from any material damage claim.

After paying Tweet’s property damage claim, Farmers submitted the claim to CSAA by way of subrogation. When a dispute arose as to the amount involved, Farmers took its claim against CSAA to arbitration, pursuant to industry practice. The arbitration panel awarded the full amount of the material damage claim paid to Farmers against CSAA and Farmers now has been reimbursed this amount.

Tweet claims bad faith refusal to settle his claims on the part of CSAA. In the alternative, Tweet claims fraud on the part of CSAA in that CSAA allegedly negotiated with Tweet without intending to reach a reasonable settlement. However, there are insufficient facts stated to show either and CSAA now moves for summary judgment on both issues.

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 676, 677 (9th Cir.1984). The evidence must be viewed in the light most favorable to the non-moving party. Ward by and through Ward v. United States Department of Labor, 726 F.2d 516, 517 (9th Cir.1984); Ruffin v. County of Los Angeles, 607 F.2d 1276, 1279 (9th Cir.1979), cert. denied, 445 U.S. 951, 100 S.Ct. 1600, 63 L.Ed.2d 786 (1980). Although the initial burden of showing no issue of material fact is on the proponent, Int. Un. of Bricklayers Etc. v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985); Zoslaw v. MCA Distributing Corp., 693 F.2d 870, 883 (9th Cir.1982), cert. denied, 460 U.S. 1085, 103 S.Ct. 1777, 76 L.Ed.2d 349 (1983), the opponent must then present some significant probative evidence tending to support his complaint. Compton v. Ide, 732 F.2d 1429, 1434 (9th Cir. 1984).

In the present case, Tweet negotiated his claim against CSAA with Robert Black, Divisional Claims Manager out of CSAA’s Reno District office and at the conclusion of these negotiations, Tweet was a resident of Nevada. Therefore, any alleged tort of bad faith refusal to settle took place in Nevada. Nevada’s choice of law’s rule remains the lex loci rule expressed in the line of cases starting with Mitrovich v. Pavlivoch, 61 Nev. 62, 114 P.2d 1084 (1941). See also Cambridge Filter v. Intern. Filter Co., Inc., 548 F.Supp. 1301, 1305 (D.Nev.1982); Southern Pacific Transp. Co. v. United States, 462 F.Supp. 1227 (E.D.Calif.1978). Therefore, Nevada law applies to this case. While California recognizes the existence of a statutory duty to negotiate settlements in good faith running from an insurer to a third party claimant, Royal Globe Ins. Co. v. Superior Court, 23 Cal.3d 880, 153 Cal.Rptr. 842, 592 P.2d 329 (1979), Nevada does not. See State ex rel Allen v. District Court, 69 Nev. 196, 245 P.2d 999 (1952) (third party claimant does not have a discoverable interest in the value of liability policy insuring alleged tortfeasor where Nevada statutes do not create a contractual relationship between insurer and such third party.) Under Nevada law, an insurer is liable to its insured for any bad faith refusal to settle. Liability is based on an implied covenant of good faith and fair dealing founded on the public policy of holding insurance companies responsible where such companies are quasi-public in nature and the insured necessarily relies heavily on the insurer’s credibility. U.S. Fidelity v. Peterson, 91 Nev. 617, 540 P.2d 1070 (1975). The Nevada court, however, has refused to extend this implied liability to other situations not involving the special element of reliance. See e.g., Aluevich v. Harrah’s, 99 Nev. 215, 660 P.2d 986 (1988) (requisite element of reliance not found between lessor and lessee.)

In this case, we need not consider whether a special element of reliance exists such that CSAA’s liability could run to a third party claimant as Tweet. Where Tweet states no specific facts which would support his contention that CSAA negotiated with him in bad faith, his mere conclusionary allegation that a cause of action for this tort exists is insufficient to defend against a motion for summary judgment.

Tweet also alleges fraud on the part of CSAA in settlement negotiations with Tweet. Although Tweet states that the elements of fraud under NRS 205.380 are: 1) intent to defraud; 2) false representation; 3) detrimental reliance; and 4) that the victim was defrauded, citing Bright v. Sheriff, 90 Nev. 168, 521 P.2d 371 (1974) (criminal fraud) and Sanguinetti v. Strecker, 94 Nev. 200, 206, 577 P.2d 404 (1978) (civil fraud) for application, Tweet fails to state specific facts showing where these elements existed in the present case. Tweet claims that CSAA entered into negotiations with him without the intent to make a reasonable settlement but does not state facts showing this to be true. Therefore, where Tweet has presented no evidence tending to support his complaint, summary judgment for his opponent is appropriate. Compton v. Ide, supra.

IT IS, THEREFORE, HEREBY ORDERED that defendant California State Automobile Association’s motion for summary judgment on all of the claims stated against it in this action is GRANTED.


author: MORAN, District Judge.

text:
    CITIZENS FOR A BETTER ENVIRONMENT, etc., and Martin Wojcik, Plaintiffs, v. Douglas M. COSTLE, Administrator, United States Environmental Protection Agency, et al., Defendant. INLAND STEEL COMPANY, et al., Plaintiffs, v. Douglas M. COSTLE, etc., et al., Defendants. PEOPLE OF the STATE OF ILLINOIS, et al., Plaintiffs, v. Douglas M. COSTLE, etc., et al., Defendants.
    No. 80 C 0003.
    United States District Court, N.D. Illinois, E.D.
    May 16, 1985.

      Robert E. Yuhnke, Boulder, Colo., for plaintiffs.
    Scott Slaughter, Richard Bozof and F. Henry Habicht III, Dept, of Justice, Washington, D.C., for defendants.
    John M. Cannon and Susan W. Wanat, Mid-America Legal Foundation, Chicago, 111., for intervenor defendants.
   MEMORANDUM AND ORDER

MORAN, District Judge.

Plaintiffs, Citizens for a Better Environment and Martin Wojcik, a citizen and resident of Illinois (hereinafter collectively referred to as “CBE”), have filed this action under section 304(a)(2) of the Clean Air Act, 42 U.S.C. § 7604(a)(2), against defendants William D. Ruckelshaus, the Administrator of the United States Environmental Protection Agency (“EPA”) and Valdas V. Adamkus, EPA’s Regional Administrator for Region Y. CBE has moved for clarification and for reconsideration of this court’s memorandum and order of December 27, 1983, dismissing count I for lack of subject matter jurisdiction. In count I CBE claimed, inter alia, that the EPA failed to perform a nondiscretionary duty under the Clean Air Act (the “Act”) by failing to promulgate regulations to remedy a deficiency the EPA found in Illinois’ implementation plan. CBE now seeks an order compelling the EPA to perform its non-discretionary duty pursuant to section 110(c)(1)(B) of the Act, 42 U.S.C. § 7410(c)(1)(B).

1. BACKGROUND

A. Statutory Background

The primary goal of the Clean Air Act is to protect the public’s health. Clean Air Act § 101(b)(1), 42 U.S.C. § 7401(b)(1). The Act places the responsibility for achieving this goal on both federal and state governments. Due to the states’ failure to adequately respond to the problem of air pollution, however, Congress has increasingly placed greater reliance on the federal government to ensure the states’ compliance. See, e.g., Union Electric Co. v. EPA, 427 U.S. 246, 249, 96 S.Ct. 2518, 2522, 49 L.Ed.2d 474, reh’g denied, 429 U.S. 873, 97 S.Ct. 189, 50 L.Ed.2d 154 (1976).

Accordingly, the Act required the EPA to adopt “national primary ambient air quality standards,” and the states to adopt “state implementation plans” (“SIPs”) designed to attain those standards by 1975. Nevertheless, many states failed to attain those standards, see 123 Cong.Rec. 18015 (1977) (statement of Act’s chief sponsor, Senator Muskie), and so Congress amended the Act in 1977. See Clean Air Act Amendments of 1977, Pub.L. No. 95-95, 91 Stat. 685 (1977). The 1977 Amendments added a new section, part D, for those states with “non-attainment areas.” Part D requires each state to revise its SIP for these non-attainment areas and section 172 of part D specifies the provisions required in the revised plans. Clean Air Act § 172(a)(1), (b)(1)-(10), 42 U.S.C. § 7502(a)(1), (b)(l)-(10). Section 172(a)(1) requires that the revised plan “provide for attainment” of the national primary standards “not later than December 31, 1982,” 42 U.S.C. § 7502(a)(1), and section 110(a)(2)(I) subjects states to a construction ban for failing to revise their SIPs. 42 U.S.C. § 7410(a)(2)(I). Moreover, section 110(c)(l)(A-B) provides that

“[t]he Administrator shall ... promptly prepare and publish proposed regulations setting forth an implementation plan, or any portion thereof, for a State if—
(A) the State fails to submit an implementation plan which meets the requirements of this section, [or] ■
(B) the plan, or any portion thereof ... is determined by the Administrator not to be in accordance with the requirements of this section____

42 U.S.C. § 7410(c)(l)(A-B) (emphasis added).

Judicial review of the Administrator’s actions (e.g., to adopt an SIP, to promulgate federal regulations, etc.), must be had in the courts of appeals. Clean Air Act § 307(b)(1), 42 U.S.C. § 7607(b)(1). Section 307(b)(1) provides, in pertinent part, that “review of the Administrator’s action in approving or promulgating any implementation plan ... or any other final action of the Administrator ... may be filed only in the United States Court of Appeals for the appropriate circuit.” 42 U.S.C. § 7607(b)(1). To remedy any action which after review the Court of Appeals finds arbitrary and capricious, section 307(d)(9) provides only that “the court may reverse any such action____” 42 U.S.C. § 7607(d)(9).

An order compelling the Administrator to perform a non-discretionary duty under the Act, however, must be had in the district courts. Clean Air Act § 304(a), 42 U.S.C. § 7604(a). Section 304(a) provides, in pertinent part, that

any person may commence a civil action ... (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator____ The district courts shall have jurisdiction ... to ... order the Administrator to perform such act or duty___

42 U.S.C. § 7604(a). See e.g., Council of Commuter Organizations v. Metropolitan Transportation Authority, 683 F.2d 663, 665 (2d Cir.1982).

B. Factual Background

Illinois was one of those states which failed to obtain the national primary standards, despite the existence of its approved SIP. Thus, pursuant to section 172, Illinois submitted a draft version of its revised plan on April 3, 1979, three months after the statutorily-mandated submittal date. Section 110(c)(1) requires federal rulemaking within six months of the submission if the Administrator finds that the SIP, or any portion of it, fails to satisfy the Act’s requirements. 42 U.S.C. § 7410(c)(1).

By January 8, 1980, the EPA had made no final decision regarding the sufficiency of Illinois’ SIP, nor had the EPA proposed federal rulemaking. CBE thus filed this action in federal district court and, in count 1, sought to compel federal rulemaking under section 304(a)(2), 42 U.S.C. § 7604(a)(2). The EPA moved to dismiss CBE’s complaint for lack of subject matter jurisdiction, but that motion was denied in Citizens for a Better Environment v. Costle, 515 F.Supp. 264 (N.D.Ill.1981) (“CBE I”). In CBE I this court found that “the states and the public are entitled to prompt EPA rulemaking to remedy any nonconforming provisions of the states’ submissions. And ... the duty to promulgate promptly federal rules is not discretionary under section 110(c)(1) and may be enforced pursuant to a ‘citizens suit’ in district court.” CBE I at 277.

Subsequent to this court’s decision in CBE I, the EPA published a notice of final rulemaking with respect to the Illinois SIP. 46 Fed.Reg. 44172, et seq. (Sept. 3, 1981). In that notice, the EPA approved, conditionally approved and disapproved specific portions of the SIP. The importance of that rulemaking for purposes of the instant action lies in the EPA’s disapproval of the regulation establishing a limitation on the emission of particulate matter from byproduct coke plant pushing operations. 46 Fed.Reg. 44178 (Sept. 3, 1981) (codified at 40 C.F.R. § 52.725(b)(2) (1984)).

Following the EPA’s September 1981 action, CBE filed a petition for review of the EPA’s decision to conditionally approve the Illinois SIP in the Seventh Circuit Court of Appeals, pursuant to section 307. 42 U.S.C. § 7607. CBE did not, however, seek review of the EPA’s decision to disapprove Illinois’ regulation controlling emissions from coke plant pushing operations. Instead, CBE sought an order from this court, under section 304, compelling the Administrator to perform his non-discretionary duty to propose federal rulemaking for those portions of Illinois’ SIP which the Administrator disapproved. Moreover, CBE challenged, in this court, EPA’s use of “conditional approvals,” claiming that this was merely a device by which the EPA could avoid its responsibilities under the Act.

On December 27, 1983, this court dismissed count I in Citizens for a Better Environment v. Costle, No. 80 C 0003 (N.D.Ill. Dec. 27, 1983) (“CBE II”). In CBE II this court was concerned with the possibility of disrupting the administrative process. CBE II, at 8. The EPA had conditionally approved Illinois’ SIP by determining that many provisions of the SIP did not conform to the Act’s requirements. Thus, the EPA had not approved or disapproved of these provisions. Although the Act does not specifically provide for conditional approvals, this court determined that review of the propriety of such action was properly before the Seventh Circuit Court of Appeals. Consequently, this court declined to exercise its questionable jurisdiction to order the EPA to promulgate federal regulations when it was unclear whether the EPA actually had a non-discretionary duty to act in that situation. Had the EPA disapproved the provisions, its non-discretionary duty to begin federal rulemaking would have been clear. The EPA had merely conditionally approved much of the SIP, however, and this court therefore dismissed count I for lack of subject matter jurisdiction.

Although the EPA had specifically disapproved several Illinois regulations as well, it had subsequently proposed to reverse this action. 47 Fed.Reg. 53000 et seq. (Nov. 24, 1982). At the time CBE II was decided, no final action had been taken regarding that proposed rulemaking. CBE II, at 7. This court correctly decided not to interfere in the ongoing administrative process. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967); Bethlehem Steel Corp. v. U.S.E.P.A., 536 F.2d 156, 161 (7th Cir.1976). An order compelling the Administrator to promulgate federal regulations would have preempted the Administrator’s discretionary authority to determine whether the regulations should be finally disapproved or whether the disapproval should be reversed. See CBE I, 515 F.Supp. 264, 274 (N.D.Ill.1981). See also Kennecott Copper Corp., Nevada Mines Div. v. Costie, 572 F.2d 1349, 1355 (9th Cir.1978).

The EPA has now exercised its discretion regarding each of the initial disapprovals of September 3, 1981. Three of the disapprovals were reversed. 48 Fed.Reg. 45245 (Oct. 4,1983). The EPA’s initial disapproval of Illinois’ regulation controlling emissions from coke plant pushing operations was not, however, reversed. Since the EPA has taken no other action to reverse this final disapproval, it can be concluded that the EPA has exercised its discretion and determined that the regulation does not meet the Act’s requirements. CBE, therefore, has moved to have this court reconsider its complete dismissal of count I in CBE II and to order the EPA to promulgate federal regulations as a substitute for the disapproved Illinois regulation, pursuant to section 110(c)(1)(B). 42 U.S.C. § 7410(c)(1)(B). CBE argues that disapproval triggers the EPA’s non-discretionary duty and therefore jurisdiction to order the EPA to act lies in the district court pursuant to section 7604. The EPA argues that jurisdiction lies in the court of appeals because the plan, as a whole, has been conditionally approved and therefore does not give rise to any non-discretionary duty. Industry intervenors agree with the EPA that jurisdiction lies in the court of appeals. Their argument, however, is based solely on the fact that the propriety of the disapproval is now pending review by the United States Court of Appeals for the Seventh Circuit in an action filed by the industry intervenors. See Supplemental Response of Steel Company Intervenor-Defendants (filed Oct. 17, 1984) at 1-2.

II. DISCUSSION

“[TJhe EPA has the power to partially approve revised as well as original plans submitted by the state.” Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028, 1034 (7th Cir.1984). See also Clean Air Act § 110(a)(2), 42 U.S.C. § 7410(a)(2) (“Administrator shall ... approve or disapprove such plan, or any portion thereof.”). It follows therefore that the EPA can partially disapprove revised plans.

The EPA conditionally approved Illinois’ revised implementation plan and set forth conditions which would have to be met before the plan could be approved. See 46 Fed.Reg. 44172 (Sept. 3, 1981). Illinois’ implementation plan was partially disapproved, however, since the EPA specifically disapproved several of the plan’s provisions, including the coke plant pushing regulation, which is the subject of this action. The EPA determined that these provisions failed to meet the Act’s requirements, in section 172(b)(3), 42 U.S.C. § 7502(b)(3), of reasonably available control technology.

The EPA argues that the coke plant pushing rule was not actually disapproved but was conditionally approved along with the remainder of Illinois’ plan. See Federal Defendants’ Response (filed Sept. 17, 1984) at 3. The EPA’s actions, however, appear to contradict its argument. The EPA gives separate and distinct meanings to the actions of “disapproval” and “conditional approval.” See 46 Fed.Reg. 44177 (Sept. 3, 1981). Here the EPA initially classified its action regarding the coke plant pushing rule as a “disapproval.” 46 Fed.Reg. 44178 (Sept. 3, 1981). Moreover, the EPA proposed to reconsider the specific disapproved provisions, thereby treating these disapprovals as separate from those provisions conditionally approved, Despite this proposed change the EPA determined that the coke plant pushing rule should remain disapproved while the status of the other disapproved provisions was changed. 48 Fed.Reg. 45245-46 (October 4, 1983). In addition, the EPA’s actions are consistent with the language of the Act which specifically provides that “[t]he Administrator shall ... approve or disapprove such plan, or any portion thereof.” Clean Air Act § 110(a)(2), 42 U.S.C. § 7410(a)(2).

The Act requires the EPA to promulgate federal regulations whenever the EPA determines that “an implementation plan, or portion thereof” does not comply with the Act’s requirements. Clean Air Act § 110(c)(1)(B), 42 U.S.C. § 7410(c)(1)(B). “This is the remedy Congress foresaw for state inaction or ineffectiveness,” Sierra Club v. Indiana-Kentucky Electric Corp., 716 F.2d 1145, 1153 (7th Cir.1983), and this remedy is not left to the EPA’s discretion. CBE I, 515 F.Supp. 264, 277 (N.D.Ill.1981). The EPA has disapproved Illinois’ coke plant pushing rule because the rule does not comply with the Act’s requirements and, therefore, “the intended remedy is for the EPA to act.” Sierra Club, 716 F.2d at 1153. Even if the EPA had conditionally approved this regulation, it must also act where the state was given the opportunity to correct the deficiency, yet failed to do so. See Connecticut Fund for the Environment v. EPA, 672 F.2d 998 (2d Cir.) cert. denied, 459 U.S. 1035, 103 S.Ct. 445, 74 L.Ed.2d 601 (1982). Here the regulation was disapproved on September 3, 1981. The Act’s deadline for attainment, December 31, 1982, has come and gone, and still, in May 1985, the deficiency has yet to be remedied. The Act now requires the EPA to promulgate federal regulations.

Congress designed the Act’s citizen suit provision, Clean Air Act § 304, 42 U.S.C. § 7604, to “enable citizens to bring suit ... to enforce ... requirements of the Act.” H.R.Rep. No. 1742, 94th Cong., 2d Sess. 115 (1976). Section 304 uses mandamus, as opposed to review, language to give the district courts jurisdiction in citizen suits to compel the EPA to act. Section 307 gives courts of appeals jurisdiction to review and, if necessary, to reverse the EPA’s actions. Unfortunately, the distinction between “the failure to act and the failure to act properly” is not always clear. See 41 Fed.Reg. 56, 768 (1976) (Recommendation 76-4).

To clarify an ambiguous statute a court must first look to Congress’ intent. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, — U.S. -, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694, reh’g denied, — U.S.-, 105 S.Ct. 28, 82 L.Ed.2d 921 (1984). Congress, however, was silent with respect to this issue, although the potential problem was raised by the Administrative Conference of the United States during a hearing regarding the Clean Air Act Amendments of 1977. See Clean Air Act Amendments of 1977: Hearing Before the Subcommittee on Environmental Pollution and Public Works, 95th Cong., 1st Sess. 249 (1977). The Administrative Conference recommended that “actions to compel or postpone the issuance of regulations whose validity would properly be determined in a court of appeals” be heard exclusively by the court of appeals. Id. Congress took no action with respect to this recommendation.

In the absence of specific congressional intent the court must interpret the statute to resolve ambiguities. The issue here is whether the district court should exercise its jurisdiction to compel the EPA to perform its non-discretionary duty to promulgate a federal regulation to replace a disapproved state regulation, in light of the fact that a petition to review the EPA’s disapproval has been filed in the court of appeals. This specific issue has never been addressed by this or (to the court’s knowledge) any other court. The court faced a similar issue in City of Highland Park v. Train, 374 F.Supp. 758 (N.D.Ill.1974), affd 519 F.2d 681 (7th Cir.1975), cert. denied 424 U.S. 927, 96 S.Ct. 1141, 47 L.Ed.2d 337 (1976), but was able to avoid addressing the issue when it found that plaintiff had failed to comply with the Act’s filing requirements. Id. at 767. Recently, however, a similar issue was addressed in Indiana & Michigan Electric Co. v. U.S.E.P.A., 733 F.2d 489 (7th Cir.1984). In Indiana & Michigan Electric the EPA had approved Indiana’s revised SIP while it simultaneously announced that it was taking no action regarding one provision of the SIP. A utility company promptly sought review of the EPA’s decision to approve the plan and review of its decision to withhold action regarding one of the plan’s provisions.

The EPA argued that the district court had jurisdiction over the EPA’s alleged failure to act, but the court of appeals disagreed. The court found that district courts were given jurisdiction over “agency-inaction” cases because those courts are equipped to develop a record. In Indiana Michigan Electric, however, the EPA’s decision not to take action was set forth in the rulemaking record and thus the problem of developing a record for review was not a concern. 733 F.2d 489, 490-91 (7th Cir.1984). The court, therefore, held that “judicial review of an EPA order approving or promulgating, in whole or part, a state implementation plan, original or revised, lies in the courts of appeals under section 307 even when the challenge to the order includes a contention that the EPA failed to do something it had no discretion not to do.” Id. at 491.

The court clearly stated that “[t]he utilities are not asking that the EPA be ordered to act on the [specific provision]. They are asking that the EPA’s order adopting the revised plan without the provision be set aside. That is section 307 relief.” Id. CBE, on the other hand, seeks section 304 relief. CBE does not seek judicial review of the EPA’s decision to disapprove the coke plant pushing rule. CBE, in fact, agrees that the rule should be disapproved since it fails to meet the Act’s requirements.

It is the industry intervenors that seek review of the disapproval in this case. Industry intervenors seek to have this disapproval set aside so that the coke plant pushing rule promulgated by Illinois will be put into effect. CBE, on the other hand, seeks promulgation of a federal rule which meets the Act’s requirements.

Thus, the actions before the court of appeals and before the district court are not identical. In the court of appeals the industry intervenors seek review and reversal of the EPA’s disapproval of the coke operations pushing rule. In the district court CBE seeks the court to compel the EPA to fill the gap left by its disapproval. Therefore, the concern in Indiana & Michigan Electric with needlessly adding “another layer to the review process” is not present in this case. Id. at 491.

In addition, limited judicial resources will not be expended unnecessarily and there is no risk of inconsistent decisionmaking if this court exercises its jurisdiction. To illustrate, the court of appeals may act in one of three ways: dismiss the pending review, affirm the EPA’s disapproval, or find the disapproval arbitrary and capricious.

It is possible that the court of appeals will dismiss the action seeking review of the disapproval on the ground that disapproval is not final administrative action and therefore is not ripe for judicial review. Utah International, Inc. v. EPA, 478 F.2d 126, 127 (10th Cir.1973); Big Rivers Electric Corp. v. E.P.A., 523 F.2d 16, 18 (6th Cir.1975), cert denied, 425 U.S. 934, 96 S.Ct. 1663, 48 L.Ed.2d 175 (1976); Public Service Co. of Indiana v. U.S.E.P.A., 682 F.2d 626, 637-38 (7th Cir.1982), cert. denied, 459 U.S. 1127, 103 S.Ct. 762, 74 L.Ed.2d 977 (1983). Disapproval places no regulation into effect but merely reactivates the administrative process. Utah International, at 127. Moreover, the industry intervenors are challenging an action which is “part of a continuing agency decision-making process which has not yet resulted in an order requiring compliance by the petitioners.” Bethlehem Steel Corp. v. EPA, 536 F.2d 156, 161 (7th Cir.1976). See also Commonwealth Edison Co. v. Train, 649 F.2d 481, 485 (7th Cir.1980); Board of Trade of City of Chicago v. Commodity Futures Trading Comm’n, 704 F.2d 929, 932 (7th Cir.1983). Thus, there is no hardship to the industry intervenors, as they might allege had a regulation been approved or promulgated which required their compliance. When a regulation is promulgated it will clearly be reviewable. Therefore, the court of appeals might properly find that “[i]n light of these factors and the strong national interest in furthering the mandate of the Clear Air Act, judicial action is not warranted at this time; action which would further delay the already prolonged program to develop and maintain an unpolluted environment.” Id. at 164. If this court were also to dismiss the instant action, CBE would have to begin the process anew in the district court. By exercising its jurisdiction, this court hopes to avoid further delay by the EPA in complying with the Clean Air Act.

On the other hand, the court of appeals may affirm the EPA’s disapproval. This will merely reinforce the EPA’s existing mandatory duty to promulgate federal regulations. If this court were to dismiss the instant action, CBE would then have to retrace its steps and file the same action, under section 304, 42 U.S.C. § 7604, to have the district court compel the EPA’s action. By exercising its jurisdiction this court will have avoided that additional delay.

Finally, the court of appeals may find the EPA’s disapproval to be arbitrary and capricious. That scenario does raise the possibility of needless administrative action in the interim. Even there, however, agency action is not forever frozen in time, and consideration of further agency action becomes part of an ongoing administrative process. In any case, there is no concern over inconsistent judicial decisions because the court of appeals’ decision would go to the propriety of the EPA’s disapproval, while this court’s decision would not involve the propriety of the disapproval but would merely order the EPA to act. These decisions would not conflict.

A discussion of what action the court of appeals may take, however, is merely speculative. Congress specifically provided the district courts jurisdiction to grant the relief CBE seeks “to order the Administrator to perform [a non-discretionary] act.” Clean Air Act § 304(a)(2), 42 U.S.C. § 7604(a)(2). As the Court of Appeals for the District of Columbia Circuit recently stated:

Given this unusually self-contained statutory scheme, there is no room in which to import the well-founded presumption against bifurcation of judicial forums. . However economical we may find exclusive court of appeals review ... to be, it is one thing to read notions of judicial economy into statutory terms capable of assimilating them and quite another to read out Congress’ jurisdictional terms in order to accommodate our own policy preferences.

Lotion v. U.S. Nuclear Regulatory Comm’n, 712 F.2d 1472, 1478 (D.C.Cir. 1983), cert. granted, — U.S.-, 104 S.Ct. 1676, 80 L.Ed.2d 152 (1984). See also City of Highland Park v. Train, 374 F.Supp. 758, 767 (N.D.Ill.1974). Similarly, this court should not disturb the bifurcated and mutually exclusive jurisdictional scheme which Congress has provided under the Clean Air Act.

CONCLUSION

After reconsideration of its decision in CBE II, the court now denies the EPA’s motion to dismiss that part of count I which seeks to compel the EPA to perform its non-discretionary duty to promulgate regulations to replace the disapproved Illinois rule regarding coke plant pushing operations. At the time CBE II was decided, the EPA had pending a proposal to reverse its disapproval of the coke plant pushing rule. The EPA did not subsequently reverse its disapproval, however, and now the disapproval triggers the EPA’s duty to adopt federal regulations. Despite over two years’ passage since the Act’s original deadline for attainment, and over three years’ passage since the EPA’s original decision disapproving the rule, the EPA has yet to propose alternate federal regulations, as the Act requires. To enforce the Act’s requirements Congress provided the district courts with jurisdiction to compel the EPA to perform its statutory, non-discretionary duties. Therefore, this court has jurisdiction to enforce the Act’s requirements.

      . Section 307(d)(9) of the Clean Air Act deviates from its model, the Administrative Procedure Act, which provides that "the reviewing court shall ... compel agency action unlawfully withheld.” 5 U.S.C. § 706. Instead, Congress provided the district courts with jurisdiction to compel agency action pursuant to section 304 of the Clean Air Act. 42 U.S.C. § 7604. In addition, Congress made clear that section 706 of the APA is not to apply to actions reviewed pursuant to section 307(d)(1) of the Clean Air Act by specifically providing that “section 706 of title 5 shall not, except as expressly provided in this subsection, apply to actions to which this subsection applies. 42 U.S.C. § 7607(d)(1).

      . This is consistent with the jurisdiction conferred upon the district courts pursuant to the Mandamus and Venue Act, 28 U.S.C. § 1361.

      . In its notice of final rulemaking on the revisions to Illinois’ SIP, the EPA separated the summary of its action into four distinct categories: (1) approval and effected sources; (2) conditional approval; (3) disapproval; and (4) no action. The coke plant pushing rule was listed in the "disapproval" category. See 46 Fed.Reg. 44177 (Sept. 3, 1981).

      . Similarly, this case is to be distinguished from those in which petitioners seek simultaneous review in both the district court and the court of appeals, see e.g., Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654 (D.C.Cir.1975), Center of Auto Safety v. EPA, 558 F.Supp. 103 (D.C.Cir.1983), because "the Administrator act[ed], but in view of the challengers [has not] act[ed] far enough.” Oljato Chapter of Navajo Tribe, at 661, n. 9 (D.C.Cir.1975). Here CBE is content with the EPA’s disapproval.

      . In fact, the court of appeals has to'date taken no action.