author: PER CURIAM.

text:
    David JORDAN and Sammie Chestnut, on behalf of the Greenwood Voters League, Individually and on behalf of others similarly situated, Plaintiffs, v. William WINTER, Governor of Mississippi; T.H. Campbell, III, Chairperson, Bill Harpole, Vice-Chairperson, J.C. “Con” Maloney, Secretary, and their successors in office, Joint Congressional Redistricting Committee; Brad Dye, Lieutenant Governor of Mississippi and President of the Senate; and Clarence B. “Buddie” Newman, Speaker of the House of Representatives, Defendants. Owen H. BROOKS, Sarah H. Johnson, Rev. Harold R. Mayberry, Willie Long, Robert E. Young, Thomas Morris, Charles McLaurin, Samuel McCray, Robert Jackson, Rev. Carl Brown, June E. Johnson, and Lee Ethel Henry, individually and on behalf of others similarly situated, Plaintiffs, v. William F. WINTER, Governor of Mississippi; Edwin L. Pittman, successor in office to William A. “Bill” Allain, Attorney General of Mississippi; Dick Molpus, successor in office to Edwin Lloyd Pittman, Secretary of State of Mississippi, in their official capacities and as members of the Mississippi State Board of Election Commissioners; State Board of Election Commissioners, Mississippi Democratic Executive Committee, Mississippi Republican Executive Committee, Defendants.
    Civ. A. Nos. GC 82-80-WK-0, GC 82-81-WK-0.
    United States District Court, N.D. Mississippi, Greenville Division.
    April 16, 1984.

      Frank R. Parker, Patricia Hanrahan, Sidney Bixler, Lawyers’ Committee for Civil Rights Under Law, Washington, D.C., Johnnie E. Walls, Jr., Greenville, Miss., Robert B. McDuff, University, Miss., for plaintiff O.H. Brooks.
    Alvin O. Chambliss, North Miss. Rural Legal Services, Oxford, Miss., Willie Perkins, North Miss. Rural Legal Services, Greenwood, Miss., for plaintiffs D. Jordan.
    Edwin L. Pittman, Atty. Gen. of Miss., Jackson, Miss., Jerris Leonard, Kathleen Heenan MeGuan, Washington, D.C., Hubbard T. Saunders, IV, Champ Terney, R. Scott Levanway, Jackson, Miss., for State defendants.
    Danny E. Cupit, pro se.
    Michael B. Wallace, Jackson, Miss., for Republican defendants.
    Before CLARK, Chief Circuit Judge, SENTER, Chief District Judge, and KEADY, Senior District Judge.
   ON REMAND FROM THE UNITED STATES SUPREME COURT

PER CURIAM.

On June 8, 1982, this court ordered into effect on an interim basis a congressional redistricting plan for the State of Mississippi. Jordan v. Winter, 541 F.Supp. 1135, 1144-45 (N.D.Miss.1982). On appeal, the United States Supreme Court vacated this court’s judgment and remanded the case for further consideration in light of Section 2 of the Voting Rights Act of 1965, 461 U.S. 921, 103 S.Ct. 2077, 77 L.Ed.2d 291 (1983).

This court held an evidentiary hearing in December of 1983. On the basis of the evidence adduced at trial and the pleadings, briefs, and argument of counsel, we concluded that the court-ordered plan, or Simpson Plan, violated amended § 2. The court found that the structure of the Second Congressional District in particular unlawfully diluted black voting strength. Accordingly, on January 6, 1984, we entered judgment directing the use, until the Mississippi Legislature enacts a valid congressional redistricting plan, of an interim plan fashioned by the court with the aid of the parties. Pursuant to the reservation set out in that final judgment, we now enter Findings of Fact and Conclusions of Law in support of that judgment, in conformity with Fed.R.Civ.P. 52(a).

I. Procedural History

The history of the legislative and judicial efforts to secure a constitutional congressional redistricting plan for the State of Mississippi is set out in our prior decision in Jordan v. Winter, 541 F.Supp. 1135 (N.D.Miss.1982). Only a brief summary is required here.

The 1980 official census revealed a total population disparity in Mississippi’s 1972 congressional districting plan of 17.6%. Recognizing the constitutional problem posed by such malapportionment, see U.S. Const. Art 1, § 2; Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the Mississippi Legislature in 1981 enacted S.B. 2001 for redistricting the state’s five congressional districts. The Attorney General of the United States, after reviewing the plan pursuant to the preclearance provisions of Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, interposed a timely objection on March 30, 1982. The Attorney General found the plan defective because it divided the concentration of black majority counties located in the northwest or “Delta” portion of the state among three districts rather than concentrating them in a single district. He concluded that this configuration constituted an unlawful dilution of minority voting strength.

The Mississippi Legislature did not attempt to enact another plan or otherwise to obtain preclearance from the Attorney General. On April 7, 1982, it filed a declaratory judgment action in the United States District Court for the District of Columbia seeking judicial preclearance of S.B. 2001. Mississippi v. Smith, No. 82-0956. That action has since been voluntarily dismissed.

The Jordan and Brooks plaintiffs then filed class actions to enjoin enforcement of S.B. 2001 until it was precleared, to prohibit further use of the 1972 plan because of population malapportionment, and to secure a court-ordered interim plan for the 1982 congressional elections and thereafter until changed by law. A three-judge district court was convened pursuant to 28 U.S.C. § 2284. Jurisdiction was based on 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C. § 1973j(f). This court declined to place the unprecleared S.B. 2001 into effect on an interim basis and concluded that the 1972 plan was unconstitutionally malapportioned and therefore also unsuitable for interim use. Jordan v. Winter, 541 F.Supp. at 1142. It thus limited its consideration to two plans advocated by the plaintiffs and one advocated by the AFL-CIO as amicus curiae.

Plaintiffs urged the court to order into effect either of two plans devised by Senator Henry J. Kirksey, a black state legislator. Both plans kept the Delta area intact •and achieved black majority districts by combining the Delta area with predominantly black portions of Hinds County and the City of Jackson. 541 F.Supp. at 1140. Plaintiffs’ preferred plan (Kirksey Plan 1) contained one district that was 64.37% black; the alternative plan (Kirksey Plan 2) contained one district that was 65.81% black. Id. The plan urged by the AFL-CIO, the “Simpson Plan,” combined fifteen Delta and part-Delta counties with six predominantly white eastern rural counties to produce four majority white districts and one district with a black population majority of 53.77%. Id. at 1141. The Kirksey Plan 1 had a total population variance of .2150%; the Kirksey Plan 2 a variance of .230%, and the Simpson plan a variance of .2141%.

The court was bound by Upham v. Seamon, 456 U.S. 37, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982), to fashion an interim plan that adhered to the state’s political policies to the extent those policies did not violate the Constitution or the Voting Rights Act. 541 F.Supp. at 1141. The court determined that the following political policies underlay the passage of S.B. 2001:

(1) Minimal change from 1972 district lines; (2) least possible population deviation; (3) preservation of the electoral base of incumbent congressmen; and (4) establishment of two districts with 40% or better black population.

Id. at 1143. Because the Simpson Plan most nearly accorded with the latter three policies, which the court found to be constitutionally and statutorily valid, we ordered it into effect on an interim basis. That plan was used for the 1982 congressional elections. It is depicted on a map appended to our prior decision, id. at 1146, and is statistically described as follows:

District Total Population Deviation %Deviation %Black

1 504,671 +543 + .1077 25.86

2 504,697 +569 + .1128 53.77

3 503,760 -368 -.0729 31.23

4 503,893 -235 -.0466 45.25

5 503,617 -511 -.1013 19.84

Although the Second District under the Simpson Plan was a majority black district (53.77%), it had a minority black voting age population of 48.05%.

Analysis of The Simpson Plan under the standard established is amended § 2 of the Voting Rights Act of 1965 reveals its invalidity.

II. Amended Section 2

Section 2 of the Voting Rights Act of 1965, as amended, presently reads:

Sec. 2(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement .of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 4(f)(2), as provided in subsection (b).
(b) a violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

42 U.S.C.A. § 1973 (West Supp.1983). The amendment to Section 2 was designed to eliminate the requirement, prescribed in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), that a plaintiff demonstrate intentional discrimination to establish a violation of section 2.

We reject the contention of the Republican Defendants that Section 2, if construed to reach discriminatory results, exceeds Congress’s enforcement power under the fifteenth amendment. We agree with the analysis and conclusion set out in Major v. Treen, 574 F.Supp. 325, 342-349 (E.D.La.1983) (three judge court), which rejected a similar assault on the constitutionality of Section 2. We therefore adopt that treatment of this issue without repetition here.

The Senate Judiciary Report on the amendment states that the “results” language of new Section 2 was meant to “restore the pre-[City of Mobile v.] Bolden legal standard which governed cases challenging electoral systems or practices as an illegal dilution of the minority vote.” Senate Report at 27, U.S.Code Cong. & Admin. News 1982, p. 205. The Report then enumerates the factors courts should consider in deciding whether plaintiffs have established a violation of Section 2. These factors, derived from the Supreme Court’s opinion in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), as applied in this Circuit in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1973) (en banc), aff'd on other grounds sub. nom East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976), include, but are not limited to:

1. The extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;
2. The extent to which voting is racially polarized;
3. The extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group;
4. If there is a candidate slating process, whether the members of the minority group have been denied access to that process;
5. The extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
6. Whether political campaigns have been characterized by overt or subtle racial appeals;
7. The extent to which members of the minority group have been elected to public office in the jurisdiction.

Senate Report at 28-29, U.S.Code Cong. & Admin.News 1982, p. 206 (footnotes omitted). The Report also cites for consideration, as additional factors probative of a violation of Section 2: (1) whether elected officials are unresponsive to the needs of minority group members; and (2) whether the policy underlying the challenged procedure is “tenuous.” Id. at 29, U.S.Code Cong. & Admin.News 1982, p. 207. No particular number of these factors need be proved. Id.

III. Amended Section 2 and the Simpson Plan

The court finds that the aggregate of the following factors shows that the Simpson Plan unlawfully dilutes minority voting strength.

A. Past Discrimination

That Mississippi has a long history of de jure and de facto race discrimination is not contested. That history has been often recounted in judicial decisions and in-eludes the use of such discriminatory devices as poll taxes, literacy tests, residency requirements, white primaries, and the use of violence to intimidate blacks from registering for the vote. The State is a covered jurisdiction under the Voting Rights Act of 1965. The Attorney General has designated 42 of the counties in Mississippi for federal registrar enforcement of the right to vote.

We find that the effects of the historical official discrimination in Mississippi presently impede black voter registration and turnout. Black registration in the Delta area is still disproportionately lower than white registration. No black has been elected to Congress since the Reconstruction period, and none has been elected to statewide office in this century. Blacks hold less than ten percent of all elective offices in Mississippi, though they constitute 35% of the state’s population and a majority of the population of 22 counties.

The evidence of socio-economic disparities between blacks and whites in the Delta area and the state as a whole is also probative of minorities’ unequal access to the political process in Mississippi. Blacks in Mississippi, especially in its Delta region, generally have less education, lower incomes, and more menial occupations than whites. The State of Mississippi has a history of segregated school systems that provided inferior education to blacks. See United States Commission on Civil Rights, Voting in Mississippi, pp. 3-4 (1965). Census statistics indicate lingering effects of this past discrimination: the median family income in the Delta Region (Second District) for whites is $17,467, compared to $7,447 for blacks; more than half of the adult blacks in the Second District have attained only 0 to 8 years of schooling, while the majority of white adults in this District have completed four years of high school; the unemployment rate for blacks is two to three times that for whites; and blacks generally live in inferior housing.

B. Racial Bloc Voting

Plaintiffs have established that voters in Mississippi have previously voted and continue to vote on the basis of the race of candidates for elective office. The state defendants had conceded as much prior to the 1982 elections, but attempted to show at trial that the 1982 campaign in the Second District was not characterized by racial bloc voting. The evidence defendants presented was that the black Democratic candidate, Robert Clark, received approximately 15% of the white vote in the 1982 general election and that Clark won the Democratic nomination in a primary contest against white opponents. The primary election in the Second District conducted under our prior plan was characterized by confusion and low voter turnout due to a variety of factors, including uncertainty about election dates, the recent realignment of the district, and the lack of an incumbent. The race was additionally atypical because of a court order allowing Republican voters to participate in the Democratic primary. Clark’s victory in the primary was followed by defeat in the general election — a defeat we find was caused in part by racial bloc voting. Plaintiffs' proof, also based on analysis of these election returns, demonstrated a consistently high degree of racially polarized voting in the 1982 election and previous elections. From all of the evidence, we conclude that blacks consistently lose elections in Mississippi because the majority of voters choose their preferred candidates on the basis of race. We therefore find racial bloc voting operates to dilute black voting strength in Congressional districts where blacks constitute a minority of the voting age population. Since the Second District under the Simpson Plan does not have a majority black voting age population, the presence of racial bloc voting in that district inhibits black voters from participating on an equal basis with white voters in electing representatives of their choice. As the Supreme Court held in Rogers v. Lodge, 458 U.S. 613, 623, 102 S.Ct. 3272, 3279, 73 L.Ed.2d 1012 (1982):

Voting along racial lines allows those elected to ignore black interests without fear of political consequences, and without bloc voting the minority candidates would not lose elections solely because of their race.

C. The State Policies Underlying the Simpson Plan

This court previously adopted the Simpson Plan for interim use primarily because it conformed to the State legislature’s policy of favoring the division of the black population of the State into two “high impact” districts rather than concentrating it into one district. 541 F.Supp. at 1143-44. The results test required by Section 2 precludes dependence on this policy. The combination of six predominantly white eastern counties with the Delta region’s black population, when considered in light of the effects of past discrimination on black efforts to participate in political affairs and the existence of racially polarized voting, operated to minimize, cancel, or dilute black voting strength in the Second District. Kirksey v. Board of Supervisors, 554 F.2d at 150; see Major v. Treen, 574 F.Supp. at 354; Hartman, Racial Vote Dilution and Separation of Powers; An Exploration of the Judicial “Intent” and the Legislative “Results” Standards, 50 Geo. Wash.L.Rev. 689, 695 (1982). Our previous opinion relied on United States v. Forrest County Board of Supervisors, 571 F.2d 951 (5th Cir.1978), and Wyche v. Madison Parish Police Jury, 635 F.2d 1151 (5th Cir.1981). Neither involved evidence of racial bloc voting. They are no longer apposite.

D. Other Factors

Plaintiffs produced.other persuasive evidence that the political processes in Mississippi were not equally open to blacks. Evidence of racial campaign tactics used during the 1982 election in the Second District supports the conclusion that Mississippi voters are urged to cast their ballots according to race. This inducement to racially polarized voting operated to further diminish the already unrealistic chance for blacks to be elected in majority white voting population districts.

IV. The Court-Ordered Interim Plan

In devising a plan to replace our prior plan for the impending election, we recognized the obligation to: (1) achieve the least possible deviation from the one person, one vote ideal, Chapman v. Meier, 420 U.S. 1, 26-27, 95 S.Ct. 751, 765-66, 42 L.Ed.2d 766 (1975); (2) design a plan that is not racially discriminatory in either purpose or effect, McDaniel v. Sanchez, 452 U.S. 130, 148, 101 S.Ct. 2224, 2235, 68 L.Ed.2d 724 (1981); and (3) adhere to the state’s policies except to the extent such policies are violative of either the Constitution or the Voting Rights Act, Upham v. Seamon, 456 U.S. 37, 102 S.Ct. 1518, 1520-21, 71 L.Ed.2d 725 (1982).

The plan ordered into effect by our final judgment of January 6, 1984, meets these requirements. The statistics of that plan are set out below.

Congressional District Total Population Percent Variance From the Norm Black Population %Black Total Voting Age Pop. (VAP) Black VAP %Black VAP

1' 504,077--.0101% 124,136 24.63% 346,074 74,165 21.43%

2 504,024 -.0206% 293,838 58.30% 322,719 170,491 52.83%

3 504,242 + .0226% 161,710 32.07% 348,524 98,478 28.26%

4 504,187 + .0117% 211,714 41.99% 346,370 129,618 37.42%

5 504,108 -.0040% 95,808 19.01% 342,754 57,068 16.65%

Range .0432

The interim plan was constructed under these criteria: create a rural Delta-River area district with a black voting age population majority; achieve minimal deviation from the ideal population per congressional district of 504,128; create districts containing voters with similar interests; preserve the electoral base of incumbents; and comply with the legislative goal of achieving high impact districts without splintering cohesive black populations.

We recognize that the creation of a Delta district with a majority black voting age population implicates difficult issues concerning the fair allocation of political power. See A. Howard & B. Howard, The Dilemma of the Voting Rights Act— Recognizing the Emerging Political Equality Norm, 83 Colum.L.Rev. 1615 (1983). Although the use of a r^ce-conscious remedy for discrimination, approved by' the Supreme Court in United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977), can come into tension with Congress’ disclaimer in amended § 2 of any right to proportional representation, the plan we have adopted fully rectifies the dilution of black voting strength in the Second District and satisfies the requirements of amended § 2 without achieving proportional representation for blacks in Mississippi.

The court rejected alternative plans offered by plaintiffs which would achieve a significantly higher black voting age population (approximately 60%) in the Second District. Plaintiffs argue that a black voting age population of such preponderance is required for blacks to elect representatives of their choice. Amended § 2, however, does not guarantee or insure desired results, and it goes no further than to afford black citizens an equal opportunity to participate in the political process. In commenting upon the § 2 amendment, Senator Dole, a leading sponsor of the compromise legislation, stated: “Citizens of all races are entitled to have an equal chance of electing candidates of their choice, but if they are fairly afforded that opportunity and lose, the law should offer no remedies.” Senate Report at 193, U.S.Code Cong. & Admin.News 1982, p. 364. In the opinion of this court, after considering the totality of the circumstances, the creation of a Second District with a clear black voting age population majority of 52.83% is sufficient to overcome the effects of past discrimination and racial bloc voting and will provide a fair and equal contest to all voters who may participate in congressional elections. Credible expert testimony received in this case supports this conclusion. Additionally, plaintiffs’ plans are an obvious racial gerrymander which would bring into the Second District overwhelmingly black sections of the City of Jackson and its suburbs; these inner-city, metropolitan areas have little in common with the interests of the predominantly rural Delta region. Also, plaintiffs’ plans unnecessarily dilute black voting strength in the Fourth District. The Fourth District presently has a black population of 45.25%. The evidence presented indicates this is a factor in making the Fourth District representative reasonably receptive and sensitive to the needs of the black community. The plan adopted necessarily reduces the black population of the Fourth District to 41.99%. To further reduce the black population in the Fourth District to 33.7 or 33.83% as proposed by plaintiffs (541 F.Supp. at 1140) would diminish the impact of black voters in that district. Although the plans proposed by plaintiffs would probably insure the election of a black congressman in the Second District, the attempt to gain this election guaranty, which § 2(b) expressly disclaims, would have a certain adverse effect on the impact of the black voters in the Fourth District. Because of these considerations, we conclude that a black voting age population majority of 52.83% achieved under the court’s plan will remedy the defect we now perceive in the Simpson Plan under the amended § 2.

We are cognizant that our court-ordered interim plan does not provide a compact geographical configuration for the Second District. However, it consists of rural Delta and river counties with similarities of interest; avoids gerrymandering a substantial portion of metropolitan Jackson into a district with these rural or farm counties; and yields the least adverse impact on the black voting influence in the Fourth District.

A specific description of the five congressional districts as established in our final judgment of January 6, 1984, and map outlining these districts, are attached.

APPENDIX

CONGRESSIONAL DISTRICTS ESTABLISHED BY FINAL JUDGMENT OF JANUARY 6, 1984

The boundaries of all counties, supervisors’ districts, and precincts listed below shall be such boundaries as they existed on July 1, 1981 (see 541 F.Supp. 1135 at 1145, N.D.Miss.1982), with the exception of the supervisors’ districts and precincts referred to are those defined and incorporated in the Consent Judgment entered on October 26, 1983, by the United States District Court for the Southern District of Mississippi in Cause No. H-83-0200(R) styled Jones County Branch, NAACP v. Jones County, Mississippi.

District No. 1 shall consist of the following whole counties:
Alcorn Itawamba Montgomery Tishomingo
Benton Lafayette Pontotoc Union
Calhoun Lee Prentiss Webster
Chickasaw Marshall Tate Yalobusha
DeSoto Monroe Tippah
together with the following parts of counties:
Choctaw County All except for the Panhandle precinct;
Panola County All except for the precincts of Crenshaw, Curtis, East Crowder, Longtown, Pleasant Grove, and South Curtis;
Tallahatchie County All precincts located in Supervisors’ Districts 1, 2, and 3.
District No. 2 shall consist of the following whole counties:
Bolivar Holmes Leflore Tunica
Carroll Humphreys Quitman Warren
Claiborne Issaquena Sharkey Washington
Coahoma Jefferson Sunflower
Grenada
together with the following parts of counties:
Attala County The precincts of McAdams, Newport, Sallis, Shrock, and Possumneck;
Hinds County The precincts of Bolton, Brownsville, Cayuga, Chapel Hill, Dry Grove, Edwards, Learned, Pinehaven, Pocahontas, Raymond 1, Raymond 2, Tinnin, Utica 1, and Utica 2;
Madison County All except the precinct of Ridgeland;
Panola County The precincts of Crenshaw, Curtis, East Crowder, Longtown, Pleasant Grove, and South Curtis;
Tallahatchie County All precincts located in Supervisors’ Districts 4 and 5'
District No. 3 shall consist of the following whole counties:
Clarke Lauderdale Newton Scott
Clay Leake Noxubee Smith
Jasper Lowndes Oktibbeha Winston
Kemper Neshoba
together with the following parts of counties:
Attala County All except for the precincts of McAdams, Newport, Sallis, Shrock, and Possum-neck;
Chocktaw County The Panhandle precinct;
Jones County All new precincts located in new Supervisors' Districts Nos. 1, 2, and 5; The new Blackwell precinct in new Supervisors' District No. 4; and All of new Supervisors’ District 3 except the new precincts of Glade, Ovett, and Tuckers;
Madison County The Ridgeland precinct;
Rankin County All except for the precincts of Cato, Clear Branch, County Line, Dobson, Dry Creek, Johns, Mountain Creek, Puckett, and. Star.
District No. 4 shall consist of the following whole counties:
Adams Franklin Lincoln Simpson
Amite Jeff. Davis Marion Walthall
Copiah Lawrence Pike Wilkinson
Covington
together with the following parts of counties:
Hinds County All except the precincts of Bolton, Brownsville, Cayuga, Chapel Hill, Dry Grove, Edwards, Learned, Pinehaven, Pocahontas, Raymond 1, Raymond 2, Tinnin, Utica 1, and Utica 2.
Rankin County The precincts of Cato, Clear Branch, County Line, Dobson, Dry Creek, Johns, Mountain Creek, Puckett, and Star.
District No. 5 shall consist of the following whole counties:
Forrest Hancock Lamar Stone
George Harrison Pearl River Wayne
Greene Jackson. Perry
together with the following parts of counties:
Jones County All new precincts in new Supervisors’ District 4 except the new Blackwell Precinct; and In new Supervisors' District 3, the new precincts of Glade, Ovett, and Tuckers.

The statistics for each of the five congressional districts defined above are as follows:

Congressional District Total Population Percent Variance from the Norm Black Population % Black Total Voting Age Pop. (VAP) Black VAP % Black VAP

1 504,077 -.0101% 124,136 24.63% 346,074 74,165 21.43%

<M 504,024 -.0206% 293,838 58.30% 322,719 170,491 52.83%

CO 504,242 +.0226% 161,710 32.07% 348,524 98,478 28.26%

504,187 +.0117% 211,714 41.99% 346,370 129,618 37.42%

U3 504,108 -.0040%. 95,808 19.01% 342,754 57,068 16.65%

Range .0432

      . 1981 Mississippi Laws (Extraordinary Sess.) Ch. 8.

      . Mississippi is a covered jurisdiction under § 5 of the Voting Rights Act, and S.B. 2001 was a change in voting standards, practices, or procedures within the meaning of § 5.

      . The Mississippi Delta consists of the following counties: Bolivar, Carroll, Coahoma, DeSoto, Grenada, Holmes, Humphreys, Issaquena, Leflore, Panola, Quitman, Sharkey, Sunflower, Tallahatchie, Tate, Tunica, Warren, Washington, and Yazoo. Mississippi’s congressional districting plans from 1882 to 1966 all contained a district encompassing most of the Delta counties. 541 F.Supp. at 1139 and n. 2. Maps depicting the congressional districts as they existed under the 1962 plan and under S.B. 2001 are attached. District 2 of the 1962 plan contains most of the Mississippi Delta.

      . As to the first policy, the court recognized that the validity of the Attorney General’s conclusion that drawing lines for Districts 1, 2, and 3 from east to west unlawfully diluted black voting strength was the primary issue in the proceedings then pending in the District Court of the District of Columbia. It therefore accepted, without indicating any view as to its validity, the Attorney General’s conclusion. 541 F.Supp. at 1143.

      . S.1992 amends Section 2 of the Voting Rights Act of 1965 to prohibit any voting practice, or procedure [which] results in discrimination. This amendment is designed to make clear that proof of discriminatory intent is not required to establish a violation of Section 2____
      S.Rep. No. 417, 97th Cong.2d Sess. 2, reprinted in 1982 U.S.Code Cong. & Ad.News 177, 179 (hereinafter cited as Senate Report). See Jones v. City of Lubbock, 727 F.2d 364 (5th Cir.1984); Jordan v. City of Greenwood, 711 F.2d 667, 668-69 (5th Cir.1983); Buchanan v. City of Jackson, 708 F.2d 1066, 1072 (6th Cir.1983); Campbell v. Gadsden County School Board, 691 F.2d 978, 981, n. 4 (11th Cir.1982); Seamon v. Upham, 563 F.Supp. 396 (E.D.Tex.1983); Major v. Treen, 574 F.Supp. 325, 342 (E.D.La.1983); Blumstein, Defining and Proving Race Discrimination: Perspectives on the Purpose v. Results Approach from the Voting Rights Act, 69 Va.L.Rev. 633, 689-70 (1983); Hartman, Racial Vote Dilution and Separation of Powers: An Exploration of the Conflict Between the Judicial “Intent” and the Legislative "Results" Standards, 50 Geo.Wash.L. Rev. 689, 726 (1982).
      The Republican Defendants have argued that amended Section 2 preserves the requirement of proving discriminatory intent. We find this argument to be meritless as it runs counter to the plain language of amended § 2, its legislative history, and judicial and scholarly interpretation.

      . See, e.g., United States v. Mississippi, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717 (1965); Kirksey v. Board of Supervisors, 554 F.2d 139, 144 (5th Cir.1977); Moore v. Leflore County Board of Election Commissioners, 502 F.2d 621, 624 (5th Cir.1974), aff'g 361 F.Supp. 603, 605 (N.D.Miss. 1972); Mississippi v. United States, 490 F.Supp. 569, 575 (D.D.C.1979), aff'd, 444 U.S. 1050, 100 S.Ct. 994, 62 L.Ed.2d 739 (1980).

      . The courts have recognized that disproportionate education, employment, income level and living conditions arising from past discrimination tend to depress minority political participation, e.g. White [v. Regester], 412 U.S. at 768, [93 S.Ct. at 2340]; Kirksey v. Board of Supervisors, 554 F.2d 139, 145 [ (5th Cir. 1977) ]. Where these conditions are shown, and where the level of black participation in politics is depressed, plaintiffs need not prove any further causal nexus between their disparate socio-economic status and the depressed level of political participation.
      Senate Report No. 417, 97th Congress 2d Sess. at 29, n. 114, U.S.Code Cong. & Admin.News 1982, p. 207.

      . One campaign television commercial sponsored by the white candidate whose slogan was “He’s one of us" opened and closed with a view of Confederate monuments accompanied by this audio message:
      You know, there’s something about Mississippi that outsiders will never, ever understand. The way we feel about our family and God, and the traditions that we have. There is a new Mississippi, a Mississippi of new jobs and new opportunity for all our citizens, [video pan of black factory workers] We welcome the new, but we must never, ever forget what has gone before, [video pan of Confederate monuments] We cannot forget a heritage that has been sacred through our generations.


source: Caselaw Access Project

author: MILBURN, District Judge.

license: Public Domain

text:
    BOWATER NORTH AMERICA CORPORATION, Plaintiff, v. MURRAY MACHINERY, INC., Murray Southern, Inc., Alabama Industrial Fabricators, Inc., Logan R. Ritchie, Jr., and Edgardo Manuel Diaz, Defendants, and MURRAY MACHINERY, INC. & Murray Southern, Inc., Third-Party Plaintiffs, v. J.M. FOSTER, INC., Harry Tobey and Hoff and Associates, Third-Party Defendants.
    Civ. No. 1-82-520.
    United States District Court, E.D. Tennessee, S.D.
    May 4, 1984.
    Raymond R. Murphy, Jr., James R. Buckner, Miller & Martin, Chattanooga, Tenn., for plaintiff.
    Logan R. Ritchie, Jr., Consulting Engineer, P.C.; W.B. Luther, Luther, Anderson, Cleary & Ruth, Chattanooga, Tenn., for J.M. Foster, Inc.
    W. Neil Thomas, III, Thomas, Mann & Gossett, P.C., Chattanooga, Tenn., for third-party defendant Dr. Harry G. Tobey.
    George L. Foster, Hall, Haynes, Lusk & Foster, Chattanooga, Tenn., for third-party defendant pro se Hoff & Associates.
    Edgardo Manuel Diaz, pro se.
    R. Vann Owens, Leitner, Warner, Owens, Moffitt, Williams & Dooley, Chattanooga, Tenn., for Alabama Industrial Fabricators, Inc.
    W. Ferber Tracy, and Mark Ramsey, Spears, Moore, Rebman & Williams, Chattanooga, Tenn., Ruder, Ware, Michler & Forester, S.C., Wausau, Wis., for Murray Machinery, Inc. and Murray Southern, Inc.
   MEMORANDUM

MILBURN, District Judge.

This cause is presently before the Court for interpretation of a Settlement Agreement and Release (hereinafter, agreement) which was prepared by the parties to settle and compromise disputes arising out of the purchase of a long log boom by Bowater North America Corporation (hereinafter, Bowater) from Murray Machinery, Inc. and Murray Southern, Inc. (hereinafter, Murray). The present dispute is over the method of calculating a cash settlement and future credits to be provided to Bowater in its purchases of Murray products.

The part of the agreement with which the present controversy is concerned reads as follows:

WHEREAS, Murray has agreed to pay to Bowater the sum of Two Hundred Fourteen Thousand and No/100 Dollars ($214,000) in cash; has agreed to sell to Bowater such of its products and replacement parts from Murray’s product line as Bowater shall, from time to time, select and has agreed to provide Bowater credit of Two Hundred Eighty-Six Thousand and No/100 Dollars ($286,000) as against said future purchases which are to be credited at 10% off Murray’s standard sales price for like products; and
WHEREAS, Bowater has agreed to make said purchases as soon as possible and in no event more than thirty-six (36) months of the date of signing, (emphasis added)
WHEREAS, Bowater and Murray agree that any dispute regarding the credits to be provided under this agreement shall be resolved in accordance with and pursuant to the construction industry arbitration rules of the American Arbitration Association and that any such determination shall be binding;
NOW, THEREFORE, for and in consideration of the mutual promises and releases given by the parties to this Agreement and in consideration of the payment by Murray, Alabama and Foster to Bowater of the total amount of Two Hundred Sixty-Four Thousand Dollars ($264,000) in cash and the agreement by Murray to sell its products to Bowater and to provide future credits against such sales in the amount of Two Hundred Eighty-Six Thousand Dollars ($286,-000) as set forth above, the parties to this agreement hereby agree as follows:

Bowater contends that the language “which are to be credited at 10% off Murray’s standard sales price for like products” means that Bowater is going to get its next $286,000 worth of parts and equipment purchases from Murray without charge. Furthermore, the price Bowater will be charged for this equipment, for the purpose of applying the credits against the price, will be 10% less than Murray’s list price. For example, if Bowater buys a machine with a $300,000 list price, the amount of the credit would be ($300,000-$30,000 = $270,000) $270,000.

On the other side, Murray contends the disputed language means that the 10% credit is accumulated until $286,000 is attained. For example, if Bowater buys a machine with a $300,000 list price the amount of the credit would be $30,000 and Bowater would pay $270,000 and have ($286,000 - $30,000 = $256,000) $256,000 worth of credit left for the next machine purchase. The difference between purchasing $317,777.77 of Murray machinery at list price for no charge ($317,777.77 - 10% = $286,000) and between purchasing $2,860,000 of Murray machinery for $2,574,000.00 ($2,860,000.00 -10% = $2,574,000.00) is over 2V2 million dollars.

The dispute over the meaning and method of calculation of the credits in this case is real. It is not the result of mistake. Mistake exists, in a legal sense, where a person acting upon some erroneous conviction, either of law or fact, executes some instrument, or does some act, or omits to do some act, which but for that erroneous conviction, he would not have executed, done or omitted. State ex rel. Mathes v. Gilbreath, 181 Tenn. 498, 504, 181 S.W.2d 755 (Tenn.1944). The parties agreed to the language used and executed a document; they presently disagree over the meaning of the language describing the calculation of the credits.

As a matter of black letter law arbitration is a matter of contract, and the contours of the arbitrator’s authority in a given case are determined by reference to the arbitral agreement. Parties to such an agreement cannot be required to submit to arbitration any matter that they did not agree would be subject to that manner of dispute resolution. Davis v. Chevy Chase Financial, Ltd., 667 F.2d 160, 165 (D.C.Cir.1981). Plaintiff argues that the only reasonable conclusion is that the language of the arbitration paragraph is only applicable to disputes which might involve the prices of Murray products. Plaintiff argues:

There is no question but that Bowater is to receive $286,000 in credit. That as a fact is not controverted. The provision relied on by Murray has to do only with the price which Bowater is to be charged, i.e., 10% off list price, it does not deal with the credit Bowater is to receive____ Thus, Bowater believes there is no dispute within the terms of the arbitration provision for the simple reason that there is no dispute as to the amount of the credit which Bowater is to receive. Likewise, there is no dispute as to the price of Murray’s products at this point and the only language relied on by Murray has to do with the price charged.

Plaintiff’s brief filed March 12, 1984, at 6.

The agreement provides internally for disputes which involve credits. The agreement states:

WHEREAS, Bowater and Murray agree that any dispute regarding the credits to be provided under this agreement shall be resolved in accordance with and pursuant to construction industry rules of the American Arbitration Association and that any such determination shall be binding;

Contrary to the plaintiff’s characterization of this dispute as a matter of price change, not a matter of how credit is to be applied, the Court believes that the dispute is over the meaning of the language describing the calculation of the credits. Therefore, this dispute must be submitted to arbitration because the language of the settlement agreement states that “any dispute regarding the credits to be provided under this agreement shall be resolved in accordance with ... arbitration.” The plain meaning of the agreement requires disputes over credits to be arbitrated.

An appropriate order will enter.


author: SCOTT O. WRIGHT, Chief Judge.

text:
    Charles A. FRITTS and Joyce Ann Fritts, Plaintiffs, v. Trooper Robert L. NIEHOUSE, et al., Defendants.
    No. 83-4324-CV-C-5.
    United States District Court, W.D. Missouri, C.D.
    Sept. 17, 1984.

      D. Patrick Sweeney, David W. Ansley, James B. Condry, Woolsey, Fisher, Whiteaker, McDonald & Ansley, Springfield, Mo., Philip S. Huffman, Hartville, Mo., for plaintiffs.
    Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, Mo., for defendants.
   ORDER

SCOTT O. WRIGHT, Chief Judge.

Presently pending before the Court is defendant Niehouse’s motion to dismiss Count V of the first amended complaint. Counts I through IV, asserted solely by plaintiff Charles Fritts, involve a § 1983 claim as well as pendent state law claims for assault, battery, and false imprisonment. Count V is a loss of consortium claim asserted solely by Charles Fritts’s wife, Joyce Fritts.-

The difficult legal issue presented here is whether the Court has subject matter jurisdiction over Joyce Fritts's consortium claim. The jurisdictional bases of Charles Fritts’s lawsuit are 28 U.S.C. §§ 1331, 1343. Diversity does not exist between the plaintiffs and defendants. Defendant Niehouse contends that, in the absence of an independent basis of subject matter jurisdiction, Count V must be dismissed. Plaintiffs rely upon United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), and assert that the consortium claim is cognizable under the Court’s pendent jurisdiction.

In analyzing this issue, the Court has considered four plausible arguments: (1) the Court has independent subject matter jurisdiction over the consortium claim; (2) the Court has ancillary jurisdiction over the consortium claim; (3) the Court has pendent jurisdiction over the consortium claim; and (4) the Court lacks jurisdiction over the consortium claim. For the reasons set forth below, the Court must reject the first three alternatives and accept the last one. Consequently, Count V will be dismissed, not as a matter of discretion, but for want of federal subject matter jurisdiction.

I. No Independent Subject Matter Jurisdiction over Count V

The weakest argument in support of jurisdiction over Joyce Fritts’s consortium claim is that the Court has independent subject matter jurisdiction under either 28 U.S.C. § 1331 or 28 U.S.C. § 1343. The problem with this argument is that the right of consortium is grounded solely in state law. E.g., Manley v. Horton, 414 S.W.2d 254 (Mo.1967); Shepherd v. Consumers Cooperative Ass’n, 384 S.W.2d 635 (Mo.1964) (en banc). The right of consortium has never been identified as a substantive federal right. E.g., Buikema v. Hayes, 562 F.Supp. 910 (N.D.Ill.1983); Walters v. Village of Oak Lawn, 548 F.Supp. 417 (N.D.Ill.1982); Leopold v. Birkett, 523 F.Supp. 525 (E.D.N.Y.1981). Thus, the consortium claim is not directly cognizable under the federal question jurisdictional statute nor under the civil rights jurisdictional statute because Joyce Fritts has not alleged any deprivation of a federal right. See Missouri ex rel. Gore v. Wochner, 620 F.2d 183 (8th Cir.), cert. denied, 449 U.S. 875, 101 S.Ct. 218, 66 L.Ed.2d 96 (1980) (no § 1343 jurisdiction over state law claim); Schantz v. White Lightning, 502 F.2d 67 (8th Cir.1974) (no § 1331 jurisdiction over state tort claim); see also Parratt v. Taylor, 451 U.S. 527, 544, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981) (not every deprivation of state law rights by state officers is actionable under 42 U.S.C. § 1983).

II. No Ancillary Jurisdiction over Count V

The second argument in support of federal court jurisdiction over Joyce Fritts’s consortium claim is that it is ancillary to her husband’s cause of action. Although the distinction between “ancillary jurisdiction” and “pendent jurisdiction” is less than clear in situations like the one presented here, the term “ancillary jurisdiction” is employed in the instant case only in analyzing whether, treating Count V as an application by Joyce Fritts to intervene as of right, intervention would be permitted. Ancillary jurisdiction is said to exist where a nonparty is granted leave to intervene as of right pursuant to Fed.R. Civ.P. 24(a). E.g., Owen Equip. & Erection Co. v. Kroger, 437 U.S. at 375 n. 18, 98 S.Ct. at 2403 n. 18. Thus, if Joyce Fritts’s consortium claim satisfies the requirements of Fed.R. Civ.P. 24(a)(2), ancillary jurisdiction over Count V would exist.

In order to intervene as of right, a prospective intervenor must establish four conditions: (1) her motion must be timely; (2) she must have a significantly protectable interest relating to the subject matter of the primary lawsuit; (3) the disposition of the primary lawsuit must threaten to impair her ability to protect that interest; and (4) her interest must not be adequately represented by existing parties. United Nuclear Corp. v. Cannon, 696 F.2d 141, 143 (1st Cir.1982). The first two parts of this test are easily satisfied in the instant case. Moreover, although it is unclear whether an adverse decision on Charles Fritts’s claim would bar a subsequent action by Joyce Fritts, there is a sufficiently strong possibility of such an occurrence to hold that the third part of the intervention test also has been met. Thus, the focal issue concerning intervention is whether Joyce Fritts’s interests would be adequately represented by her husband.

A prospective intervenor’s burden of showing inadequacy of representation has been described as “minimal.” Trbovich v. United Mine Workers of America, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 636 n. 10, 30 L.Ed.2d 686 (1972). Nevertheless, the Court finds that Joyce Fritts’s interests would be fully represented by her husband in this lawsuit. Both spouses have been diligently represented by the same counsel throughout this matter. In addition, the interests of both spouses are identical. Consequently, treating Joyce Fritts as an applicant for intervention, it is evident that she would not be granted leave to intervene as of right in this lawsuit because her “application” fails to satisfy the fourth prong of the intervention test. Accordingly, the Court holds that it lacks ancillary jurisdiction over Joyce Fritts’s consortium claim.

III. No Pendent Party Jurisdiction over Count V

The argument that Joyce Fritts is a proper pendent party offers the greatest promise to support the Court’s jurisdiction over the consortium claim. There are two threshold requirements to the exercise of pendent party jurisdiction. First, in order to fit within the contours of Article III, § 2 of the United States Constitution, the federal claim and the pendent claim must arise out of a common nucleus of operative facts. Owen Equip. & Erection Co. v. Kroger, 437 U.S. at 371-72, 98 S.Ct. at 2401; Aldinger v. Howard, 427 U.S. at 14-19, 96 S.Ct. at 2420-22. Second, to ensure that the pendent party claim comes within the statutory limits of federal subject matter jurisdiction, the Court must examine the posture in which the non-federal claim is asserted and the specific statute that confers jurisdiction over the federal claim in order to decide whether Congress has negated the existence of jurisdiction over the particular non-federal claim. Owen Equip. & Erection Co. v. Kroger, 437 U.S. at 372-73, 98 S.Ct. at 2401-02; Aldinger v. Howard, 427 U.S. at 18, 96 S.Ct. at 2422.

Turning to the facts of the instant case, the Court finds that the first jurisdictional hurdle is easily satisfied; there can be no doubt that Joyce Fritts’s consortium claim shares a common nucleus of operative facts with her husband's federal cause of action. Accordingly, the Court holds that Count V meets the constitutional threshhold to federal jurisdiction.

The plaintiffs rely heavily on the factual similarity between the two claims and contend that to require two separate lawsuits for such closely related matters would be grossly inefficient. Although the inefficiency of which plaintiffs complain is not as great as it might appear at first blush, this Court is inclined to agree that maintenance of multiple actions under these circumstances will defeat the goal of judicial economy. Yet, more is involved here than the value of efficiency, for the addition of a pendent plaintiff in this lawsuit would cut against “the well-established principle that federal courts____are courts of limited jurisdiction marked out by Congress.” Aldinger v. Howard, 427 U.S. at 15, 96 S.Ct. at 2420. Instead, the Court must pay close attention to the posture of the consortium claim and the statutes granting jurisdiction over the main claim in order to decide if Congress intended to allow the exercise of pendent party jurisdiction in a case of this nature. Id. at 18, 96 S.Ct. at 2422.

Aldinger v. Howard is the leading case concerning pendent party jurisdiction. Unfortunately, the Supreme Court set forth an extremely vague standard in that case. Consequently, this Court finds that it has precious little guidance in resolving the difficult and important issue presented here. In Aldinger, the Supreme Court dealt with a relatively easy case since it found “express” congressional direction to exclude counties as pendent party defendants where federal jurisdiction rested on 42 U.S.C. § 1983 and 28 U.S.C. § 1343. In the instant case, however, this Court has no more direction from Congress than the plain language of the jurisdiction-granting statutes, 28 U.S.C. §§ 1331, 1343. While neither statute on its face appears to allow the exercise of pendent plaintiff jurisdiction, this Court must confess that there is too little evidence to render its inquiry into congressional intent conclusive. Therefore, instead of attempting to divine congressional intent in a virtual vacuum, the Court deems it a wiser approach to trace the development of pendent party jurisdiction through the case law and to appraise the instant case in the light of this development.

The appropriate starting point is United Mine Workers of America v. Gibbs. There, the Supreme Court held that federal jurisdiction over a pendent state law claim exists whenever it shares a “common nucleus of operative fact” with the plaintiff’s federal claim. 86 S.Ct. at 1138. In the wake of Gibbs, the United States Court of Appeals for the Eighth Circuit recognized pendent plaintiff jurisdiction over a wife’s claim for loss of consortium where the federal court had jurisdiction over the injured husband’s lawsuit. Hatridge v. Aetna Cas. & Surety Co., 415 F.2d 809 (8th Cir.1969) (Blackmun, J.). Hatridge involved a state court action brought by both spouses which was removed to federal court in its entirety even though the wife’s claim did not satisfy the requisite amount for diversity jurisdiction. Id. at 814-16. Despite the lack of independent subject matter jurisdiction, the Eighth Circuit relied on Gibbs and held that pendent jurisdiction existed over the wife. The court explained that pendent jurisdiction in such a case “makes good sense; it avoids forum shopping and multiple actions; it tends to reduce'costs for litigants; and it avoids the waste of already heavily burdened judicial time.” Id. at 817.

The validity of the Hatridge case was subsequently thrown into doubt by three Supreme Court cases decided in the following decade. In Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), the Court held that where jurisdiction over a class action is predicated on diversity of citizenship, each class member’s claim must independently satisfy the jurisdictional amount. In so holding, the Court refused to permit the plaintiffs to aggregate their claims in order to confer jurisdiction on the federal court even though their factual allegations were virtually identical. Next, in Aldinger v. Howard, the Court distinguished between the doctrine of pendent claims and the concept of pendent parties, and indicated that the jurisdictional barriers to the latter are quite restrictive. 427 U.S. at 14-16, 96 S.Ct. at 2420-21. The only instance in which the Court expressly suggested that pendent party jurisdiction might exist is where the federal courts enjoy exclusive jurisdiction over the federal claim. Id. at 18, 96 S.Ct. at 2422. Finally, in Owen Equip. & Erection Co. v. Kroger, the Court held that a plaintiff may not assert a claim against a third-party defendant in the absence of an independent jurisdictional basis. In so holding, the Court noted that the advancement of judicial economy is not in itself a sufficient reason to expand a federal court’s jurisdiction, particularly where the efficiency sought by the plaintiff was available at all times in the state courts. 437 U.S. at 374-77, 98 S.Ct. at 2403-04.

Recognizing the impact of Zahn, Aldinger, and Kroger, the Eighth Circuit has noted that Hatridge probably is no longer good law. North Dakota v. Merchants Nat’l Bank & Trust Co., 634 F.2d 368, 372 n. 7 (8th Cir.1980). This Court agrees. Accordingly, the Court holds that it lacks pendent plaintiff jurisdiction over Joyce Fritts’s claim for loss of consortium. This holding is in accord with the decisions of virtually all federal courts that have considered this issue recently. See Red Elk v. Vig, 571 F.Supp. 422 (D.S.D.1983) (no pendent plaintiff jurisdiction over wrongful death claim); Buikema v. Hayes, 562 F.Supp. 910 (N.D.Ill.1983) (no pendent plaintiff jurisdiction over loss of consortium claim); Walters v. Village of Oak Lawn, 548 F.Supp. 417 (N.D.Ill.1982) (same); Leopold v. Birkett, 523 F.Supp. 525 (E.D.N.Y.1981) (same).

The Court’s holding rests upon the elementary fact that federal courts enjoy only limited jurisdiction as circumscribed by Congress. Simply stated, there is no statute in existence which even arguably confers federal jurisdiction over Joyce Fritts’s consortium claim. In addition, there are no extraordinary circumstances present here which militate in favor of an ad hoc exercise of pendent party jurisdiction. It is true that it would be more efficient if this Court were to entertain Count V; however, “the addition of a completely new party would run counter to the well-established principle that federal courts, opposed to state trial courts of general jurisdiction, are courts of limited jurisdiction.” Aldinger v. Howard, 427 U.S. at 15, 96 S.Ct. at 2420. Moreover, the efficiency sought by plaintiffs was at all times available in Missouri state court. Owen Equip. & Erection Co. v. Kroger, 437 U.S. at 376, 98 S.Ct. at 2404. Finally, the Court notes that the exercise of pendent plaintiff jurisdiction here would extend well beyond the type of pendent defendant jurisdiction which the Supreme Court rejected in Aldinger; instead, the instant situation most closely resembles Zahn, where the Supreme Court forcefully repudiated the assertion of pendent plaintiff jurisdiction despite the fact that the federal and non-federal claims arose from a “common nucleus of operative fact.” Consequently, in the absence of an independent basis for subject matter jurisdiction, this Court is constrained to dismiss Count V for want of federal jurisdiction.

IV. CONCLUSION

In the final analysis, there is no clear answer to the “subtle and complex” issue presented here. Courts and litigants alike are in need of guidance, for the uncertainty attendant to this issue can have devastating effects. Consequently, this Court believes that it would be beneficial to future litigants as well as the parties in this case to render a separate final judgment of dismissal on Count V in the hope that the appellate court can rule on this important question as soon as possible. In so doing, the Court notes that its holding is a pure ruling of law; although many district courts bolster their dismissals of pendent plaintiff claims by stating that they would exercise discretion to reach the same result even if they had jurisdictional power, e.g., Red Elk v. Vig, 571 F.Supp. at 426 n. 6, this Court wishes to emphasize that if it had discretion to entertain Count V, it would readily do so in the interests of judicial economy. Accordingly, it is hereby

ORDERED that Count V — Joyce Fritts’s loss of consortium claim — is dismissed for want of federal subject matter jurisdiction. It is further

ORDERED that, there being no just reason for delay, the dismissal of Count V shall be entered by the Clerk of the Court as a separate final judgment pursuant to Fed.R.Civ.P. 54(b).

      . Defendant does not contend that the Court lacks jurisdiction over Charles Fritts’s state law claims. Indeed, in view of the factual similarity between Charles Fritts's federal and state claims, the latter fall squarely within the Court’s pendent claim jurisdiction. See United Mine Workers of America v. Gibbs, 383 U.S. at 725-27, 86 S.Ct. at 1138-39. The difficulty with Count V, however, inheres in the fact that Joyce Fritts is attempting to assert her consortium claim under the doctrine of pendent party jurisdiction. See Aldinger v. Howard, 427 U.S. 1, 14-16, 96 S.Ct. 2413, 2420-21, 49 L.Ed.2d 276 (1976) (pendent party jurisdiction more difficult to maintain than pendent claim jurisdiction).

      . See, e.g., Buikema v. Hayes, 562 F.Supp. at 911 (discussing pendent and ancillary jurisdiction as one concept); Walters v. Village of Oak Lawn, 548 F.Supp. at 419-20 (same); see generally C. Wright, Handbook of the Law of Federal Courts § 9, at 23-24 (3d ed. 1976); id. § 19, at 75-77. Generally, the term "pendent jurisdiction" is used in analyzing situations where a plaintiff attempts to join a non-federal claim against an existing defendant or to join an additional defendant over whom independent federal jurisdiction is lacking. In contrast, the term "ancillary jurisdiction” typically is used where a non-party requests leave to intervene as of right in an ongoing lawsuit or where a defendant seeks to assert a compulsory counterclaim, cross-claim, or third-party claim. In addition to this plaintiff/non-plaintiff dichotomy, a further distinction between the two doctrines is that even where the power of pendent jurisdiction exists, the Court retains discretion to decline exercising this power. United Mine Workers of America v. Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139. In contrast, where the power to exercise ancillary jurisdiction exists, considerations of judicial discretion ordinarily are not implicated. See, e.g., Baker v. Gold Seal Liquors, 417 U.S. 467, 469 n. 1, 94 S.Ct. 2504, 2506 n. 1, 41 L.Ed.2d 243 (1974). Aside from these two differences, it is uncertain whether there are any other distinctions between pendent and ancillary jurisdiction. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 370 n. 8, 98 S.Ct. 2396, 2401 n. 8, 57 L.Ed.2d 274 (1978).

      . In general, there are two threshhold requirements to ancillary jurisdiction. Owen Equip. & Erection Co. v. Kroger, 437 U.S. at 376, 98 S.Ct. at 2404. First, the ancillary claim must be logically dependent on the main claim. Id. This requirement is satisfied in the instant case because Mrs. Fritts’s consortium claim is derivative of, and dependent upon, her husband's claim. E.g., Burrow v. Moyer, 519 S.W.2d 568, 572 (Mo.App.1975). The second, and more problematic, threshhold requirement is that the ancillary claim must be asserted "by a defending party haled into court against his will, or by another person whose right might be irretrievably lost unless he could assert them in an ongoing action in a federal court.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. at 376, 98 S.Ct. at 2404. Since Joyce Fritts is a plaintiff in this action and has not been “haled into court against her will,” the issue here is whether her right of consortium would be "irretrievably lost” unless she could assert it in this federal court proceeding.
      Ordinarily, the test of whether a person’s rights would be "irretrievably lost” is identical to the standard for intervention as of right embodied in Fed.R.Civ.P. 24(a). In the instant case, however, this issue is further complicated by Mo.R.Civ.P. 66.01(c), which provides that, upon notice by the defendant, the claims of the injured spouse and the consortium spouse must be joined in “one action.” See, e.g., Cline v. Carthage Crushed Limestone Co., 504 S.W.2d 118, 120-21 (Mo.1974) (if defendant gave proper notice, consortium spouse is barred from maintaining separate action). In view of this rule of Missouri civil practice, the Court has carefully considered whether dismissal of Count V would cause Joyce Fritts’s consortium claim to be "irretrievably lost” and has concluded that Mo.R. Civ.P. 66.01(c) would not bar a separate state court action by Mrs. Fritts to assert her right of consortium. Two reasons support this conclusion. First, the language and underlying policy of the Missouri procedural rule indicate that it is designed merely to preclude multiple actions for personal injuries and loss of consortium in Missouri state courts. See Furlow v. Campbell, 459 S.W.2d 284, 286 (Mo.1970) (Mo.R.Civ.P. 66.01(c) was designed to promote efficiency in the Missouri state court system). Thus, the Missouri procedural rule simply is not implicated here because, consistent with the rule, Mrs. Fritts's lawsuit will be the "one action” burdening the state courts. Consequently, as a matter of Missouri law and policy, it appears that Mo.R.Civ.P. 66.01(c) will not cause the consortium claim to become "irretrievably lost.” See Cline v. Carthage Crushed Limestone Co., 504 S.W.2d at 121 (Missouri procedural rules "should never be so interpreted ... as to work a denial of justice").
      Second, and more significant, it would be anomalous to hold that a state rule of civil procedure can effect an expansion of federal court jurisdiction. Just as it is axiomatic that the Federal Rules of Civil Procedure cannot expand federal court jurisdiction, Aldinger v. Howard, 427 U.S. at 9, 96 S.Ct. at 2418, it is equally evident that a state procedural rule cannot create ancillary jurisdiction where it would not otherwise exist. Consequently, to the extent that Mo.R.Civ.P. 66.01(c) purports to require a federal court to entertain a state law claim in the absence of any jurisdictional basis, it runs afoul of the Supremacy Clause. U.S. Const, art. VI. Therefore, the Court holds that Mo.R.Civ.P. 66.01(c) does not call for an ad hoc exercise of ancillary jurisdiction in this case; instead, it will be sufficient to consider the ancillary jurisdiction issue solely in the context of the federal standard for intervention as of right.

      . If intervention as of right would be permitted under the instant circumstances, it would exalt form over substance to hold that ancillary jurisdiction does not exist merely because Joyce Fritts joined in this lawsuit as a party-plaintiff instead of filing a separate application to intervene.

      . By joining as a party-plaintiff in this lawsuit, Joyce Fritts's assertion of her consortium claim could not be more timely. In addition, it is evident that she has an interest in the main claim herein because her claim is derivative of her husband’s action for personal injuries. Indeed, if Mrs. Fritts were to bring a separate, subsequent action against the defendants, it appears that she would be able to assert offensive collateral estoppel in the event of a decision favorable to her husband. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979); Oates v. Safeco Ins. Corp. of Am., 583 S.W.2d 713 (Mo.1979) (en banc).

      . The crucial issue here would be whether, under Missouri law concerning the defensive use of collateral estoppel, a husband and wife are deemed in privity with respect to the latter’s claim for loss of consortium. Several older Missouri cases appear to hold that no privity exists under these circumstances. E.g., Marusic v. Union Electric Co., 377 S.W.2d 454, 459 (Mo.1964); Elmore v. Illinois Terminal R. Co., 301 S.W.2d 44, 48 (Mo.App.1957). These cases are distinguishable, however because they involved attempts by plaintiff spouses to assert offensive collateral estoppel at a time before Missouri abandoned the doctrine of mutuality; here, the situation would involve the defensive use of collateral estoppel by a defendant who has successfully defended against the injured spouse’s lawsuit. Moreover, a separate line of Missouri cases strongly suggests that, since a claim for loss of consortium is derivative of the injured spouse’s action for personal injuries, an adverse decision in the main action bars a subsequent consortium claim. E.g., Burrow v. Moyer, 519 S.W.2d 568, 572 (Mo.App.1975) (where spouses join as plaintiffs in a single lawsuit and the verdict goes against the injured spouse, the consortium spouse cannot recover as a matter of law). Thus, although it is difficult to predict which line of authority would prevail, it is evident that an adverse decision in Charles Fritts’s lawsuit “may as a practical matter" impair Joyce Fritts’s efforts to protect her right of consortium. Fed.R.Civ.P. 24(a)(2) (emphasis added).

      . Initially, it might appear that two separate lawsuits would entail two full-blown trials involving the identical issue of defendant’s liability vis-a-vis Charles Fritts. Under prior Missouri law, this would have been true. See, e.g., Marusic v. Union Electric Co., 377 S.W.2d 454, 459 (Mo.1964) (consortium spouse cannot use collateral estoppel against defendant previously held liable to injured spouse). Today, however, both federal and Missouri courts have abandoned the doctrine of mutuality and have opened their doors to the offensive use of collateral estoppel. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979); Oates v. Safeco Ins. Co. of Am., 583 S.W.2d 713 (Mo.1979) (en banc). Accordingly, in a subsequent state court action Joyce Fritts should be able to preclude relitigation of all common issues of fact in the event that her husband prevails in this lawsuit.

      . In Aldinger, the Court announced:
      "Before it can be concluded that [pendent party] jurisdiction exists, a federal court must satisfy itself not only that Art. Ill permits it, but that Congress in the statutes conferring jurisdiction has not expressly or by implication negated its existence.”
      427 U.S. at 18, 96 S.Ct. at 2422. Although this test appears to be fairly straightforward, the Supreme Court expressly declined to set forth “any sweeping pronouncement upon the exercise or existence of such jurisdiction." Id.

      . Id. at 15-17, 96 S.Ct. at 2421. It is interesting to note, however, that two years later the Supreme Court held that counties were proper party-defendants under § 1983 and § 1343. Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Accordingly, this Court reads Aldinger not so much as a mandate to scrutinize the jurisdiction-granting statute, but rather as an expression of general disfavor for pendent party jurisdiction.

        . But see Hymer v. Chai, 407 F.2d 136 (9th Cir.1969) (refusing to recognize pendent plaintiff jurisdiction over consortium claim).

      . The fact that Hatridge initially arose in state court may explain why the court found that federal jurisdiction over the consortium claim existed. See 28 U.S.C. § 1441(c) (entire lawsuit can be removed to federal court where any claim therein is removable). Under Aldinger, pendent party jurisdiction arguably existed in Hatridge because there was a common nucleus of operative fact and a statute expressly granting jurisdiction over the entire case. Indeed, if the instant case had been filed in state court and had been removed by the defendants, this Court would hold that pendent plaintiff jurisdiction over Joyce Fritts exists because of the existence of a statute allowing federal jurisdiction. Since this lawsuit was originally filed in federal court, however, § 1441(c) is not available to support pendent jurisdiction. At first glance, this distinction may appear arbitrary. On closer inspection, however, it seems to make sense because federal removal jurisdiction is derivative of the state court’s jurisdiction, Lambert Run Coal Co. v. Baltimore & O.R. Co., 258 U.S. 377, 42 S.Ct. 349, 351, 66 L.Ed. 671 (1922), and state trial courts, unlike federal district courts, are courts of general jurisdiction. Aldinger v. Howard, 427 U.S. at 15, 96 S.Ct. at 2420.

      . Although Fed.R.Civ.P. 20 would permit joinder of Charles and Joyce Fritts's claims if jurisdiction exists, it is axiomatic that "the Federal Rules themselves cannot expand federal-court jurisdiction.” Aldinger v. Howard, 427 U.S. at 9, 96 S.Ct. at 2418.

      . It bears emphasis that the result in this case would have been different if it had been filed initially in state court and removed to federal court by the defendant. See note 11 supra. There are two fundamental distinctions between the instant case, which was originally filed in federal court, and a removal case. First, as discussed in note 11 supra, there is a statute tacitly authorizing the discretionary exercise of pendent jurisdiction in removal cases. See 28 U.S.C. § 1441(c) (whenever removable and non-removable claims are joined in a single lawsuit, "the district court may determine all matters therein, or in its discretion, may remand all matters not otherwise within its original jurisdiction”). The existence of § 1441(c) is important because Aldinger directs the lower federal courts to examine the posture of the non-federal claim and the scope of the jurisdiction-granting statute. Where, as here, the case was initially filed in federal court, both the posture of the non-federal claim and the scope of the jurisdiction-granting statutes are vastly different.
      The second distinction between the instant case and a removal case is that the type of pendent jurisdiction asserted here is strictly a matter of the plaintiffs' choice while removal is a matter of defendant’s prerogative. Although § 1441(c) prevents the defendant from picking and choosing which claims will be removed to federal court, the initiative whether or not to remove always remains with the defendant. In effect, Congress has said through § 1441(c) that where the defendant exercises the privilege of removal, he must accept the burden with the benefit. But pendent jurisdiction in a non-removal context like the instant case would be radically different because the defendant was never given the initial choice of whether or not to remove. Cf. Owen Equip. & Erection Co. v. Kroger, 437 U.S. at 376, 98 S.Ct. at 2404 (refusing to recognize jurisdiction over non-federal claim "voluntarily” brought by plaintiff in federal court).

      . Cf. Aldinger v. Howard, 427 U.S. at 18, 96 S.Ct. at 2422.

      . Absent a clear precedent on this issue, courts and litigants can lose two separate ways. First, if the court dismisses the consortium claim when it actually had jurisdiction, the result deprives the pendent plaintiff of a federal forum and detracts from the goal of judicial economy. On the other hand, if the district court should have dismissed the consortium claim for want of jurisdiction but fails to do so, the pendent plaintiff runs the risk of losing a favorable verdict on appeal.


author: LYNCH, District Judge.

text:
    George CABRAL, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.
    No. C-83-5430 EFL.
    United States District Court, N.D. California.
    Oct. 1, 1984.

      Alan R. Bergman, Lafayette, Cal., for plaintiff.
    Glenda Robinson, Asst. U.S. Atty., San Francisco, Cal., for defendant.
   MEMORANDUM DECISION

LYNCH, District Judge.

Claimant brought this action, pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review the final decision of the Secretary of Health and Human Services (“Secretary”) denying claimant’s application for disability benefits. This matter is before the Court on claimant’s motion and defendant’s cross-motion for summary judgment.

Claimant filed his current (third) application for disability benefits on July 19, 1982, alleging the onset of the disability as December 12, 1978. Two prior applications were denied but claimant did not pursue judicial review of those actions. The Administrative Law Judge (“ALJ”) held a hearing on his third application on May 5, 1983, and issued a written decision dated May 31, 1983 affirming the Secretary’s denial of benefits. The AU’s decision became the final decision of the Secretary when it was approved by the Appeals Council on September 6, 1983. Claimant then filed this action seeking judicial review of the AU’s decision.

STATEMENT OF FACTS

Claimant was born on June 5, 1927 and has completed tenth grade. During the ten years prior to his alleged disability, he worked as a warehouseman for a liquor business. He alleges that he became unable to work on December 12,1978 due to a heart condition (TR: 302). His treating physician, Dr. Ester Lazo, stated that he was hospitalized in December, 1978 for acute myocardial infarcation complicated by cardiopulmonary arrest (TR: 342).

The medical evidence contained in the record centers on identifying the range of work which claimant has the capacity to perform. One medical opinion states that Mr. Cabral is able to perform limited medium exertion. However, the remaining examining and consulting physicians conclude that he can perform either light or sedentary work.

The first medical opinion was rendered in April, 1979 by the defense consultant in claimant’s Workmen's Compensation case, Dr. Fredric Minz. After an examination and interview, Dr. Minz stated that claimant’s cardiac impairment would preclude him from performance of other than light work (TR: 144). Later, in September, 1980, Dr. Minz re-examined claimant at the request of claimant’s attorney. Based on this examination, Dr. Minz concluded that Mr. Cabral was limited to a sedentary occupation (TR: 267).

The claimant’s consulting doctor, Dr. Embree Blackard, Jr., conducted an examination in August, 1979 from which he also concluded that the claimant was limited to semi-sedentary work (TR: 153).

In December, 1980 and April, 1981, two physicians acting as consultants for the Department of Social Services evaluated claimant’s work ability after reviewing the medical records and findings. They both expressed the opinion .that claimant retained sufficient residual functional capacity to perform light work (TR: 276, 280). '

The Department of Social Services’ examining specialist, Dr. Arnold Goldschlager, examined the claimant in September, 1982. The results of a treadmill exercise test showed that claimant was able to exercise to a level of approximately eight METS. Based on this test as well as others, Dr. Goldschlager stated that claimant could perform only light work (TR: 345).

The only doctor in the record to state that claimant’s residual functional capacity was for medium work was Dr. Robertson, a Department of Social Services consulting physician. (TR: 352). His opinion, however, was reviewed and rejected by Dr. Peterson, another Department of Social Services consultant who concluded claimant was indeed limited to light work (TR: 353).

Finally, and most importantly, Dr. Ester Lazo, who has treated claimant since his initial hospitalization in December of 1978, stated in a report dated May 4, 1983 that: “Mr. Cabral’s condition is such that he fits somewhere between the limitation to light work to limitation to sedentary work according to the Guidelines for Identifying the Range of Residual Functional Capacity.” (TR: 354).

After reviewing the medical evidence and claimant’s testimony, the ALJ made the following findings and conclusions in pertinent part:

(9) That claimant has the physical ability to engage in “medium” work, as defined in the Social Security Administration Regulations;

(12) That Rule 203.11 of Table No. 3 in Appendix 2 to the Social Security Administration Regulations provides a frame of reference which conforms with a conclusion by the undersigned that claimant is “not disabled”

(15) That the claimant was not under a “disability” as defined in the Social Security Act, as amended, at any time on or prior to the date of the decision.

The issue before this Court is whether the ALJ’s decision is supported by “substantial evidence.” Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).

The findings of the Secretary are subject to reversal or remand if they are not supported by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Perales at 401, 91 S.Ct. at 1427 (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). This Court, therefore, must decide whether the Secretary’s finding of claimant’s non-disability is supported by substantial evidence.

DISCUSSION

At the outset, defendants argue that the two prior determinations of the AU that claimant had no severe impairment that would preclude him from engaging in substantial gainful activity create a presumption that plaintiff remains capable of performing substantial gainful activity. Lyle v. Secretary of Health and Human Services, 700 F.2d 566 (9th Cir.1983). However, claimant can overcome this presumption by demonstrating that “conditions have changed” since the prior decisions. Id. at 568. At the third hearing on May 5, 1983, claimant was fifty-five years of age and for the first time he met the criteria of the “advanced age” category according to the Medical-Vocational Guidelines. Appendix 2 to 20 C.F.R. §§ 404.-1501-1599. Thus, claimant has rebutted the presumption through proof of his advancing age.

The second issue before the court, therefore, is whether there is substantial evidence to support the AU’s finding of non-disability. In order to qualify for disability benefits under the Social Security Act, a claimant must demonstrate that he or she is unable to “engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). By regulation the Secretary has adopted a five-step “sequential evaluation” process to determine whether individuals qualify for benefits. 20 C.F.R. § 404.1520. In the present case, there is no controversy surrounding the AU’s findings for steps one through four. Claimant is not engaged in work that constitutes substantial gainful activity. His impairment is severe; however, it does not meet or equal the criteria of a listed impairment in Appendix 1. He is unable to return to any of the jobs he has performed in the past.

The findings of the AU at step five, however, form the basis of this appeal. Even if the claimant cannot perform his or her past work, the fifth step calls for a determination of whether he or she can perform work available through jobs in significant numbers in the national economy. The AU must make this assessment in light of the individual’s RFC, age, education, and work experience. Using these four factors, the AU must apply the medical-vocational guidelines contained in Appendix 2 to 20 C.F.R. §§ 404.1501-1599 in order to establish whether claimant is disabled.

While the testimony is uncontroverted that claimant was of advanced age, had limited education and unskilled work experience, it is the AU’s finding of fact that claimant’s RFC is limited to medium work that the court finds not supported by sub- . stantial evidence. Every doctor who examined claimant or who was consulted by either the government or by the claimant stated that Mr. Cabral could perform only light or sedentary work. The only physician who stated that Mr. Cabral could perform medium work had not examined Mr. Cabral and in addition, his opinion was subsequently overruled by another government doctor.

The physician who treated claimant since his hospitalization in 1978 unequivocally stated that claimant was limited to sedentary or light work. The AU must afford substantial weight to the opinion of the treating physician. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983). While the expert’s opinion is not determinative on the ultimate issue of disability, the AU must give clear and convincing reasons for rejecting it. Rhodes v. Schweiker, 660 F.2d 722 (9th Cir.1981). In the present case, the AU failed to give any reason for rejecting Dr. Lazo’s findings or those of the other experts.

The AU chose to ignore the opinions of these medical experts and instead to substitute the conclusion of Social Security Ruling 82-51 (1983). This ruling is a guideline for determining residual functional capacity in cardiovascular impairments. It is nothing more than a diagnostic tool to be considered along with other evidence. Defendants argue that where Congress explicitly committed to the Secretary the authority to promulgate regulations concerning standards for Social Security Act programs, these regulations are entitled to “legislative effect” rather than “mere deference or weight.” However, the cases cited by defendant in support of this proposition concern the weight to be given regulations not rulings. The preface to the Social Security Rulings states that these rulings “do not have the force and effect of the law or regulations.”

Residual functional capacity is a medical assessment. Other descriptions and observations, when used to help determine claimant’s RFC, must be considered along with the rest of his medical record. 20 C.F.R. § 404.1545. Mr. Cabral’s medical record contains the opinion of seven different medical experts that he can perform only light or sedentary work. The Social Security ruling is based on only two factors: the diagnosis of the type of heart disease and the results of a treadmill exercise test.

The Social Security Act and its regulations require the Secretary to make a realistic, individual assessment of each claimant’s ability to engage in substantial gainful activity. See Heckler v. Campbell, 461 U.S. 458, 466, 103 S.Ct. 1952, 1957, 76 L.Ed.2d 66 (1983). Mr. Cabral did not receive that assessment. On the contrary, the AU relied on an administrative ruling that considers two medical factors in a vacuum to overrule the medical opinions of the claimant’s treating physician and the opinions of the government’s own examining and consulting doctors.

We do not consider such a ruling to be relevant evidence that a reasonable mind might accept as adequate to support a conclusion, especially in light of the fact that the “conclusion” is at odds with the findings of seven medical experts.

We find that the evidence is overwhelming that Mr. Cabral’s RFC is limited to light work. Applying the uncontroverted facts of claimant’s advanced age, unskilled vocational background and limited education to the tables in Appendix 2, we find that Rule 202.01 of Table No. 2 mandates a finding of disability.

CONCLUSION

There is no genuine issue of material fact as to claimant’s disability from June 30, 1981 to the present. Accordingly, claimant’s motion for summary judgment is granted. Defendant’s cross motion for summary judgment is denied.

IT IS SO ORDERED.

      . (1) If the claimant is presently engaged in substantial gainful activity, he or she is disqualified from receiving benefits.
      (2) If the claimant is not working, the AU . must determine whether the claimant's condition is severe. If not, he must deny the benefits.
      (3) If the impairment is severe, the ALJ must determine whether the claimant meets the criteria of a listed impairment set forth in Appendix 1 to 20 C.FiR. §§ 404.1501-1599. If the claimant meets or equals the listings, he or she is entitled to benefits.
      (4) If the claimant does not meet or equal the listings, the AU must determine whether the claimant can perform past relevant work predicated on his or her residual functional capacity (“RFC”). If the claimant can perform past relevant work than a finding of non-disability is required.