source: Caselaw Access Project

author: HAWKINS, District Judge.

license: Public Domain

text:
    Margaret F. SAVAGE and Independent Haulers, Inc., Plaintiffs, v. WASTE MANAGEMENT, INC.; Waste Management of South Carolina, Inc., Defendants.
    Civ. A. No. 2:82-3263-1.
    United States District Court, D. South Carolina, Charleston Division.
    Dec. 19, 1985.

      James H. Moss, Beaufort, S.C., and Harry A. Swagart, III, Columbia, S.C., for plaintiffs.
    Edward L. Michael, Joseph V. Giffin, and John E. Noel, Chicago, 111., and Joab M. Dowling, Jr., Beaufort, S.C., for defendants.
   ORDER AND JUDGMENT

HAWKINS, District Judge.

This action is before the court on motion of defendants Waste Management, Inc. (hereinafter WMI) and Waste Management of South Carolina, Inc. (hereinafter WMSC) for summary judgment as to plaintiffs’ second amended complaint, on defendant WMSC’s motion for summary judgment on its counterclaim and on the plaintiffs’ motion for summary judgment as to Count VII of their second amended complaint and motion for partial summary judgment, including a cross-motion for summary judgment as to WMSC’s counterclaim. The issue presented in the motions, except those regarding the counterclaim, is whether the allegedly anticompetitive acts attributed to the defendants are shielded from federal antitrust liability by the “state action” doctrine first enunciated by the Supreme Court in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943).

The plaintiffs allege that Beaufort County, Beaufort County Council, Waste Management of South Carolina, Inc. and Waste Management, Inc. violated Sections 1 and 2 of the Sherman Antitrust Act, 15 U.S.C. §§ 1 and 2, by entering into and performing under contracts for the exclusive collection and disposal of garbage in certain areas of the county. Second Amended Complaint (filed June 29, 1985). In addition, the plaintiffs allege that these actions violated a Beaufort County ordinance and South Carolina antitrust laws.

Oral arguments on these motions were heard on October 3,1985, at which time the motions were taken under advisement. The court has now reviewed those arguments, the motions and briefs of counsel, and makes the following rulings.

I. THE SUMMARY JUDGMENT STANDARD

In order to obtain summary judgment, a party must demonstrate that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. In First National Bank v. Cities Services Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968), the Supreme Court made it clear that summary judgment is an important tool in antitrust litigation. The Court stated that “a party cannot rest on the allegations contained in his complaint in opposition to a properly supported summary judgment motion made against him” (391 U.S. at 289, 88 S.Ct. at 1592) and that:

While we recognize the importance of preserving litigants’ rights to a trial on their claims, we are not prepared to extend those rights to the point of requiring that anyone who files an antitrust complaint setting forth a valid cause of action be entitled to a full-dress trial notwithstanding the absence of any significant probative evidence tending to support the complaint.

391 U.S. at 290, 88 S.Ct. at 1593. See also, Ottensmeyer v. Chesapeake & Potomac Telephone Company of Maryland, 756 F.2d 986 (4th Cir.1985) (summary judgment against plaintiff affirmed in Sherman § 1 case); Stearns v. Genrad, Inc., 752 F.2d 942 (4th Cir.1985) (summary judgment against plaintiff affirmed on claim of attempted monopolization); Universal Lite Distributors, Inc. v. Northwest Industries, Inc., 602 F.2d 1173 (4th Cir.1979) (summary judgment against plaintiff affirmed on Sherman § 1 claim); Kendall Elevator Co., Inc. v. LBC & W Associates of South Carolina, Inc., 350 F.Supp. 75 (D.S.C.1972) (summary judgment granted in favor of defendant on Sherman § 1 claim).

This court is aware that Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962), decided before the Supreme Court’s decision in Cities Service, supra, is frequently cited for the proposition that summary judgment is to be granted sparingly in antitrust cases. E.g., see this court’s opinion in Trident Neuro-Imaging Laboratory v. Blue Cross, 568 F.Supp. 1474, 1478-79 (D.S.C.1983). However, Poller is plainly not a bar to granting summary judgment in antitrust cases as is made clear by the Fourth Circuit cases cited in the above text and by numerous decisions from other circuits. See also, Trident Neuro-Imaging Laboratory v. Blue Cross, 1983-2 Trade Cases (CCH) ¶ 65,674 (D.S.C.1982), where this court granted summary judgment in an antitrust case. Moreover, the statements in the Poller case are of questionable validity in light of the Supreme Court’s subsequent decision in the Cities Service case, see Legal Times, Vol. V, No. 36 (Feb. 14, 1983). Indeed, some courts have held that “the very nature of antitrust litigation would encourage summary disposition of such cases where permissible ... antitrust trials often encompass a great deal of expensive and time consuming discovery and trial work ... [and] the statutory private antitrust remedy affords a special temptation for institution of vexatious litigation----” Lupia v. Stella D’Oro Biscuit Co., Inc., 586 F.2d 1163, 1167 (7th Cir.1978), cert. denied, 440 U.S. 982, 99 S.Ct. 1791, 60 L.Ed.2d 242 (1979) (emphasis added).

Summary judgment is particularly appropriate when, as here, all discovery on the key issues has been completed. In this posture, a motion for summary judgment is more like a motion for directed verdict since all of the evidence of the parties on the key issues is before the court. In Sun Valley Disposal Co., Inc. v. Silver State Disposal Co., 1970 Trade Cases (CCH), ¶ 73,028 (D.Nev.1968), aff'd, 420 F.2d 341 (9th Cir.1969), for example, the court noted that, as in this case, discovery had been completed and all of the plaintiff’s “cards were on the table.” In granting summary judgment for defendants on plaintiff’s complaint (including claims of antitrust conspiracy in the granting of an exclusive refuse collection franchise), the court explained that

[t]he “Golden Fleece” of treble damages plus attorneys’ fees and costs has led the diligent, aggressive lawyer to adopt the language of monopoly and restraint of trade to all varieties of normal, standard and customary business transactions. While such expertise in legal composition may withstand a motion to dismiss, it does not require or justify judicial submission to the descriptive language of the pleadings when the facts are laid bare.

1970 Trade Cases (CCH) at ¶ 88,030. See also, Universal Lite Distributors, Inc. v. Northwest Industries, Inc., 452 F.Supp. 1206, 1210 (D.Md.1978), aff'd in part, 602 F.2d 1173 (4th Cir.1979) (granting summary judgment on plaintiffs complaint, including antitrust conspiracy claim, after three years of extensive discovery had been completed); Ralph C. Wilson Industries v. American Broadcasting Companies, 598 F.Supp. 694, 700 (N.D.Cal.1984) (given extensive discovery and fully developed record, the court treated motion for summary judgment as motion for directed verdict with assumption that all evidence available to plaintiff would be admitted at trial, and granted summary judgment in defendants’ favor); Humboldt Bay Municipal Water v. Louisiana—Pacific Corp., 608 F.Supp. 562 (N.D.Cal.1985) (granting summary judgment in defendants’ favor on basis of fully developed record after extensive discovery).

When tested by these principles, the undisputed facts clearly show that WMSC and WMI are entitled, as a matter of law, to judgment in their favor on plaintiffs’ complaint.

II. COUNTY IMMUNITY

The Supreme Court has recently reiterated that a municipality is immune from antitrust liability when “engaging in the challenged activity pursuant to a clearly expressed state policy.” Town of Hattie v. City of Eau Claire,— U.S.-, 105 S.Ct. 1713, 1717, 85 L.Ed.2d 24 (1985). This requirement is satisfied when the conduct at issue is a “foreseeable result” of regulatory activity authorized by the state. Id. 105 S.Ct. at 1718.

The Court noted that “[i]t is not necessary ... for the state legislature to have stated explicitly that it expected the City to engage in conduct that would have anti-competitive effects.” Id. at 1718. It is only necessary that “the State as sovereign clearly intends to displace competition in a particular field with a regulatory structure.” Southern Motor Carriers Rate Conference v. U.S.,—U.S.-, 105 S.Ct. 1721, 1731, 85 L.Ed.2d 36 (1985). Furthermore, the Court held that a city need not demonstrate that the state compelled or actively supervised its allegedly anticompetitive conduct. Town of Hattie v. City of Eau Claire, 105 S.Ct. at 1715, 1720.

In this case, Beaufort County claims to have acted pursuant to South Carolina Code Ann. § 44-55-1010 (1976) et seq. See Memorandum in Support of Defendants’ Motion for Summary Judgment at 49-52 (filed June 27, 1985). These statutes provide that a county “may regulate the collection and disposal of garbage in accordance with the provisions of this article.” S.C. CODE ANN. § 44-55-1010. “Collection or disposal of garbage without a license [from the county] is unlawful.” S.C.CODE ANN. § 44-55-1030. Most importantly, the county “may call for bids for the right to collect and dispose of garbage or may issue to one or more persons on such terms as it shall fix the right or franchise to collect and dispose of garbage not inconsistent with the provisions of this article.” S.C. CODE ANN. § 44-55-1040 (emphasis added). Finally, the County Health Department is to exercise supervision over the manner of collection and disposal of garbage. S.C.CODE ANN. § 44-55-1050.

It is clear that the policy underlying these statutes is to give counties the choice of whether or not to regulate the collection and disposal of garbage under the provisions of this article. S.C.CODE ANN. § 44-55-1010 et seq. The legislature surely contemplated that one means of implementing this policy, consistent with S.C. CODE ANN. § 44-55-1040, might be to award exclusive contracts for the collection and disposal of garbage in certain areas of Beaufort County. In Town of Hattie, the Supreme Court made it clear that it is “not necessary ... for the state legislature to have stated explicitly that it expected the City to engage in conduct that would have anticompetitive effects____” Rather, it is sufficient that the statutes authorize the City to provide the services in question and “clearly contemplate that a city may engage in anticompetitive conduct.” 105 S.Ct. at 1718 (emphasis added). See also, Gold Cross Ambulance & Tran. v. City of Kansas City, 705 F.2d 1005, 1013 (8th Cir. 1983) (“one or more” term in statute held to authorize award of exclusive contracts for purposes of State Action immunity); Tom Hudson & Associates, v. City of Chula Vista, 746 F.2d 1370 (9th Cir.1984) (statute authorizing cities to determine “whether or not” refuse services would be provided by means of exclusive franchise held to be “clear articulation” of state policy even though not mandatory by its terms). Finally, authorization by the State of South Carolina is consistent with the “traditional” view that refuse collection and disposal is a local governmental function, and it is consistent with a long line of cases which have upheld the authority of local governments to grant to private parties the exclusive right to collect and dispose of refuse. See 56 Am.Jur.2d Municipal Corporations §§ 457, 462, 513; Cen. Iowa Ref. Sys. v. Des Moines Metro. Sol. Waste, 715 F.2d 419 (8th Cir.1983), cert. denied,—U.S.-, 105 S.Ct. 1864, 85 L.Ed.2d 158 (1985); Hybud Equipment Corp. v. City of Akron, 742 F.2d 949 (6th Cir.1984), cert. denied,—U.S.-, 105 S.Ct. 1866, 85 L.Ed.2d 160 (1985).

The plaintiffs contend that “the statutory language is neutral as to the displacement of competition.” See Primary Memorandum of Law in Support of Plaintiffs’ Motion for Partial Summary Judgment at pp. 4, 10 (filed Aug. 20, 1985). They also contend “there is no indication that the legislature contemplated awarding exclusive rights and franchises.” Id. The Supreme Court rejected these same arguments in Town of Hallie, stating:

It is not necessary, as the Towns contend, for the state legislature to have stated explicitly that it expected the City to engage in conduct that would have anticompetitive effects. Applying the analysis of City of Lafayette, 435 U.S. 389 [98 S.Ct. 1123, 55 L.Ed.2d 364] (1978), it is sufficient that the statutes authorized the City to provide sewage services and also to determine the areas to be served. We think it is clear that anticompetitive effects logically would result from this broad authority to regulate.
... [T]he State has specifically authorized Wisconsin cities to provide sewage services and has delegated to the cities the express authority to take action that foreseeably will result in anticompetitive effects. No reasonable argument can be made that these statutes are neutral in the same way that Colorado’s Home Rule Amendment was.

105 S.Ct. at 1718-19 (emphasis added). Finally, the Court rejected the Town’s argument that the state action exemption should not be applicable unless the State “compelled” the City to engage in the alleged anticompetitive activity and “actively supervised” the City:

None of our cases involving the application of the state action exemption to a municipality has required that compulsion be shown____ In short, although compulsion affirmatively expressed may be the best evidence of state policy, it is by no means a prerequisite to a finding that a municipality acted pursuant to clearly articulated state policy.
Once it is clear that state authorization exists, there is no need to require the State to supervise actively the municipality’s execution of what is a properly delegated function.

105 S.Ct. at 1720-1.

This court finds that S.C.CODE ANN. § 44-55-1010 (1976) et seq. sufficiently demonstrate a clear state policy authorizing counties to regulate the collection and disposal of garbage within their borders. In addition, since counties are expressly authorized to grant franchises to “one or more persons” (emphasis added), the State obviously “contemplated” that counties could grant exclusive contracts or franchises for garbage collection and disposal.

In sum, this court finds that Beaufort County and Beaufort County Council acted pursuant to a clearly articulated state policy in granting to the defendants an exclusive franchise for the collection and disposal of garbage in specified areas of Beaufort County. Accordingly, Beaufort County is immune from federal antitrust liability under the “state action” doctrine. As noted earlier, Beaufort County need not demonstrate that the state actively supervised the negotiation or implementation of the contracts at issue in this case. See Town of Hallie, 105 S.Ct. at 1720.

III. PRIVATE PARTIES

The Supreme Court has held that the actions of private parties are exempt from federal antitrust liability if they are undertaken pursuant to a clearly articulated state policy and are supervised actively by the state. See Southern Motor Carriers Rate Conference v. U.S., 105 5. Ct. at 1729; Cal. Retail Liquor Dealers Ass’n v. Midcal Alum., 445 U.S. 97, 105-06, 100 S.Ct. 937, 943, 63 L.Ed.2d 233 (1980).

The court has already found that the first prong of this test is satisfied in the circumstances of this case because S.C. CODE ANN. § 44-55-1010 et seq. clearly authorize the. challenged activities.

The plaintiffs contend that the second prong of this test can only be satisfied by ' the state actively supervising the actions of private parties (the defendants in this case). Plaintiffs have quoted from three cases in support of their position, but these cases are factually distinguishable. The quotes appear on page 5 of the Primary Memorandum of Law in Support of Plaintiffs’ Motion for Partial Summary Judgment and read as follows:

In Town of Hallie the Supreme Court stated that

Where state or municipal regulation of a private party is involved ..., active state supervision must be shown, even where a clearly articulated state policy exists.

105 S.Ct. at 1720 n. 10 (emphasis added). The purpose of requiring active state supervision of the regulation of private parties is to prevent

(s)tates from “casting ... a gauzy cloak of state involvement over what is essentially a private price-fixing arrangement.” Midcal, 445 U.S. at 106 [100 S.Ct. at 943.] This active supervision requirement ensures that a state’s actions will immunize the anticompetitive conduct of private parties only when the “state has demonstrated its commitment to a program through its exercise of regulatory oversight.” See 1 P. Areeda & D. Turner, Antitrust Law II 213a, p. 73 (1978).

Southern Motor Carriers, 105 S.Ct. 1729 n. 23.

The quote in Town of Hallie is taken from Southern Motor Carriers, 105 S.Ct. at 1727. In Southern Motor Carriers active state supervision was required, but only because the legislatures of the four states involved had decided that the private parties in that particular case (rate bureaus composed of motor common carriers) would be supervised by state agencies, namely their public service commissions. Therefore, Southern Motor Carriers was not a case in which a municipality was supposed to supervise the actions of a private party.

The second quote also appears in Town of Hallie, but is taken from Midcal 445 U.S. at 106, 100 S.Ct. at 943. Once again, in Midcal a state agency was supposed to be supervising private parties engaged in wine sales. However, the issue there was not who was supposed to supervise the private parties (the state was, according to the statute), but how much supervision was required for the private parties to be immune from federal antitrust laws under the “state action” doctrine. This case involves only the level of supervision that is required for a private party to be immune from federal antitrust laws. The court held that the state’s supervision was passive only and, therefore, inadequate for “state action” immunity. It does not mandate that the state must always supervise private parties. The statute there made it plain that the state is to supervise private parties, while in our case S.C.CODE ANN. §§ 44-55-1040, 1050, make it clear that the county and the respective county health departments are to supervise those involved in the garbage collection and disposal business.

The final quote is also taken from Southern Motor Carriers, and it supports the reasoning heretofore given: once a state decides to supervise certain private parties, active supervision is required to “immunize the anticompetitive conduct of private parties” (emphasis added). This quote does not say that it must always be the state supervising private parties. What it says is that when a state chooses to supervise certain private parties, it must be active supervision for the private parties to enjoy immunity from federal antitrust laws under the “state action” doctrine.

The plaintiffs also contend that
[sjecond, there are no state statutes and/or agencies which provide guidance to counties with respect to such matters as determining (1) how many refuse collectors or landfill operators there may be, (2) how those collectors and operators will be selected, (3) what rates the collectors and operators may charge and (4) how those rates are to be determined.
Third, § 44-55-1050 provides that the county health department shall enforce the article on garbage collection and removal. This provision clearly demonstrates that the State not only does not supervise the actions of the counties taken pursuant to the article, but has expressly abdicated all responsibility for supervision.

The plaintiffs conclude this argument by claiming that even if state supervision could somehow be supplied by county governments, there is no evidence of county supervision in this case. See Primary Memorandum in Support of Plaintiffs’ Motion for Partial Summary Judgment at pp. 6-9. These allegations are simply not true. Section 44-55-1040 of the South Carolina Code, annotated, says “one or more persons” may “collect and dispose of garbage.” The person or persons are to be selected by “the governing body” of the county, i.e. county council. The franchise shall be “on such terms as it [county council] shall fix.” In fact, the rate charged by the defendants for each ton of refuse dumped at the landfill is significantly less than what the county charged when it operated the landfill just prior to the defendants taking over. See Memorandum in Support of Defendants’ Motion for Summary Judgment at pp. 14-15.

As to the actual collection and disposal of garbage, it is true that South Carolina has seen fit to delegate supervision to the respective county health departments. Garbage collection and disposal is traditionally a local function of government and “requiring state supervision could force the state and its municipalities to engage in duplicative, wasteful regulation and could erode the local autonomy that the state has sought to encourage.” Town of Hallie, 700 F.2d at 384.

Furthermore, “[o]nce it is clear that state authorization exists, there is no need to require the State to supervise actively the municipality’s execution of what is a properly delegated function.” Town of Hallie, 105 S.Ct. at 1721. Section 44-55-1210 of the South Carolina Code, annotated, allows each county to collect and dispose of garbage itself or “contract with private agencies” to accomplish the job as their employees. It makes little sense to require state supervision of a contract between the county and a private party when no such supervision is required if the county does the work itself or hires private employees to do the work. This is a properly delegated local function of government which the county actively supervises.

Defendants point out that the Supreme Court’s decision in Town of Hattie “is thus consistent with many decisions by Courts of Appeals which have held that State supervision is not required if a local government is authorized to take anticompetitive actions.” See Town of Hattie v. City of Eau Claire, 700 F.2d 376 (7th Cir.1983), aff'd,—U.S.-, 105 S.Ct. 1713, 85 L.Ed.2d 24 (1985); Gold Cross Ambulance & Tran. v. City of Kansas City, 705 F.2d 1005 (8th Cir.1983), cert. denied,—U.S.-, 105 S.Ct. 1864, 85 L.Ed.2d 158 (1985) (“regulation by the City itself satisfies the active supervision requirement ... since its regulation of ambulance service is exercised under the authorization and direction of state policy.”) (emphasis added); Cen. Iowa Ref. Sys. v. Des Moines Metro. Sol. Waste, 715 F.2d 419 (8th Cir.1983), cert. denied,—U.S.-, 105 S.Ct. 1864, 85 L.Ed.2d 158 (1985); Pueblo Aircraft Service, Inc. v. City of Pueblo, 679 F.2d 805 (10th Cir.1982), cert. denied, 459 U.S. 1126, 103 S.Ct. 762, 74 L.Ed.2d 977 (1983); Tom Hudson & Associates v. City of Chula Vista, 746 F.2d 1370 (9th Cir.1984), cert. denied,—U.S.-, 105 S.Ct. 3503, 87 L.Ed.2d 634 (1985). “And, when the local governmental unit contracts with a private party, the supervision of the private party is supplied by the local governmental unit itself.” E.g., Torn Hudson & Associates, 746 F.2d at 1373-4; Gold Cross Ambulance, 705 F.2d at 1014. See Memorandum in Support of Defendants’ Motion for Summary Judgment at pp. 52-3.

Defendants point out that in the present case it is undisputed that the County actively supervised WMSC’s performance under the franchise, the green box contract and the landfill contract. The franchise gives defendants the exclusive right to collect garbage in certain areas of Beaufort County. The green box contract specifies the terms of the garbage collection arrangement between the defendants and the County. The landfill contract governs the disposal of the garbage. The provisions of these contracts establish the County’s right to actively supervise WMSC. In addition, the persons involved on behalf of the County and of WMSC testified to active supervision by the County (Haigh deposition, pp. 168-70, A-l; West deposition, pp. 26-27, A-5). There is no evidence to the contrary.

This court finds that “[t]he official supervision of the [defendants] in this case is at least equivalent in degree to the official supervision of private defendants that was deemed sufficient in Southern Motor Carriers Rate Conference, Inc. v. United States, supra, and Gold Cross Ambulance & Transfer v. City of Kansas City, supra.” See Trinity Ambulance Service v. G & L Ambulance Service, 625 F.Supp. 142 1985-2 Trade Cases (CCH) 11 66,844 (D.Conn.1985).

Finally, the plaintiffs also allege that the defendants conspired with Beaufort County officials to restrain trade, fix prices and monopolize the garbage collection and disposal business in certain areas of Beaufort County. The discussion at 612-13 in the case of Independent Taxi, Etc. v. Greater Houston, Etc., 760 F.2d 607, 613 (5th Cir.1985), addresses the plaintiffs’ conspiracy allegations appropriately:

We need not pause long over appellants’ contention that, even if the City is immune from federal antitrust scrutiny under Parker, Yellow can be held liable under the Sherman and Clayton Acts for its efforts in securing the exclusive airport taxicab concession from Houston. On appellants’ view, the Noerr-Pennington doctrine cannot shield Yellow because (1) the doctrine applies only to “specific attempts to influence public officials, legislation or executive action” rather than to “arm’s length contractual negotiations,” and (2) even if a private party’s arms’s length contractual activity does implicate the doctrine, Yellow’s relationship with the City falls within a “commercial exception” to Noerr-Pennington immunity.
“The Noerr-Pennington doctrine provides an exception to antitrust liability enabling citizens or business entities to influence or to petition public officials to take official action that will harm or eliminate competition.” Affiliated Capital Corp. v. City of Houston, 735 F.2d 1555, 1566 (5th Cir.1984) (en banc), petition for cert. filed sub nom. Gulf Coast Cable Television Co. v. Affiliated Capital Corp.,—U.S.-, 105 S.Ct. 1164, 84 L.Ed.2d 316 (1984). In Greenwood Utilities Commission v. Mississippi Power Co., 751 F.2d 1484 (5th Cir.1985), we recently held that Noerr-Pennington extends to situations where the government enters into a contractual relationship with a private entity, at least in situations “where the government engages in a policy decision and at the same time acts as a participant in the marketplace.” Id. at 1505 (footnote omitted). “We expressly rejected the notion that Noerr-Pennington’s first amendment and statutory roots are not sympathetic to such agreements, even if they can be properly characterized as essentially commercial.” Id. at 1504-06; cf. Mid-Texas Communications Systems, Inc. v. AT & T, 615 F.2d 1372, 1382-84 (5th Cir.), cert. denied, 449 U.S. 912, 101 S.Ct. 286, 66 L.Ed.2d 140 (1980). Viewing the record in the light most favorable to appellants, the most that can be said is that Yellow secured from the City an exclusive concession whose anti-competitive effects stem primarily from a valid municipal, and vicariously state, policy.

The Fifth Circuit court dismissed another allegation of the plaintiffs in a footnote, as follows:

Appellants also argue that Yellow’s conduct falls within either the sham or co-conspirator exception to Noerr-Pennington. See, e.g., California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 511-15, 92 S.Ct. 609, 612-14, 30 L.Ed.2d 642 (1972); Affiliated Capital Corp. v. City of Houston, 735 F.2d 1555, 1567 (5th Cir.1984) (en banc), petition for cert. filed sub nom. Gulf Coast Cable Television Co. v. Affiliated Capital Corp.,—U.S.-, 105 S.Ct. 1164, 84 L.Ed.2d 316 (1984); Coastal States Mktg., Inc. v. Hunt, 694 F.2d 1358, 1368-73 (5th Cir.1983); Woods Exploration & Producing Co. v. Aluminum Co. of Am., 438 F.2d 1286, 1296-98 (5th Cir.1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972). See generally 1 P. Areeda & D. Turner, Antitrust Law ¶¶ 203-04 (1978 & Supp. 1982). We find little support for the point, regardless of which branch of “sham” is asserted. See generally Coastal States, 694 F.2d at 1371 n. 42. Appellants have cited nothing in the record other than an allegation in their initial complaint that the defendants conspired to monopolize. See Record vol. 4, at 832-34. To the contrary, appellants conceded in their main brief that “[Yellow’s] negotiations with respect to the subject exclusive concession agreement was [sic] undertaken at arm’s length____” Brief for Appellant Arrow at 46; Brief for Appellant Independents at 45-46. Thus, while the existence or nonexistence of shamful conduct is generally a question of fact for the jury, Feminist Women’s Health Center v. Mohammad, 586 F.2d 530, 543 (5th Cir.1978), cert. denied, 444 U.S. 924, 100 S.Ct. 262, 62 L.Ed.2d 180 (1979), appellants have nonetheless failed to present enough evidence to survive Yellow’s motion for summary judgment. Cf. Metro Cable Co. v. CATV of Rockford, Inc., 516 F.2d 220, 228-32 (7th Cir.1975) (holding that agreement of government official to petitioning entity’s anticompetitive plan was insufficient to render the official a “co-conspirator” for purposes of undermining Noerr-Pennington immunity). But cf. Duke & Co., Inc. v. Foerster, 521 F.2d 1277, 1282 (3d Cir.1975) (“Where the complaint goes beyond mere allegations of official persuasion by anti-competitive lobbying and claims official participation with private individuals in a scheme to restrain trade, the Noerr-Pennington doctrine is inapplicable.”).

Independent Taxi, 760 F.2d at 612-3.

This court finds the reasoning in Independent Taxi to be fully applicable in dismissing plaintiffs’ allegations of conspiracy to restrain competition. Despite extensive discovery, plaintiffs have failed to establish any facts which would indicate a conspiracy existed and can only continue to point to innocuous, unrelated facts as a basis for this charge. See Memorandum in Support of Defendants’ Motion for Summary Judgment at pp. 20-24.

Accordingly, the court finds that defendants, like Beaufort County, are immune from federal antitrust liability. Cf. Independent Taxi, Etc. v. Greater Houston, Etc., 760 F.2d 607, 613 (5th Cir.1985) (Goldberg, J.) (observing, in finding private defendants immune under the Noerr-Pennington doctrine, that “[i]t would be anomalous to hold on the one hand that government can contract with private entities to effectuate valid, albeit anticompetitive, policies, while holding on the other hand that private entities cannot petition government to participate in the public endeavor.”).

IY. PENDENT CLAÍMS

The plaintiffs also seek to hold the defendants liable for violations of a Beaufort County ordinance and South Carolina Unfair Trade Practices Act. Defendant WMSC’s counterclaim against plaintiffs alleges that Margaret Savage, while employed by WMSC, learned of a business opportunity of WMSC and that Ms. Savage, taking advantage of confidential information of WMSC known to her and while still in WMSC’s employ, seized that business opportunity for herself. This court finds that these claims should be dismissed for lack of an independent basis of subject matter jurisdiction. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966) (“Certainly, if the federal claims are dismissed before trial, ... the state claims should be dismissed as well.”); Federman v. Empire Fire and Marine Insurance Co., 597 F.2d 798, 809 (2d Cir.1979) (“Dismissal of the state claim is the recommended procedure ... in eases where the federal claim is disposed of prior to trial”).

Y. CONCLUSIONS

For the foregoing reasons, it is

ORDERED, that defendants’ motions for summary judgment as to plaintiffs’ second amended complaint, excluding the pendent claims, be, and the same are hereby, granted. It is

ORDERED FURTHER, that plaintiffs’ motion for partial summary judgment as to various allegations of their second amended complaint, excluding defendants’ counterclaim, be, and the same are hereby, denied. It is

ORDERED FURTHER, that the plaintiffs’ pendent claims and the defendants’ pendent counterclaim be, and the same are hereby, dismissed without prejudice.

AND IT IS SO ORDERED.

      . Beaufort County and Beaufort County Council were dismissed from the suit after reaching a settlement with plaintiffs. WMSC is a competitor'of the plaintiff and a wholly-owned subsidiary of WMI.

      . Although the County is no longer a party to this suit, this discussion is helpful in understanding this court's decision.

      . For example, the green box contract (B-13) provides specifications for equipment used by WMSC (¶¶ 2, 3); provides that the County Supervisor of Public Works is to specify container locations to WMSC and review and approve collection schedules (¶¶ 4, 6, 7);. requires WMSC to comply with State and local sanitation laws (¶¶ 2, 9); and limits any increase in fees charged by WMSC to adjustments consistent with certain Price Indexes (¶ 20). Similarly, the franchise agreement (B-12) contains provisions relating to equipment specifications (¶ 2(d)); compliance with State and local sanitation laws (¶ 3); and limitations on pricing increases (¶ 9). The landfill contract (B-10) requires WMSC to comply with all applicable State, local and federal regulations on landfills (¶ 2(d)); allows the County to inspect the site and place monitoring personnel at the site (¶¶ 2(e), 13, 15); and allows the County to inspect daily records of volume received and fees collected (¶ 18).

      . Indeed, WMSC’s manager of Edisto Services in 1981 testified that he met almost weekly with the County Supervisor of Public Works concerning the refuse collection contracts. In fact, he always checked with the County Supervisor before increasing prices to Edisto’s customers within the areas covered by the contract (West deposition, pp. 26-29, A-5). Memorandum in Support of. Defendants' Motion for Summary Judgment at p. 53.

      . Based upon Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) and United Mineworkers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). "Joint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition. Such conduct is not illegal, either standing alone or as part of a broader scheme itself violative of the Sherman Act.” See Defendants' Memorandum in Support of Their Motion to Dismiss Plaintiffs' First Amended Complaint, at pp. 19-20 (Mar. 1983).


author: TASHIMA, District Judge.

text:
    FANG-SUI YAU, Petitioner, v. Ernest E. GUSTAFSON, Jr., Respondent.
    No. CV 84-9509 AWT (T).
    United States District Court, C.D. California.
    Dec. 19, 1985.

      Yee-Jen Shuai, Alhambra, Cal., for petitioner.
    Robert C. Bonner, U.S. Atty., Frederick M. Brosio, Jr., Asst. U.S. Atty., Chief, Civ. Div., Lawrence W. Chamblee, Sp. Asst. U.S. Atty., Los Angeles, Cal., for respondent.
   MEMORANDUM ORDER ADOPTING MAGISTRATE’S RECOMMENDATIONS

TASHIMA, District Judge.

This is a petition for writ of habeas corpus by a stowaway who is under immediate threat of deportation. This Court has jurisdiction under 8 U.S.C. § 1105a(a)(9) and (b), which respondent does not challenge. Before the Court for review, pursuant to 28 U.S.C. § 636(b)(1), are the Magistrate’s report and recommendation (the “initial report”) and supplemental report and recommendation, copies of which are appended hereto. I have reviewed the file herein, including the certified administrative record of the Immigration and Naturalization Service (“INS”), and have made a de novo determination of those portions of the initial report to which objection has been made. Because I agree with the Magistrate’s reliance on and analysis of Yiu Sing Chun v. Sava, 708 F.2d 869 (2d Cir.1983), I approve and adopt her recommendation that the writ issue. I add only the following.

In his objections to the Magistrate’s initial report, respondent argues, in essence, that a stowaway’s right to apply to the INS district director for asylum, a procedure in effect prior to the enactment of the Refugee Act of 1980, see INS v. Stanisic, 395 U.S. 62, 89 S.Ct. 1519, 23 L.Ed.2d 101 (1969), is sufficient to fulfill the purposes and provisions of the Refugee Act. In addition to the observations made in the Magistrate’s supplemental report, with respect to this contention, the Court notes that the INS’ own regulations do not support this contention:

As we have noted above, INS regulations promulgated under the Refugee Act do not distinguish between stowaways and other aliens in providing for an exclusion hearing after the District Director has denied an asylum application, 8 C.F.R. 208.9, 208(f)(3), nor, read as a whole, does the agency’s asylum procedure make any distinction among applicants for asylum. Nor do internal INS procedures (“Operations Instructions”) qualify in any way the generalization that an “alien shall be informed of his/her right to renew the asylum request ... in subsequent exclusion or deportation proceedings.” INS 0.1. 208.14, reprinted in 4 C. Gordon & H. Rosenfeld, Immigration Law and Procedure 23-156.20 (rev. ed. 1982).

Yiu Sing Chun, 708 F.2d at 875 (footnote omitted). In the omitted footnote, the Second Circuit observed that:

Stowaway status is not one of the reasons for denying an asylum application listed in the Federal Register notice or the regulations. Id. [45 Fed.Reg.] at 37,-392; 8 C.F.R. 208.8(f)(i)-(vi).

Id. at 875 n. 19 (emphasis in the original).

As noted in the Magistrate’s initial report, petitioner claimed that as a stowaway-asylee he was entitled to a due process hearing on his asylum claim. The contention rests primarily on the analysis in Yiu Sing Chun of the requirement of a due process hearing “to determine whether applicants for asylum are, in fact, refugees within the meaning of the Act.” 708 F.2d at 877 (footnote omitted). Here, although petitioner was given a hearing before an immigration judge (“IJ”) and found to be a refugee, the Board of Immigration Appeals (“BIA”) concluded that the IJ was without jurisdiction and ordered all proceedings terminated.

In his objections to the Magistrate’s initial report, respondent insists that a stowaway has no constitutional right to due process. Respondent arrives at that position by relying first on the holding in Niskimura Ekiu v. United States, 142 U.S. 651, 660, 12 S.Ct. 336, 338, 35 L.Ed. 1146 (1892), that with respect to unadmitted aliens, “the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.” (Citation omitted.) Accord, Shaughnessy v. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625, 629, 97 L.Ed. 956 (1953). Next, respondent distinguishes Landon v. Placencia, 459 U.S. 21, 32, 103 S.Ct. 321, 329, 74 L.Ed.2d 21 (1982), which held that constitutional due process applies to an exclusion proceeding. The distinction is bottomed on the Immigration and Nationality Act’s provisions that stowaways have no right to a hearing under that Act. See 8 U.S.C. §§ 1225(b) and 1323(d). This argument, however, completely ignores rights granted to refugees under treaty and by the Refugee Act. Giving effect to these enactments, I agree with the Second-Circuit that both treaty and statutory rights grant to an asylee-refugee a protectible interest which is sufficient to trigger procedural due process requirements. See Yiu Sing Chun, 708 F.2d at 876-77 and nn. 25-27.

Petitioner’s rights under the Refugee Act are limited to those expressly provided for in that Act. The IJ found that petitioner was a “refugee”—that he had a “well-founded fear of persecution.” 8 U.S.C. § 1101(a)(42)(A). On the other hand, he also concluded that this was not a proper case in which the discretion to grant asylum should be exercised in favor of petitioner. Both sides appealed to the BIA. As indicated earlier, the BIA vacated the decision of the IJ and ordered the exclusion proceedings terminated for lack of jurisdiction. It did not reach the merits. Therefore, the matter must be remanded for the two questions to be resolved on the merits: (1) Is petitioner a “refugee” within the meaning of the Refugee Act; and (2) If so, how should the Attorney General exercise his discretion as to whether or not to grant petitioner asylum under § 208(a) of the Refugee Act of 1980, 8 U.S.C. § 1158(a). See, e.g., Garda-Ramos v. INS, 775 F.2d 1370, 1373 (9th Cir.1985); Yiu Sing Chun, 708 F.2d at 876.

IT IS ORDERED that the writ of habeas corpus issue and that the matter be remanded for further proceedings not inconsistent with this Order and the Magistrate’s reports and recommendations.

REPORT AND RECOMMENDATION OF MAGISTRATE

October 8, 1985

VENETTA S. TASSOPULOS, United States Magistrate.

This Report and Recommendation is submitted pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and General Order No. 194 of the United States District Court for the Central District of California.

On December 13, 1984, petitioner filed two petitions for writs of habeas corpus, civil case numbers 84-9509-AWT(T) and 84-9510-Kn(T). Also on that date, petitioner filed an ex parte application for a temporary restraining order. No opposition being offered by defense counsel, the Magistrate heard petitioner's motion and signed an order to show cause and stay of deportation in the case. The Magistrate also found that petitioner’s counsel had not exhausted his administrative remedies with the Board of Immigration Appeals. Counsel was advised to voluntarily dismiss one of his writs of habeas corpus and to file an amended petition for writ of habeas corpus no later than January 7, 1985.

Petitioner voluntarily dismissed civil action number 84-9510-Kn(T) on December 28, 1984. Thereafter, the government submitted its Return to petitioner’s habeas corpus petition, and petitioner filed his traverse. Oral argument regarding petitioner’s order to show cause and stay of deportation was set for hearing on February 19, 1985.

After ■ the hearing, the Magistrate ordered additional briefing on the petitioner’s entitlement to a hearing before an immigration judge. The matter was thereafter deemed submitted.

BACKGROUND

Petitioner, Fang-Sui Yau, arrived at the port of Los Angeles on the vessel Sealand Developer on September 1, 1983. (Administrative Record, hereinafter “A.R.,” 80). By petitioner’s own admission, his presence on the vessel was that of a “stowaway.” (A.R. 116).

Upon arrival in the United States, petitioner was detained by the Immigration and Naturalization Service (hereinafter “INS”) and afforded an exclusion hearing before an immigration judge. (A.R. 90-233). Petitioner requested political asylum, claiming that he would be persecuted if returned to his native land, the People’s Republic of China. Petitioner based his claims of persecution on allegations that he was discriminated against in China due to his status as a member of a landowner class family and the son of an anti-revolutionary. (A.R. 103-105). Hearings were held between March 6, 1984 and April 30, 1984. (A.R. 90-94, 95-117, 118-130, 131-140, 141-165, 166-190 and 191-233). Petitioner also claimed to have engaged in several anti-government activities, including assistance to several individuals who successfully escaped mainland China. (A.R. 109-110, 189-190). Petitioner testified that he had attempted to escape China before, unsuccessfully, and that such an attempt resulted in his imprisonment for one year. (A.R. 112-113).

Petitioner’s second attempt to escape China was successful. He fled to Hong Kong where he resided underground for more than a year. (A.R. 114-117, 199). Petitioner explained that he did not seek to apply for political asylum at the United States Consular Office in Hong Kong because he was not aware that such an office existed and because he feared the Hong Kong authorities would capture him and would return him to China. (A.R. 116, 194). After residing in Hong Kong without legal status, petitioner stowed away on the Sealand Developer with the intent of applying for political asylum upon entry into the United States. (A.R. 200).

After the hearings and due consideration of the evidence presented, the immigration judge issued a decision finding petitioner excludable as a stowaway. (A.R. 80-89). While finding that the petitioner was ex-cludable and subject to deportation, the immigration judge also found that petitioner had established a well founded fear of persecution if returned to the People’s Republic of China. (A.R. 87, 89). Therefore, the immigration judge determined that petitioner should be deported to any country which would accept him other than the People’s Republic of China. (A.R. 89).

The Board of Immigration Appeals vacated the decision of the immigration judge and terminated exclusion proceedings. (A.R. 2-3). The Board found that since petitioner was a stowaway and not entitled to a hearing before an immigration judge, the immigration judge did not have jurisdiction over petitioner’s asylum claim. (A.R. 3).

THE ISSUE

The issue before the Court is one of first impression, there being no Ninth Circuit Court of Appeals precedent. The essential question is whether petitioner, whose status as a stowaway normally would preclude a hearing before an immigration judge, pursuant to 8 U.S.C. § 1323(d) is, nevertheless, entitled to such a hearing under the Refugee Act of 1980, 8 U.S.C. § 1158(a).

Title 8 U.S.C. § 1323(d) provides in pertinent part: The provisions of Section 1225 of this title for detention of aliens for examination before special inquiry officers and the right of appeal provided for in Section 1226 of this title shall not apply to aliens who arrive as stowaways and no such alien shall be permitted to land in the United States, except temporarily for medical treatment, or pursuant to such regulations as the Attorney General may prescribe for the ultimate departure or removal or deportation of such aliens from the United States.

A review of the statute’s legislative history reveals that the expansive changes which were enacted with the passage of the 1952 legislation imposed penalty provisions in connection with stowaways.

Section 273(d) provides a penalty for failure to detain a stowaway on board a vessel or aircraft prior to inspection, or after inspection if there is an order to do so, as well as a penalty for failure to deport such stowaway. Section 273(e) imposes a penalty for failure to deport such stowaway. Section 273(e) imposes a penalty of $500 on a carrier which has on board a stowaway upon arrival at a port of entry, which penalty may be mitigated under certain conditions.

H.R.Rep. No. 1365, 82nd Cong.2d Sess., reprinted in 1952 U.S.Code Cong. & Ad. News 1653, 1724.

As part of the penalty provisions, Congress determined that stowaways should not have the right to an exclusion hearing before an immigration judge. Under this 1952 legislation, alien stowaways were first deemed excludable.

“D. Stowaways
Stowaways are excluded absolutely, whereas, at present, the Attorney General has discretionary authority to admit stowaways.”

H.R.Rep. No. 1365, supra, reprinted in 1952 U.S.Code Cong. & Ad.News, 1653, 1703.

In this case, the government has interpreted 8 U.S.C. § 1323(d) as denying a stowaway not only his right to an exclusion hearing before an immigration judge, but also denying a stowaway’s right to raise his asylum claim before an immigration judge.

Crewmen and stowaways have always been considered special cases under the immigration laws because they arrive at ports of entry without having undergone the usual procedure for admission under the immigration laws, the procedure of applying for a visa at an American consular post abroad. Hence, Congress enacted special procedures for crewmen and stowaways seeking entrance to the United States. The statute permits the district director to exclude crewmen and stowaways summarily.
If a crewman desires to present an asylum claim, it is also within the discretion of the district director to grant or deny asylum. INS v. Stanisic, 395 U.S. 62, 89 S.Ct. 1519, 23 L.Ed.2d 101 (1969).”

Respondent’s Memorandum of Points and Authorities, p. 4.

Title 8 U.S.C. § 1323(d) and the government’s interpretation of the statute are squarely in conflict with the provisions for the admission of refugees in the Refugee Act of 1980, Pub.L. 96-212, 94 Stat. 109.

The purpose of the Refugee Act of 1980 is stated as follows:

The objectives of this Act are to provide a permanent and systematic procedure for the admission to this country of refugees of special humanitarian concern to the United States and to provide comprehensive and uniform provisions for the effective resettlement and absorption of those refugees who are admitted.

The Refugee Act of 1980, § 101(b).

The Act further requires the Attorney General, to “establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien’s status, to apply for asylum.” [Emphasis added.] 8 U.S.C. § 1158(a).

Petitioner interprets both the general purposes of the Refugee Act of 1980 as well as the statute’s directory language as providing a stowaway a right to apply for asylum in the same manner as any other alien applying for political asylum, i.e., with a right to a hearing before an immigration judge.

Respondent, on the other hand, reads the language and purposes of the Refugee Act in a more restrictive manner, arguing that the stated purpose of the Refugee Act of 1980 shows Congressional intent that procedures for consideration of asylum claims are to be “permanent and systematic.” Only the procedures concerning resettlement absorption of refugees need be “comprehensive and uniform.” The government argues that since resettlement was a major concern of Congress, the statutory language provided for uniformity, but that the uniformity was not required in the area of establishment of a procedure to adjudicate asylum claims. {See, Respondent’s Memorandum of Points and Authorities, pps. 6-7.)

In support of its limiting interpretation, the government refers to the remarks of Senator Kennedy, the original bill’s sponsor, as indicating that the bill was enacted in response to concerns about the refugees’ resettlement in communities across the land. (Respondent’s Memorandum of Points and Authorities, pps. 6-7), referring to Sen.Rep. No. 256, 96th Cong.2d Sess. 16, reprinted in 1980 U.S.Code Cong. & Ad. News 141. 156.

DISCUSSION

A review of the legislative history of the Refugee Act of 1980 reveals that the government’s limited interpretation of the Act is not supported by the commentary of the bill’s sponsor, Senator Edward Kennedy.

The early remarks of Senator Kennedy provide: It is the intention of the Conference that the Attorney General should immediately create a uniform procedure for the treatment of asylum claims filed in the United States or at our ports of entry. Present regulations and procedures now used by the immigration service do not conform to either the spirit or to the new provisions of this Act.

[Emphasis added.] 125 Cong.Rec. 3759 (1979).

Later remarks by Senator Kennedy emphasized the dual concerns of the refugee legislation.

In fact, Mr. President, the central feature of this bill is the establishment of a statutory framework governing the admission of refugees during “normal flow” periods as well as during emergency situations.
The bill requires the Attorney General to establish a uniform procedure for passing upon an asylum application. We believe such a uniform procedure should allow all asylum applicants an opportunity to have their claims considered outside a deportation and/or exclusion proceeding; providing [sic, provided that] the order to show cause has not been issued.

125 Cong.Rec. 23232, 33233 (1979).

Thus, the legislative history and remarks of the bill’s sponsor, and the clear language of the statute itself, stress the importance of uniform procedures for all asylum applicants, regardless of their status. Contrary to the government’s assertion, it appears that Congress was concerned with the issue of the admission of asylum applicants as well as their eventual resettlement and absorption into the United States.

STATUTORY INTERPRETATION

Under the general rules established by the United States Supreme Court and the Ninth Circuit Court of Appeals, the courts are the final authorities on issues of statutory interpretation. Markair, Inc. v. C.A.B., 744 F.2d 1383, 1385 (9th Cir.1984), citing Federal Election Commission v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23 (1981).

In construing a statute in a case of first impression, the courts may consider the language of the statute itself, its legislative history, and the interpretation given to it by its administering agency. Brothers v. First Leasing, 724 F.2d 789, 792 (9th Cir.1984).

The fundamental maxim of statutory interpretation is that the language of a statute is the best and most reliable index to its meaning, and where language is clear and unequivocal, it is determinative of its construction. Monte Vista Lodge v. Guardian Life Insurance Co. of America, 384 F.2d 126, 128 (9th Cir.1967), cert. den., 390 U.S. 950, 88 S.Ct. 1041, 19 L.Ed.2d 1142 (1968).

In the instant case, the language of each statute is clear and unequivocal. Title 8 U.S.C. § 1323(d) precludes a stowaway from a right to an exclusion hearing before an immigration judge. The Refugee Act of 1980, 8 U.S.C. § 1158(a), provides that an alien, regardless of his status, may present his asylum claim according to the uniform procedures set forth by the Attorney General which include a right to a hearing before an immigration judge. 8 C.F.R. Part 208. The use of the words “irrespective of status” as well as the establishment of procedures for aliens at ports of entry in the Refugee Act of 1980 appears to indicate Congressional intent to include stowaways under the Refugee Act provisions.

Assuming, arguendo, that the language of the statute is not as clear as it appears to be, the Court must then examine the statute’s legislative history. However, the legislative history does not address the issues presented here, and speaks only to the general Congressional concern that the Act create uniform application procedures for the admission of those aliens seeking political asylum. No express repeal of 8 U.S.C. § 1323(d) is made or even suggested.

Failing to resolve the issue presented by an examination of the statutes’ legislative histories, the Court may look to the third and final test, i.e., the agency’s interpretation of the statutes.

The government’s interpretation of the relevant statutes is quite clear: INS does not interpret the rights afforded by their regulations, promulgated pursuant to the Refugee Act as applying to stowaways.

It is quite evident that the INS has at no time interpreted the Refugee Act of 1980 as requiring hearings for stowaways before an immigration judge, in the face of statutory proscription of such hearings for crewmen and stowaways in Title 8 U.S.C., section 1323. It is equally evident that the INS did not intend to promulgate regulations which would contravene that statute, and it follows inevitably that the INS does not interpret those regulations as repealing that statute.
The drafters of the regulations simply did not advert to the possibility that the Refugee Act would be interpreted to require hearings before an immigration judge for the asylum claims of crewmen and stowaways. The INS interpretation of the regulations, insofar as they speak of renewing denials of asylum claims by the district director in exclusion or deportation proceedings before an immigration judge, is that those regulations speak only to the circumstances of aliens other than crewmen, aliens who otherwise have the right to such proceedings. The regulations are not intended to create a right to such hearings where the statute provides that such right does not obtain.

[Emphasis in the original.] Respondent’s Memorandum of Points and Authorities, pps. 12-13.

The Court is well aware that the interpretation of a statute by an agency charged with administering it is entitled to deference. N.L.R.B. v. Bell Aerospace Co., 416 U.S. 267, 274-75, 96 S.Ct. 1757, 1761-62, 40 L.Ed.2d 134 (1974); Udall v. Tollman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). However, in its consideration, the Court must reject administrative constructions of a statute which are inconsistent with the statutory mandate or which frustrate the policy that Congress sought to implement. Markair, Inc. v. C.A.B., supra, 744 F.2d at 1385. A discussion of agency deference is pointless if the agency interpretation violates the plain language of the Act as well as the statutory purposes revealed by the legislative history. Tulalip Tribes of Washington v. F.E.R.C., 732 F.2d 1451, 1454 (9th Cir.1984).

In this case, the INS interpretation of the statutes as denying petitioner, an alien stowaway, his right to a hearing before an immigration judge, is contradictory to the plain language as well as the purposes of the Refugee Act of 1980, which clearly intends to include aliens arriving at a port of entry, regardless of their status. For those aliens seeking political asylum their rights to be afforded the procedures set forth by INS, including the right to submit their applications before an immigration judge, appear to be absolute. The government’s assertions to the contrary contravene the clear language and intent of the statute.

CHUN v. SAVA

Only one circuit court of appeals has fully discussed and determined the issue presented here by the present petitioner. In Chun v. Sava, 708 F.2d 869 (2d Cir. 1983), the Court held that alien stowaways were entitled to a hearing before an immigration judge limited to the presentation of an asylum claim, followed by whatever other procedural rights other asylum applicants are afforded. Id., at 876.

As in the opinion of the Magistrate here, the Second Circuit found the plain language of the Refugee Act of 1980 as persuasive of the logical conclusion that stowaways are entitled to a hearing before an immigration judge to allow them to raise their asylum claim.

With just the foregoing in mind [the Attorney General’s asylum procedures set forth at 8 C.F.R. Part 208], it would be plain that because the refugee asylum procedure applies, in the words of the statute, “irrespective of such alien’s status,” and because the regulations promulgated by the Attorney General under the Act do not differentiate a stowaway from any other “applicant for admission,” petitioners are to be placed under exclusion proceedings “where they may renew their requests for asylum before an immigration judge.” Id., at 873.

Realizing that the two statutes, 8 U.S.C. § 1323(d) and the Refugee Act of 1980, create a clear conflict, the Second Circuit sought “to give harmonious operation and effect to all statutory provisions if possible, absent some explicit indication of legislative intent derived from either the words of the statute or its legislative history.” Id., at 874. As a result of their goal to harmonize the two statutes, the Court concluded: '

We believe that the Refugee Act of 1980 and § 1323(d) can be harmonized by reading the refugee regulations—particularly 8 C.F.R. 208.9(f)(3)—to require a hearing before an immigration judge limited to the asylum issue for stowaways seeking admission as refugees. We think that this result is not inconsistent with § 1323(d), and that it best accommodates congressional intent that the “Attorney General ... establish a uniform procedure for passing upon any asylum application” under the Refugee Act. Sen. Rep. No. 256, 96th Cong., 2d Sess. 16, reprinted in 1980 U.S.Code Cong. & Ad. News 141, 156.

Id., at 874.

Unlike the present case, the government in Chun v. Sava, supra, raised the statutory construction principle that general statutes do not generally effect an implicit repeal of an earlier specific statute. United States v. United Continental Tuna Corp., 425 U.S. 164, 169, 96 S.Ct. 1319, 1323, 47 L.Ed.2d 653 (1976). See also Monte Vista Lodge v. Guardian Life Insurance Co. of America, supra, 384 F.2d at 129. (“[fjundamental maxims of statutory construction require that a specific section be found to qualify a general section.”)

The Second Circuit’s well reasoned opinion, Chun v. Sava, supra, 708 F.2d at 874, rejected the application of this principle. The preference of this Court also is to harmonize the two statutes, giving effect to the perceived' goals of each legislature.

It is clear that the goal of the 1952 legislature was to prevent stowaways from landing illegally 'in the United States. Their perception of the problems attendant to stowaways resulted in legislation which punished carriers for bringing stowaways into the United States as well as imposing a restriction that stowaways could not avail themselves of the right to an exclusion hearing before an immigration judge. The Refugee Act of 1980 was concerned with the admission of refugees and those aliens seeking asylum. The compromise reached by the Second Circuit in Chun v. Sava, supra, and the recommended decision of the Magistrate in this case, do not defeat the intention of either statute. Rather, the statutes are effectively harmonized by limiting a stowaway’s right to a hearing before an immigration judge to those circumstances where the stowaway seeks political asylum.

The Second Circuit also examined the stowaway’s procedural rights which, as asylum applicants, are derived from the Refugee Act of 1980. This Court need not dwell upon this issue even though it was raised by the present petitioner based simply upon the clear language of the statute. However, the Court agrees with the Second Circuit’s general conclusions and observations that while an alien seeking initial admission has very limited rights regarding his application, Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1477, 52 L.Ed.2d 50 (1977), a refugee may well enjoy some due process protection not available to an alien seeking only admission. Chun v. Sava, supra, 708 F.2d at 877.

CONCLUSION

The Magistrate concludes that petitioner is entitled to raise his asylum claim in the context of a hearing before an immigration judge. The Magistrate reaches this conclusion based upon the language of the Refugee Act of 1980 and the rationale used by the Second Circuit in its decision in Chun v. Sava, supra.

Accordingly, the Magistrate recommends that petitioner’s writ of habeas corpus be granted.

SUPPLEMENTAL REPORT AND RECOMMENDATION OF MAGISTRATE

December 11, 1985

This Supplemental Report and Recommendation is submitted to the Honorable A. Wallace Tashima, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and General Order No. 194 of the United States District Court for the Central District of California.

Respondent filed objections to the Magistrate’s Report and Recommendation on October 31, 1985. The Report and Recommendation recommended that petitioner’s writ of habeas corpus be granted and concluded that petitioner is entitled to raise his asylum claim in the context of a hearing before an immigration judge.

Respondent filed further objections and additional authorities in support of his objections on November 13, 1985.

DISCUSSION

Respondent’s main objection to the Magistrate’s Report and Recommendation is the fact that it failed to acknowledge and give consideration to INS asylum procedures which allow an alien stowaway the right to submit his or her asylum application to the INS District Director. Respondent appears to argue that having this procedure available is the key factor in deciding whether alien stowaways should have the right to raise their asylum claim before an immigration judge. The respondent states:

“We believe that the magistrate’s undue conviction in her interpretation of the statutory language arises from an incomplete understanding of the alternative procedure for the adjudication of asylum claims. This is evident from the fact that in the report and recommendation, there is no consideration whatever given to the procedure of adjudication of asylum claims by the district director of the INS.
Although the legislative history, like the statutory language, could have been clearer on this point, it is beyond a doubt that the framers of the statute intended that there be more than one procedure for the adjudication of asylum claims.”

(Objections to Magistrate's Report and Recommendation, p. 6).

The Magistrate finds respondent’s argument unpersuasive.

There are five steps in the asylum application process set forth by the INS regulations.

1. Preparation and filing of the asylum application made on form 1-589 which is filed with the District Director. 8 C.F.R. § 208.2, § 208.3(a)(1).

2. An in-person examination by an immigration officer or judge. 8 C.F.R. § 208.6.

3. An advisory opinion from the Bureau of Human Rights and Humanitarian Affairs (BHRHA) of the Department of State. 8 C.F.R. § 208.7.

4. A written decision from the District Director which may not be appealed. 8 C.F.R. § 208(b), (c).

5. A right to renew the denied asylum request before an immigration judge in either exclusion or deportation proceedings. 8 C.F.R. § 208.9.

The question before the Court does not involve the right of an alien stowaway to seek application before the District Director. Petitioner did not dispute the fact that he had such a right to apply to the District Director. Rather, the question is admittedly more complicated and the real issue before the Court is whether an alien stowaway has a right to take advantage of the fifth step in the process, i.e., whether he or she has the right to renew his asylum request before an immigration judge when, in fact, another statute, 8 U.S.C. § 1323(d), would appear to negate that right.

It appears to the Magistrate that petitioner’s right to apply to the District Director has very little to do with the primary question before the Court in the instant case. A consideration of whether an alien stowaway may apply to the District Director adds to, rather than detracts from, the conclusion made by the Magistrate in this case.

As respondent pointed out, a crewman or stowaway could always apply to the District Director for permission to remain in the United States if he or she qualified as a refugee within the meaning of the United Nations Protocol on the Status of Refugees. See INS v. Stanisic, 395 U.S. 62, 89 S.Ct. 1519, 23 L.Ed.2d 101 (1969). This was the procedure prior to the enactment of the Refugee Act of 1980, Pub.L. No. 96-212, 94 Stat. 102 (1980), and it remains part of the asylum procedure to date. However, to conclude that because this procedure was available then and is available now, is to argue that the Refugee Act was to have no effect on asylum procedures. The Congressional intent that the Attorney General establish uniform procedures for the application for asylum, irrespective of such alien’s status, would have no meaning if the Court were to accept the respondent’s arguments.

CHUN v. SAVA

Respondent correctly notes that the Magistrate relied heavily upon the rationale used by the Second Circuit in Chun v. Sava, 708 F.2d 869 (2d Cir.1983), a case which also concluded that a stowaway was entitled to a hearing before an immigration judge to raise his asylum claim. Respondent, however, argues that reliance upon this case is misplaced because the United States Supreme Court reversed the Second Circuit’s interpretation of the Refugee Act as overbroad in INS v. Stevie, 467 U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984) (reversing and remanding Stevie v. Sava, 678 F.2d 401 (1982)). Respondent maintains that the Second Circuit used the same interpretation of the Refugee Act in Chun v. Sava that it used in Stevie v. Sava. Thus, a fortiori the reasoning used by the Court of Appeals in Chun should not be relied upon in the instant case.

Contrary to the respondent’s characterizations of what the Second Circuit relied upon in Chun as opposed to Stevie, the Court of Appeals’ opinion shows that the Court of Appeals did not consider Stevie’s rationale applicable.

“To the extent that Stevie held that the standard for determining when an applicant meets the substantial requirements of the statute to be treated as a refugee has changed from one of ‘clear probability’ to one of ‘well-founded fear’ based upon ‘good reason’—the point on which the Supreme Court has granted its writ of certiorari—Stevie is not relevant here because this case involves only procedural questions.”

Chun v. Sava, supra, 708 F.2d at 872, n. 9.

In fact, the Supreme Court also set forth the question presented by Stevie v. Sava as concerning the standard of proof to be applied in asylum cases. INS v. Stevie, supra, 104 S.Ct. at 2492. The Supreme Court noted:

“The Court of Appeals’ decision rests on the mistaken premise that every alien who qualifies as a ‘refugee’ under the statutory definition is also entitled to a withholding of deportation under § 243(h).” Id., at 2500.

Thus, the criticism of the Supreme Court of the Second Circuit’s opinion in Stevie v. Sava is not relevant to the issues presented by the instant case.

It should also be noted that the INS did not appeal the Second Circuit’s opinion in Chun v. Sava. Thus, by implication, this Court cannot agree that the opinion was wrongfully decided, as .argued by respondent.

GUINTO v. INS

The Magistrate now considers respondent’s discussion regarding the recent Ninth Circuit Court of Appeals’ decision in Guinto v. INS, 774 F.2d 991 (9th Cir.1985).

In Guinto, the alien crewman made two arguments. First, he argued that he was not a crewman ineligible for suspension of deportation under 8 U.S.C. § 1254(f). The Court of Appeals found his argument without merit.

Guinto’s second argument, an argument which respondent suggests is relevant to the instant case, was that any statutory exclusion of crewmen from eligibility for discretionary relief violates the Equal Protection Clause. The Ninth Circuit rejected that argument finding that Congress could rationally determine that seamen pose a special immigration problem because they reach our shores without, going through the normal visa process.

Relating the Ninth Circuit’s reasoning in Guinto ■ to the instant case, it should be noted that the Magistrate’s Report and Recommendation has already acknowledged that the Congress chose to treat crewmen and stowaways differently from other aliens by denying them the right to an exclusion hearing. See 8 U.S.C. § 1323(d) as compared to 8 U.S.C. § 1182(a). However, the Magistrate concludes that Congress’ intention to treat stowaways and crewmen differently by denying them a right to an exlcusion hearing does not limit their rights, also provided by the Congress, under the Refugee Act. The Magistrate interprets the Refugee Act as requiring that aliens seeking asylum, irrespective of their status and including stowaways, be afforded the right to present their asylum claim before an immigration judge.

CONCLUSION

It is the final recommendation of the Magistrate, after review and consideration of the respondent’s objections and arguments, that petitioner’s writ of habeas corpus be granted and that petitioner be found entitled to raise his asylum claim in the context of a hearing before an immigration judge.

      . I do not view the Second Circuit’s analysis in Yiu Sing Chun as a "compromise"; rather, as also indicated by the Magistrate, it is a rational harmonization of the two statutes, giving effect to both.

       The term special inquiry officer is used interchangeably with the term immigration officer. Both terms refer to the same officer. See 8 C.F.R. § 1.1(1)

       In Garcia v. Smith, 674 F.2d 838, aff'd on panel rehearing, 680 F.2d 1327 (11th Cir.1982), the petitioner raised the same argument as in the instant case. The Eleventh Circuit stated that it made no judgment on the validity of the claim but held that the district court had the subject matter jurisdiction to hear it. The case was remanded to the district court for further proceedings including the merits of petitioner’s arguments.