author: FEIKENS, Chief Judge.

text:
    Mary J. SCHMIDT, in her capacity as sole Trustee of the Harry J. Hoenselaar Revocable Trust, Plaintiff, v. Donald J. QUIGG, Acting Assistant Secretary in the United States Department of Commerce and Acting Commissioner of Patents and Trademarks, Defendant.
    Civ. A. No. 84-CV-3492-DT.
    United States District Court, E.D. Michigan, S.D.
    May 20, 1985.
    John A. Artz, Ronald W. Wangerow, Harness, Dickey & Pierce, Birmingham, Mich., for plaintiff; J. Rodgers Lunsford, William R. Cohrs, Hurt, Richardson, Garner, Todd & Cadenhead, Atlanta, Ga., of counsel.
    Karl Overman, Asst. U.S. Atty., Detroit, Mich., for defendant.
   MEMORANDUM OPINION

FEIKENS, Chief Judge.

This matter arises out of plaintiffs attempt to register the term “Honey Baked Ham” as a trademark pursuant to the Trademark Act of 1946, 15 U.S.C. § 1051 et seq. Jurisdiction is based on 15 U.S.C. § 1071(b).

Plaintiff, Mary J. Schmidt, is sole trustee of the Harry J. Hoenselaar Revocable Trust which was created October 4, 1973. The trust was created and has its principal place of business in Michigan operating under the name and style, Honey Baked Ham Company (“Company”). Since approximately 1949, the Company has continuously used the term “Honey Baked Ham” on spiral sliced glazed hams. In 1949, the Company’s product was distributed out of a single store in Detroit, Michigan; since then, the Company has grown to nearly 100 stores in 23 states. From 1960 to 1985, over $10 million was spent on advertising “Honey Baked Ham,” and gross revenue for its stores exceeded $300 million during the same period.

On August 29, 1977, plaintiff filed an application to register the term “Honey Baked Ham” under the provisions of the Trademark Act of 1946, 15 U.S.C. §§ 1051 et seq. On December 6, 1977, the United States Patent and Trademark Office rejected plaintiff’s application. Plaintiff responded to the Office Action, and the Patent and Trademark Office again rejected the application on September 28, 1979. The Patent and Trademark Office’s refusal was continued on June 15, 1981, and on November 3, 1981, plaintiff appealed the refusal to the Trademark Trial and Appeal Board. That Board affirmed the Patent and Trademark Office’s refusal to register on May 31, 1984.

Plaintiff may seek review of a Trademark Trial and Appeal Board final decision in either the United States Court of Appeals for the Federal Circuit or a United States District Court. 15 U.S.C. § 1071(b). An appeal to the Federal Circuit is an appellate review of the Trademark Trial and Appeal Board record. A section 1071(b) review in District Court is different. The District Court proceeding is often called a de novo review because new evidence may be introduced. A more apt description, however, is found in Standard Pressed Steel Co. v. Midwest Chrome Process Co., 418 F.Supp. 485, 489 (N.D.Ill. 1976), in which the court described the standard of review as “unique.” See also Gillette Co. v. “42” Products Ltd., 435 F.2d 1114, 1115 (9th Cir.1970). The review is unique because the record below, as well as new matters, may be introduced as evidence. Unlike a de novo proceeding, findings of fact made by the Trademark Trial and Appeal Board are given great weight and are not upset unless new evidence is introduced “which in character and amount carries thorough conviction.” American Heritage Life Insurance Co. v. Heritage Life Insurance Co., 494 F.2d 3, 10 (5th Cir.1974); see also Morgan v. Daniels, 153 U.S. 120, 125, 14 S.Ct. 772, 773, 38 L.Ed. 657 (1894). The District Court may also reverse the Trademark Trial and Appeal Board if its decision is not supported by sufficient evidence. See Redken Laboratories, Inc. v. Clairol, Inc., 501 F.2d 1403, 1404 (9th Cir.1974); cf. In re DC Comics, Inc., 689 F.2d 1042, 1054-55 (C.C.P.A.1982) (Judge Nies, concurring) (Trademark Trial and Appeal Board’s refusal to register reversed by Court of Claims and Patent Appeals because the Patent and Trademark Office did not meet its burden of proof.)

Not all terms may be registered as trademarks under the Trademark Act of 1946. A common reason for rejecting an application for trademark registration is that the term is too descriptive of the applicant’s type of goods. Exclusive use of such a term by the applicant would deprive others of using the term to describe their goods. The United States Court of Appeals for the Sixth Circuit has identified four categories of descriptiveness into which a term may fit:

A term for which trademark protection is claimed will fit somewhere into the spectrum which ranges through (1) generic or common descriptive and (2) merely descriptive to (3) suggestive and (4) arbitrary or fanciful.
A generic or common descriptive term is one which is commonly used as the name or description of a kind of good. It cannot become a trademark under any circumstances.
A merely descriptive term specifically describes a characteristic or ingredient of an article. It can, by acquiring a secondary meaning, i.e., becoming distinctive of the applicant’s good ..., become a valid trademark.
A suggestive term suggests rather than describes an ingredient or characteristic of the goods and requires an observer to use imagination and perception to determine the nature of the goods. Such a term can be protected without proof of a secondary meaning.
An arbitrary or fanciful term enjoys the same full protection as a suggestive term but is far enough removed from the merely descriptive not to be vulnerable to possible attack as being merely descriptive rather than suggestive.

Induct-o-matic Corp. v. Inductotherm Corp., 747 F.2d 358, 362-63 (6th Cir.1984) (quoting Miller Brewing Co. v. G. Heileman Brewing Co., 561 F.2d 75, 79 (7th Cir.1977), cert, denied, 434 U.S. 1025, 98 S.Ct. 751, 54 L.Ed.2d 772 (1978) (citations omitted)).

The Trademark Trial and Appeal Board concluded that the term “Honey Baked Ham” is “an apt or common descriptive name for [plaintiff’s] baked hams to which a honey glaze has been applied.” In re Schmidt, 222 U.S.P.Q. 643, 644 (T.T.A.B. 1984). If “Honey Baked Ham” is a common descriptive name, it is not registerable as a trademark. Plaintiff argues that her term is not a common descriptive term, but instead is a merely descriptive term and, thus, is registerable if it has acquired a secondary meaning. It is clear that “Honey Baked Ham” is not suggestive, arbitrary or fanciful, and so the threshold question becomes whether it is a common descriptive term or a merely descriptive term — in other words, does the term fit into Induct-o-matic’s category one or category two? If it is determined that “Honey Baked Ham” is a merely descriptive term, I must address the question whether the term has acquired a secondary meaning.

The burden of proving that plaintiff’s claimed trademark is a common descriptive term is on defendant. See In re DC Comics, Inc., 689 F.2d at 1054-55 (Judge Nies, concurring); In re American Standard Inc., 223 U.S.P.Q. 353, 355 (T.T. A.B.1984). After careful consideration of the testimony, documents, and the record introduced by the parties, I conclude that defendant clearly has failed to prove that the term “Honey Baked Ham” is “commonly used as the name or description of a kind of good.” Induct-o-matic Corp., Til F.2d at 362.

Defendant introduced virtually no evidence suggesting that “Honey Baked Ham” is a common descriptive term. In fact, defendant’s failure to proffer any meaningful evidence suggesting the common use of the term strongly suggests that “Honey Baked Ham” is not a common or generic description. For example, defendant referred to a restaurant menu mentioned in the Christian Science Monitor which listed “Honey Baked Ham” as a selection. Defendant’s Exhibit 1, p.. 340. This evidence is not persuasive because it is unclear whether the restaurant in question was using the term generically. Defendant offered no proof that the menu listing did not refer to plaintiff’s product. Moreover, one isolated instance of the term’s use by another party does not demonstrate that it is a common descriptive term.

Defendant also argues that the use of the simile “like honey on a baked ham, ice glazes porch railings ...” in a Washington Post article about job seekers is symptomatic of how aptly descriptive “Honey Baked Ham” is. Defendant’s Exhibit 1, p. 339. I find this evidence wholly unsupportive of defendant’s position. The simile does not demonstrate that “Honey Baked Ham” is a generic term; it only demonstrates that honey is commonly used in preparing hams. It is undisputed that plaintiff is not the sole supplier of hams glazed with honey, nor does plaintiff deny that the term describes a characteristic or ingredient of her product. The core inquiry is whether “Honey Baked Ham” is a generic or common descriptive name for hams prepared with honey, and defendant’s simile evidence does not address the inquiry.

Thus, I find that the term “Honey Baked Ham” is not a common descriptive term, and I hold that the Trademark Trial and Appeal Board was in clear error in its finding to the contrary. The burden of proving that “Honey Baked Ham” is a generic or common descriptive term is on defendant, and the unpersuasive character and small amount of the evidence in support of defendant’s position is insufficient to shift the burden of persuasion.

Even if defendant’s evidence were sufficient to shift the burden of persuasion, plaintiff’s evidence introduced at trial, in character and amount, carried thorough conviction in demonstrating that “Honey Baked Ham” is not a generic or common descriptive term. Plaintiff introduced live testimony and deposition testimony by witnesses from the Detroit, Michigan, area and the Atlanta, Georgia, area. The witnesses testified that “Honey Baked Ham” is not a generic term and that it refers only to plaintiff’s product. One witness, Ms. Patricia Chemliewski, testified that “Honey Baked Ham” was not and is not available from any source other than the Honey Baked Ham Company. In addition, Ms. Chemliewski testified that she repeatedly drove to the Honey Baked Ham Company’s Detroit store to pick up hams, notwithstanding the inconvenience of leaving her suburban home in Dearborn Heights.

Plaintiff also introduced the findings of a survey conducted by its advertising firm and an independent research firm. Plaintiff’s Exhibits 20A-E. The purpose of the survey was to determine the reason or reasons for a greater than expected decline of “Honey Baked Ham” sales in Cleveland, Ohio, during the summer of 1984. A stratified,. random sample of 300 people living within plaintiff’s marketing areas was asked approximately 80 questions about their food purchase and consumption attitudes and experiences. The survey was conducted by telephone, and included the following question: “Have you ever heard of ‘Honey Baked Brand Ham’ before this survey?”. Almost all (96.3%) answered yes to this question. More important, all (100%) those who were aware of “Honey Baked Ham” were also aware that these hams could only be purchased at a Honey Baked Ham Company store. This statistic strongly supports the conclusion that “Honey Baked Ham” is not a generic term. Not one person questioned responded that “Honey Baked Ham” is available at any location other than a Honey Baked Ham Company store or that it could be prepared at home, which could be reasonably expected if the term were generic.

The survey also indicated that “Honey Baked Ham” had the highest “top-of-mind” and “share-of-mind” awareness levels of any brand of ham. Top-of-mind awareness was 30.7% for “Honey Baked Ham,” and share-of-mind awareness was 49.3%. In comparison, the top-of-mind and share-of-mind levels for Armour brand ham were 10.3% and 24.0%, respectively.

I conclude that “Honey Baked Ham” is not a common descriptive term and turn to plaintiff’s contention that the term is merely descriptive and has acquired a secondary meaning. As there is now no dispute that the term is merely descriptive, the critical inquiry is whether it has acquired a secondary meaning. A secondary meaning is usually defined as a meaning “distinctive of applicant’s good.” Induct-o-matic Corp., 747 F.2d at 362; see also G. & C. Merriam Co. v. Saalfield, 198 Fed. 369, 373 (6th Cir.1912), cert, denied, 243 U.S. 651, 37 S.Ct. 478, 61 L.Ed. 947 (1917) (states that secondary meaning was acquired when “in [the relevant] trade and to [the relevant] branch of the purchasing public, the word or phrase had come to mean that the article was [the applicant’s] product ... ”). The burden of proving that the term has acquired this secondary meaning is on plaintiff.

A prima facie showing of secondary meaning can be made through substantially exclusive and continuous use of the term in commerce for the five years directly preceding application for registration. 15 U.S.C. § 1052(f). Plaintiff and her predecessors in interest have been using the term “Honey Baked Ham” continuously since 1949, and in the five years preceding application they have sold over $27 million of their product through stores in Michigan, Ohio, Georgia, and California. The evidence also indicates that plaintiff has had substantially exclusive use of the term. Specifically, plaintiff has introduced a number of unsolicited letters from persons in many areas of the country asking for permission to sell hams under the “Honey Baked Ham” name as franchisees or licensees. Plaintiff’s Exhibits 26A-AAA. It is unlikely that these people would desire to enter a business arrangement to use the “Honey Baked Ham” name if the name were not being used on a substantially exclusive basis by plaintiff.

Plaintiff has gone beyond a prima facie showing of secondary meaning. In addition to substantially exclusive and continuous use, witness testimony demonstrates that “Honey Baked Ham” is equated to the sole source of plaintiff’s hams. The survey results also demonstrate this fact. Over 96% of the survey sample knew of “Honey Baked Ham” and its sole source, the Honey Baked Ham Company. Plaintiff’s survey expert testified that in his experience only Sears department store has matched this aided brand awareness level of “Honey Baked Ham.”

Accordingly, I conclude that the term “Honey Baked Ham” has acquired a secondary meaning within the provisions of 15 U.S.C. § 1052(f).

As a merely descriptive term which has acquired a secondary meaning distinctive of plaintiff’s goods, “Honey Baked Ham” is entitled to registration upon the Principal Register pursuant to the provisions of 15 U.S.C. § 1052(f). The Trademark Trial and Appeal Board’s decision in this case is, therefore, REVERSED.

An appropriate order will be submitted.

      . For purposes of the survey, a brand name had top-of-mind awareness when it was the first brand name response to the question, “When you think of ham, what brand names come to mind?". Share-of-mind awareness for a brand was demonstrated when the brand was a response, although not necessarily the first response, to the same question.


source: Caselaw Access Project

author: GLASSER, District Judge:

license: Public Domain

text:
    Jose Luis ARROCHA, Plaintiff, v. The PANAMA CANAL COMMISSION, Dennis McAuliffe, Administrator: William Crews, Atlantic Area Commander of the Panama Canal Commission, Defendants.
    No. 83 Civ. 4520.
    United States District Court, E.D. New York.
    May 20, 1985.

      Mona N. Glanzer, Rains & Pogrebin, P.C., Mineola, N.Y., for plaintiff.
    Asst. U.S. Atty. Janice Siegel, E.D.N.Y., Brooklyn, N.Y., for defendants.
   MEMORANDUM AND ORDER

GLASSER, District Judge:

This unusual case concerns the venue provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and raises the question of where venue may lie when none of the provisions of that venue statute may be strictly applied to the case at bar. In this action, defendant Panama Canal Commission, as well as defendants McAuliffe and Crews, in their official capacities, have moved to dismiss this action or to transfer venue to the United States District Court for the District of Columbia. For the reasons that follow, defendants’ motion is granted insofar as it requests that the action be transferred pursuant to 28 U.S.C. § 1406(a).

Background

Plaintiff, a New York resident and a former employee of the defendant Commission, brings this action pursuant to Title VII, supra, and 42 U.S.C. § 1981 alleging that defendants unlawfully discriminated against him on the basis of race. He also claims that defendants violated the right to free speech guaranteed him under the First Amendment to the United States Constitution, in that defendants allegedly retaliated against him due to statements he made to the press.

For purposes of the motion now before me, it is relevant to note that defendants’ allegedly unlawful employment practices all took place in the Republic of Panama, which is also the location of any employment records relevant to those practices. Additionally, it is conceded that but for defendants’ allegedly unlawful acts, plaintiff would have worked in Panama. Finally, the “principal office” of the defendant Commission is located in Panama. 35 C.F.R. § 9.2. The only offices of the Commission located in the United States are the office of the Secretary of the Commission in Washington, D.C. and a procurement office in New Orleans, Louisiana. Id.

The factual backdrop to this action is further complicated by developments arising from the enactment of the Panama Canal Treaty of 1977, T.I.A.S. No. 10030, between the United States and the Republic of Panama. Pursuant to Article XI, ¶ 5 of the Treaty, the United States District Court of the Canal Zone was abolished as of April 1, 1982. The implications of that event will be discussed further in the following section.

Discussion

At issue here is the applicability of 42 U.S.C. § 2000e-5(f)(3), the venue provision of Title VII. That portion of the statute provides that suit may be brought

.. in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office. For purposes of sections 1404 and 1406 of Title 28, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought.

(emphasis added). In determining proper venue under this statute, a court must first look to the situs of any one of the first three criteria set forth in § 2000e-5(f)(3). The court may look to the district in which the employer’s principal office is located only if venue cannot be laid in one of the other three possible districts spécified in the statute. See, e.g., Allen v. Bolger, 597 F.Supp. 482, 485 (D.Kan.1984); Katz v. Lewis, 26 F.E.P. Cases 1402, 1403 (D.D.C. 1981). This is so because the “principal office” portion of the venue provision in Title VII was enacted to cover the “rare case” when the employer could not be found in one of the other three districts. 110 Cong.Rec. 12723. Moreover, the venue provision has been held to demonstrate Congress’ clear intent “to limit venue to the judicial districts concerned with the alleged discrimination[.]” Stebbins v. State Farm Mutual Automobile Ins. Co., 413 F.2d 1100, 1102 (D.C.Cir.), cert, denied, 396 U.S. 895, 90 S.Ct. 194, 24 L.Ed.2d 173 (1969).

As noted supra, it is undisputed that Panama is the jurisdiction within which defendants’ alleged unlawful practices took place, where the relevant records are kept and in which plaintiff allegedly would have been employed but for defendants’ acts. Thus, the only district in which venue is proper is that in which the Commission has its “principal office.” The precise issue raised by this motion thus crystallizes: because the Commission’s principal office is indisputably located in Panama, where the federal district court no longer exists, within what district should this action proceed?

Defendants contend that the venue provision of Title VII must be read expansively, to permit venue to lie in the defendant’s principal office within the United States. Thus, defendants urge that venue is proper in the District of Columbia, where the office of the Secretary of the Commission is located.

Plaintiff, however, urges that because the venue provisions of Title VII cannot be applied literally to the circumstances of this case, venue in this action should be governed not by § 2000e-f(5)(3), but by a portion of the general venue statute, 28 U.S.C. § 1916(e). That statute provides in relevant part:

A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States ... may, except as otherwise provided by law, be brought in any judicial district in which ... (4) the plaintiff is involved in the action.

(emphasis added). Plaintiff therefore urges that venue is proper in the Eastern District of New York under § 1391(e) based on plaintiff’s residence. But see note 4, supra.

Plaintiff’s claim that § 1391(e) should govern venue in this action must fail, however, because it is well settled that claims brought under Title VII are strictly governed by 42 U.S.C. § 2000e-5(f)(3). See, e.g., Stebbins v. State Farm Mutual Automobile Ins. Co., supra, 413 F.2d at 1102-03; Templeton v. Veterans Administration, 540 F.Supp. 695, 696-7 (S.D.N.Y. 1982); Matthews v. Trans World Airlines, Inc., 478 F.Supp. 1244, 1245 (S.D.N.Y. 1979); Chaves v. Norton, 18 F.E.P. Cases 1705 (D.P.R.1978). It is abundantly clear that there is no basis under § 2000e-5(f)(3) for venue in the Eastern District of New York; however, the absence of a district court in Panama precludes me from transferring this action to that forum.

I am persuaded, however, that under the peculiar circumstances of this case, this action should be transferred to the District of Columbia. Defendants have set forth two bases of authority which support such a transfer. First is the decision of Learned Hand in the case of Stewart v. Pacific Steam Navigation Co., 3 F.2d 329 (S.D.N. Y.1924). There the plaintiff sought to sue a foreign corporation under the Jones Act, 46 U.S.C. § 688, which contains an exclusive venue provision stating that “[jjurisdietion in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.” 46 U.S.C. § 688. If construed literally, this provision would have prevented American plaintiffs from invoking the protections of the Jones Act where the defendant was a foreign corporation.

In interpreting the statute so as to permit American seamen plaintiffs the “protection which the act was meant to give them when serving on foreign ships,” Judge Hand read the phrase “in which its principal office is located” to “clearly mean ‘in which the principal office of the foreign steamship company is located within the United States.’ ” 3 F.2d at 330 (emphasis added). Furthermore, the Stewart court held that “[i]t is no strain on that language to interpret it in th[at] way.” Id. at 330. Utilizing that expansive interpretation, it would, of course, still be necessary for the foreign corporation to carry out “a certain amount of business ... within the United States in order to get any personal jurisdiction.” Id. Applying the Stewart court’s analysis to the instant case, venue would be proper in the District of Columbia.

The defendants’ position here is also bolstered by the recent unpublished decision in Robles v. United States, No. L-83-97 (S.D.Tex. Nov. 13, 1984), a case which is identical with this one. In that case the plaintiff, a United States citizen domiciled in Panama, brought suit in Texas under Title VII. Raising the question of jurisdiction sua sponte the district court transferred the action to the District of Columbia in circumstances identical to those presented in this case. The court stated:

While it is doubtful that [the Washington office of the Commission] is the principal office of the Commission, ... it is apparently at least the principal office in the United States.
Plaintiff asks that in lieu of dismissal, the case be transferred to the District of Columbia. Considering the unusual facts in this case, including the Defendants’ insistence that Plaintiff is protected by Title VII and that there is no forum existing in Panama, the Court concludes that the proper disposition of the pending motion would be to grant a change of venue to the District Court for the District of Columbia.

Id., slip op. at 3.

The “unusual facts” of this case are identical to those present in Robles. Venue is clearly improper in this district, and based upon the authorities set forth above, I find that this action should be transferred to the District of Columbia.

Conclusion

For the reasons set forth above, defendants’ motion to transfer this action to the United States District Court for the District of Columbia is granted pursuant to 28 U.S.C. § 1406(a).

      . Pursuant to 42 U.S.C. § 2000e-16(c), the "head of the department, agency,, or unit, as appropriate, shall be the defendant” in a Title VII action. It therefore appears that the Panama Canal Commission has been improperly joined as a named defendant. For purposes of this motion, however, the three named defendants shall be referred to in the text of this opinion.

      . Defendants McAuliffe and Crews have also filed a separate motion seeking dismissal of this action against them in their individual capacities. In that motion, McAuliffe and Crews urge that dismissal is proper based on lack of personal jurisdiction, improper venue, insufficient service of process and failure to serve the complaint in the manner prescribed by Fed.R.Civ.P. 4(j). At this time that motion has not yet been fully briefed or argued by the parties. However, these circumstances do not prevent me from transferring this action pursuant to 28 U.S.C. § 1406(a). See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466, 82 S.Ct. 913, 915, 8 L.Ed.2d 39 (1962) (§ 1406 will authorize a transfer of venue "whether the court in which it was filed had personal jurisdiction over the defendants or not").

      . Section 1406(a) of Title 28 of the United States Code provides:
      The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.

      . It is unclear from the record whether plaintiffs legal residence for purposes of jurisdiction and venue is, in fact, New York. However, for the purposes of this motion it will be assumed to be so.

      . Plaintiff also originally sought relief based on the Fifth and Fourteenth Amendments to the Constitution, but withdrew these claims at oral argument. In this motion, defendants also seek to dismiss plaintiffs § 1981 and constitutional claims based on the authority of Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), and 28 U.S.C. § 2680(k). Because I find that venue is improper in this district, however, I will not address the merits of those aspects of defendants’ motion, but will leave them for consideration by the transferee court.

      . The Declaration of Dennis P. McAuliffe, dated March 8, 1985, which was submitted in support of the instant motion, indicates at ¶ 4 that the Washington, D.C. office of the Commission is under the supervision of the Secretary of the Panama Canal Commission, whose responsibilities include:
      (a) Participating in the development and establishment of Commission policy;
      (b) Providing staff assistance to the Chairman and individual members and committees of the nine-member Board of the Commission;
      (c) Overseeing official communications from Commission units to Board members, including maintenance of the Board’s official files; and
      (d) Representing the Commission in the United States in matters which include liaison with departments and agencies of the United States Government, intermediary responsibilities with the United States Congress, and responding to shipping interests and to members of the general public concerning the organization of the agency and the operation of the Panama Canal.
      The nine-member Board of the Panama Canal Commission, which exercises general supervisory authority over all the affairs of the agency, maintains no principal office within or without the United States. The business of the Board is, however, coordinated through the Secretary of the Panama Canal Commission in Washington, D.C.

      . The only statutes specifically addressing actions which would have been brought in the district court of the Canal Zone are § 3771 and § 3776 of the Panama Canal Act, 22 U.S.C. §§ 3601-3871 (1979), which permit an action for damages arising from injuries occurring in the canal locks to be filed in the Eastern District of Louisiana. The Act does not specify where any other type of action against the Commission or its representatives should be commenced. Although Congress apparently considered passing a bill which would authorize the transfer of all actions pending in the Canal Zone on the date when the district court there ceased to exist, that bill apparently never left its committee. Egle v. Egle, 715 F.2d 999, 1012 & n. 19 (5th Cir.1983). See also infra note 9.

      . Although this portion of the Jones Act refers to jurisdiction, it was construed by the Stewart court as a venue provision. 3 F.2d at 329. To the same effect, see DeMateos v. Texaco, Inc., 562 F.2d 895, 899 (3d Cir.1977), cert, denied, 435 U.S. 904, 98 S.Ct. 1449, 55 L.Ed.2d 494 (1978) (citing Panama R. Co. v. Johnson, 264 U.S. 375, 44 S.Ct. 391, 68 L.Ed. 748 (1924).

      . As indicated supra at note 7, following enactment of the Panama Canal Treaty of 1977 and the Panama Canal Act of 1979, the United States waived immunity from suit only as to claims arising from injuries occurring in the canal locks. 22 U.S.C. § 3771. The Robles court noted that fact and added:
      Congress also provided for creation of the Panama Canal Employment System, to be based on the consideration of the merit of each employee and the qualifications and fitness of the employee to hold his position. 22 U.S.C. § 3652. The Panama Canal Board of Appeals was created to review and determine appeals of employees from adverse decisions concerning their position, grade or pay level. Id., §§ 3661, 3662. The decision of the Board
      on any appeal “is final and conclusive.” § 3662(d). It is at least arguable that these provisions preclude any other employment claims in the federal courts. Nevertheless, the E.E.O.C. did consider the Plaintiffs claim in this case and the Defendants take the position that the Plaintiff "is entitled to the protections” afforded by both Title VII and ADEA. Even if jurisdiction exists, there is a serious venue question.
      Slip op. at 2 (emphasis added). Of course, a district court may only transfer an action if it has jurisdiction over the subject matter of the suit. See 15 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure, § 3827 at 170 (1976). However, as indicated by the language highlighted above, the Robles court did not clearly determine the existence of subject matter jurisdiction.
      In the instant case, as in Robles, the EEOC also considered plaintiff's case and the defendants also contend that Title VII is applicable to plaintiff:
      Title VII was unquestionably designed by Congress to give victims of unlawful discrimination in employment "substantive rights and a federal forum for their vindication." Dub-

        nick v. Firestone, 355 F.Supp. [138 (E.D.N.Y. 1973) ] at 141-42. It is arguably inconsistent with Congressional intent to deny entirely an allegedly aggrieved employee of the United States such a forum.
      Defendants' Memorandum of Law at 8.
      I find that nothing in 22 U.S.C. § 3662, which states that a decision by the Panama Canal Board of Appeals is "final and conclusive," preeludes an action under Title VII. The statute (§ 3662) does not state that its remedy is exclusive; furthermore, "the legislative history of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 49, 94 S.Ct. 1011, 1020, 39 L.Ed.2d 147 (1973) (footnote omitted).


author: WARREN, District Judge.

text:
    Glenna M. JOHNSON, Plaintiff, v. BRIGGS & STRATTON CORPORATION, and Local 232, Allied Industrial Workers of America, AFL-CIO, Defendants.
    No. 84-C-1193.
    United States District Court, E.D. Wisconsin.
    May 20, 1985.

      James A. Beaudry, West Allis, Wis., for plaintiff.
    David E. Jarvis and Ely A. Leichtling, Milwaukee, Wis., for Briggs & Stratton Corp.
    Kenneth Loebel, Milwaukee, Wis., for Local 232, Allied Industrial Workers of America.
   DECISION AND ORDER

WARREN, District Judge.

BACKGROUND

This action was initiated on August 24, 1984, when the plaintiff filed her complaint in the Wisconsin Circuit Court for Milwaukee County, seeking vacation of an arbitration award issued on September 13, 1982. Invoking the Wisconsin Employment Peace Act, Wis.Stat. § 111.01 et seq., the Wisconsin Arbitration Act, Wis.Stat. § 788.01 et seq., and Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, the complaint challenges the arbitrator’s ruling, effectively upholding a decision to discharge the plaintiff from her employment for lack of proper attendance.

Although the precise nature of the plaintiff’s claims against her former employer and the union that presumably represented her in the arbitration proceeding are not clearly articulated in her complaint, it is plain that her action springs, at least in part, from the terms of a collective bargaining agreement entered into by the defendant employer and the defendant union for the period from August 1, 1982, through July 31, 1983. Among other things, that agreement establishes, in Article V, Section 3, the conditions and circumstances under which an employee may be discharged upon a record of unexcused absences; it also prescribes the grievance procedures, culminating in arbitration if timely requested, pursuant to which a union member may challenge the employment-related decisions of the corporate employer.

According to her complaint, the plaintiff was discharged on March 10, 1982, based on an unsatisfactory attendance record — a record the arbitrator likewise found unacceptable. The plaintiff charges that this finding was against the preponderance of the evidence since all of her absences from work were justified by valid reasons, as follows:

... [O]n nine (9) occasions [of absence], six (6) were due to illness and one (1) to the weather. An additional two (2) were due to personal business____ Although the employer considered the absences for personal business non-excused, employer did not make an effort to notify the employee that her absences were unexcused and had not asked the plaintiff for her reasons for such absences.
Under such circumstances, the employee could reasonably have believed that her absences for personal business were excused. The absences for illness were not considered excused by the employer notwithstanding the fact that the employer did not request the employee to provide medical verification for those days of absences.

Plaintiff’s Complaint at 3 (August 24, 1984). It is the plaintiff’s position that, in upholding the employer’s termination decision, he effectively modified the terms of the collective bargaining agreement, thus exceeding his authority and now justifying vacation of his award. By her ad damnum clause, she also seeks recovery of back wages and those costs and disbursements attendant upon the prosecution of this case.

On September 14, 1984, the defendants together removed this action to the United States District Court for the Eastern District of Wisconsin, pursuant to 28 U.S.C. §§ 1441 & 1446. By their removal petition, these parties invoked the Court’s federal question jurisdiction, as established under 28 U.S.C. §§ 1331 & 1337 and Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Pursuant to 28 U.S.C. § 1446(d), the petition was accompanied by an appropriate bond to secure “all costs and disbursements incurred by reason of the removal proceedings should it be determined that the case was not removable or was improperly removed.”

Approximately one week later, on September 20, 1984, the defendant union filed its motion to dismiss the complaint, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. Specifically, this defendant submits that the plaintiff's failure to allege in her complaint that it breached its legal duty to fairly represent her in the arbitration proceeding entitles it to judgment as a matter of law. In addition, this movant notes that the subject arbitration award was issued on September 13, 1982, and that the appropriate six-month statute of limitations for initiating a fair representation action such as this had thus long run at the time this action was initiated on August 24, 1984.

The defendant employer filed a companion motion to dismiss this action in toto on September 21, 1984, likewise challenging the legal sufficiency of the allegations in the complaint, as follows:

Here, plaintiff has failed to allege that her union breached its duty of fair representation. The complaint not only fails to set forth facts tending to show as required, that the union’s conduct has been arbitrary, discriminatory or in bad faith, it is utterly silent as to the nature of the conduct engaged in by plaintiff’s union in processing her grievance through arbitration [citation omitted].
No breach of the duty of fair representation on the part of plaintiff’s union has been alleged and no facts have been pled to support any such allegation. Therefore, this lawsuit cannot be maintained against the union or Briggs & Stratton Corporation.

Defendant’s. Memorandum in Support of Motion to Dismiss at 3 (September 21, 1984).

Significantly, this movant also maintains that the running of the applicable six-month statute of limitations mandates dismissal of the action on jurisdictional grounds. Invoking the holding of the United States Supreme Court in DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), this party joins in the .argument first advanced by its codefendant that the initiation of this action nearly two years after the arbitration award was issued necessitates dismissal under Rule 12(b). In both its initial, supporting memorandum and in several, post-briefing submissions to the Court, the defendant employer also advances authority for the proposition that the so-called DelCostello Rule, announced in 1983, should be applied retroactively to bar an untimely action, such as this one, challenging an arbitration award issued in 1982.

Although the plaintiff in this lawsuit has not filed a responsive memorandum pursuant to the briefing schedule set forth in Local Rule 6.01, counsel has advised, by his letter of February 8, 1985, that his client “believes that the six-year Statute of Limitations under Wisconsin law is the applicable statute regarding this matter” and that the Court should, accordingly, decide the motion absent a formal, answering brief. As indicated above, the Court has reviewed the plaintiff’s complaint in this matter and has carefully considered the arguments articulated by the defendants in support of their companion motions to dismiss. Based on this analysis, the Court concludes, for the reasons set forth below, that the complaint must be dismissed on its merits as to both defendants.

THE RULE IN DELCOSTELLO AND THE DEFENDANTS’ MOTIONS TO DISMISS

In Flores v. The Levy Company, 757 F.2d 806, 807-808 (7th Cir.1985), the Court of Appeals for the Seventh Circuit described a standard cause of action under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, as follows:

[The statute] permits a union employee to sue his employer for the violation of collective bargaining agreements. However, where the union and the employer have agreed to submit disputes to a grievance-arbitration process, the employee must first show that the union has breached its duty of fair representation. See Hines v. Anchor Motor Freight, 424 U.S. 554 [96 S.Ct. 1048, 47 L.Ed.2d 231] (1976); Vaca v. Sipes, 386 U.S. 171 [87 S.Ct. 903, 17 L.Ed.2d 842] (1967). The cause of action against the union is implied under the National Labor Relations Act. 29 U.S.C. §§ 151 et seq. To prevail against either the employer or the union, therefore, the employee must show that the employer’s action was contrary to the collective bargaining agreement and that the union breached its duty. Such an action is typically labeled a hybrid section 301/fair representation claim. DelCostello v. Teamsters, 103 S.Ct. 2281, 2289-91 (1983).

The Seventh Circuit further explained that the appropriate statute of limitations for § 301 actions was identified by the United States Supreme Court in DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983):

In the absence of an express federal statute of limitations governing these actions, the appropriate limitations period had been the subject of considerable dispute until the Supreme Court’s decision in DelCostello. See, e.g., Landahl v. PPG Industries, Inc. 746 F.2d 1312, 1314 (7th Cir.1984); Metz v. Tootsie Roll Industries, Inc., 715 F.2d 299, 302 n. 4 (7th Cir.1983) cert, denied, [— U.S. —] 104 S.Ct. 976 [79 L.Ed.2d 214] (1984). The issue addressed in DelCostello concerned what statute of limitations should apply in “a suit by an employee or employees against an employer and a union, alleging that the employer had breached a provision of a collective bargaining agreement, and that the union had breached its duty of fair representation by mishandling the ensuing grievance- and-arbitration proceedings.” DelCostello, 103 S.Ct. at 2285. The Supreme Court held that the six-month period in section 10(b) of the NLRA should apply to both the union and the employer. Id. at 2287.

Flores v. The Levy Company, 757 F.2d 806, 808 (7th Cir.1985).

There is no dispute that the arbitration award upon which the complaint in the present cause of action is based was issued on September 13, 1982; it is also clear that this lawsuit was not initiated for another twenty-three months, on August 24, 1984. Since the Supreme Court’s ruling in Del-Costello unmistakably affords parties like the present plaintiff a period of only six months from the time of the arbitration award in which to seek judicial redress under Section 301 of the Labor Management Relations Act, 28 U.S.C. § 185, there can be no doubt that the present complaint was not filed in a timely fashion and that the six-month statute of limitations operates as a complete bar to its further prosecution.

Although the plaintiff, as indicated above, has not raised this or any other issue in opposition to the pending dismissal motions, the Court feels obliged to address, if only briefly, the propriety of applying the so-called DelCostello Rule, announced by the Supreme Court in 1983, to an action premised on an arbitrator’s decision issued one year earlier. As defense counsel accurately notes, this precise issue was addressed by the Court of Appeals for the Seventh Circuit in Landahl v. PPG Industries, Inc., 746 F.2d 1312 (7th Cir.1984). In his opinion for the court in that case, Circuit Judge Swygert invoked the three-stemmed analysis set forth in Chevron Oil Company v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), generally used to determine whether retroactive application of federal statutes is appropriate. With respect to the first of these touchstones, the Court concluded, based on the pre-1983 treatment of the limitations question by the lower courts, that the ruling in DelCostello did not establish a new principle of law either by overruling clear past precedent or by deciding an issue of first impression. With respect to the second and third Chevron factors — namely, whether retroactive application will further or retard the application of the subject statute and whether substantial inequity would accordingly result — the Court of Appeals noted simply that the DelCostello Rule

was adopted to provide uniformity in this area, to give employees ample time to vindicate their rights and, at the same time, to provide for rapid disposition of labor controversies. DelCostello, supra, 462 U.S. at [167], 103 S.Ct. at 2292. We adopt the persuasive reasoning of the First, Third, Fourth, Fifth, Sixth, Eighth and Eleventh Circuits that giving retroactive effect to the DelCostello rule would further its purpose [citations omitted] ____
Finally, we find' no equitable factor that would support non-retroactive application. Plaintiffs grievance was denied in early March 1981; yet he waited almost fifteen months to file suit even though the Union had indicated to him in July and August that it would not continue to handle his grievance____ Furthermore, there is no indication, despite plaintiff’s contrary argument, that the defendants acted in bad faith to delay plaintiff’s use of legal remedies. Indeed, plaintiff admits that he retained private counsel to deal with this matter in July 1981. This indicates that he was fully aware that he could pursue his own legal remedies and that he was not in the least deterred from pursuing them by any alleged acts of the defendants. We hold, therefore, that none of the Chevron factors for nonretroactive application have been met.

Landahl v. PPG Industries, Inc., 746 F.2d 1312, 1315-1316 (7th Cir.1984).

The Court identifies absolutely nothing in the record of the present case to indicate that the six-month statute of limitations for actions under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, as established by the United States Supreme Court in DelCostello and accorded retroactive application by the Court of Appeals for the Seventh Circuit in Landahl, should not be invoked to preclude the plaintiff from prosecuting her federal action further. The Court finds no authority and the plaintiff has advanced none for her apparent contention that a six-year statute of limitations should be recognized. In fact, relevant Wisconsin authority prescribes only a three-month limitation period on the notice of any motion to vacate, modify, or correct an arbitration award. See Wis.Stat. § 788.13 (1981); International Union v. LaCrosse Cooler Company, 406 F.Supp. 1213, 1215 (W.D.Wis.1976) (holding that, “by failing to comply with the statutory preconditions of the timely serving of notice, plaintiffs have forfeited their right to judicial review of the arbitration award”).

As a final matter, the Court notes its inclination to concur in the position adopted by both defendants that the complaint, as presently framed, utterly fails to state a claim for breach of the duty of fair representation. It is the Court’s view that the allegations in that pleading fall far short of the prima facie case that must be pled to maintain a cause of action under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. See Flores v. The Levy Company, 757 F.2d 806, 807-808 (7th Cir.1985) (cited supra at 809-810); see also Abernathy v. United States Postal Service, 740 F.2d 612 (8th Cir.1984) (upholding dismissal of complaint seeking review of arbitrator’s award on the basis that the plaintiff had not alleged unfair union representation). Although it is convinced that this critical legal deficiency in the plaintiff’s complaint provides a sufficient basis, standing alone, upon which to dismiss this action in its entirety, the Court will grant the pending motions based solely on the insurmountable jurisdictional defect discussed above.

CONCLUSION

For the reasons stated herein, the Court hereby GRANTS the defendants’ companion motions to dismiss the complaint on the merits and in its entirety, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure.


author: McMILLAN, District Judge.

text:
    Lisa WILKIE, a minor, by Betty WILKIE, Guardian ad Litem, Plaintiff, v. Harold R. HOKE, M.D., Defendant.
    No. C-C-84-690-M.
    United States District Court, W.D. North Carolina, Charlotte Division.
    May 21, 1985.
    Paul R. Hibbard, Johnson, Smith, Hibbard, Cleveland, Wildman & Dennis, Spartanburg, S.C., for plaintiff.
    John B. Duggan, Ronald W. McKinney, Edwards, Duggan and Reese, Greer, S.C., William H. Elam, Elam, Seaford, McGinnis & Stroud, Charlotte, N.C., and Louis L. Lesesne, Gillespie & Lesesne, Charlotte, N.C., for defendant.
   McMILLAN, District Judge.

Plaintiff is suing to recover for damages allegedly suffered as a result of negligence of the defendant in performing an abortion on her on April 16, 1983. At that time plaintiff was fourteen years old.

Defendant has moved to dismiss the complaint or refer the matter to arbitration. The basis for the motion is a provision of the informed consent agreement signed by plaintiff which provides that:

If such a claim (against defendant) is made, be it for professional liability, personal injury, contract, warranty, or other breach of duty, I agree to submit the claim to binding arbitration. In the event of such arbitration, I understand and agree that Hallmark shall choose one physician arbitrator; I shall choose a second physician arbitrator; a third such arbitrator shall be designated by the American Arbitration Association office in Washington, D.C. The decision of the arbitrators shall be binding upon me without recourse to any other judicial or other tribunal.

Plaintiff opposes the motion on the grounds that the agreement is a contract of adhesion and that the agreement is void or voidable by plaintiff, a minor.

The case was originally brought in the District of South Carolina. The district judge hearing the case denied a similar motion to require arbitration. Later he ruled that the court in South Carolina had no personal, jurisdiction over defendant because of a lack of minimum contacts. That ruling was upheld on appeal, but the Fourth Circuit Court of Appeals ordered that the case be transferred to this court.

The renewed motion is properly before this court. The previous ruling by the South Carolina court is not binding here in any way because that court lacked jurisdiction over the controversy. See, e.g., Hydaburg Co-Op Ass’n v. United States, 667 F.2d 64, 66, 229 Ct.Cl. 250 (1981), cert, denied 459 U.S. 905, 103 S.Ct. 207, 74 L.Ed.2d 166 (1982).

Defendant argues that plaintiff should be bound by the arbitration agreement contained in the informed consent either under common law or under the statutes of North Carolina. Under common law, defendant asserts that plaintiff is obligated for contracts for “necessities,” including medical treatment. Alternatively, defendant argues that N.C.G.S. § 90-21.5, as affected by recent Supreme Court rulings, allows plaintiff to give effective consent for the abortion and agreement to arbitrate.

It appears that plaintiff, even as a minor, has the ability to contract for medical treatment, under common law (see, e.g., Cole v. Wagner, 197 N.C. 692, 150 S.E. 339 (1929); Bitting v. Goss, 203 N.C. 424, 166 S.E. 302 (1932)), and has a constitutional right to an abortion under the Supreme Court’s decisions in Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) and Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797, reh. denied, 444 U.S. 887, 100 S.Ct. 185, 62 L.Ed.2d 121 (1979). These Supreme Court cases read together hold that a state can not require a minor to obtain parental consent for an abortion unless the state provides an alternative procedure whereby authorization can be obtained for the abortion. North Carolina has no such alternative procedure. A North Carolina statute currently provides that:

§ 90-21.5. Minor’s consent sufficient for certain medical health services.
(a) Any minor may give effective consent to a physician licensed to practice medicine in North Carolina for medical health services for the prevention, diagnosis and treatment of (i) venereal disease and other diseases reportable under G.S. 130-81, (ii) pregnancy, (iii) abuse of controlled substances or alcohol, and (iv) emotional disturbance. This section does not authorize the inducing of an abortion, performance of a sterilization operation, or commitment to a mental institution or hospital for confinement or treatment of a mental condition. This section does not prohibit the admission of a minor to a treatment facility upon his own written application in an emergency situation as authorized by G.S. 122-56.5.

This statute appears to be unconstitutional to the extent that it prevents a minor from obtaining an abortion without parental consent. However, no ruling on this question is required by this motion, and the court makes no ruling.

Under common law, plaintiff, as a minor, can elect to void the agreement to arbitrate controversies. See, e.g., Millsaps v. Estes, 137 N.C. 535, 50 S.E. 227 (1905). The agreement to arbitrate is not a necessity and is collateral to the contract for the abortion itself. The informed consent itself includes a severability provision; therefore, the contract for medical treatment can stand apart from the arbitration provision. Under common law, plaintiff can elect to void the arbitration provision. This right is unaffected by legislative action. N.C.G.S. 90-21.5 shows the legislative intent not to allow a minor to give effective consent for an abortion. Even if the statute is unconstitutional as the parties suggest, the agreement of a minor to arbitrate before a panel of doctors is not expressly authorized by statute and should not be read into the words “effective consent.” Plaintiffs common law ability to void the agreement to arbitrate has not been changed by statute and does not deprive her of her constitutional right to an abortion.

The court will deny the motion to require arbitration on the ground that plaintiff, as a minor, is not bound by the arbitration provision. The court will not address plaintiffs additional argument that the contract is one of adhesion.

IT IS THEREFORE ORDERED that the motion to dismiss or require arbitration is DENIED.


author: PLUNKETT, District Judge.

text:
    Viola Armijo ROUSE, Plaintiff, v. The JUDGES OF the CIRCUIT COURT OF COOK COUNTY; the Honorable Harry G. Comerford, Chief Judge, Circuit Court of Cook County; the Chicago Bar Association, John D. Hayes, President, Chicago Bar Association; John S. Adler, Chairman, Committee on Evaluation of Candidates, Chicago Bar Association; Defendants.
    No. 85 C 4185.
    United States District Court, N.D. Illinois, E.D.
    May 21, 1985.

      Edward T. Stein, Singer & Stein, Chicago, Ill., for plaintiff.
    Richard Phelan, Roseann Oliver, Phelan, Pope and John, John F. McCarthy, McCarthy and Levin, William G. Sullivan, Lance Jones, Office of the Atty. Gen. of Illinois, Chicago, Ill., for defendants.
   MEMORANDUM OPINION AND ORDER

PLUNKETT, District Judge.

Viola Armijo Rouse (“Plaintiff”) has brought a two-count complaint pursuant to 42 U.S.G. § 1983 seeking redress for the alleged deprivation of her property and liberty rights under the Fourteenth Amendment to the United States Constitution. The defendants are the Judges of the Circuit Court of Cook County and the Honorable Harry G. Comerford, Chief Judge of that Court (the “Judges”), and the Chicago Bar Association and both its president and the chairman of its Committee on Evaluation of Candidates (the “C.B.A.”). In essence, Plaintiff complains that her “not recommended” rating by the C.B.A. unconstitutionally denied her a fair opportunity to be considered by the Judges for election to the position of Associate Judge of the Circuit Court.

More particularly, Plaintiff alleges that she is an attorney, licensed to practice law in Illinois, and currently employed as an Assistant Cook County Public Defender. (Complaint, ¶3.) Plaintiff meets the minimum requirements for becoming an Associate Judge and wishes to pursue that career. Plaintiff alleges that the Circuit Court of Cook County “has delegated to the Chicago Bar Association the screening and the initial evaluation of potential candidates for judicial office in Cook County.” (Complaint, ¶4.) No candidate will be considered for that office unless he or she is recommended by the C.B.A. (Complaint, ¶6.)

Plaintiff submitted her name as a potential candidate and followed all of the procedures of the C.B.A. for pursuing her candidacy. (Complaint, ¶12.) As is customary under the C.B.A. guidelines, Plaintiff was afforded a hearing before a panel of the Committee on Evaluation of Candidates and thereafter received written notice that she was found “not recommended” by the C.B.A. because of a lack of “judicial temperament” and “professional experience.” (Complaint, ¶ 27.) Plaintiff’s “not recommended” rating has the effect of excluding her from further consideration for the position of associate judge because candidates who are “not recommended” by the C.B.A. are not eligible for election by the Judges.* Finally, Plaintiff alleges that the investigation of her candidacy and subsequent hearing was unfair in major part because the chairman of her hearing panel harbored a bias against her. Thus Plaintiff claims that her liberty and property interests in a fair consideration for the position of associate judge were taken from her without due process of law. Plaintiff requests, as relief, inter alia, that this court declare defendants’ selection process unconstitutional, declare that the selection process was not followed in Plaintiff’s case, and enjoin defendants to consider Plaintiff as a recommended candidate in the current election of associate judges.

Both the Judges and the C.B.A. have filed motions attacking the complaint. The Judges initially ask this court to refuse to consider this controversy on the principles of abstention and comity. The Judges further move to dismiss the complaint on the grounds that Plaintiff’s allegations do not implicate a protected liberty or property right under the Fourteenth Amendment of the United States Constitution. The C.B.A. has moved to dismiss the complaint against it on the grounds that its actions with respect to Plaintiff’s candidacy are those of a private association and not under color of state law. The C.B.A. also argues that the relief requested by Plaintiff — requiring her name to be placed on the judicial ballot — violates the C.B.A.’s First Amendment right of freedom of speech.

Because the election of Associate Judges is already underway and there will not be another election for two years, this court has considered the matter on an expedited basis.

Abstention and Comity

The Judges argue that a federal court should not place itself in the position of overseeing the screening and selection process of associate state court judges but rather should require Plaintiff to repair to the state courts to seek redress. The Judges rely on Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny, wherein the Supreme Court has repeatedly cautioned the federal courts against interfering with the exercise of a state’s sovereign judicial authority absent compelling reasons for doing so. Thus, federal courts should not intervene in pending state court criminal actions, O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), or pending civil actions in which the state courts have an overriding interest, Webb v. Webb, 451 U.S. 493, 101 S.Ct. 1889, 68 L.Ed.2d 392 (1981). Superficially, the Judges’ position seems tenable because the state courts would ideally be the forum for review of the operation of state court rules and practices and those adopted by the C.B.A. to which the Judges defer, without intrusion by this court.

However, the argument in favor of abstention must be rejected. Plaintiff’s claim does not arise from or relate to the subject of a pending civil or criminal state suit. The state proceeding (screening and election of Associate Judges) has been completed and never involved any state court lawsuit. Further, non-intervention arguments have been rejected by federal courts in cases which seek review of the administration of the state courts. Pulliam v. Allen, — U.S. —, 104 S.Ct. 1970, 1979-1980, 80 L.Ed.2d 565 (1984); Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980). Federal courts are extremely reluctant to abstain in civil rights cases arising under the federal constitution because Plaintiff should be entitled to the benefit of federal adjudication of such claims. Stephens v. Tielsch, 502 F.2d 1360 (9th Cir. 1974). In this case, where Plaintiff seeks an immediate injunction of an ongoing but finite selection process, this court cannot deprive Plaintiff of a federal forum for the airing of her constitutional claims by effectively rendering them moot through an act of abstention.

The Judges rely heavily upon Richardson v. Koshiba, 693 F.2d 911 (9th Cir.1982). While this court has no quarrel with the principles enunciated in that opinion, it is distinguishable from the case at bar. There it was the plaintiff, not the defendants, who sought and obtained federal abstention. Id. at 913. The court placed great weight on the fact that it was not denying to the plaintiff a desired federal forum. Id. at 917 n. 17. Secondly, the property interest or. entitlement question under the due process clause involved the interpretation of state law, the bar association rules expressly given the force and effect of state law and the state constitution, concerning the status of a sitting state court judge. Id. at 912, 916, 917. Here, defendants, not Plaintiff, seek abstention. Further, Plaintiffs claim of entitlement in this case does not involve a difficult state law question because she does not presently hold a position for which she seeks protection. Rather, she is simply a defeated contender claiming constitutional deficiencies in the selection process. Finally, the clock was not running in the Richardson case as it is here where Plaintiff seeks to be included in an ongoing election. Accordingly, the Judges’ motion for abstention is denied.

State Action

In order for Plaintiff to plead a § 1983 claim against the C.B.A., she must affirmatively allege that the C.B.A.’s actions in her case were not those of a private association but those of a state actor. Plaintiff has made such allegations. (Complaint, ¶ ¶ 6, 8, 9, et al.) Thus, the court must determine whether the C.B.A.’s screening and subsequent “not recommended” finding occurred under color of state law.

In Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2753, 73 L.Ed.2d 482 (1982), the Supreme Court enunciated the essential elements of an action which may be fairly attributable to a state.

First, the deprivation must be caused by the exercise of some right or privilege by the State or by a rule of conduct created by the State or by a person for whom the State is responsible____ Second, the party charged with the deprivation must be a person who may fairly be said to be a state actor.

Lugar v. Edmondson Oil Co. at 937, 102 S.Ct. at 2753 (citation omitted).

The first prong of this test is clearly met, since the Judges determine the method of selecting judges. The second is more problematic. The C.B.A. is a private association. A state actor, however, need not be a public official. Private actors who perform exclusive public functions are, for these purposes, state actors. Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978). Further, private parties who de facto perform governmental functions by controlling public officials or acting as their agents are acting under color of state law, Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980); Adickes v. Kress Co., 398 U.S. 144, 169-171, 90 S.Ct. 1598, 1614-1616, 26 L.Ed.2d 142 (1970).

The C.B.A. clearly performs many functions in screening and recommending candidates for judicial office solely as a private association. For example, the C.B.A. evaluates the qualifications of full Circuit Court judges running for reelection and subsequently publishes those recommendations for the guidance of the electorate. As revealed by the memoranda in this case, the C.B.A. also reviews and evaluates sitting associate Circuit Court judges who are seeking retention and transmits its findings to the Judges who subsequently vote on those candidates. It is clear that in both situations the C.B.A. acts independently of any state function or the judges of the state court and acts without binding effect. In those situations the candidates have already been determined and the C.B.A. is simply commenting on their qualifications. Thus such recommendations do not perform a state function and are not under color of state law.

However, as alleged in the complaint, the role of the C.B.A. in evaluating the qualifications of candidates for new associate judgeships is quite different. In that situation, the C.B.A. does more than simply rate the qualifications of existing candidates so that its ratings may subsequently be used by the sitting judges or the electorate in the election. In the case of a candidate who wishes, for the first time, to become an associate judge the C.B.A.’s “not recommended” finding is tantamount to exclusion from further consideration. Thus, the C.B.A. in this limited situation acts as a de facto screening committee for the Circuit Court. The Circuit Court is charged with the responsibility of screening, evaluating and electing new associate judges. Ill.Rev.Stat. ch. 110A, § 39. Thus, in excluding candidates from the ballot, the C.B.A. has undertaken to perform an exclusive public function on behalf of the Circuit Court and is a state actor. It is immaterial whether this practice is by state rule or by custom and practice. Actions by a private party in the absence of a state rule but pursuant to an established custom or accepted practice sanctioned by the state constitute state action. See Adickes v. Kress Co., 398 U.S. at 171, 90 S.Ct. at 1615; Terry v. Adams, 345 U.S. 461, 469-470, 73 S.Ct. 809, 813-814, 97 L.Ed. 1152 (1953).

The only authority cited by the C.B.A., Anderson v. Glismann, 577 F.Supp. 1506 (D.C.Col.1984), is not persuasive. While the District Court in that case did note that the fact that a private party acts pursuant to a court appointment does not, without more, make such actions attributable to the state, the court held that a court appointed psychiatrist was not a state actor because, although he was acting under the authority of the state, he was not acting on its behalf. We understand this distinction to mean that a person who performs a private function does not become a state actor in doing so under a state’s direction. Here, the C.B.A. acted both under authority of the state and on its behalf because it performed the public function of screening applicants for the Judges.

Liberty Interest

To establish a violation of the due process clause, Plaintiff must demonstrate that she was deprived of a “liberty” or “property” interest. We first examine whether Plaintiff has demonstrated the existence of a liberty interest as that term has been interpreted by the courts. In essence, Plaintiff’s claim is based on her allegation that the C.B.A.’s rating of her as “not recommended” deprived her unfairly of her opportunity to obtain employment as a state judge. The “not recommended” rating is alleged to be false in that it was unjustified given her excellent credentials. Plaintiff does not allege that such a “not recommended” rating injured her good name, reputation, honor or integrity. Further, she does not allege that the C.B.A. rating imposed a stigma or other disability upon her that foreclosed her ability to seek other employment opportunities. In fact, it is readily apparent that she could allege neither. The “not recommended” rating is confidential and not disclosed under the C.B.A. rules to other than select members of the C.B.A. itself and to the candidate. Further, the C.B.A. “not recommended” rating arose out of the C.B.A.’s finding that Plaintiff lacked “experience” and “judicial temperament.” Neither finding adversely reflects on Plaintiffs ability to perform as a lawyer or in any other business or professional endeavor.

The Supreme Court announced the applicable legal standard to be applied in order to determine whether Plaintiff has stated a cognizable liberty interest in Board of Regents v. Roth, 408 U.S. 564, 573-574, 92 S.Ct. 2701, 2707-2708, 33 L.Ed.2d 548 (1972). The Court defined a protectible liberty interest as one that occurs when (1) charges are made by the government against an individual which might seriously damage his standing and associations in the community, or (2) the state imposes on the individual a stigma or other disability which forecloses his freedom to take advantage of a range of employment opportunities. In Perry v. Federal Bureau of Investigation, et al., 759 F.2d 1271, 1276-1280 (7th Cir.1985), the Seventh Circuit found a protected liberty interest when dissemination of an allegedly false F.B.I. report reflecting on a candidate’s honesty and mental stability made it virtually impossible for that candidate to obtain a law enforcement position with federal, state, or local agencies. Thus, the plaintiff was foreclosed from a large group of potential employers. Here, no such result has occurred. The best that can be said for Plaintiff’s claim is that a small group of attorneys in the C.B.A. will perceive that she is not qualified by experience or temperament for the position of a state court judge. Plaintiff has no protected liberty interest in obtaining a single position of judge where other opportunities for employment in her field exist. Cafeteria and Restaurant Workers v. McElroy, 367 U.S. 886, 895-896, 81 S.Ct. 1743, 1748-1749, 6 L.Ed.2d 1230 (1961). Plaintiff remains free, without stigma, to pursue a career as a public defender, a prosecutor, or to embark on private practice of law. Indeed, she even remains free to pursue a career as a federal judge or magistrate. The limited effect of the C.B.A.’s “not recommended” rating does not rise to the level of a protected liberty interest under the due process clause because it does not significantly injure her professional standing or foreclose her from an array of other employment opportunities as an attorney.

Property Interest

Plaintiff could maintain her action if, under color of state law, she was unconstitutionally deprived of a protectible property interest. Plaintiff agrees in her memorandum in opposition to the motion to dismiss that in order to sustain such a claim she must allege entitlement. As stated by the Supreme Court in Roth, 408 U.S. at 577, 92 S.Ct. at 2709,

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must instead have a legitimate claim of entitlement to it.

Plaintiff has no entitlement to the position of Associate Judge of the Circuit Court. No candidate for that office could possibly claim entitlement since it is an elective office. There are no state rules, regulations, or even practices which have been brought to the attention of this court which, in any conceivable way, could entitle an attorney, even a highly experienced one, to such an office. All that Plaintiff alleges, and all that she could allege, is that she meets the minimum objective qualifications. (Complaint, ¶ 14.) See Jolly v. Listerman, 672 F.2d 935, 941 (D.C.Cir.1982) (“there is no recognized property right in a mere chance or expectation of being hired ... by a particular employer or to a particular position”).

However, Plaintiff argues that her entitlement, although not to the position of judge, is to the right, upon meeting the minimum qualifications, to receive a fair consideration of her application. Plaintiff points to the C.B.A. procedures which permit and perhaps require an investigation and hearing. She argues that under the due process clause such investigation and hearing must comport with fundamental fairness. Plaintiff’s argument misses the mark. The Seventh Circuit has repeatedly held that “ ‘[procedural protections or the lack thereof do not determine whether a property right exists.’ ” Shango v. Jurich, 681 F.2d 1091, 1100 (7th Cir.1982) (quoting Suckle v. Madison General Hospital, 499 F.2d 1364, 1366 (7th Cir.1974)). In other words the existence of a state procedural scheme does not by itself create a constitutionally protected property interest. The protectible property interest must be found under state law and must exist independently of and apart from any procedural guarantees. Plaintiff’s argument fails because it concedes there is no protected interest in being elected a state judge while claiming a protected property interest in being fairly considered for that position. For these reasons, the court finds that Plaintiff has failed to allege a constitutionally protected property interest.

Due Process

Although not necessary to a determination of this case, the court feels constrained to note that even if Plaintiff had pled the existence of a constitutionally protected liberty or property interest, her complaint fails to establish that either the general procedures or the specific actions of the C.B.A. in reviewing her candidacy denied her due process. The essence of the C.B.A. investigation and hearing is peer review, not an impartial trial by jury. Thus, many of her allegations of unfairness are immaterial. While the C.B.A. procedures call for investigation of the candidate’s qualifications, the C.B.A. is not required to conduct an exhaustive investigation of all the candidate’s experiences or alleged qualifications. Investigators with both personal and hearsay knowledge of the candidates’ qualifications can properly sit on the hearing panel and vote on the candidate. Attorney members of the C.B.A. are not to be disqualified from the panel because they have opposed the candidate in litigation; in fact, in many ways they are the most useful panelists. There need be no requirement that the hearing panel constitute a cross-section of the legal community with full minority representation. All that is required in peer review is that a randomly selected group of the candidate’s peers determine qualifications. Much of such a determination is of necessity based on both personal experiences with the candidate and a perception of her reputation in the legal community. Thus, the court believes that the C.B.A. rules and procedures afford judicial candidates a fair peer review and, hence, due process if due process be required.

Plaintiff also complains that the C.B.A. did not follow its own rules in its review of Plaintiff’s credentials. Most significantly, Plaintiff charges that the chairman of the hearing committee had been her courtroom adversary and had developed a personal dislike for public defenders in general and the Plaintiff in particular. Under C.B.A. rules, members should disqualify themselves from serving on a hearing panel if they have “personal relationship or a continuing or longstanding professional relationship” with a candidate (C.B.A. Procedures of June 14,1976. Plaintiff, however, does not allege such a relationship but only that the chairman had been an “actual adversary of Plaintiff.” (Complaint, If 20.) Nothing in the C.B.A. procedures would disqualify the chairman under these circumstances. Thus, Plaintiff has not alleged that the C.B.A. violated its own guidelines. In short, the court finds that the C.B.A. review of Plaintiff's application did not deny her procedural due process even if she had a constitutionally protected liberty or property interest.

Conclusion

For the reasons stated above, the complaint is dismissed under Fed.R.Civ.P. Rule 12(b)(6) for failure to state a claim upon which relief can be granted.

       Associate judges are elected by the full Circuit Court Judges. The ballot contains the names of two qualified candidates for each available position. Ill.Rev.Stat. ch. 110A, § 39.