author: KEADY, District Judge.

text:
    Dorothy WALLS, et al., Plaintiffs, v. MISSISSIPPI STATE DEPARTMENT OF PUBLIC WELFARE, et al., Defendants. UNITED STATES of America, Plaintiff, v. MISSISSIPPI STATE DEPARTMENT OF PUBLIC WELFARE, et al., Defendants.
    Civ. A. Nos. GC 73-5-WK, GC 75-108-WK.
    United States District Court, N.D.Mississippi, Greenville Division.
    April 4, 1985.

      Johnnie E. Walls, Jr., Greenville, Miss., for plaintiffs.
    Barbara A. Morris, National Employment Law Project, New York City.
    Cynthia Drabek, U.S. Dept, of Justice, Employment Litigation Section, Washington, D.C., for U.S.
    Thomas E. Childs, Jr., Fulton, Miss., Edwin L. Pittman, Atty. Gen. of Miss., Jackson, Miss., for state defendants.
   ORDER

KEADY, District Judge.

The state defendants move for summary judgment on the limited issue that they are immune to back pay and other relief to claimants aggrieved by the written examination process for the time period from May 1973 to December 1, 1976. It was during this period that the state employed unvalidated written examinations and a certificate of eligibles based upon the scores made on the tests for employment of Clerks, Eligibility Workers and Social Workers. The defendants contend that if they are not entitled to summary judgment an evidentiary hearing should be scheduled to more fully develop the issue. Private plaintiffs and the Government, in turn, move for cross-summary judgment and argue that the state defendants have failed to satisfy the legal requirements for using unvalidated examinations as a basis for employment; they also argue that the record already made is sufficient to dispose of the issue without necessity of further hearing.

As this court has previously held, state defendants’ use of an unvalidated examination for the three positions in the Welfare Department violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Under EEOC Guidelines in effect during 1972-76, an employer may not be liable for provisional use of an unvalidated examination in some “very limited circumstances.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 436, 95 S.Ct. 2362, 2380, 45 L.Ed.2d 280 (1975); Ensley Branch of NAACP v. Seibels, 616 F.2d 812, 823-24 (5th Cir.), cert. denied sub nom., Personnel Board of Jefferson County v. United States, 449 U.S. 1061, 101 S.Ct. 783, 66 L.Ed.2d 603 (1980). The precise issue is whether the defendants in this case may be relieved of the consequences of using unvalidated examinations in its employment practices.

Defendants claim an immunity on the basis of 29 C.F.R. § 1607.9 (1970) which, in effect at the time, provided as follows:

Under certain conditions, a person may be permitted to continue the use of a test which is not at the moment fully supported by the required evidence of validity. If, for example, determination of criterion-related validity in a specific setting is practicable and required but not yet obtained, the use of the test may continue: Provided: (a) The person can cite substantial evidence of validity as described in § 1607.7(a) and (b); and (b) he has in progress validation procedures which are designed to produce, within a reasonable time, the additional data required. It is expected also that the person may have to alter or suspend test cutoff scores so that score ranges broad enough to permit the identification of criterion-related validity will be obtained.

For the above code section to apply, a party must establish two requirements: first, “substantial evidence of validity” of the testing procedure and, second, that he “has in progress validation procedures which are designed to produce, within a reasonable time, the additional data required.” The burden, of course, is upon the state defendants to come within C.F. R.’s § 1607.9 exemption. Moreover, “substantial evidence of validity” must be judged by special requirements of C.F.R. § 1607.7, which provides that where it is not feasible to conduct a proper validation study

evidence from validity studies conducted in other organizations, such as that reported in test manuals and professional literature, may be considered acceptable when: (a) The studies pertain to jobs which are comparable (i.e., have basically the same task elements), and (b) there are no major differences in contextual variables or sample composition which are likely to significantly affect validity. Any person citing evidence from other validity studies as evidence of test validity for his own jobs must substantiate in detail job comparability and must demonstrate the absence of contextual or sample differences cited in paragraphs (a) and (b) of this section.

“Substantial evidence of validity,” therefore, had to include studies of the challenged examinations which would tend to show that they might be validly used by the employer, with some substantiation of comparability between jobs that were studied and the employer’s jobs for which testing was used. The state defendants knew as early as 1971 that the examination process being utilized had a disparate impact on blacks. Even so, the record establishes that as late as May 1973 the defendants had not initiated any studies to ascertain whether the examination process was job related or whether the testing being utilized was at all proper. The defendants called upon officials of the United States Civil Service Commission to assist them in preparing test materials for Clerk and Social Worker positions, and the materials furnished by these officials were then used in testing. It was known by all that the materials were unvalidated, and the information provided by the Civil Service Commission representatives consisted of certain questions that were developed by subject matter experts. The federal officials did not represent that the questions were the result of a validated process. Instead, those officials advised the state defendants to review “the suggested examinations for use appropriate to your needs, in accordance with applicable federal standards.” The Welfare Department next furnished certain information about job duties to the Civil Service Commission, which took no action other than to recommend that the State Merit System re-evaluate its examination process. This occurred in August 1973. Thereafter, Director McCarthy of the State Welfare Department assumed that the test questions supplied by the Civil Service officials were adequate, and he chose to place them into effect without critical review or analysis of any kind. The state defendants used substantially the same test questions for Eligibility Worker positions as had been supplied for the Clerk and Social Worker jobs. The federal officials supplied no test questions for Eligibility Worker positions.

The state defendants now contend that the failure of the Civil Service Commission to advise against the continued use of the examinations and certificates of eligibles from May 1973 until December 1, 1976, when they were suspended, constitutes reliance upon the test questions furnished by the Civil Service Commission as “substantial evidence of validity” of the procedure. We disagree. The federal officials, in furnishing the test questions, specifically advised the state defendants to have the material evaluated in accordance with federal standards, which were controlled by the EEOC Guidelines. The Civil Service Commission, of course, was not authorized to vary the EEOC Guidelines which were binding upon the state defendants. Other than to delete certain questions proposed by the Civil Service Commission, the state defendants made no substantive review of the material supplied by representatives of the Civil Service Commission and as stated, used the same information for the Eligibility Worker position. Neither does it appear that any comparison was made of the positions for which the questions were framed by Civil Service representatives and the job positions within the Welfare Department for which the tests would be used. In any event, no validation study as such was ever undertaken by the federal officials, and the state defendants present no evidence that during the time period involved they employed experts to advise them on the basis of validity studies in other organizations that their testing procedure might be utilized pending the completion of a validity study. Under these circumstances, it is clear that the state defendants are unable to show any substantial evidence that the testing procedures employed by them were valid.

Neither can it be said that the state defendants in 1973-76 had in place an ongoing validation procedure designed to produce data as to the validity of the examinations that were being used. McCarthy acknowledged that the data then being collected concerned only information about functions and duties of certain job classifications, and a job analysis was done by a psychologist, Dr. Hanby. Beyond the job analysis, the state defendants had no further procedure in progress during the time frame involved and therefore, had no plan or procedure “designed to produce, within a reasonable time, the additional data required [§ 1607.9].”

The only occasion in which the state defendants sought to make a validation study of its testing procedures occurred in 1977 after the examinations were suspended and a firm of experts was employed for litigation purposes. It is clear that the state defendants failed to establish any of the conditions to justify a continued use of unvalidated examinations within the purview of 29 C.F.R. § 1607.9 (1970). Since the uncontradicted facts, as shown by the record and as found by this court, permit no other conclusion, no useful purpose will be served by ordering an evidentiary hearing on the immunity defense.

The motion of the state defendants for summary judgment or alternatively for an evidentiary hearing is DENIED, and the cross-motions of the United States and private plaintiffs for summary judgment in their favor on the immunity issue are SUSTAINED.


source: Caselaw Access Project

author: ALSOP, Chief Judge.

license: Public Domain

text:
    CILCO, INC., Plaintiff, v. PRECISION-COSMET, INC., Defendant.
    No. 3-84 CIV 1517.
    United States District Court, D. Minnesota, Third Division.
    April 9, 1985.

      Bassford, Heckt, Lockhart & Mullin by Lynn G. Truesdale and Kevin P. Keenan, Minneapolis, Minn., for plaintiff.
    Merchant, Gould, Smith, Edell, Welter & Schmidt by Alan G. Carlson, Minneapolis, Minn., for defendant.
   MEMORANDUM ORDER

ALSOP, Chief Judge.

The above-entitled matter came on for hearing before the undersigned on March 8, 1985. Plaintiff Cilco moves this court for an order joining Dr. Ronald P. Jensen and James G. Fetz as involuntary plaintiffs in this action. Defendant Precision-Cosmet moves this court for an order dismissing this action pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) for lack of justiciable controversy or for an order staying this action until related, pending litigation in California is completed.

On November 30, 1976, Jensen and Fetz were issued United States patent No. 3,997,027 (027 patent) by the United States Patent Office. Jensen and Fetz assigned their interests in the 027 patent to Cilco. On August 1, 1978, Jensen and Fetz were issued United States Patent No. 4,104,339 (339 patent) by the United States Patent Office. Jensen assigned his interest in the 339 patent to Cilco. Fetz has retained his one-half interest in the 339 patent. The assignments provide that the patents revert back to Jensen and Fetz if Cilco fails to make required payments to them.

In July, 1981, Jensen and Fetz brought suit against Cilco in the United States District Court for the Central District of California, Case No. CY 81-3392-LTL. In California, Jensen and Fetz allege that the 027 and 339 patents are valid, that Cilco is manufacturing within the patents, and that Cilco is contractually liable to make payments to them pursuant to the assignments of the patents. Cilco’s position in the California litigation is that the 027 and 339 patents are invalid or, in the alternative, if the patents are valid, then it is manufacturing outside of the patents.

In October, 1984, Cilco brought this action against Precision-Cosmet, Jensen and Fetz. Cilco alleges that the patents are invalid or, in the alternative, if the patents are valid, then Precision-Cosmet is infringing upon them. Precision-Cosmet also asserts that the patents are invalid, but in the alternative, if the patents are valid, then it asserts that it is not infringing upon them. Pursuant to a stipulation and order dated December 26, 1984 and found in the Clerk of Court’s file at Docket Entry 7, Jensen and Fetz were dismissed from this action without prejudice because the court does not have personal jurisdiction over them.

The first issue before the court is whether Jensen and Fetz should be joined as involuntary plaintiffs in this case. Fed.R. Civ.P. 19(a) provides:

A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintijf. If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action.

(Emphasis added.) The seminal decision on the involuntary plaintiff procedure in Independent Wireless Telegraph Company v. Radio Corporation of America, 269 U.S. 459, 46 S.Ct. 166, 70 L.Ed. 357 (1926). The plaintiff in Independent Wireless was an exclusive patent licensee. Since he was not an assignee, he was unable to sue the alleged infringer in either his own name or the name of the patent owner. The plaintiff therefore included the patent owner as an involuntary plaintiff. The district court dismissed plaintiff’s “bill” because the patent owner was an indispensible party, but was outside the jurisdiction of the court. The Second Circuit Court of Appeals reversed the district court, holding that the patent owner was properly made a co-plaintiff. Id. at 462-63, 46 S.Ct. at 167-68. The United States Supreme Court approved this procedure and held that:

... the owner of a patent who grants to another the exclusive right to make, use or vend the invention, which does not constitute a statutory assignment, holds the title to the patent in trust for such a licensee, to the extent that he must allow the use of his name as plaintiff in any action brought at the instance of the licensee in law or in equity to obtain damages for the injury to his exclusive right by an infringer or to enjoin infringement of it.

Id. at 469, 46 S.Ct. at 169. The Court went on to state:

The owner beyond the reach of process may be made co-plaintiff by the licensee, but not until after he has been requested to become such voluntarily. If he declines to take any part in the case, though he knows of its imminent pendency and of his obligation to join, he will be bound by the decree which follows.

Id. at 473, 46 S.Ct. at 171.

The involuntary plaintiff procedure was essentially codified in the third sentence of Fed.R.Civ.P. 19(a) and was not changed by the 1966 amendment. See 7 C. Wright, A. Miller and E. Cooper, Federal Practice and Procedure § 1606, at 49 (1972). As plaintiff’s counsel correctly pointed out, to determine the scope of the involuntary plaintiff procedure, the court must look to the reasoning of the Supreme Court in Independent Wireless. It is clear that an absentee party may be made an involuntary plaintiff only if (1) he is beyond the jurisdiction of the court, (2) he is notified of the action, and (3) he refuses to join the action. 269 U.S. at 473. If these three conditions are met in a particular case, the court must then determine if it is, in the language of Rule 19(a), a “proper case” to invoke the involuntary plaintiff procedure. Rule 19(a) is unclear on what constitutes a “proper case,” however, the Advisory Committee Note to the rule indicates the Independent Wireless is an example of a proper case.

In the case presently before the court, the parties agree that Jensen and Fetz are beyond the jurisdiction of the court, that they have both been notified of the case, and that they both refuse to join the case. Therefore, the remaining inquiry for the court is to determine if this is a proper case to invoke the involuntary plaintiff procedure.

This is not a proper case to invoke the involuntary plaintiff procedure. The factors present in Independent Wireless are not present in this case. In Independent Wireless, the patent owner had granted a license to the plaintiff and the plaintiff was therefore unable to bring suit in his own name to protect the patent and his interest. In the present case, Cilco has an assignment of all rights in the 027 patent and an assignment of all of Jensen's rights in the 339 patent. Cilco can thus maintain a suit on the 027 patent in its own name. With regards to the 339 patent, any suit must be brought by both Cilco and Fetz, however, the courts have uniformly refused to invoke the involuntary plaintiff procedure to make a co-owner of a patent an involuntary plaintiff. 7 C. Wright & A. Miller, supra, § 1606, at 57-58.

In Independent Wireless, the interests of the patent owner and licensee were consistent; both asserted that the patent was valid. In the present case, Cilco is asking for a declaratory judgment on the validity of the patents and, if the patents are found to be valid, for damages from PrecisionCosmet for infringement. It is the position of Cilco, however, that the patents are invalid. It must be noted that Cilco’s position in this case is consistent with its position in the California litigation. On the other hand, Jensen and Fetz assert that the patents are valid. It would be inequitable to require Jensen and Fetz to be joined as plaintiffs with Cilco when their position on validity is inconsistent with Cilco. Cilco is essentially searching for a party to assert the validity of these two patents in this case. It would be unjust for this court to aid in this quest by joining Jensen and Fetz.

This view of the case is consistent with that of the only similar reported case the court found in its research. In Philadelphia Brief Case Co. v. Specialty Leather Products, 145 F.Supp. 425 (D.N.J.1956), aff'd, 242 F.2d 511 (3rd Cir.1957), the plaintiff licensee attempted to join the patent owner in a suit against an alleged infringer. The court found, however, that the plaintiff’s purpose in the suit was to defeat the patent to avoid paying royalty payments to the patent owner. The positions of the plaintiff and the patent owner, therefore, were adverse. The district court held that it would be unjust to make the patent owner an involuntary plaintiff under these circumstances. 145 F.Supp. at 429.

Based upon the reasoning of the Supreme Court in Independent Wireless and the district court in Philadelphia Brief Case Co., this court concludes that this is not a proper case to invoke the involuntary plaintiff procedure, and Jensen and Fetz will not be joined as involuntary plaintiffs.

The second issue before the court is whether this case should be dismissed pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) for lack of a justiciable controversy or stayed until related, pending litigation in California is completed. The court will turn first to the dismissal issue.

A threshold inquiry of any suit in federal court is whether the plaintiff has alleged a case or controversy within the meaning of Article III of the United States Constitution. The court’s inquiry is whether the allegations of the parties present a real and substantial controversy between parties with adverse legal interests. Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979). Within the context of a declaratory judgment, the Supreme Court instructs:

[B]asically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.

With these principles in mind, the court turns to the present case. A justiciable case or controversy must be disclosed by plaintiffs complaint. Koll v.. Wayzata State Bank, 397 F.2d 124, 127 (8th Cir. 1968). Cilco’s complaint consists of two counts.

In Count I, Cilco does not allege that the patents are valid. Rather, Cilco directs the court to the California litigation regarding these patents which puts their validity at issue. In that litigation, however, Cilco is asserting that the patents are invalid. It has been Cilco’s position in this court, as well, that the two patents are invalid. While Precision-Cosmet has not yet submitted an Answer in this case, its position has always been that the patents are invalid. It is clear that Cilco initially named Jensen and Fetz as defendants and has now attempted to have them named as involuntary plaintiffs in order to have a •litigant to assert the validity of the patents. As indicated above, however, Jensen and Fetz cannot be properly joined in this case.

In Count II, Cilco alleges that Precision-Cosmet is infringing on the two patents. Count II is thus dependent on a finding in Count I that the patents are valid. By implication at least, Cilco’s position in Count II is also inconsistent with its position in Count I. Inconsistent pleadings are permitted under the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 8(e). However, since the court has determined that Count I fails to state a case or controversy between these litigants and, since Count II is dependent on the resolution of Count I, Count II must also be dismissed. Precision-Cosmet cannot infringe a patent unless it is valid and neither of these parties assert that the patent is valid. Therefore, this court concludes that Cilco’s complaint must be dismissed pursuant to Fed. R.Civ.P. 12(b)(1) and 12(b)(6) for failing to state a justiciable controversy within the meaning of Article III of the United States Constitution. Having reached this conclusion, the court need not consider defendant’s motion for a stay of this action.

Based upon the record as it is presently constituted, the arguments of counsel, the memoranda of law that have been submitted by the parties and by Jensen and Fetz, the foregoing discussion, and all files and records herein, the court makes the following order.

IT IS ORDERED:

1. That the motion of plaintiff for an order joining Dr. Ronald P. Jensen and James G. Fetz as involuntary plaintiffs be and the same hereby is in all things denied.

2. That the motion of defendant for an order dismissing this action be and the same hereby is in all things granted.

3. That the clerk of court enter judgment as follows:

IT IS ORDERED, ADJUDGED AND DECREED That plaintiff’s complaint is

dismissed without prejudice.


author: ROSZKOWSKI, District Judge.

text:
    John HUGHES, Plaintiff, v. PITTSBURGH TESTING LAB, Commonwealth Edison, and Hatfield Electric Company, Defendants.
    No. 84 C 20100.
    United States District Court, N.D. Illinois, W.D.
    June 17, 1985.
    Joseph Spiezer, Rockford, 111., for plaintiff.
    Michael I. Miller, Isham, Lincoln & Beale, Jill A. Goldy, Seyfarth, Shaw, Fair-weather & Geraldson, Chicago, 111., and Peter DeBruyne, DeBruyne & Roman, Rockford, 111., for defendants.
   ORDER

ROSZKOWSKI, District Judge.

BACKGROUND

Plaintiff, a union member covered at all times relevant to this action by a collective bargaining agreement, brought this diversity suit for retaliatory discharge against his former employer, Pittsburgh Testing Lab (“PTL”). On February 15, 1985, this court entered an order dismissing plaintiff’s complaint for failure to state a cause of action. Based on Lamb v. Briggs Mfg., 700 F.2d 1092 (7th Cir.1983), this court held that the Illinois tort action for retaliatory discharge was only available to at-will employees. As a union employee, plaintiff was required to pursue the remedies provided him under the applicable collective bargaining agreement prior to bringing suit in federal court.

Subsequent to the dismissal, this court was informed of the Illinois Supreme Court decision in Midgett v. Sackett-Chicago, Inc., 104 Ill. 143, 85 Ill.Dec. 475, 473 N.E.2d 1280 (1984), in which that court held that the Illinois common law remedy for retaliatory discharge was available to union employees such as plaintiff as well as nonunion, at-will employees. Based on Midgett, on February 28, 1985, this court vacated its earlier order dismissing plaintiff’s case.

Based on the April 16, 1985, United States Supreme Court decision in Allis-Chalmer Corp. v. Lueck, — U.S. -, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985), this court is now convinced that its original order dismissing plaintiff’s case was correct. Defendants’ motions to dismiss plaintiff’s complaint are therefore granted.

DISCUSSION

Lueck, like the instant case, involved a union member plaintiff covered by a collective bargaining agreement. Plaintiff Lueck’s collective bargaining agreement incorporated by reference a group health and disability insurance plan. Lueck’s colleetive bargaining agreement established a four-step grievance procedure for general grievances which culminated in final and binding arbitration. The parties to the collective bargaining agreement were also bound by a separate letter agreement to a three-part procedure for disability grievances. These disability grievances, like general grievances, also ultimately culminated in binding arbitration under the collective bargaining agreement.

In July of 1981 Lueck suffered a non-occupational back injury and filed a disability claim in accordance with the group insurance procedure. The insurance company approved the claim and began making payments. According to Lueck, however, his employer on numerous occasions ordered the insurance company to cut off his payments. Following each termination, Lueck would question the action and his benefits would be restored.

When Lueck had had enough of these shenanigans, he filed suit against his employer and the insurer in Wisconsin state court. Lueck’s suit alleged the state tort of bad faith handling of an insurance claim. Lueck never attempted to grieve his dispute under the procedures established by the letter agreement or the collective bargaining agreement.

On motion of the defendants, the Wisconsin trial court dismissed Lueck’s state law claim as being pre-empted by § 301 of the Labor Management Relations Act of 1947 (“LMRA”), 29 U.S.C. § 185(a). The Wisconsin Court of Appeals affirmed on different grounds. The Supreme Court of Wisconsin, however, reversed. The Supreme Court held that Lueck’s claim was one that arose under state, not federal, law. Noting that the bad faith insurance tort was one of substantial significance to the State of Wisconsin, “which has assumed a longstanding policy responsibility for assuring the prompt payment of disability claims,” 105 S.Ct. at 1909, the Wisconsin Supreme Court determined that Lueck’s state-law tort claim a was not pre-empted by § 301.

The United States Supreme Court granted certiorari in the case and reversed.

The unanimous Lueck Court spent a considerable portion of its opinion determining whether the Wisconsin tort action for breach of the duty of good faith as applied to Lueck conferred a non-negotiable state law right on employers or employees independent of any right established by the collective bargaining contract or, whether evaluation of the tort claim was “inextricably intertwined” with consideration of the meaning of the terms of the collective bargaining contract. If the statelaw claim was not independent of the collective bargaining agreement but rather purported to define the meaning of the contract relationship, then “that law [was] pre-empted” by § 301. 105 S.Ct. at 1912.

The Lueck Court determined that the Wisconsin good faith tort was, under the facts of the case, pre-empted. The Court first noted that the extent of the duty to pay and the implied duty to act in good faith were both ultimately dependent upon the terms of the collective bargaining agreement and thus “tightly bound with questions of contract interpretation that must be left to Federal Law.” 105 S.Ct. at 1914. This conclusion was buttressed by the fact that in Wisconsin the good faith duty devolved upon the insurer by reasonable implication from the express terms of the contract which necessarily invites a consideration of the contract itself. Id. More importantly to the instant case, the Lueck Court found:

[a] final reason for holding that Congress intended § 301 to pre-empt this kind of derivative tort claim is that only that result preserves the central role of arbitration in our “system of industrial self-government”.

Id. at 1915 (quoting Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)). Had Lueck brought a contract claim pursuant to § 301, he would have been first required to exhaust the arbitration procedures established in the letter agreement and collective bargaining agreement. The parties to the agreements — the employer and union, and by implication, union members such as Lueck — had agreed that “a neutral arbitrator [w]ould be responsible, in the first instance for interpreting the meaning of their contract. Unless this suit is preempted, their federal right to decide who is to resolve contract disputes [would] be lost.” Id. The court concluded that:

[s]ince nearly any alleged willful breach of contract can be restated as a tort claim for breach of a good faith obligation under a contract, the arbitrator’s role in every case could be bypassed easily if § 301 is not understood to pre-empt such claims. Claims involving vacation or overtime pay, work assignment, unfair discharge —in short, the whole range of disputes traditionally resolved through arbitration — could be brought in the first instance in state court by a complaint in tort rather than contract.

Id. at 1915-16 (emphasis added) This result was determined improper since it would “eviscerate a central tenet of federal labor-contract law under § 301 that it is the arbitrator, not the court who has the responsibility to interpret the labor contract in the first instance.” Id. at 1916.

While Lueck considered the state tort of unfair discharge (or retaliatory discharge) only in dicta, the decision clearly mandates that § 301 likewise pre-empt that type of tort action for union employees covered by a collective bargaining agreement. The union employees right to be discharged only for just cause is one central to the whole of federal labor law and thus an integral part of any collective bargaining agreement. The parties to a collective bargaining agreement devote considerable time and effort determining what will constitute just cause. Even more than the good faith tort at issue in Lueck, the state tort of retaliatory discharge requires definition of the meaning of the collective bargaining agreement. It is the arbitrator — the contractually agreed upon neutral decision maker— who must in the first instance decide the dispute. See also Vantine v. Elkhart Brass Mfg. Co., Inc., 762 F.2d 511 at 517 (7th Cir.1985); Oglesby v. RCA Corp., 752 F.2d 272 (7th Cir.1985).

It is clear, then, that despite plaintiff’s attempt to classify the instant case as a diversity ease brought under the Illinois common-law retaliatory discharge tort, it is actually a labor dispute governed by § 301. The collective bargaining agreement covering plaintiff provided for a grievance procedure culminating in binding arbitration. Plaintiff’s tort claim is thus pre-empted by federal labor law. Having failed to avail himself of the contractual grievance procedures established in his collective bargaining agreement, plaintiff’s claim is thus not properly before this court and must be dismissed.

      . Alleging an agency relationship, plaintiff also joined Commonwealth Edison and Hatfield Electric Company as defendants.


author: RAYMOND J. BRODERICK, District Judge.

text:
    UNITED STATES of America ex rel. Eugene McCLURE v. Ernest PATTON, et al.
    Civ. A. No. 84-380.
    United States District Court, E.D. Pennsylvania.
    June 26, 1985.

      John W. Paekel, Bradley Bridge, Defender Assn, of Philadelphia, Philadelphia, Penn., for petitioner.
    Gregory R. Neuhauser, Deputy Atty. Gen., Philadelphia, Penn., for respondent.
   MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

Petitioner Eugene McClure has, through counsel, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. At the time this action was filed the petitioner was incarcerated in the State Correctional Institution at Camp Hill, Pennsylvania. The petitioner alleges that in 1981, while he was on parole in connection with a prison sentence imposed in 1977, the Pennsylvania Commonwealth Board of Probation and Parole (“the Board”) declared him a “technical” parole violator for possessing a firearm in violation of the conditions of his parole, and recommitted him to serve twelve months “back time” on his original sentence. Subsequently, following his conviction in 1982 for weapons offenses which arose out of his possession of the same firearm, the Board declared him a “convicted” parole violator, and ordered that he serve an additional eighteen months on his original sentence. The petitioner contends that the Board’s action in adjudging him a convicted parole violator, and ordering him to serve an additional eighteen months on his original sentence for the same conduct for which he was recommitted as a technical parole violator, violated his constitutional rights under the double jeopardy clause of the Fifth Amendment and the due process clause of the Fourteenth Amendment. United States Magistrate Peter B. Scuderi has issued a report with a recommendation that the petition for a writ of habeas corpus be denied. The petitioner filed timely objections to the report and recommendation, and this Court has undertaken a de novo review of the matter. For the reasons that follow, the Court has determined that the petition for a writ of habeas corpus will be denied. Facts

The facts in this case are not disputed, and indeed the matter is before the Court on cross-motions for judgment on the pleadings. On September 12, 1977, following his conviction for robbery in the Court of Common Pleas, petitioner was sentenced to a term of not less than three nor more than seven years for robbery. On June 9, 1980, petitioner was paroled by the Board from this sentence. Condition No. 9 of his approved parole plan was his agreement not to own or possess any firearm, deadly weapon, or offensive weapon. Condition No. 9 is a standard condition of parole. 37 Pa.Code § 63.4(5)(ii).

On April 20, 1981, petitioner was arrested on charges of violating the Uniform Firearms Act, carrying a firearm without a license, carrying a firearm on a public street, and possession of an instrument of a crime. On June 25, 1981, petitioner was given a preliminary hearing by the Board on the charge of violating Condition No. 9 of his parole. A violation of parole hearing was held on August 25,1981. In a decision dated September 18, 1981, the Board found that the petitioner was in violation of Condition No. 9 of his parole, and recommitted him to serve twelve months on his original sentence as a technical parole violator. Although under 61 Pa.Stat.Ann. § 331.21a(b) the Board had the power to recommit petitioner for the entire unexpired term of his sentence (approximately 46 months), see United States ex rel. Lawson v. Cavell, 425 F.2d 1350, 1352 (3d Cir.1970), in this case the twelve month period of recommitment was within the six-to-twelve month “presumptive range” for recommitment on a violation of the “no firearms” condition of parole. See 37 Pa.Code § 75.4. Furthermore, petitioner’s recommitment as a technical parole violator did not result in the loss of “street-time” credit (towards completion of his original sentence) with respect to the time he had spent on parole prior to his arrest on the weapons offenses. 61 Pa.Stat.Ann. § 331.21a(b).

On January 7, 1982 petitioner was found guilty in the Court of Common Pleas of Philadelphia County on the weapons charges relating to his possession of the same firearm (at the same time) which formed the basis for the Board’s prior re-commitment action. Following that conviction, a second revocation of parole hearing was held. On May 25, 1982, the Board entered an order in which it “reaffirm[ed]” its recommitment order of September 18, 1981, and recommitted petitioner, as a convicted parole violator, to serve eighteen months (in addition to the twelve months already ordered) on the basis of the conviction on the firearms offenses. Pursuant to 61 Pa.Stat.Ann. § 331.21a(a), the petitioner, as a convicted parole violator, was deprived of his “street time” credit towards his original sentence.

At the second revocation of parole hearing, petitioner argued unsuccessfully that the imposition of additional recommitment time for the conviction would violate petitioner’s double jeopardy and due process rights. Petitioner appealed the Board’s decision to the Pennsylvania Commonwealth Court, which rejected his double jeopardy and due process arguments in a published decision. McClure v. Commonwealth of Pennsylvania, Board of Probation and Parole, 75 Pa.Cmwlth. 176, 461 A.2d 645 (1983). The Pennsylvania Supreme Court denied allocatur. Thus the petitioner has exhausted his available state remedies. 28 U.S.C. § 2254(b).

Mootness

Before proceeding to the merits of petitioner’s claims the Court has, sua sponte, considered whether this action has become moot due to petitioner’s reparole from prison. At the time the action was filed the petitioner was in custody, but during the pendency of the case (before briefing on the objection to the Magistrate’s report was completed) the petitioner was reparoled. His maximum sentence expires on July 18, 1985.

It is clear that the “in custody” requirement of 28 U.S.C. § 2241 extends to a habeas petitioner who, although not incarcerated, is under the “custody” of a parole board, because the conditions of parole involve “significant restraints” upon liberty. Jones v. Cunningham, 371 U.S. 236, 242, 83 S.Ct. 373, 376-77, 9 L.Ed.2d 285 (1963). The Supreme Court has also held that final unconditional release from custody does not moot federal habeas review of the underlying conviction (where the habeas petition was filed while the petitioner was in custody) because of the substantial “disabilities or burdens [which] may flow from” petitioner’s conviction. Carafas v. LaVallee, 391 U.S. 234, 237-38, 88 S.Ct. 1556, 1559, 20 L.Ed.2d 554 (1968), quoting Fiswick v. United States, 329 U.S. 211, 222, 67 S.Ct. 2245, 230, 91 L.Ed. 196 (1946). Finally, the Pennsylvania Supreme Court recently has held that the subsequent reparole of a petitioner seeking review of the Board’s revocation of his parole does not moot his petition for review, at least until his original maximum sentence expires, because “surely, the determination that petitioner was a parole violator may have future consequences for him” for the duration of his parole period. Johnson v. Commonwealth of Pennsylvania, Board of Probation and Parole, 505 Pa. 569, 571, 482 A.2d 235, 236 (1984).

In the present case the petitioner is presently on parole, and he challenges the Board’s decision which recommitted him as a convicted parole violator in 1982. The Court will assume that the Board’s recommitment of the petitioner as a convicted parole violator in 1982 may have “future consequences” for him, at least until the expiration of his original sentence, and therefore has determined that the petition for a writ of habeas corpus is not moot.

Double Jeopardy

The double jeopardy clause of the Fifth Amendment (made applicable to the states through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)) provides that no person shall “be subject for the same offense to be twice put in jeopardy of life and limb.” As the Supreme Court has often stated:

[t]he Double Jeopardy Clause, of course, affords a defendant three basic protections: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977), quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2976, 23 L.Ed.2d 656 (1969).

Ohio v. Johnson, 467 U.S. 493, -, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984).

It is well-established that the revocation of parole or probation (for a violation of the conditions of parole or probation), and the resulting commitment (or recommitment) of a defendant to serve time on the unexpired original sentence, is essentially an administrative rather than a criminal proceeding. See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (probation); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (parole). In Morrissey the Supreme Court, in examining the extent of due process rights afforded parolees in a parole revocation proceeding, stated:

We begin with the proposition that the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations. Cf. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). Parole arises after the end of the criminal prosecution, including imposition of sentence. Supervision is not directly by the court but by an administrative agency, which is sometimes an arm of the court and sometimes of the executive. Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.

Morrissey, 408 U.S. at 480, 92 S.Ct. at 2600. As a general matter, therefore,

parole and probation revocation proceedings are not designed to punish a criminal defendant for violation of a criminal law. The purpose of parole and probation revocation proceedings is to determine whether the parolee or probationer has violated the conditions of his parole or probation.

United States v. Whitney, 649 F.2d 296, 298 (5th Cir.1981). The only “punishment” imposed on a defendant who has been paroled from prison is that imposed by his original sentence, upon his original conviction. The Board of Probation and Parole does not increase or decrease that punishment; it merely determines when circumstances are appropriate for convicted persons to serve their sentences without continued physical custody. 61 Pa.Stat.Ann. § 331.17. Parole does not withdraw the original sentence, but changes the locale and conditions under which that sentence will be served. It is well-settled that the revocation of parole and recommitment to prison does not constitute a second sentence or punishment in violation of the double jeopardy clause. United States ex rel. Lawson v. Cavell, 425 F.2d 1350, 1352 (3d Cir.1970).

The petitioner does not dispute that the state could seek to revoke his parole based on his possession of the firearm in question. He does contend, however, that once the Board put him “in jeopardy” of being recommitted for a parole violation based on his possession of the firearm, he could not again be placed “in jeopardy” (of being recommitted to serve additional time on his original sentence) based on the same act of possessing the same firearm. Thus the issue in this case with respect to petitioner’s double jeopardy argument is whether, by reason of the Board’s two parole revocation proceedings, the petitioner was “twice put in jeopardy” within the meaning of the Fifth Amendment.

In Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), the Supreme Court held that a defendant who had been adjudged to have violated a criminal statute in a juvenile court proceeding could not subsequently be prosecuted as an adult (after being found unfit for treatment as a juvenile) for the same crime, because the jeopardy or risk associated with a criminal prosecution attached to the juvenile court proceeding. In analyzing whether the defendant in Breed had, by reason of the juvenile court adjudication, been “put in jeopardy” for the same offense involved in the subsequent criminal prosecution, the court stated:

Jeopardy denotes risk. In the constitutional sense, jeopardy describes the risk that is traditionally associated with a criminal prosecution ... we have held that the risk to which [Double Jeopardy] Clause refers is not present in proceedings that are not “essentially criminal.” Helvering v. Mitchell, 303 U.S. 391, 398, 58 S.Ct. 630, 632 [82 L.Ed. 917] (1938).

Breed, 421 U.S. at 528, 95 S.Ct. at 1785 (citations omitted). In Helvering v. Mitchell, cited by the Supreme Court in the Breed case, the court determined that a fifty percent civil penalty assessed by the Internal Revenue Service for deficiencies “due to fraud with intent to evade tax” was not an “essentially criminal” sanction which would bar, on double jeopardy grounds, a subsequent tax fraud criminal prosecution. 303 U.S. at 398-99, 58 S.Ct. at 633. The Helvering court observed that “one [type of sanction] which is characteristically free of the punitive criminal element is the revocation of a privilege voluntarily granted.” 303 U.S. at 399, 58 S.Ct. at 633 & n. 2 (“typical of this class of sanctions” is the deportation of aliens and disbarment proceedings).

The Breed court emphasized that “the risk to which the term jeopardy refers is that traditionally associated with ‘actions intended to authorize criminal punishment to vindicate public justice.’ ” Breed, 421 U.S. at 529, 95 S.Ct. at 1786, quoting United States ex rel. Marcus v. Hess, 317 U.S. 537, 548-49, 63 S.Ct. 379, 388, 87 L.Ed. 443 (1943). The Breed court found “no persuasive distinction ... between [a juvenile adjudication of delinquency] and a criminal prosecution, each of which is designed to vindicate [the] very vital interest in enforcement of criminal laws.” 421 U.S. at 531, 95 S.Ct. at 1786, quoting United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971).

In United States v. Whitney, 649 F.2d 296 (5th Cir.1981), a defendant simultaneously on parole and probation in connection with her conviction on federal criminal charges claimed that the double jeopardy clause prohibited the government from alleging the same acts of misconduct in a probation revocation hearing which had formed the basis for a prior revocation of her parole. The Fifth Circuit, as noted above, observed that parole and probation revocation proceedings are not designed to punish a defendant for violation of a criminal law, but to determine whether the conditions of parole or probation have been violated. 649 F.2d at 298. While acknowledging that, as a practical matter, parole and probation revocation proceedings may result in imprisonment, the Whitney court stated that, unlike the defendant in the juvenile court proceeding in Breed, a parolee or probationer “has already been convicted and sentenced” on the underlying criminal offense. Whitney, 649 F.2d at 298. The Whitney court “decline[d] to extend the double jeopardy clause to parole and probation revocation proceedings.” Id.

In this case the Court has determined that the petitioner’s parole revocation proceedings did not place the petitioner “at jeopardy” within the meaning of the Fifth Amendment. The revocation of parole “is not part of a criminal prosecution,” Morrissey v. Brewer, 408 U.S. at 480, 92 S.Ct. at 2600, and, as “the revocation of a privilege voluntarily granted,” it is not an “essentially criminal” proceeding subject to the protection of the double jeopardy clause. Helvering v. Mitchell, 303 U.S. at 398-99, 58 S.Ct. at 633. As the Magistrate correctly points out, parole revocation proceedings do not adjudicate guilt nor impose punishment; rather, such proceedings are factual reviews to determine whether a defendant has violated any of the conditions of his release. Magistrate’s Report at 8. Since parole revocation proceedings are not “actions intended to authorize criminal punishment to vindicate public justice,” Breed, 421 U.S. at 529, 95 S.Ct. at 1786, the risks contemplated by the double jeopardy clause are not present.

Due Process

The petitioner also contends that even if the full protections of the double jeopardy clause do not extend to parole revocation proceedings, nevertheless the substantive quarantees of due process embodied in the Fourteenth Amendment must protect a parolee against “the unseemly procedure of revoking parole twice [for the same act].” The petitioner does not contend that the two parole revocation proceedings he received were procedurally defective or that he failed to receive the procedural safeguards to which he was entitled under Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 593, 33 L.Ed.2d 484 (1972). Rather, his due process claim, while not clearly articulated, is that there is something fundamentally unfair about the state commencing two revocation proceedings and “imposing” two periods of recommitment for two violations of parole stemming from the single act of possessing a firearm. The petitioner contends that where a “single act” (e.g., the possession of firearms or drugs) constitutes both a violation of a condition of parole and a violation of a state criminal statute, the state may proceed against the parolee either as a “technical” violator or a “convicted” violator, but not both.

This contention must be rejected. First, it ignores the difference between the two proceedings. The “act” of possessing a firearm (or drugs, etc.) is at issue only in the proceeding to determine if parole should be revoked for violating the specific condition of parole, i.e., the “technical” violation. In contrast, at issue in a proceeding to determine if parole should be revoked because of a criminal conviction is the fact of the conviction, not the underlying conduct. Petitioner concedes, as he must, that the state is justified in treating an act of misconduct (which would constitute a technical violation of parole) more severely if such misconduct results in a criminal prosecution and conviction. Indeed, the difference is significant because, as noted above, a convicted parole violator, in contrast to a technical parole violator, must forfeit the credit towards his sentence (his “street time”) which he accrued while on parole.

There is nothing fundamentally unfair in imposing a period of recommitment for an act of misconduct which violates a condition of parole, and subsequently imposing an additional period of recommitment if it turns out that the misconduct was severe enough to warrant a criminal prosecution and conviction. Doubtless there are many instances where an act constituting a technical violation of parole (e.g., possession of marijuana, or engaging in “assaultive behavior”) will not be deemed severe enough to warrant a criminal prosecution. However, in cases where the misconduct does result in a criminal prosecution, there is no reason why the state should be prevented from promptly commencing a revocation hearing to immediately adjust the parolee’s status (as a result of the technical violation) and, in the event of a subsequent conviction, commencing a second revocation hearing pursuant to the legislature’s determination that “convicted” violators should be treated more severely than “technical” violators.

If petitioner’s argument is accepted, each time the state “chose” to await disposition of the criminal charges in order to proceed against the parolee as a convicted parole violator, it would abrogate its duty to promptly adjust the parolee’s status based on the technical violations, and it would assume the risk of incurring a long, purposeless delay in the event the criminal charges ultimately did not result in conviction. On the other hand, if the state “chose” to immediately adjust the parolee’s status on the basis of the technical violation, it would, as the Magistrate observed, “forfeit its statutorily prescribed right to treat convicted parole violators as more serious threats.” Magistrate’s Report at 11.

Finally, it appears that in connection with his due process claim the petitioner contends that the Board abused its discretion by imposing a total recommitment time of thirty months, for the two parole violations, when the Board’s “presumptive range” for a violation of parole based upon a conviction for a Uniform Firearms Act violation establishes a “maximum” of twenty-four months. 37 Pa.Code § 75.2. This contention is without merit. It is true that, although the Board has the power to recommit a parole violator for the entire unserved balance of his sentence, 61 Pa.Stat. Ann. § 331.21a(a), if it determines to impose a period of recommitment in excess of its own “presumptive range” it must state its reasons for doing so in writing. 37 Pa.Code § 75.3(c); see Fahlfeder v. Board of Probation and Parole, 80 Pa.Cmwlth. 86, 470 A.2d 1130 (1984). However, since this Court has determined that the Board was entitled to proceed separately on the “technical” and “conviction” violations, it follows that the Board was entitled to impose a period of recommitment for each violation. The period of recommitment imposed for the technical violation (twelve months) was within the presumptive range established for such a violation, 37 Pa.Code § 75.2, and the eighteen month period of recommitment for the conviction on the Uniform Firearms Act offense was within the range established for such a conviction. The Board did not abuse its discretion in imposing these two periods of recommitment for the “technical” and “conviction” violations. See Lewis v. Commonwealth Board of Probation and Parole, 74 Pa. Cmwlth. 335, 459 A.2d 1339 (1983).

For all of the reasons set forth above, the Court has determined that Eugene McClure’s petition for a writ of habeas corpus will be denied.


author: DITTER, District Judge.

text:
    Simmie L. ADAMS, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. No. 84-4508.
    United States District Court, E.D. Pennsylvania.
    July 9, 1985.
    Lorenzo W. Crowe, Jr., Easton, Pa., for plaintiff.
    Edward S.G. Dennis, Jr., U.S. Atty., Michael L. Martinez, Asst. U.S. Atty., Philadelphia, Pa., for defendant.
   MEMORANDUM AND ORDER

DITTER, District Judge.

Plaintiff Simmie Adams brought this action seeking judicial review of the Secretary’s denial of his claim for disability benefits. The government has filed a motion to dismiss plaintiff’s complaint, contending that it was not timely filed. For reasons that follow, this motion will be denied.

The following facts are undisputed. On July 24, 1984, the Secretary rendered her final decision, denying Adams’ claim for supplementary security income benefits. On September 20, 1984, plaintiff filed a motion to proceed in forma pauperis which was accompanied by a complaint seeking review of the Secretary’s denial of benefits. On November 9, 1985, plaintiff’s motion to proceed in forma pauperis was granted and his complaint was filed of record.

Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g) provides that a person may obtain review of a final decision of the Secretary “by a civil motion commenced within sixty days after the mailing to him of such decision or within any further time as the Secretary may allow.” The government contends that although the motion to proceed in forma pauperis was filed within the 60-day provision of section 205(g), the complaint was not filed until after the period had expired, and the action should be dismissed.

It almost goes without saying that an action is not commenced until a complaint has been filed. Fed.R.Civ.P. 3. While a complaint accompanied by a motion to proceed in forma pauperis is not deemed “filed” until leave to proceed in forma pauperis is granted, the filing of the motion has been held to toll applicable statutes of limitations. See Krajci v. Provident Consumer Discount Co., 525 F.Supp. 145, 149 (E.D.Pa.1981); Mitchell v. Hendricks, 68 F.R.D. 564, 568 (E.D.Pa.1975).

The question becomes whether the 60-day provision of section 205(g) is subject to tolling. The Supreme Court has equated this provision to a statute of limitations for purposes of waiver. See Mathews v. Eldridge, 424 U.S. 319, 328 n. 9, 96 S.Ct. 893, 899 n. 9, 47 L.Ed.2d 18 (1976); Weinberger v. Salfi, 422 U.S. 749, 763-64, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522 (1975). Because the court has treated the 60-day period as a statute of limitations, the 60-day period would also be susceptible to being tolled under certain circumstances. Cf. Zipes v. Transworld Airlines, 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982) (42 U.S.C. § 2000e-5(f)(3), providing the time limitation for the commencement of an action under Title VII of the Civil Rights Act of 1964, is equivalent to a statute of limitations and, as such, is subject to equitable tolling). See also Chiaradonna v. Schweiker, 569 F.Supp. 1471, 1473 (E.D. Pa.1983).

Against this background, it is clear that although the action was not commenced within 60 days of the mailing to the plaintiff of the secretary’s final decision, the filing of the motion to proceed in forma pauperis within the 60-day period tolled the time for commencement of the action, and, therefore, the action was timely commenced. Accord Holden v. Heckler, 584 F.Supp. 463, 502-03 (N.D.Ohio 1984).

An order follows.

ORDER

AND NOW, this 9th day of July, 1985, defendant’s motion to dismiss plaintiff’s complaint is hereby denied.


author: McLAUGHLIN, District Judge.

text:
    INDEPENDENT UNION OF FLIGHT ATTENDANTS, Plaintiff, v. PAN AMERICAN WORLD AIRWAYS, INC., Defendant.
    No. 85 CV 2112.
    United States District Court, E.D. New York.
    July 10, 1985.
    Henning, Walsh & Ritchie by John F. Henning, and James R. Ritchie, San Francisco, Cal., Robb & Kuhns by Scott Robb, New York City, for plaintiff.
    Ernest L. Garb, and Richard Schoolman, Pan American World Airways, Inc., Morgan, Lewis & Bockius by Harry A. Rissetto and Thomas E. Reinert, New York City, for defendant.
   MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

This is an action under the Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seq. Plaintiff union seeks a preliminary injunction ordering Pan American World Airways, Inc. (“Pan Am”) to observe certain provisions of an April 1, 1985 agreement, or in the alternative, to maintain the status quo as it existed on or about April 1.

Findings of Fact

The Independent Union of Flight Attendants (“IUFA”) and Pan Am have been parties to a series of collective bargaining agreements governing the “rates of pay, rules and working conditions” of flight attendants represented by the IUFA. This action arises from the parties’ efforts to negotiate a successor collective bargaining agreement to the 1982 Agreement, as extended, which expired by its terms on December 31, 1984. During 1984, the parties served notices of intended changes in the agreement pursuant to Section 6 of the RLA, 45 U.S.C. § 156, and initiated negotiations and, ultimately, mediation under the auspices of the National Mediation Board (“NMB”).

On March 1,1985, the NMB informed the parties that its mediatory efforts had failed, and released the parties to engage in self-help upon expiration of a thirty-day cooling-off period, i.e., as of April 1, 1985 at 12:01 a.m. 45 U.S.C. § 155, First. (This cooling-off period was subsequently extended by the parties until approximately 3:30 a.m.) During the cooling-off period, the parties continued their discussions under the auspices of the NMB, and at the last moment arrived at what appeared to be an agreement.

On April 1, 1985, the parties executed a brief “Memorandum of Understanding” which provided that:

(1) IUFA and Pan Am have agreed to the proposal of Pan Am to IUFA dated March 31, 1985, as amended during the course of negotiations on March 31 and April 1, and by the IUFA proposal of March 31, 1985, as amended.

IUFA Exhibit A.

The very next day, a dispute flared as to whether the 1985 Agreement included a promise by the union to drop certain pending lawsuits and grievances. See DeGeer Declaration at 3. Pan Am insists that such a provision was included in its proposals throughout bargaining for the 1985 Agreement, and was never withdrawn from the table. Thus, Pan Am included such a provision as “Item 7” in the formal, integrated version of the Agreement that it sent to the IUFA on April 4, 1985. IUFA Exhibit B.

The IUFA contends, however, that Item 7 was specifically excluded from the 1985 Agreement. See DeGeer Declaration at 4. Thus, in subsequent meetings with Pan Am, the IUFA refused to endorse Item 7 of the Agreement, contending all the while, however, that the remainder of the Agreement is valid and binding on the parties.

On April 12, 1985, the union filed an interpretation request with the NMB (45 U.S.C. § 155, Second) thereby invoking the jurisdiction of the NMB to determine whether “Item 7” was or was not part of the 1985 Agreement. The NMB conducted an evidentiary hearing on April 22, 1985, followed by a briefing schedule that was completed on May 31, 1985. The parties currently await the Board’s decision.

The April Memorandum of Understanding provides that the parties have “reached a collective bargaining agreement subject only to ratification,” IUFA Exhibit A, and that the IUFA “will establish a schedule for ratification that will result in a completion of the ratification process within 30 days after receipt of an integrated memorandum of understanding,” id. To date, the IUFA has not submitted the Agreement to ratification.

Pan Am takes the position that, having exhausted the RLA procedures and pending IUFA ratification of the 1985 Agreement, the company is free to pursue its right of self-help. Consequently, Pan Am has chosen to implement its final proposal as accepted by the IUFA on April 1, with certain exceptions, notably, that the Company has elected (a) not to institute a new defined contribution pension plan, (b) not to grant a July 1, 1985 wage increase, and (c) not to pay for approximately 700 hours per month of release time for union business.

The union has responded by instituting this action for declaratory and injunctive relief, alleging that Pan Am has unlawfully (1) failed to make and maintain the 1985 Agreement, 45 U.S.C. § 152, First, (2) bargained in bad faith, id., (3) exercised self-help, 45 U.S.C. §§ 152, First and Seventh, and 156, (4) interfered with the union’s representation rights, 45 U.S.C. § 152, Third and Fourth, and (5) retaliated against the exercise of the union’s statutory right to invoke the jurisdiction of the NMB, 45 U.S.C. § 155, Second. Specifically, the union seeks an injunction requiring Pan Am to implement each and every provision of the 1985 Agreement, except Item 7, or in the alternative, requiring Pan Am to maintain the status quo as it existed on or shortly after April 1, 1985.

Discussion

In this Circuit, a party seeking preliminary injunctive relief must show “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). Cf. Local 553, TWU v. Eastern Air Lines, Inc., 695 F.2d 668, 677 (2d Cir. 1982).

In assessing the likelihood that the union will succeed on the merits of its case, this Court is placed in the awkward posture of adjudging the rights of the parties under an agreement, the validity of which is presently being determined by the NMB. The IUFA argues that even if the NMB eventually holds that there is no agreement between the parties, the union is entitled to relief since Pan Am has unlawfully altered the status quo. I disagree.

There is no question that on April 1, 1985, both parties exhausted the statutory procedures. Accordingly, in the absence of an agreement, they could legally engage in self-help. See Brotherhood of Railway and Steamship Clerks, Etc. v. Florida East Coast Railway Company, 384 U.S. 238, 244, 86 S.Ct. 1420, 1423, 16 L.Ed.2d 501 (1966); Brotherhood of Locomotive Engineers v. Baltimore & Ohio Railroad, 372 U.S. 284, 291, 83 S.Ct. 691, 695, 9 L.Ed.2d 759 (1963). The union reads Florida East Coast Railway Company for the narrower proposition that Pan Am may exercise self-help only to the extent it is “reasonably necessary” to the operation of the airline and only if the airline obtains prior judicial approval. I reject so strict an interpretation.

In Florida East Coast Railway Company, the Supreme Court dealt with carrier-imposed changes that had not “run the same gantlet of negotiation and mediation” as the proposed changes over which the statutory bargaining procedures had been exhausted. As to the former, the Court held that, in the interest of insuring the continuity of public transportation service, certain restrictions would be placed on the carrier’s right to self-help. 384 U.S. at 248, 86 S.Ct. at 1425. As to the latter, however, the Court reaffirmed the parties’ right to engage in self-help, including the union’s right to strike, over proposed changes that have proceeded through the RLA procedures. Id. at 244, 86 S.Ct. at 1423.

Any other interpretation would destroy the legitimate role the self-help provision plays in the RLA scheme, i.e., “to allow parties who have unsuccessfully exhausted the Railway Labor Act’s procedures for resolution of a major dispute to employ the full range of whatever peaceful economic power they can muster, so long as its use conflicts with no other obligation imposed by federal law.” Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 392-93, 89 S.Ct. 1109, 1123-24, 22 L.Ed.2d 344 (1969). Thus, because the changes that are the subject of this dispute have proceeded through the bargaining procedure, it seems clear that Pan Am may lawfully implement those changes pursuant to its right to engage in economic self-help.

The union argues, in the alternative, that Pan Am has no right to self-help because an agreement was reached by the parties on April 1, 1985. Pursuing this argument, the union then characterizes Pan Am’s actions as a major dispute under the RLA.

In essence, the union’s position is that the mere signing of the April 1 document notwithstanding the lack of consensus over its terms, elevates the document into an “Agreement” and that any dispute over the terms of the April Agreement sets the machinery of the RLA in motion all over again. Such an extravagant interpretation would delay indefinitely the company’s right to self-help and “would result in an endless revolving door process.” REA Express, Inc. v. Brotherhood of Railway, Airline and Steamship Clerks, 358 F.Supp. 760, 770 (S.D.N.Y.1973). Cf. Pan American World Airways, Inc. v. Flight Engineers’ International Ass’n, 306 F.2d 840, 847 (2d Cir.1962). If there is no agreement upon all the terms, there is no “Agreement.”

It is, therefore, not at all clear to this Court that the parties have, in fact, reached an agreement. As a practical matter, the union’s claims should not be adjudicated until the NMB has issued a definitive ruling on the bedrock question: is there an agreement? Clearly, Congress intended disputes concerning interpretation of mediated agreements to lie within the jurisdiction of the NMB. Cf. Brotherhood of Locomotive Engineers v. Missouri-Kansas-Texas Railroad Co., 320 U.S. 323, 332 n. 7, 64 S.Ct. 146, 150 n. 7, 88 L.Ed. 76 (1943). Judicial review of the IUFA’s claims is not proper at this time.

The union argues, however, that an injunction by this Court is necessary to “preserve the jurisdiction of the NMB” since, without it, the union members will suffer irreparable harm. Upon reviewing the record in its entirety, however, I am not persuaded that the union has proven it will suffer irreparable harm. Clearly, any claims its members might have for lost wages, pension benefits, etc., are purely economic and easily calculated. Thus, if Pan Am’s actions are later held improper, the union and its members could seek redress through normal grievance procedures and could be compensated for their loss through retroactive payments. See Local 553, TWU v. Eastern Air Lines, Inc., 695 F.2d 668, 678 (2d Cir.1982).

In contrast, Pan Am would suffer considerable harm if injunctive relief were issued, since it would be forced to make payments under the 1985 Agreement which, as a practical matter, could not be recovered if the Agreement ultimately is not ratified. Moreover, the administrative and funding costs to Pan Am of establishing a new pension plan, that may or may not be ratified, would be prohibitive. Although the Court is certainly sympathetic to the frustrations of the rank-and-file, who have not even been presented with the Agreement for ratification, the conclusion is nonetheless inescapable that the balance of hardships tilts toward Pan Am.

Accordingly, the motion for a preliminary injunction is denied, and the action is stayed pending a determination from the NMB.

SO ORDERED.

      . The union also argues that Pan Am bargained in bad faith, failed to uphold its statutory obligation to "maintain” the 1985 Agreement, and did all this to undermine the union’s status and to punish its members for challenging Item 7 of the Agreement. Upon hearing the testimony and reviewing the evidence in its entirety, however, I am not persuaded that the union is likely to succeed in proving that Pan Am acted in bad faith or with some illegal purpose. To the contrary, it is clear that both sides simply continue to engage in robust, bare-knuckled bargaining, as is evident from the union’s attorney’s comments at the hearing:
      There will be new and different proposals as the days and months go on and Item Seven still is out. The price has gone up. All of this is in the nature of settlement discussions on buying back Item Seven____ We have ... upped the price for Item Seven. It is ours now. They want it, they’ve got to buy it back. The price is going to get stiffer and stiffer each day. That’s our side. We’re entitled to settle. It is ours.
      » (Tr. at 140). Clearly, "a party does not violate its duty under the Act if it chooses to be adamant in its position." REA Express, Inc. v. Brotherhood of Railway, Airline and Steamship Clerks, 358 F.Supp. 760, 772 n. 43 (S.D.N.Y. 1973).

      . The IUFA also contends that no showing of irreparable harm is necessary before enjoining a carrier in a major dispute. Local 553, Transport Workers Union v. Eastern Air Lines, Inc., 695 F.2d 668, 677 (2d Cir.1983). As the Second Circuit noted in Local 553, however, where, as here, the Court is presented with a motion for a preliminary rather than a final injunction, "there is no doubt that a finding of irreparable harm [is] necessary.” Id.

      Alternatively, the union suggests that the Court may avoid a finding of irreparable harm by treating this as a motion for summary judgment. There exist, however, several material questions of fact regarding the agreement, if any, reached by the parties which preclude such relief at this time.


text:
    UNITED STATES of America ex rel, Carl HOLDER, Petitioner, v. CIRCUIT COURT OF the 17TH JUDICIAL CIRCUIT, WINNEBAGO COUNTY, ILLINOIS, Respondent.
    No. 84 C 20157.
    United States District Court, N.D. Illinois, W.D.
    July 15, 1985.
    Sherman Carmell, Carmell, Charone & Widmer, Ltd., Chicago, 111., for petitioner.
    Marcia L. Friedl, Neil F. Hartigan, Atty. Gen., Crim. Appeals Div., Chicago, 111., for respondent.
   ORDER

ROSZKOWSKI, District Judge.

Before the court are the petitioner’s and respondent’s motions for summary judgment. The court’s subject matter jurisdiction is predicated upon 28 U.S.C. § 2254 (1982) . For the reasons set forth herein, petitioner’s motion for summary judgment is granted and respondent’s motion is denied.

I. BACKGROUND

Petitioner, Carl Holder, a union business representative involved in union organizing and contract negotiating activities, was convicted of criminal intimidation as defined in Ill.Rev.Stat. ch. 38, 1f 12-6(a)(3) (1983) . The conviction arose from petitioner’s alleged threat to an employer during union organizing activities. According to the employer, the petitioner informed him that the concrete would be allowed to harden in the employer’s “ready-mix” concrete trucks if the employer did not sign a collective bargaining agreement.

Petitioner’s conviction was originally overturned by the Illinois Appellate Court on the grounds that § 12-6(a)(3) was over-broad and conflicted with the First Amendment. People v. Holder, 103 Ill.App.3d 353, 59 Ill.Dec. 142, 431 N.E.2d 831 (1982). The Illinois Supreme Court, two justices dissenting, reversed the appellate court and remanded the case for consideration of the petitioner’s remaining arguments. People v. Holder, 96 Ill.2d 444, 71 Ill.Dec. 677, 451 N.E.2d 831 (1983). On remand, the appellate court affirmed the petitioner’s conviction. People v. Holder, 119 Ill.App.3d 366, 74 Ill.Dec. 907, 456 N.E.2d 628 (1983). With one justice dissenting, the Illinois Supreme Court refused to review the appellate court’s second decision. People v. Holder, 96 Ill.2d 569, 76 Ill.Dec. 505, 458 N.E.2d 1305 (1984). Subsequently, the United States Supreme Court refused to grant a writ of certiorari. Holder v. Illinois, — U.S. -, 104 S.Ct. 3511, 82 L.Ed.2d 820 (1984).

In the present action, the petitioner raises two principal arguments. First, the petitioner contends H 12-6(a)(3) is overbroad and vague in conflict with the First Amendment. Second, the petitioner argues his particular conviction conflicts with national labor policy and the Supremacy Clause of the United States Constitution.

II. DISCUSSION

A. The Illinois Intimidation Statute

Subparagraph 12-6(a)(3) of the Illinois Criminal Code provides:

(a) A person commits intimidation when, with intent to cause another to perform or to omit the performance of any act, he communicates to another a threat to perform without lawful authority any of the following acts:
* * * sje * sje
(3) commit any criminal offense[.] * *

Sub-paragraph 2-12 of the Illinois Criminal Code defines “offense” as “a violation of any penal statute of this State.” 111. Rev.Stat. ch. 38, ¶ 2-12 (1983). The Illinois Supreme Court has construed 1112-6(a)(3) as requiring a specific intent to cause another to perform or omit the performance of certain acts. People v. Smith, 78 Ill.2d 298, 35 Ill.Dec. 761, 766, 399 N.E.2d 1289, 1294 (1980). In addition, the Illinois Supreme Court has judicially imposed the requirement that a statement violating ¶ 12-6(a)(3) have “a reasonable tendency to coerce.” People v. Gallo, 54 Ill.2d 343, 297 N.E.2d 569, 574 (1973).

B. First Amendment Challenge: Over-breadth

Petitioner initially contends the Illinois intimidation statute is unconstitutionally overbroad in violation of the First Amendment. The “overbreadth doctrine” allows a person against whom a statute may be applied constitutionally to challenge the facial validity of the statute on the grounds that it may conceivably be applied unconstitutionally to others in situations not presently before the court. New York v. Ferber, 458 U.S. 747, 767-69, 102 S.Ct. 3348, 3359-61, 73 L.Ed.2d 1113 (1982). This “overbreadth” exception to ordinary standing requirements is recognized in the First Amendment area because “persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions by a statute susceptible of application to protected expression.” Id. at 768,102 S.Ct. at 3361 (quoting Schaumberg v. Citizens for a Better Environment, 444 U.S. 620, 634, 100 S.Ct. 826, 834, 63 L.Ed.2d 73 (1980) and Gooding v. Wilson, 405 U.S. 518, 521, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972)). Nonetheless, recent Supreme Court decisions have recognized that the overbreadth doctrine is “strong medicine”, to be employed “only as a last resort” when the overbreadth involved is “substantial”. Id. 458 U.S. at 769, 102 S.Ct. at 3361 See also Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973).

In the present case, the majority of the Illinois Supreme Court recognized that If 12-6(a)(3) potentially could be applied unconstitutionally to certain speech. The majority concluded, however, that the risk of such an application was not substantial. People v. Holder, 96 Ill.2d 444, 71 Ill.Dec. 677, 681, 451 N.E.2d 831, 835 (1983). Specifically, the court noted:

While it is true that under section 12-6(a)(3) one could be prosecuted for threatening to picket in front of city hall without a permit (Ill.Rev.Stat.1979, ch. 38, par. 85-3), or threatening to distribute literature that is deemed ‘offensive’ within the right-of-way limits of a State toll highway (Ill.Rev.Stat.1979, ch. 121, par 314a47V2), we find that any such conceivable impermissible applications are dwarfed by the statute’s legitimate reach in prohibiting threatened criminal activity-
* * * * * #
We feel that the flaw in section 12-6(a)(3) is not a “substantial concern” when viewed in the context of the legitimate sweep of an intimidation statute.

Id.

In urging that the Illinois intimidation statute is unconstitutional, the petitioner relies principally upon Wurtz v. Risley, 719 F.2d 1438 (9th Cir.1983) and Landry v. Daley, 280 F.Supp. 938 (N.D.Ill.1968) rev’d on other grounds sub. nom 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971). In Wurtz, the petitioner challenged Montana’s intimidation statute on the grounds that it was unconstitutionally overbroad in violation of the First Amendment. The pertinent terms of the Montana statute were essentially identical to the terms of the Illinois act. The court found the Montana statute was overbroad, however, noting:

[t]he statutory language applies so broadly [1] to threats of minor infractions, [2] to threats not reasonably likely to induce a belief that they will be carried out, and [3] to threats unrelated to any induced or threatened action, that a great deal of protected speech is brought within the statute.

Id. at 1442. Thus, while noting that the petitioner’s behavior was an extremely serious matter that Montana had the right to outlaw through a narrowly drawn or narrowly construed statute, the court concluded that the existing statute fairly invited “the application of the strong medicine of overbreath adjudication.” Id.

In Landry, prior to the Illinois Supreme or Appellate Courts having had occasion to construe the statute, a three judge district court held the Illinois Intimidation Statute was unconstitutionally overbroad. First, while recognizing that “[t]he State of Illinois unquestionably has an interest in protecting persons from coercion by threats, even though expression was involved,” the court held “Illinois has no legitimate interest in proscribing as intimidation statements that have no reasonable tendency to coerce or statements which, although alarming, are not expressions of an intent to act” Id. at 961. Since the language of the statute was not limited to statements having a reasonable tendency to coerce, or expressions of an intent, to act, however, the court found the statute was deficient.

Second, the Landry court held the statute improperly applied to threats of insubstantial evil. Specifically, the court noted:

Sub-paragraph (a)(3) proscribes threats to violate any penal statute. It therefore makes criminal threats such as the following: (1) threats by dissentient groups to engage in disorderly conduct, [2] threats by residents of a high-crime neighborhood to carry concealed weapons for their own protection, and [3] threats by mothers to block a dangerous state highway to demonstrate the need for increased safety measures. Indeed, the phrase ‘commit any criminal offense’ is so broad as to include threats to commit misdemeanors punishable by fine only. These interests are not so substantial that the state’s interest in prohibiting the threats of them outweighs the public interest in giving political discussion a wide berth.

Id. at 964 (emphasis in original and footnotes omitted). Consequently, the court held that “making it an offense to threaten to commit any crime, no matter how minor or insubstantial, is an unwarranted limitation.” Id.

Both Wurth and Landry are at least partially distinguishable from the present case. As previously noted, the Illinois Supreme Court has judicially imposed the requirement that a statement violating ¶ 12-6(a)(3) must have a “reasonable tendency to coerce.” People v. Gallo, 54 Ill.2d 343, 297 N.E.2d 569, 574 (1973). At the time Wurth and Landry were decided, however, the Montana Supreme Court had refused to give the Montana statute a similar narrowing construction and the Illinois Supreme Court had not yet had the opportunity to give the Illinois Statute its narrowing construction. Thus, to the extent those courts’ findings of overbreadth were based upon the statutes not being limited to threats “reasonably likely to induce a belief that they will be carried out” (Wurth) or “having a reasonable tendency to coerce” (Landry), the decisions are distinguishable.

In the view of this court, however, the Wurth and Landry courts other grounds for finding the subject statutes were overbroad are fully applicable here. The Illinois statute still suffers from the infirmity of proscribing threats of minor infractions, still making it an offense to threaten to commit any crime no matter how minor or insubstantial. Respondent has not cited, and this court has not located, any Illinois decision narrowing the application of ¶ 12-6(a)(3) in such a fashion as to avoid the unconstitutional applications cited in Landry and reaffirmed in Wurth. Indeed, the Illinois Supreme Court noted several additional potential applications which the court conceded would be impermissible; the court did not, however, suggest any limiting construction which would avoid such potential applications. Instead, as noted previously, the majority of the court merely summarily concluded the “flaw” in ¶ 12-6(a)(3) was not a substantial concern.

This court, however, in accord with the Ninth Circuit in Wurth and the Illinois Appellate and dissenting Supreme Court Justices in the present state court proceedings, finds ¶ 12 — 6(a)(3) remains substantially overbroad. Indeed, given the examples of impermissible applications cited by the three judge district court in Landry and the majority of the Illinois Supreme Court in the state proceedings, it is difficult to imagine a more openended, overbroad statute. While this court has no doubt the State of Illinois could prohibit the conduct complained of pursuant to a more narrowly drafted statute, this court finds the instant statute was not sufficiently restricted.

If a statute is divided into wholly independent parts, it is well recognized that only the unconstitutional portion of the statute should be invalidated and stricken. See Brockett v. Spokane Arcades, Inc., — U.S. -, -, 105 S.Ct. 2794, 2801, 86 L.Ed.2d 394 (1985). While the present decision has at times referred loosely to the Illinois Intimidation Statute as a whole, the Court’s finding of overbreadth only pertains to subsection (a)(3). Subsection (a)(3) is wholly independent from the remaining six subsections. Thus, only that subsection need be stricken.

III. CONCLUSION

For the reasons set forth herein, petitioner’s motion for summary judgment and request for a writ of habeas corpus are granted. Respondent’s motion for summary judgment is denied. In view of the resolution of the petitioner’s overbreadth objection, petitioner’s void for vagueness and Supremacy Clause arguments need not be addressed.

      . Specifically, the evidence at trial showed that the employer was engaged in the business of delivering "ready-mix" concrete in trucks equipped with drums, and that the concrete would harden in the drums if they did not rotate. According to the employer, the petitioner informed him the trucks "... are sitting down the road and the drums aren’t turning till [you] sign[ ] a contract.”

        . Landry is also arguably distinguishable on the grounds that the court’s discussion of over-breadth pre-dated Ferber’s imposition of a "substantial overbreadth" requirement.