source: Caselaw Access Project

author: STANLEY S. HARRIS, District Judge.

license: Public Domain

text:
    Estella M. PARKER, Plaintiff, v. NATIONAL CORPORATION FOR HOUSING PARTNERSHIPS, Defendant.
    Civ. A. No. 84-1703.
    United States District Court, District of Columbia.
    Aug. 22, 1985.

      Steven M. Levine, Washington, D.C., for plaintiff.
    Michael L. Stevens, Stanley J. Brown, Washington, D.C., for defendant.
   MEMORANDUM OPINION AND ORDER

STANLEY S. HARRIS, District Judge.

This case is now before the Court on the motion to dismiss, or in the alternative, for summary judgment by the defendant National Corporation for Housing Partnerships (NCHP). In her complaint, the plaintiff Estella Parker alleges that NCHP subjected her to unequal terms and conditions of employment on the basis of race and to retaliation for having filed a complaint with the Equal Employment Opportunity Commission (EEOC). The Court finds that the doctrine of administrative res judicata bars the plaintiff’s claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the District of Columbia Human Rights Act of 1977, D.C.Code § 1-2501 et seq., and 42 U.S.C. § 1981 (section 1981), which previously were adjudicated by the District of Columbia Commission on Human Rights acting in its judicial capacity. The Court further finds that the plaintiff's breach of contract claim is barred by the statute of limitations and, moreover, that it fails to state a claim upon which relief could be granted. Finally, the Court finds that the plaintiffs allegations of an intentional tort for wrongful discharge in violation of public policy and of a breach of an implied covenant of good faith and fair dealing are not actionable in the District of Columbia and further are barred by the statute of limitations.

Although the facts regarding the alleged acts of discrimination are irrelevant for the purposes of this motion, a recitation of the procedural history of this suit is necessary. The plaintiff filed an EEOC complaint on December 5, 1980, asserting that she was discriminated against by her employer, NCHP, on the basis of race. Pursuant to Title VII, the EEOC referred the charges to the District of Columbia Office of Human Rights (OHR), the “state” agency which enforces the District of Columbia law prohibiting discrimination. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(c); District of Columbia Human Rights Act of 1977, D.C.Code § 1-2501 et seq.

Pursuant to the Human Rights Act, the plaintiff signed the OHR complaint on December 22, 1980, about the time she was placed on probation from her job. The plaintiff was terminated by NCHP on March 6, 1981. Three days later, she amended her complaint to include the charge of retaliatory termination for having filed her initial complaint. On August 12, 1981, the OHR determined that there was no probable cause to credit the allegations of disparate terms and conditions of employment based on race, but that there was probable cause to support the allegations as to retaliation. Thereafter, the retaliation complaint was certified to the Commission on Human Rights (Commission) for a public hearing. On November 11, 1982, the Commission dismissed the action with prejudice on the basis of OHR’s failure “due largely to the failure of the complainant, to proceed with the timely prosecution of the complaint properly before the Commission.” Commission on Human Rights’ Ruling on Application for Reconsideration of Final Decision and Order (Docket 81-PE-151 May 30, 1984). The Commission detailed the delays in its ruling denying reconsideration as follows:

September 21, 1981: Retaliation complaint certified to the Commission for public hearing.
November 25, 1981: Pre-Hearing conference scheduled for January 8, 1982. Continued at the request of OHR to February 9, 1982.
February 12, 1982: Pre-Hearing Conference convened. Deposition of complainant scheduled for June 3, 1982. Hearing scheduled for June 14, 1982.
February 17, 1982: Complainant’s request for reconsideration of Director OHR’s dismissal of complaint of disparate terms and conditions of employment based on race submitted to Chair OHR.
Deposition of complainant rescheduled for June 25, 1982. Hearing continued at joint request of the parties until July 27, 1982. Hearing continued at joint request of the parties until July 27, 1982.
June 7, 1982: Ruling of Chairperson COHR on complainant’s application for reconsideration of dismissal by Director OHR of complaint of disparate terms and conditions of employment based on race issued — determination of Director OHR affirmed.
Deposition of complainant and hearing postponed at complainant’s request until after July 1982.
June 30, 1982: Complainant advised by Counsel for OHR to seek representation — lack of cooperation in preparation of case in support of complaint cited.
August 11, 1982: Interim Order of the Commission issued — OHR required to provide representation for the case in support of the complaint within thirty (30) days.
August 25, 1982: Hearing scheduled for September 20, 1982.
Hearing continued at the joint request of the parties to October 21, 1982. Deposition of complainant scheduled for September 23, 1982.
September 28, 1982: Notice of appearance of FTC attorney serving pro bono as Counsel of OHR.
Hearing continued to December 2, 1982.
11-2-82: Notice of appearance of FTC attorney serving pro bono as Counsel for OHR withdrawn — lack of cooperation in preparation of case in support of complaint cited.
11-2-82: Respondent’s motion to dismiss for failure to prosecute.
11-18-82: Order dismissing complaint for failure to prosecute issued by Commission.
11- 26-82: Complainant’s request for reconsideration of Final Decision and Order.
12- 14-82: COHR notified of Director OHR’s intent to support complainant’s application for reconsideration.
1-5-83: Complainant informed by OHR that due to her unwillingness to proceed on the basis of her complaint of retaliation, the Office could no longer be of assistance in supporting her application for reconsideration.

In summary, the plaintiff refused to attend her prehearing depositions, thereby precipitating postponements such that the Commission’s efforts to conduct a hearing on the plaintiff’s claims were interrupted no less than six times. Furthermore, at least three OHR representatives complained of the plaintiff’s failure to cooperate in the preparation of her case. One of those representatives was pro bono counsel from the Federal Trade Commission who represented the plaintiff from September 28, 1982, until November 2, 1982, when counsel withdrew due to lack of cooperation by the plaintiff. The dismissal order was sustained on the basis of the plaintiff’s late filing for reconsideration six months after the expiration of the filing period, the previous answer by the Commission upon reconsideration of the disparate terms and conditions charge, the plaintiff’s historical lack of cooperation, and the previous interruptions in processing the complaint caused by the plaintiff.

Prior to the Commission’s second ruling, the EEOC issued a Notice of right-to-sue and the plaintiff filed a pro se complaint in this court rather than obtaining judicial review of the agency’s decision in the District of Columbia Court of Appeals pursuant to D.C.Code § 1-2554. At the first status call before this court, the plaintiff did not appear until after the case had been called and the undersigned had left the bench. She was told to reappear and advised to obtain an attorney. At the second status call, on October 3, 1984, she again appeared without counsel. Thereafter, the Court was able to appoint a volunteer attorney to represent her.

I

The Court turns first to the plaintiff’s claims under Title VII, § 1981, and the Human Rights Act as asserted in her amended complaint. The defendant argues that these claims should be dismissed pursuant to the doctrine of res judicata and collateral estoppel because they are identical to the race discrimination and retaliation claims that the Commission dismissed with prejudice.

To begin with, had the claims been reviewed by the Article I District of Columbia Court of Appeals, this Article III court would be required under 28 U.S.C. § 1738 and the Constitution’s full faith and credit clause to give preclusive effect to that court’s judgment. The Supreme Court applied this rule in affirming the dismissal of a Title VII claim where a state court upheld a state administrative agency’s rejection of the claim as meritless. Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982). Since the plaintiff here did not seek judicial review by the District of Columbia Court of Appeals, § 1738 does not apply. There is no state court decision to afford preclusive effect.

The Supreme Court went on to note in Kremer, however, that “so long as opposing parties had an adequate opportunity to litigate disputed issues of fact, res judiciata is properly applied to decisions of an administrative agency acting in a ‘judicial capacity.’ ” Id. at 484 n. 26, 102 S.Ct. 1883 at 1899 n. 26. The Court cited United States v. Utah Construction & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 1560, 16 L.Ed.2d 642 (1966), which stated that res judicata is unhesitatingly applied by the courts “[w]hen an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly brought before it which the parties have had an opportunity to litigate____” This principle of “administrative res judicata” was recognized by the District of Columbia Court of Appeals in William J. Davis, Inc. v. Young, 412 A.2d 1187, 1194 (D.C.1980).

The significance of the distinction between the investigatory and the adjudicatory capacities of an agency is apparent when footnote 26 is read in conjunction with another footnote in Kremer which states that “[sjince it is settled that decisions by the EEOC do not preclude a trial de novo in federal court, it is clear that unreviewed administrative determinations by state agencies also should not preclude such review even if such a decision were to be afforded preclusive effect in a State’s own courts.” Kremer, 456 U.S. at 470 n. 7, 102 S.Ct. at 1891-92 n. 7. Thus, decisions rendered by agencies acting in a purely administrative or investigatory capacity similar to the role of the EEOC do not have a preclusive effect on the federal courts. The agency in Kremer never reached its adjudicatory role, but stopped after its investigation resulted in a finding of no probable cause. The exercise of its authority extended no further than that of the EEOC, which cannot adjudicate claims or impose sanctions and, therefore, under footnote 7, its decision had no preclusive effect. In contrast, where, as here, an agency determines that probable cause exists and then goes on to adjudicate the claim in proceedings substantially similar to those employed by the courts, footnote 26 provides that administrative res judicata properly applies to the decision. See Buckhalter v. Pepsi-Cola General Bottlers, Inc., 768 F.2d 842 (7th Cir.1985), (adjudicative agency decision had preclusive effect); Zywicki v. Moxness Products, Inc., 610 F.Supp. 50 (E.D.Wisc.1985) (res judicata bars suit following adjudicatory hearing by state agency). But see Reedy v. State of Florida, 605 F.Supp. 172 (N.D.Fla.1985) (unreviewed state agency decision does not preclude action on same claim in federal court).

In order to have preclusive effect, the administrative proceeding provided must be the “essential equivalent of a judicial proceeding.” William J. Davis, Inc., 412 A.2d at 1194. Such elements include adequate notice, the right to present and rebut evidence, findings of fact and conclusions of law, a final decision, and formal procedures. See RESTATEMENT (SECOND) OF JUDGMENTS § 83 (1982). The Human Rights Act gives the Commission on Human Rights all the powers of an adjudicatory body. D.C.Code §§ 1-2552 through 2554. Where the OHR, acting in an investigatory capacity, finds probable cause the Commission next conducts a public hearing in accordance with the procedures promulgated pursuant to the District of Columbia Administrative Procedure Act, D.C.Code § 1-2552, and the Commission’s Rules of Procedure for Contested Cases, 31 D.C. Register No. 50, p. 6267, § 100 et seq. (1984).

The Commission must afford the parties before it an opportunity to present oral and documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination “as may be required for a full and true disclosure of the facts.” D.C. APA at § l-1509(b). The Commission is required to issue findings of fact and conclusions of law supported by “reliable, probative, and substantial evidence.” D.C.Code § 1-2553. The Commission may afford relief where warranted including cease and desist orders, orders to reinstate or for money relief such as back pay, compensatory damages, and attorney’s fees. These orders are ap-pealable to the District of Columbia Court of Appeals. Thus, the procedures provided by the Commission are essentially equivalent to a judicial proceeding.

The Court turns now to the question whether res judicata is applicable to the claims of this plaintiff. Clearly, the plaintiff was given an adequate opportunity to litigate her claim before the Commission. Attorneys attempted to represent her before the Commission and ample opportunities were given her to present evidence. She was extended the equivalent of a judicial proceeding which resulted in dismissal of her claims with prejudice because of her failure to cooperate. In dismissing her complaint, the Commission acted pursuant to its Rules which state that a complaint may be dismissed when a complainant engages in “willful dilatory conduct, resists the Commission or ... fails to be prepared for any scheduled phase of the hearing process.” Commission Rules of Procedures, 31 D.C. Register No. 50, §§ 133.1, 133.2. The plaintiff could have appealed this ruling directly to the District of Columbia Court of Appeals, but she chose otherwise.

Res judicata applies where there is a final judgment on the merits in an earlier action, an identity of the cause of action, and an identity of the parties in the two suits. See Nash County Board of Education v. Biltmore Co., 640 F.2d 484, 486 (4th Cir.), cert. denied, 454 U.S. 878, 102 S.Ct. 359, 70 L.Ed.2d 188 (1981). A dismissal for failure to prosecute a claim operates as an adjudication on the merits unless the dismissal order otherwise specifies. Fed.R.Civ.P. 41(b). In the District of Columbia, a dismissal with prejudice for failure to prosecute a claim operates as an adjudication on the merits. Colbert Refrigeration Co. v. Edwards, 356 A.2d 331, 332 (D.C.1976). There is no question, then, that the plaintiff obtained a final judgment on the merits of her retaliation claim since the Commission clearly designated the dismissal as being with prejudice for failure to prosecute. The plaintiff had representation before the Commission so this is not a case with a pro se plaintiff ignorant of the required procedures. The plaintiff’s failure to appeal to the District of Columbia Court of Appeals does not affect the finality of the decision. Rather, an adverse decision from which no appeal has been taken is res judicata and bars any future action on the same claim. Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 4, 101 S.Ct. 2424, 2428 n. 4, 69 L.Ed.2d 103 n. 4 (1981). Since this was a final judgment and since the parties and claims are identical to those brought before the agency, the Commission’s decision would be given full preclusive effect in a District of Columbia court and, therefore, is to be given full preclusive effect here. Accordingly, the Court finds that the plaintiff’s claims under Title VII, Section 1981, and the District of Columbia Human Rights Act should be dismissed as barred by the doctrine of administrative res judica-ta.

II

A. Breach of Contract

The plaintiff alleges that her “employment with defendant for six years established an employment contract for an indefinite term.” In her opposition to the motion to dismiss, she states: “It is plaintiff’s theory that by virtue of the [plaintiff’s] unblemished record for six years with annual merit increases, [that she had] a legitimate expectation and implied guarantee of continued employment by defendant.” On this basis, the plaintiff asserts that she may recover for breach of contract.

Primarily, the plaintiff’s breach of contract claim should be dismissed because it is time barred by the statute of limitations. The statute of limitations in this jurisdiction for a breach of contract claim is three years, commencing at the time of the alleged breach. D.C.Code § 12-301(7). See Prouty v. National Railroad Passenger Corp., 572 F.Supp. 200, 205 (D.D.C. 1983). Although the claim was filed more than two months after the statutory period and is, therefore, time-barred, the Court does examine the claim in light of the liberal policy basis for claims brought under and with Title VII actions.

The general rule in the District of Columbia is that employment contracts of indefinite duration are terminable by the employer or employee at will with no ensuing liability on the part of either. See Taylor v. Greenway Restaurant, Inc., 173 A.2d 211 (D.C.1961). The plaintiff asserts that the general rule was modified in Hodge v. Evans Financial Corp., 707 F.2d 1566 (D.C.Cir.1983), such that an exception was created for “implied” employment contracts. Hodge is not applicable to this case in that this case does not present a question of the parties’ intent when they negotiated a contract for permanent employment. The plaintiff here admits that at the time of the agreement the contract was for an indefinite term with no mention of permanent employment. Absent a contractual agreement by the parties to the contrary, employment contracts in this jurisdiction are terminable at will. See Sullivan v. Heritage Foundation, 399 A.2d 856, 860 (D.C.1979).

Furthermore, the plaintiff’s assertion that at a minimum, she was entitled to reasonable notice of her dismissal is unfounded under the decision in Uriarte v. Perez-Molina, 434 F.Supp. 76 (D.D.C.1977). The plaintiff states that the Court in Uriarte held that an allegation of termination without reasonable notice supports a cause of action for breach of an at-will contract. The facts in that case are determinatively different from those in this case since Ur-iarte had a contract for the court to review. Furthermore, the court’s mention of “reasonable time” does not support a cause of action, but pertains to a principle of contract construction that “a contract of indeterminate duration may become terminable by ... either party after a reasonable lapse of time.” Id. at 79-80. Uriarte failed to allege that a reasonable time did not lapse prior to his dismissal. The plaintiff’s argument would, perhaps, seem more valid if she gave some explanation that two consecutive 30-day probationary periods were something other than a notice of dissatisfaction. The possibly discriminatory motive for these periods is unimportant for the basis of this particular claim.

In the absence of an express contractual provision or a pre-hearing inducement to the contrary, there is no indication that plaintiff’s employment was not at will. Neither an employer nor an employee need give notice of termination to the other in an at-will relationship. Taylor v. Greenway Restaurant, Inc., supra. Such termination may be given for any reason at the wish of either party. See id. For the foregoing reasons, plaintiff’s breach of contract claim must be dismissed.

B. Wrongful Discharge in Violation of Public Policy

In Count III of the plaintiff's complaint, she argues that the Court should promulgate a public policy exception to the at-will employment doctrine. The plaintiff states that she was wrongfully discharged in violation of the non-retaliation provision of the Human Rights Act — a clear contravention of public policy. She relies on a number of decisions in other jurisdictions which have recognized this intentional tort. See, e.g., Adler v. American Standard Corp., 291 Md. 31, 432 A.2d 464 (1981). This jurisdiction does not recognize a public policy exception. Furthermore, Adler is distinguishable, even in Maryland, when, as here, there exists a statutory remedy for violations of clear public policy. See Chekey v. BTR Realty, Inc., 575 F.Supp. 715, 717 (D.Md.1983).

Beyond the non-existence of this cause of action in this jurisdiction, the claim is time-barred in that it was filed after the District of Columbia’s residuary limitations period of three years. D.C.Code § 12-301(8) (1981). This claim therefore must be dismissed.

C. Implied Covenant of Good Faith and Fair Dealing

Count IV alleges that an implied contract of good faith and fair dealing existed between the parties such that NCHP could not act arbitrarily and fire the plaintiff without just cause or notice. Although some jurisdictions permit recovery under this theory, this jurisdiction has not followed suit.

Since an action for an implied covenant of good faith and fair dealing would not be recognized in this jurisdiction and moreover since this claim is also time-barred by the residuary limitations statute, this Court declines to recognize this theory of liability.

Ill

In accordance with the foregoing reasons and upon consideration of the defendant’s motion to dismiss, or in the alternative, for summary judgment and the motion to strike the plaintiff’s request for a jury trial, compensatory and punitive damages under Title VII, the opposition thereto, and the replies, surreplies, and supplemental memoranda thereafter, it hereby is

ORDERED, that the defendant’s motion to dismiss is granted in its entirety and the plaintiff’s amended complaint is dismissed with prejudice.

SO ORDERED.

      . The importance of the effect given an agency decision by the state of issuance is illustrated by a recent decision by the Court of Appeals for the Fourth Circuit. See Ross v. Communications Satellite Corp., 759 F.2d 355 (4th Cir. 1985). Maryland does not permit preclusive effect to be accorded unemployment compensation findings because of the differences between Title VII and the state unemployment compensation statute. Thus, the Court of Appeals overturned the trial court’s decision. In the District of Columbia, since Title VII and the D.C. Human Rights Act are substantially identical, the agency determination would be given preclusive effect in the District of Columbia courts.


author: NEWCOMER, District Judge.

text:
    UNITED STATES of America v. In the Matter of Extradition of James Gerard BARR A fugitive from the United Kingdom of Great Britain and Northern Ireland.
    No. 84-0943.
    United States District Court, E.D. Pennsylvania.
    Aug. 25, 1985.

      James A.A. Pabarue, Asst. U.S. Atty., Philadelphia, Pa., for the Government.
    Daniel P. McElhatton, Philadelphia, Pa., for Barr.
   MEMORANDUM

NEWCOMER, District Judge.

This case poses a question rarely addressed in the context of an international request for extradition: whether the demanding country, through the United States government, has satisfied its burden of establishing that there is probable cause to believe James Gerard Barr committed attempted murder — the offense he is charged with in Northern Ireland.

For reasons described below, I conclude that this burden has not been met, and I will therefore deny the government’s petition for extradition.

The government submitted a brief with attached exhibits as the total evidence in support of the request for extradition. Respondent, James Gerard Barr, does not dispute the authenticity or admissibility of any of the government’s papers. Mr. Barr did not submit any evidence on his behalf, nor request an evidentiary hearing in order to do so. Thus I am not faced with any evidentiary or procedural issues and this opinion relies on all of the submitted papers.

James Gerard Barr is charged by the United Kingdom and Northern Ireland with the attempted murder of Marine Kevin Lee Harris, a British soldier.

On July 14, 1981, at or about 7:10 p.m. a British military patrol was walking down the Falls Road in Belfast, Northern Ireland, when Marine Kevin Lee Harris was hit by bullets in the upper left arm and right thigh. The patrol consisted of five British soldiers, including Marine Harris. From the statements submitted, it appears that the gunmen shooting at the patrol were firing from the corner of Sevastopol Street and the Falls Road. Apparently none of the gunmen were hit. No other British soldier suffered any injuries. Marine Harris was treated at the Musgrave Park Hospital and subsequently released in good condition. Military personnel and police who searched the area recovered spent bullets, but did not discover any of the gunmen.

Almost two years later on June 3, 1983 one Henry Kirkpatrick pleaded guilty in a Belfast court to charges relating to the Harris shooting. Mr. Kirkpatrick gave a written statement on his and others’ participation in the Harris shooting on August 18, 1983. A copy of that statement is included as an exhibit to the request for extradition. This statement constitutes the sole evidence I can glean from the submitted papers that even mentions Mr. Barr. Moreover the following comprises the entire evidence of any connection between the Harris shooting and Mr. Barr:

In the meantime Jim Barr from Twin-brook who was a volunteer in the Ander-sontown Unit arrived in his car which was a Renault 5 green color. I told him we were going to have a go at the Brits. I also told him to scout around the top end of Clonard Street for any other foot patrols.

Mr. Kirkpatrick does not state that Mr. Barr agreed to scout around, nor that Mr. Barr drove off in any direction. None of the statements of the British soldiers mentions Mr. Barr, nor in any way even suggest he was present during the attack.

Section 3184 of Title 18 controls international extradition proceedings:

Whenever there is a treaty or convention for extradition between the United States and any foreign government, any justice or judge of the United States, or any magistrate authorized so to do by a court of the United States, or any judge of a court of record of general jurisdiction of any State, may, upon complaint made under oath, charging any person found within his jurisdiction, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty or convention, issue his warrant for the apprehension of the person so charged, that he may be brought before such justice, judge, or magistrate, to the end that the evidence of criminality may be heard and considered. If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.

The government has the burden of establishing four elements in order to sustain its burden in an extradition proceeding: (1) that there are criminal charges pending against Mr. Barr in Northern Ireland; (2) that the crimes with which Mr. Barr is charged are extraditable ones under the treaty between the United States and the United Kingdom and Northern Ireland; (3) that Mr. Barr is the individual actually sought by the authorities in Northern Ireland; and (4) that, based on the papers submitted by the government, there is probable cause to believe that the crime charged has been committed and that there is probable cause to believe that Mr. Barr committed the crime charged.

Mr. Barr does not contest the first three elements. The papers reflect outstanding criminal charges against Mr. Barr in Northern Ireland for the attempted murder of Marine Harris. The United States and United Kingdom of Great Britain and Northern Ireland Extradition Treaty, at Article III(l) and Schedule III(l), TIAS 8468, includes attempted murder as an extraditable offense. Third, Mr. Barr does not contest that he is the person sought.

Turning to the last element, respondent concedes that there is probable cause to believe the crime charged was .committed. However, his counsel argues that the evidence is insufficient to sustain the government’s burden of showing there is probable cause to believe that Mr. Barr committed the crime charged.

In extradition proceedings, probable cause is measured by the federal standard used in preliminary proceedings. See Sindona v. Grant, 619 F.2d 167 (2d Cir.1980).

Probable cause signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt.

Coleman v. Burnett, 477 F.2d 1187, 1202 (D.C.Cir.1973). A review of the documents submitted leads me to conclude that there is no probable cause to believe Mr. Barr attempted to murder Marine Harris.

Under the law of Northern Ireland, murder is a common law offense. It is committed when “a person of sound memory and discretion unlawfully killeth any reasonable creature in being and under the King’s peace, with malice aforethought, either express or implied, the death following within one year and a day.” Statement of Vincent Paul Lynagh, Solicitor in Northern Ireland at 1 (quoting Sir Edward Coke: "Institutes of the Laws of England” (1952)).

The relevant common law also establishes that an attempt to commit murder is punishable.

To prove an attempt to commit an of-fence it is necessary to prove that some act was done by the defendant which must be immediately and directly connected with the offence ... “[T]he actus reus (Act) necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of a specific crime, which is immediately and not merely remotely connected with the commission of it, and the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime.”

Id. at 1-2 (quoting Archbold: “Pleading, Evidence and Practice in Criminal Cases,” 41st Ed. (1982)).

As related above, the evidence submitted does not mention or suggest any act by Mr. Barr. All Mr. Kirkpatrick states is that he requested Mr. Barr “scout around” the area. There is no evidence of any agreement by Mr. Barr to undertake any act, and certainly not one which a reasonable person could construe as “immediately and not merely remotely connected with the commission of [a specific crime].” Respondent claims that the government’s evidence amounts to charges based on “mere presence” in the vicinity. I agree with this statement. A reasonable person could not find that probable cause exists to believe Mr. Barr committed the crime of attempted murder, based on such scanty evidence.

“Probable cause means more than opportunity to commit crime or presence in a particular place. It must be more than surmise or suspicion. There must be some tangible fact or incident which will support a judicial act, something which invokes discrimination of judicial discretion.”

Reis v. United States Marshal, 192 F.Supp. 79, 82 (E.D.Pa.1961) (quoting United States v. Johnston, 292 F. 491, 493 (D.Wash.1923)).

I conclude that, based on the evidence presented, the government has shown only that Mr. Barr was present in the vicinity of the attack and nothing more. Thus, I am compelled to deny the government’s extradition petition for lack of probable cause, Article IX(1) of the Treaty. The petition will be dismissed. An appropriate order follows.

APPENDIX
STATEMENT OF HENRY KIRKPATRICK__
AGE OF WITNESS (if over 21 enter “over 21”) OVER 21
OCCUPATION OF WITNESS UNEMPLOYED LABOURER_
ADDRESS 12 ST. BRENDAN’S WALK, BELFAST._
I declare that this statement consisting of two pages, each signed by me is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence at a preliminary enquiry or at the trial of any person, I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true.
I was involved in the shooting of a soldier on the Falls Road near Sevastopol Street, during the summer of 1981 on a good bright sunny day. The Marine Commandos had just moved in to Belfast and we were going to take them on because they were a new regiment. The job was done by the Belfast Brigade INLA and all those who took part were members. The job was done during the day and a soldier was hit on the arm. He was a member of a foot patrol outside the Social Security offices. Myself, Gerard Steenson, who was the Operations Officer, Paddy McAreavy who was OC INLA Lower Falls, Bobby Tohill from Dunlewey Street who was a Volunteer, Gerard Barkley, Rockville Street, who was also a Volunteer, were standing at the corner of Dunlewey Street on the Falls Road. We spotted an Army foot patrol heading towards North Howard Street Army Camp. We decided on the spur of the moment to have a go at them. Paddy McAreavy and Gerard Barkley hijacked a car in Bombay Street. It was a yellow Toyota, four door which I knew to be a taxi from Blue Star Taxi on the Donegall Road. This car had just recently been resprayed. They arrived down to Dunlewey Street with a Ruger rifle and a .32 Vzor hand gun. In the meantime Jim Barr from Twinbrook who was a Volunteer in the Andersonstown Unit arrived in his car which was a Renault 5 green colour. I told him we were going to have a go at the Brits. I also told him to scout around the top end of Clonard Street for any other foot patrols. Me and Barkley got into my car, a white Datsun Estate, and scouted the hijacked car around to Sevastopol Street. McAreavy had put the guns into the hijacked car and he and Gerard Steenson got in it. Both cars did a U turn in Sevastopol Street and stopped. McAreavy and Steenson got out of the car with the guns. Steenson had the rifle and McAreavy had a .32 Vzor. They walked up to the corner of the Falls Road and I saw Steenson aim the Ruger rifle in the direction of the Social Security Offices. He opened fire and I heard between one and four shots. He then moved back and I saw McAreavy move out to the corner and fire about 2-3 rounds in the same direction. They then ran back to the hijacked car. I got out of my car and watched what was happening. Barkley stayed in my car. I then got back into my car and the two cars drove up towards Clonard Street. I went in one direction and the other car went towards Bombay Street. I heard later that one of the Marines had been hit in the arm. I was later stopped in my car in Theodore Street by a mobile patrol of marines. I was on my own at the time.

      . Pursuant to Article XIV of the Extradition Treaty between the United States and the United Kingdom, the United States government provides legal representation for the United Kingdom in United States courts, with reciprocal privileges extended to the United States when it seeks extradition of an individual in the United Kingdom courts. Hence, once the diplomatic note was sent via the British embassy to the United States Justice Department, an Assistant United States Attorney was assigned to the case.

      . "Respondent [Barr] does not challenge nor question the statements of the witnesses and therefore all the statements in the Request for Extradition are deemed admitted.” Respondent’s Brief at 2.

      . Mr. Barr is also charged “with being a member of a proscribed organization although extradition is not being sought for this offense, which is not an extraditable crime under the Terms of the Treaty [between the United States and the United Kingdom].” Statement Submitted on behalf of the British Embassy, Washington, D.C., September 20, 1984.

      . Because Mr. Kirkpatrick’s statement constitutes the sole mention of Mr. Barr I attach the statement as an appendix to this opinion.

      . Marine Commando Ian Mitchell saw a gunman at the corner of Sevastopol Street and the Falls Road. Mitchell described the gunman as "about 5'6" to 5'9" tall, black moustache wide and bushy, black curly hair quite long, wearing dark clothing and light colored training shoes.” Statement of Ian Mitchell, July 15, 1981. Mr. Barr is 5'8" tall, clean cut, has a medium build, dark brown straight hair, blue eyes, and a "fresh complexion.” Neither party addressed the identity of this gunman, since it is plain that Mr. Barr does not fit the description given by Mitchell.

      . Article IX(1) of the Treaty provides:
      Extradition shall be granted only if the evidence be found sufficient according to the law of the requested Party either to justify the committal for trial of the person sought if the offense of which he is accused had been committed in the territory of the requested Party or to prove that he is the identical person convicted by the courts of the requested Party.


author: WOLF, District Judge.

text:
    The SHEET METAL & AIR CONDITIONING CONTRACTORS ASSOCIATION OF the BUILDING TRADES EMPLOYERS ASSOCIATION and the Limbach Co., Plaintiffs, v. SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL UNION 17, Defendants.
    Civ. A. No. 85-2894-W.
    United States District Court, D. Massachusetts.
    Aug. 26, 1985.
    Order Authorizing Interlocutory Appeal Oct. 15, 1985.
    John D. O’Reilly, III, Worcester, Mass., for plaintiffs.
    Paul F. Kelly, Segal, Roitman & Coleman, Boston, Mass., for defendants.
   OPINION

WOLF, District Judge.

Plaintiffs, an employer and its trade association, request, in effect, that the court vacate an arbitration decision that a collective bargaining agreement between the employer and defendant union is invalid because of mutual misrepresentation and mutual mistake. Plaintiffs also seek injunc-tive relief and damages. Jurisdiction exists under § 301(a) of the Labor Management Relations Act of 1947 as amended (the “LMRA”), 29 U.S.C. § 185.

On July 19, 1985, the court entered a temporary restraining order to prevent a cessation of work, which was modified and continued on July 23, 1985. On July 25, 1985, a hearing on plaintiffs’ application for a preliminary injunction commenced. It was continued to permit discovery and briefing of issues relating to the merits of the case and to the propriety of preliminary injunctive relief. On August 14, 1985, the hearing on the application for a preliminary injunction was, with the consent of the parties, consolidated with the trial of the merits of this action. The trial was completed on August 15, 1985, when a preliminary injunction was issued.

As described below, the court has decided to (1) vacate the arbitrators’ decision that the collective bargaining agreement is invalid; (2) remand this matter to the arbitrators for clarification and completion of their decision with regard to a remedy for the violation of the collective bargaining agreement which they found; (3) terminate the preliminary injunction because it no longer appears necessary; and (4) retain jurisdiction pending completion of the reopened arbitration proceedings.

I. FINDINGS OF FACT

The court hereby finds the facts of this case as follows:

1. This action was initiated on July 19, 1985, by the Sheet Metal & Air Conditioning Contractors Association (“SMACCA”) of the Building Trades Employers Association (“BTEA”) and one of its members, the Limbach Company, Inc. (“Limbach”). The defendant is the Sheet Metal Workers International Association, Local Union 17 (“Local 17”). Limbach is a Pennsylvania corporation with branches throughout the country. Limbach’s operation in Woburn, Massachusetts is involved in this case. The Woburn branch does various types of construction work, including sheet metal fabrication and installation.

2. When this dispute arose in 1984, Lim-bach and Local 17 were parties to a mul-tiemployer collective bargaining agreement negotiated on their behalf by SMACCA and the Sheet Metal Workers International Association (“SMWIA”), an international union of which Local 17 is a member. The

contract, which was in effect from September 1, 1982, to August 31, 1984, covered several counties in Eastern Massachusetts (the “1982 Agreement”). When the 1982 Agreement expired, Local 17 went on strike for seven weeks. The strike was settled and a new agreement was reached in late October, 1984 (the “1984 Agreement”). The 1984 Agreement was effective as of September 1,1984, and to August 31, 1986.

3. Limbach is a wholly-owned subsidiary of Limbach Constructors, Inc., which is a wholly-owned subsidiary of the Limbach Corporation. In 1983, Jovis Constructors, Inc., another wholly-owned subsidiary of Limbach Constructors, Inc., purchased all of the capital stock of Harper Plumbing and Heating Company (“Harper”). Harper is a non-union company operating exclusively in the Orlando, Florida area.

4. On March 27, 1984, the business manager of Local 17 wrote Limbach that the acquisition of a non-union company was in violation of Article VIII, § 5 and other provisions of the 1982 Agreement. The company denied it had violated the contract. Local 17 filed a grievance under the procedures provided by Article X of the 1982 Agreement. The grievance charged that Limbach had structured its corporate organization for the purpose of becoming a “double-breasted company,” that is, a company with union and non-union operations. Local 17 also requested as a remedy that Limbach divest itself of Harper and pay liquidated damages in an amount equal to the difference between the wage and benefit package it was providing for Local 17 sheet metal workers and that which it had paid to Harper sheet metal employees since the acquisition of Harper. Local 17 did not contest the validity of the 1984 Agreement with Limbach.

When the parties failed to reach agreement on their own, Limbach appealed to the Local Joint Adjustment Board (the “LJAB”). A hearing was scheduled for November 20, 1984. On November 19, 1984, Local 17 amended its grievance to include a claim that the acquisition of Harper also violated Article II, § 3 of the 1984 Agreement.

5. At the LJAB hearing, Limbach was represented by Thomas Gunning, the Executive Director of the Boston Chapter of SMACCA. Gunning agreed that the submission of the grievance under the 1984 Agreement was timely, but argued that the entire matter was not properly before the LJAB. The next day Gunning sent a memorandum to the LJAB elaborating Lim-bach’s position. Limbach asserted that since Harper and Limbach were not a single employer, Harper’s operations were not covered under either the 1982 or 1984 Agreements and, therefore, Limbach had not violated either contract. Limbach also asserted that, in any event, this matter was a representation issue that had to be decided by the National Labor Relations Board (“NLRB”), rather than the UAB. Lim-bach also claimed that it had not violated the 1982 or 1984 Agreements because Harper was not within the geographical area covered by the Agreements.

The LJAB deadlocked. Local 17 appealed for a Panel Hearing. Ultimately, this step was waived by the SMWIA and SMACCA panelists, and the grievance was submitted directly to the National Joint Adjustment Board (the “NJAB”).

6. The NJAB met on February 6, 1985. The Limbach-Local 17 dispute was consolidated with two other cases involving Lim-bach Constructor’s subsidiaries and local chapters of the SMWIA in Pittsburgh and California. These cases shared the common issue of whether the Harper acquisition violated the 1982 Agreement between SMACCA and SMWIA. The issue of whether the 1984 Agreement was violated was unique to the Limbach-Local 17 dispute.

7. At the NJAB hearing, Limbach raised several procedural objections, including the claim that the issue of whether the Harper acquisition violated the 1984 Agreement was untimely when submitted to the UAB because (a) it was not raised within 30 days after Limbach purchased Harper, as required under Article X, § 1 and (b) because it was filed only a day before the UAB hearing, rather than presented at step one of the grievance process. Lim-bach also asserted that whether the Harper acquisition violated Article II, § 3 was a question for the NLRB, and not the NJAB. The NJAB disagreed and found that these matters were properly before it for decision.

8. On February 8, 1985, the NJAB issued a three-paragraph decision (the “NJAB decision”) in which it:

(1) deadlocked concerning the issue whether Limbach had violated the 1982 Agreement, which was common in all three eases;
(2) found that “the acquisition and operation of Harper Plumbing and Heating Company, Inc. violated the express language of Article II, Section 3 of the current [1984] agreement between Local Union No. 17 and Lim-bach Company, Inc.”; and
(3) found that the 1984 Agreement between Limbach and Local 17 was “either based on mutual misrepresentation of material facts or mutual mistake, or has been executed in circumstances in which there plainly was no meeting of the minds between said contracting parties. Therefore, the current agreement between Local Union 17 and Limbach Company, Inc. is not a valid and binding contract between the parties, and is of no force and effect.”

9. The issue whether there was a valid collective bargaining agreement between the parties was not raised by Local 17 before the NJAB or earlier. Nor was it raised by anyone else prior to its emergence in paragraph three of the NJAB decision.

10. At the request of SMACCA and Limbach, on April 8,1985, the NJAB issued a clarification of its decision, stating that paragraph three invalidated the 1984 Agreement only as between Limbach and Local 17, rather than as between other employers in the Boston Chapter of SMAC-CA and Local 17.

11. On April 18, 1985, Local 17 informed SMACCA that it would no longer negotiate and/or bargain collectively with SMACCA with regard to Limbach.

Limbach responded that paragraph three of the NJAB decision had no force or effect because (a) the issue of whether a valid contract existed was not submitted to the NJAB as required by the collective bargaining agreement incorporating the NJAB Rules; (b) Local 17’s submissions to the UAB and NJAB conceded that Limbach and Local 17 were parties to a collective bargaining agreement; and (c) the parties acknowledged the existence of a collective bargaining agreement by continuing to operate under the terms and conditions of the 1984 Agreement after the NJAB decision was issued.

In response, Local 17 asserted that the NJAB decision was binding on Local 17 and Limbach. Thus, the union was withdrawing from its collective bargaining relationship with Limbach.

12. On July 1, 1985, the General President of SMWIA notified Local 17, Limbach, and SMACCA that he was withdrawing Local 17 from its collective bargaining relationship with Limbach.

13. On July 12, 1985, SMACCA filed a grievance and sought a hearing before the LJAB to interpret the NJAB decision and to resolve what it characterized as the irreconcilable conflict between the NJAB determinations that the 1984 Agreement was both violated and invalid.

14. On Thursday, July 18, 1985, the shop steward of Local 17 informed Lim-bach that its members would cease working with Limbach as of Monday, July 22, 1985.

15. On July 18, 1985, SMWIA’s General President sent a letter to each member of Local 17 advising him that no contract existed between Limbach and Local 17, that the union no longer had a collective bargaining relationship with Limbach, and that members of Local 17 and of sister local unions in whose territorial jurisdiction Lim-bach was performing work were expected “to comply with their union obligations as good union men.”

16. On Friday, July 19, 1985, Limbach and SMACCA commenced this action and sought a temporary restraining order to prevent a cessation of work by Local 17 members the following Monday. This initiated the proceedings, described earlier, leading to this decision.

II. CONCLUSIONS OF LAW

1. Plaintiffs’ Claim is Not Barred by the Applicable Statute of Limitations.

Plaintiffs ask, in effect, that this court vacate paragraph three of the NJAB decision. The question of the validity of the collective bargaining agreement between Limbach and Local 17 was not submitted for arbitration. Therefore, plaintiffs assert, the NJAB lacked jurisdiction and authority to decide that the agreement between Limbach and Local 17 was invalid because it was based on either mutual misrepresentation or mutual mistake.

Local 17 contends that plaintiffs’ claim is barred by Massachusetts law, Mass. Gen. Laws ch. 150C, § 11(b), which provides that actions to vacate an arbitration award on enumerated grounds must be instituted within thirty days of delivery of the award. This action was commenced long after the thirty-day period expired. Although Local 17’s contention is initially engaging, it is incorrect. Plaintiffs’ claim is timely brought.

Section 301 of the LMRA confers jurisdiction upon the federal district courts over suits upon collective bargaining contracts, but the LMRA itself contains no limitations period. Locals 2222, 2320-2327, International Brotherhood of Electrical Workers, AFL-CIO v. New England Telephone & Telegraph Co., 628 F.2d 644, 650 (1st Cir. 1980). “ ‘[T]he timeliness of a § 301 suit ... is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations.’ ” United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 60, 101 S.Ct. 1559, 1562, 67 L.Ed.2d 732 (1980) (quoting Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 704-05, 86 S.Ct. 1107, 1112-13,16 L.Ed.2d 192 (1966)). Thus, the court must initially determine what limitations period is provided by Massachusetts law for actions to vacate an arbitration award on the ground that the arbitrators decided an issue not submitted to them.

The Massachusetts statute, Mass.Gen. Laws ch. 150C, § 11(b), does require that applications to vacate an award on enumerated grounds be made within thirty days of its receipt. However, where, as here, the plaintiffs contend that the arbitrators were without jurisdiction over the matter decided, the Massachusetts courts have held that, “a petition to vacate ... is not subject to the thirty day filing requirement of § 11(b). M.S. Kelliher Co. v. Wakefield, 346 Mass. 645, 647 [195 N.E.2d 330] (1964) (‘the question whether the award was in excess of the authority conferred on the arbitrators is always open’). See also J.F. Fitzgerald Constr. Co. v. Southbridge Water Supply Co., 304 Mass. 130, 134 [23 N.E.2d 165] (1939). Sheahan v. School Comm. of Worcester, 359 Mass. 702, 709-11 [270 N.E.2d 912] (1971). Greene v. Mari & Sons Flooring Co., [362 Mass. 560, 562 [289 N.E.2d 860] (1972)].” Painters Local No. 257 v. Johnson Industrial Painting Contractors, 16 Mass.App. 67, 72, 448 N.E.2d 1307, 1310-11 (1983), app. den., 393 Mass. 1102, 453 N.E.2d 1231. Painters was a case in which the arbitrators acted on a controversy arising from facts occurring outside the geographical area covered by the contract and before the agreement was executed. Because the arbitrators were not empowered by the agreement to hear the dispute, the court determined that they lacked jurisdiction and that plaintiff’s claim was timely, although filed more than thirty days after the award. Painters, 16 Mass.App. at 73, 448 N.E.2d at 1310-11.

The Painters characterization of the question of whether an issue was within the power of an arbitrator to decide as a “jurisdictional” question is compatible with the conclusion of federal courts in comparable cases. Western Electric Company, Incorporated v. Communications Workers of America, AFL-CIO, 450 F.Supp. 876, 881 (E.D.N.Y.), aff'd without opinion, 591 F.2d 1333 (2d Cir.1978) (“The powers of an arbitrator are defined by agreement of the parties: the question they submit both establishes and limits the arbitrator’s jurisdiction.”); Delta Lines, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, Local 85, 409 F.Supp. 873, 875 (N.D.Cal. 1976) (“The limits of an arbitrator’s jurisdiction are defined by the collective bargaining agreement and the issues submitted by the parties.”).

Massachusetts law characterizes plaintiffs' claim as one raising a jurisdictional issue and, therefore, as timely brought. This characterization, and the conclusion it dictates, are also appropriate as matters of federal law. The action is, therefore, timely brought.

2. The Issue of the Validity of the Collective Bargaining Agreement Was Not Submitted for Arbitration; the NJAB, Therefore, Exceeded its Jurisdiction in Deciding This Issue.

The parties have stipulated that the question whether the collective bargaining agreement was invalid was neither part of the original grievance nor discussed in the NJAB proceeding. Rather, it emerged for the first time in paragraph three of the NJAB’s decision. As set forth below, the NJAB exceeded its jurisdiction in deciding that the 1984 Agreement was invalid because this issue was not submitted for arbitration. Paragraph three of the NJAB decision must, therefore, be vacated.

The court recognizes that in deciding whether to vacate paragraph three of the NJAB decision, the permissible scope of its review is narrow. United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960) (the “Steelworkers triology”). The Supreme Court held in Warrior & Gulf that,

[T]o be consistent with congressional policy in favor of settlement of disputes by the parties through the machinery of arbitration, the judicial inquiry under § 301 must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance or did agree to give the arbitrator the power to make the award he made.

Id. 363 U.S. at 582, 80 S.Ct. at 1352. However, an arbitrator’s “award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” Enterprise Wheel, 363 U.S. at 597, 80 S.Ct. at 1361.

The Court of Appeals for the First Circuit has interpreted the applicable standards to provide that,

“The courts are precluded from considering factual or legal issues which are by voluntary agreement made the subject of arbitration. Judicial intrusion is restricted to extraordinary situations indicating abuse of arbitral power or exercise of power beyond the jurisdiction of the arbitrator.”

Mobil Oil Corporation v. Local 8-766, Oil, Chemical & Atomic Workers International Union, 600 F.2d 322, 326 (1st Cir.1979) (quoting Local Union No. 251 International Brotherhood of Teamsters v. Narragansett Improvement Co., 503 F.2d 309, 312 (1st Cir.1974)). This is such an extraordinary situation.

The 1984 Agreement contains provisions which establish and limit the NJAB’s jurisdiction. Among these is Article X, § 4 which incorporates by reference the NJAB Rules. Those Rules expressly state that, “The decision of the Board shall be confined to the disputed issue or issues presented to it unless withdrawn or modified by the mutual consent of the parties in writing.” Joint Exhibit 25, at 12. The Rules also provide that the Board’s decisions “shall be confined to the specific issues presented by the parties to the Local Joint Adjustment Board,” id. at 7, and confined in general to the evidence produced “at the local hearing,” id. at 7-8. Thus, the 1984 Agreement, by incorporation of the NJAB Rules, limits the NJAB’s jurisdiction to those issues timely submitted to the arbitration process.

The issue of invalidity of the 1984 Agreement, however, was not submitted for arbitration at any time. Thus, the NJAB exceeded the jurisdiction granted to it by the 1984 Agreement in deciding the issue of invalidity. Courier-Citizen v. Boston Electrotypers Union No. 11, 702 F.2d 273, 281 (1st Cir.1983) (“While an arbitrator has broad power to fashion remedies on the issues the parties have empowered him to resolve, ... he lacks authority to decide questions the parties have not agreed to submit to him.”); Delta Lines, Inc., 409 F.Supp. at 875 (“the agreement by which these parties contracted to settle such disputes explicitly provides that ‘[t]he decision of the arbitrator shall be specifically limited to the matter submitted to him’ ”); International Union of Electrical, Radio, Machine Workers AFL-CIO v. General Electric Company, 429 F.2d 412, 413-14 (1st Cir.1970) (holding that issues not raised at the initial stage of the grievance procedure could not, without the consent of all parties, be properly decided at a later stage.)

The contractual provision limiting the NJAB’s jurisdiction to matters properly submitted mirrors, rather than modifies, the standards defining the jurisdiction of arbitrators established by federal statute and case law. Section 10(d) of the Federal Arbitration Act, 9 U.S.C. § 10(d), provides for setting aside an award if the arbitrators exceeded their power by deciding an issue not submitted to them. Western Electric, 450 F.Supp. at 881; Totem Marine Tug & Barge v. North American Towing Inc., 607 F.2d 649, 651 (5th Cir. 1979).

Although not relying upon § 10(d), courts in other labor cases have held that, “The limits of an arbitrator’s jurisdiction are defined by the collective bargaining agreement and the issues submitted by the parties____ [A]n arbitration award which clearly goes beyond the issues submitted by the parties is unenforceable.” Delta Lines, Inc., 409 F.Supp. at 875; Courier-Citizen, 702 F.2d at 281; Retail Store Employees Union Local 782 v. Sav-On Groceries, 508 F.2d 500, 502-503 (10th Cir. 1975) (“the issue of back pay was not submitted to the arbitrator here and ... the trial court did not err in finding the arbitration award ‘null and void’ insofar as it applied to that issue”); Textile Workers Union of America v. American Thread Co., 291 F.2d 894, 897 (4th Cir.1961) (in the Steelworkers trilogy, “the Court reaffirmed the long established doctrine that an arbitration award is unenforceable if it exceeds the scope of the submission”).

The Enterprise Wheel decision, particularly, supports the Fourth Circuit’s conclusion in Textile Workers concerning the import of the Steelworkers trilogy for this issue. After expressing the generally applicable standards, the Supreme Court stated in reversing a refusal to enforce an award that, “[W]e see no reason to assume that this arbitrator has abused the trust the parties confided in him and has not stayed within the areas marked out for his consideration. It is not apparent that he went beyond the submission.” 363 U.S. at 598, 80 S.Ct. at 1361 (emphasis added). This analysis indicates that where, as here, it is apparent that the arbitrators went beyond the submission, the Supreme Court too would find that the award is not entitled to judicial enforcement.

The NJAB exceeded its jurisdiction in addressing an issue not submitted to it and deciding that the 1984 Agreement was invalid. To the extent that the NJAB disregarded the limitation on its jurisdiction, imposed by incorporation of the NJAB Rules in the 1984 Agreement as well as by federal law, its decision does not draw its esence from the collective bargaining agreement. Thus, this Court must decline to enforce paragraph three of the NJAB decision.

3. This Matter Should be Remanded to the NJAB.

As set forth below, this matter should be remanded to the NJAB to clarify its opinion and complete its task by addressing the issues relating to a remedy for the violation of the 1984 Agreement found in paragraph two of its opinion.

Local 17 contends that even if the question of the validity of the 1984 Agreement was not submitted to arbitration, paragraph three of the NJAB decision should be deemed enforceable as an excercise of the NJAB’s power under Article X, § 5 of the 1984 Agreement to “render such decisions and grant such relief as they deem necessary and proper, including awards of damages or other compensation.” Local 17 argues that the NJAB is entitled to broad latitude in interpreting the contract provision providing remedial power and that paragraph three should be viewed by the court as the NJAB’s decision that invalidation of the 1984 agreement was an available and appropriate remedy.

Plaintiffs’ response has several elements. First, they contend that the 1984 Agreement does not include the express language authorizing cancellation as a remedy which was included in the 1982 Agreement, see footnote 2, supra, thus demonstrating the intention of the parties to remove this remedy from the NJAB’s powers. Second, plaintiffs argue that even if the 1984 Agreement permits cancellation as a remedy in certain cases, it is not an available remedy in this case because it was not requested at the initial step of the grievance process or, indeed, at any step of that process. Hotel and Restaurant Employees & Bartenders International Union, AFL-CIO v. Michelson’s Food Services, Inc., 545 F.2d 1248, 1254 (9th Cir.1976); General Electric Co., 429 F.2d at 413-14; Totem Marine Tug, 607 F.2d at 651. Third, plaintiffs assert that rescission of a collective bargaining agreement because of a party’s relationship with a non-union company is illegal as a matter of federal labor law. Ets-Hokin Corporation, 154 NLRB 839 (1965), enfd. sub nom., NLRB v. International Brotherhood of Electrical Workers, Local No. 769, 405 F.2d 159 (9th Cir.1968), cert. denied, 395 U.S. 921, 89 S.Ct. 1772, 23 L.Ed.2d 237 (1969); Local 437, IBEW (Dimeo Construction Company), 180 NLRB 420 (1969); Carpenters Local 891 (Bryant Sheet Metal Co., Inc., 164 NLRB 251 (1966)).

Local 17 and plaintiffs each raise intriguing issues. They are not, however, ripe for judicial resolution. The NJAB did not state that paragraph three of its decision, finding the 1984 Agreement invalid, was intended as a remedy for the violation of that agreement which it found in paragraph two. It is not apparent to the court that the NJAB decided that invalidation was either an available or an appropriate remedy for that violation. It also appears that the NJAB did not address the availability or propriety of the remedies requested from the outset by Local 17, divestiture and monetary damages. The NJAB did not expressly provide for any remedy for the violation of the 1984 Agreement it decided was proven.

The court is asked to speculate on the NJAB’s intentions regarding a remedy. This would be inappropriate, for “it is now well established that ambiguities and uncertainties of labor arbitration awards should not be resolved by the court acting as interpreter.” Teamsters Local No. 25 v. Penn Transportation Corp., 359 F.Supp. 344, 350 (D.Mass.1973) (citing Enterprise Wheel). Rather, the arbitration award should be remanded to the arbitration process for clarification and completion. Boston Shipping Co. v. Int’l Longshoreman’s Ass’n., 659 F.2d 1, 3 (1st Cir.1981) (when enforcement requires an interpretation of the arbitrator’s award, the proper course is to remand to the arbitrator for clarification); Locals 2222, 628 F.2d at 647. It is evident that the court has authority to do so.

The question then is whether this dispute should now be remanded to the initial step of the grievance process or to the NJAB. Plaintiffs contend that because the issue of the invalidity of the 1984 Agreement by virtue of mutual representation or mutual mistake was never presented at the initial step of the grievance process, all questions should be referred to that point to begin to resolve the inconsistency between paragraph two of the NJAB decision finding that the 1984 Agreement was violated and paragraph three of the decision finding that the 1984 Agreement was invalid. Such relief, however, is unwarranted in this case.

Where, as here, the contract provides that the arbitrators’ decision shall be “final and binding”, Article X, § 7, an award is not itself ordinarily an arbitrable issue. San Antonio Newspaper Guild Local 25 v. San Antonio Light Division, 481 F.2d 821, 824 n. 3 (5th Cir.1973); Locals 2222, 628 F.2d at 648. Grievance proceedings may be ordered anew following an arbitrator’s decision which is clear and complete, but not self-executing. United Papermak-ers & Paperworkers v. Westvaco Corp., 461 F.Supp. 1022, 1024 (W.D.Va.1978). This is not, however, such a case.

Rather, this is a matter in which it is uncertain whether the NJAB intended cancellation as a remedy for the violation of the 1984 Agreement which it found and in which it appears that the NJAB did not decide whether the remedies sought from the outset by Local 17 were available and appropriate. Plaintiffs were always on notice that Local 17 was seeking particular remedies for its grievance. But none has yet been provided. Thus, two principles converge to compel the conclusion that this matter should be remanded to the NJAB for clarification and completion.

First, cases deemed to concern simply the “interpretation” of an award do not require a re-exhaustion of the grievance arbitration process. Locals 2222, 628 F.2d at 648; San Antonio Newspaper Guild, 481 F.2d at 824 n. 3. “Rather, the proper approach is to resubmit the award to its author for clarification.” Teamster Local No. 25, 359 F.Supp. at 350. Steelworkers v. Interpace Corp., 447 F.Supp. 387 (W.D. Pa.1978). The issue of whether the NJAB intended cancellation as a remedy for the violation it found in paragraph two is a question of “interpretation.”

Second, where, as here, “ ‘the award does not adjudicate an issue which has been submitted, then as to such issue [the original] arbitrator has not exhausted his function and it remains open to him for subsequent determination.’ ” Locals 2222, 628 F.2d at 649 (quoting identical language in Interpace Corp., 447 F.Supp. at 391, and Lavale Plaza, Inc. v. R.S. Noonan, Inc., 378 F.2d 569, 573 (3d Cir.1967)). See also International Assoc, of Machinists v. Crown Cork & Seal Co., 300 F.2d 127 (3d Cir.1962). To the extent that the NJAB did not address Local 17’s request for remedies for the violation of the 1984 agreement which it found, its work remains to be completed.

It is, therefore, necessary and appropriate to remand this matter to the NJAB for clarification and completion. It is for the NJAB to decide the pending questions concerning remedies in the first instance. These questions include, but may not be limited to,

(1) Whether the 1984 Agreement authorizes cancellation as a remedy for the violation found by the NJAB under any circumstances;
(2) If so, whether cancellation is an available remedy in this case in which it was not requested by Local 17 at the start, or in the course, of the arbitration process, and it appears that Lim-bach had no opportunity to present evidence or argument concerning any alleged invalidity;
(3) If authorized and available, whether cancellation is appropriate in view of plaintiffs’ contentions concerning limitations imposed by federal labor law on rescission as a remedy and other factors; and
(4) Whether divestiture and liquidated damages as sought by Local 17 are each authorized, available, and appropriate remedies in this case.

When the NJAB has completed its task and clarified its decision the court will, if requested, be in a position to exercise its limited authority to decide any questions properly presented concerning the final NJAB decision.

4. Other Issues Relating to Relief.

The issue remains whether the court should order either or both parties to arbitrate from step one of the grievance procedure the question improperly decided by the NJAB, the possible invalidity of the 1984 Agreement by virtue of mutual misrepresentation or mutual mistake. Neither party sought arbitration of this issue before the NJAB decision. Each is now free to initiate a grievance concerning it. Each may decide for itself the wisdom of doing so during the pendency of the reopened NJAB proceeding. Under these circumstances, the court does not deem it appropriate to compel arbitration of the issue of invalidity.

Also remaining is the question of continuing injunctive relief. The court entered a temporary restraining order and a preliminary injunction because the evidence demonstrated, among other things, that in reliance upon paragraph three of the NJAB decision which purported to invalidate the 1984 Agreement, Local 17 members would cease working with Limbach. That aspect of the NJAB decision is being vacated, thus restoring, at least for present purposes, the validity of the 1984 Agreement between Limbach and Local 17. The arbitration proceedings are being reopened. The 1984 Agreement, Article X, § 7, proscribes strikes during the arbitration process. The court has no reason to believe that Local 17 will not obey this decision and honor the 1984 Agreement, including its no-strike provision. Thus, a continued injunction is now unnecessary and inappropriate. United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953) (the party moving for an injunction “must satisfy the court that relief is needed”); Derwin, 719 F.2d at 491-92 (“Courts, after all, do not enjoin parties from violating the law without proof of a real likelihood that such will happen.”). This conclusion may, of course, be reconsidered if future events so dictate.

Finally, in view of the posture of this matter, a ruling on plaintiffs’ request for damages and related relief would be premature.

III. RELIEF

Accordingly, the following order is to be entered:

1. The NJAB exceeded its jurisdiction in deciding on February 8, 1985, that the 1984 Agreement was invalid as between Lim-bach and Local 17. Paragraph three of the NJAB decision is vacated.

2. This matter is remanded to the NJAB for:

(a) Clarification concerning whether it finds invalidation of the 1984 Agreement to be an authorized, available, and appropriate remedy for the violation of that Agreement which it determined was committed; and
(b) Completion of its award by deciding whether each of the remedies requested by Local 17, liquidated damages and divestiture, or any other remedy, is authorized, available and appropriate in connection with that violation.

The parties shall promptly inform the NJAB of this decision and initiate appropriate proceedings in response to this remand.

Within 30 days following clarification and completion of the NJAB award, the parties shall report the result to the court and seek any further judicial review or relief to be requested.

3. The Preliminary Injunction entered on August 15, 1985, is terminated.

4. The court shall retain jurisdiction in this matter pending issuance of a final order to be entered at the conclusion of the process prescribed by paragraph two above.

ORDER AUTHORIZING INTERLOCUTORY APPEAL

On August 26, 1985, this court issued an opinion and an order in the above-captioned action, copies of which are attached hereto. As reflected in the opinion and in the order, the court determined that the collective bargaining agreement involved in this matter contains provisions which establish and limit the jurisdiction of the National Joint Adjustment Board (the “NJAB”), whose action is challenged in this case (opinion at 1079-1080); that as a matter of Massachusetts law the issue raised by plaintiffs would be regarded by the courts of the Commonwealth as a “jurisdictional” question not barred by the statute of limitations, and this characterization and conclusion are also appropriate as matters of federal law (opinion 1077-78); and that the NJAB decision should be in part vacated (opinion 1078-1080) and in part remanded to the NJAB for clarification and completion (opinion 1080-1084).

On September 24, 1985, the defendant requested that this court authorize an interlocutory appeal of certain aspects of its decision pursuant to 28 U.S.C. § 1292(b). Plaintiffs have since opposed this request.

Upon consideration of the submissions of the parties, the court has determined, and hereby ORDERS, that its Order of August 26, 1985, be and hereby is amended to include the finding that, “The question of whether plaintiffs’ claim is barred by the applicable statute of limitations is a question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal of this controlling question may materially advance the ultimate termination of this dispute.”

      . Article VIII, § 5 of the 1982 Agreement states, in pertinent part,
      [T]he Employer agrees that journeymen sheet metal workers hired outside of the territorial jurisdiction of this Agreement shall receive the wage scale and working conditions of the Local Agreement covering the territory in which such work is performed or supervised.
      The other provisions referred to in the March 27, 1984, letter define the wage scale and working conditions of the Local Agreement, referenced in Article VIII, § 5.

      . Article X of the 1982 Agreement established a four-step grievance procedure, which is substantially the same in the 1984 Agreement. A grievance must be filed within 30 days of the occurrence giving rise to the grievance, or if the occurrence was not ascertainable, first knowledge of the facts giving rise to the grievance. The union and employer must initially negotiate the dispute. If the negotiations are unsuccessful, either party may appeal to a Local Joint Adjustment Board ("LJAB”), consisting of an equal number of union and employer representatives. Either party may then appeal the LJAB decision to a special panel consisting of a representative from SMWIA and SMACCA. The final step in the process is appeal to the National Joint Adjustment Board ("NJAB”), which is established by SMWIA and SMACCA and consists of an equal number of representatives from both organizations.
      Under the 1982 Agreement, the LJAB and NJAB were "empowered to render such decisions and grant such relief to either party as they deem necessary and proper, including awards of damages or other compensation and, if it is believed warranted, to direct that the involved agreement ... be cancelled.” The language expressly authorizing cancellation as a remedy was deleted from the 1984 Agreement, which provides that the LJAB and NJAB “are empowered to render such decisions and grant such relief to either party as they deem necessary and proper, including awards of damages or other compensation.” A provision contained in the 1982 Agreement which authorized cancellation as a remedy for noncompliance with a decision of the LJAB or NJAB was also deleted from the 1984 Agreement and from the revised Procedural Rules of the National Joint Adjustment Board for the Sheet Metal Industry (the "NJAB Rules”).
      The NJAB Rules were incorporated by reference in the 1982 Agreement and in the 1984 Agreement, which each stated that, "Submission(s) shall be made and decisions rendered under such procedures as may be prescribed by such Board.” The NJAB Rules at all times stated that an NJAB decision “shall be confined to the disputed issue or issues presented to it ..."

      . Article II, § 3 states:
      (a) The Employer agrees that no evasion of the terms, requirements and provisions of the Standard Form of Union Agreement, including all addenda attached thereto, will take place by the setting up of another business to do work covered by this Agreement, or in any other way attempt to or actually evade or nullify responsibility hereunder. If and when the Employer shall perform any work of the type covered by this Agreement, under its own name or under the name of another, as a corporation, company, partnership, or any other business entity, including a joint venture, wherein the Employer through its officers, directors, partners or stockholders, exercises either directly or indirectly, management, control or majority ownership of such other entity, the terms and conditions of the Agreement shall be applicable to all such work.
      This clause shall only be applicable to job site work as that term is used in the construction industry proviso to Section 8(e) of the National Labor Relations Act.
      (b) The Employer further agrees that if and when it performs prefabrication work otherwise covered by the Standard Form of Union Agreement, including all addenda attached thereto, under the name of another, as a corporation, company, partnership, or any other business entity, including a joint venture, wherein the Employer through its officers, directors, partners or stockholders, exercises either directly or indirectly, management, control or majority ownership of such other entity, the employees of such other entity shall receive not less than the prevailing wage for comparable sheet metal fabrication, as established under the terms of this Agreement.
      This is not to be interpreted to exclude any customer of the company from purchasing said fabrication.
      (c) The parties agree that disputes concerning the meaning and application of section 1 and 2 hereof shall be resolved in accordance with Article X and without resort to strike or lockout.
      (d) If any word/sentence/paragraph or section of this language is found to be illegal that portion will be removed from this article or rewritten to comply with the law.
      The remainder of this article will stand as negotiated.

      . Plaintiffs’ Complaint did not request judicial review of this aspect of the NJAB decision.

      . Local 17 stipulated to this fact.

      . The court reaches this conclusion concerning Massachusetts law notwithstanding the broad language of the First Circuit Court of Appeals dicta in Derwin v. General Dynamics Corporation, 719 F.2d 484, 489 (1st Cir.1983), concerning the Massachusetts statute of limitations for actions to vacate an arbitrator’s award. In Der-win, the court was addressing the question of the Massachusetts statute of limitations for actions to confirm an arbitrator's award under Mass.Gen.Law ch. 150C, § 10. The court compared actions to confirm with actions to vacate and, in the process, stated, "... the Massachusetts statute subjects [actions to vacate] to a short 30-day statute of limitations. See Mass. Gen.Laws ch. 150C, §§ 11(b), 12(a), ...” and that 30-day limit “virtually eliminates any prospect of a successful challenge to an award after the 30-day period____” Id. at 489. The Court of Appeals did not state that it found that these provisions completely eliminate the possibility of a successful challenge. Of more importance, the court in Derwin did not refer to, and may not have had the benefit of, the Painters case, which was decided the week Derwin was argued. In any event, this court is obliged to determine, in part, how the Massachusetts courts would decide the issue of timeliness on the facts of this case. For the reasons set forth above, the court finds, notwithstanding the dicta in Derwin and the logic of it, that this action would be deemed timely brought by the courts of the Commonwealth.

      . If Massachusetts law did not characterize the question of whether a matter decided had been submitted for arbitration as a jurisdictional issue and, therefore, applied a thirty day statute of limitations, this court would address the further question of whether to adopt that characterization as a matter of federal law because "the characterization of a section 301 action for the purpose of selecting that appropriate state limitations provision is ultimately a question of federal law, though the characterization that state law would impose should not be rejected unless it 'is unreasonable or otherwise inconsistent with national labor policy.’ Hoosier Cardinal, supra, 383 U.S. at 706 [86 S.Ct. at 1113].’’ Locals 2222, 628 F.2d at 650.

      . Article X, § 4 of the collective bargaining agreement provides, in pertinent part, that, "Grievances not settled as provided in Section 3 of this Article may be appealed jointly or by either party to the National Joint Adjustment Board. Submissions shall be made and decisions rendered under such procedures as may be prescribed by such Board." (Emphasis added.) The NJAB promulgated the revised Procedural Rules of the National Joint Adjustment Board for the Sheet Metal Industry (the “NJAB Rules”) to be applicable to its proceedings pursuant to the 1984 Agreement and comparable collective bargaining agreements.

      . As the Court of Appeals for the First Circuit has stated,
      ... [I]t is firmly established within the federal labor law that a district court may, in the context of a section 301 proceeding, resubmit an existing arbitration award of the type here in issue to the original arbitrators for "interpretation” or "amplification.” This judicial power, which is in contrast to usual common law principles and requires no affirmative sanction in the contract or in any statutory provision, has been established by the federal courts in carrying out their mandate to "fashion from the policy of our national labor laws” a substantive body of law applicable in section 301 cases, Textile Workers v. Lincoln Mills, 353 U.S. 448, 456, 77 S.Ct. 912, 918, 1 L.Ed.2d 972 (1957). In large measure, it seems to have developed as a necessary corollary to the courts’ reluctance themselves to interpret either collective bargaining agreements or arbitration awards based on the construction of such agreements. Whatever the genesis, there can be no question that the power exists.

        Locals 2222, 628 F.2d at 647 (citations omitted).

      . The Michelson’s case may be of particular interest to the parties and the NJAB in connection with the remand. In Michelson's the Ninth Circuit was addressing an arbitrator's award of punitive damages and stated,
      Nor can we say that the arbitrator could award punitive damages. It may be that, if a grievant claims such damages from the beginning, and that claim is processed through all stages required by the agreement, the arbitrator can consider it. But here that did not happen. Manning’s claim, as presented by him to the Union, and as presented by the Union to Michelson’s contained no such demand. This is equally true of the demand for attorney’s fees and costs. Manning made no such claims until the day that the arbitration was to begin. To allow them was not within the arbitrator’s power; it was not part of the grievance that had been presented to the employer under the agreement and carried through the first two stages required by the contract. The employer was entitled to rely on the grievance presented as limiting the extent of the question that it was required to arbitrate if it could not arrive at a settlement. However, lest there be any misunderstanding, we are not holding that an arbitrator is bound to limit his decision to the precise measure of relief requested in the original grievance. His job is to define the relief that will compensate the grievant if his claim is upheld. See Tobacco Workers Int. U. Local 317 v. Lorillard Corp., supra, 448 F.2d [949] at 955-56 [(4th Cir. 1971) ]. What we do say is that the remedies here claimed are not usually appropriate in breach of contract cases (see Local 127, United Shoe Workers v. Brooks Shoe Mfg. Co., 3 Cir., 1962, in banc, 298 F.2d 277, 281 (283 Biggs, J., dissenting; 285, Kalodner, J., dissenting)) and that such extraordinary remedies are not available at the arbitration stage unless they have been put in issue from the beginning. We express no opinion as to what the arbitrator’s powers would be in such a case; it is not before us.

        Michelson’s, 545 F.2d at 1254. See also General Electric, 429 F.2d at 413-414; Totem Marine, 607 F.2d at 651.
      This reference to Michelson’s should not be construed as expressing the court’s view on whether a comparable conclusion is required on the facts of this case. That issue is for the NJAB to decide initially.

      . For the purpose of resolving the pending issues, the court has assumed, without deciding, that the validity of a contract is, as a matter of law, an arbitrable issue, Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 400-407, 87 S.Ct. 1801, 1804-1807, 18 L.Ed.2d 1270 (1967), and that Article X of the 1984 Agreement which provides that, “Grievances ... arising out of interpretation or enforcement of this Agreement" shall be subject to arbitration expresses the intention of the parties to arbitrate the issue of the validity of the collective bargaining agreement if it is properly raised. The arbitrators, however, must initially decide these issues if they are properly presented to them.


author: BAKER, Chief Judge.

text:
    Larry WERRIES, Director Illinois Department of Agriculture, Plaintiff v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, a New Hampshire Corporation, Defendant.
    No. 84-3438.
    United States District Court, C.D. Illinois, Springfield Division.
    Sept. 6, 1985.
    Frank Hess, Asst. Atty. Gen., Springfield, 111., for plaintiff.
    Vincent Reilly, J. Calvin Daulton III, Chicago, 111., Mary Jane Lynk, Springfield, 111., for defendant.
   ORDER

BAKER, Chief Judge.

This case is a diversity suit seeking enforcement of a monetary judgment from an administrative hearing of the Illinois Department of Agriculture (“Department”) which awarded monetary damages to four livestock sellers who had not been paid for cattle delivered to defendant insurance company’s principal. Liability is grounded on a surety contract between the Defendant and an Illinois stockyard which had received the livestock from the four claimants who are now represented by the Plaintiff in this case. This action was originally-commenced by the Department on October 2, 1984, in the Circuit Court of Sangamon County, almost a year and a half after the hearing and after the surety notified the department that it was only liable for roughly half of the liability due to its contract with its principal. This case was removed to this Court from the Sangamon County Circuit Court on November 8, 1984.

Presently before the Court is a motion by the Defendant surety company for summary judgment (11/16/84, docket entry 5).

It is well established that in deciding a motion to dismiss or for summary judgment, the Court must take all inferences favorable to the nonmoving party as true. Adickes v. Kress & Company, 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970); Egger v. Phillips, 669 F.2d 497, 502 (7th Cir.1982); Peoples Outfitting Company v. General Electric Credit Corp., 549 F.2d 42, 45 (7th Cir. 1977). If any doubt remains as to the existence of a genuine issue of material fact, such doubt must be resolved against the movant of summary judgment. Wolston v. Reader’s Digest, 443 U.S. 157, 162 n. 5, 99 S.Ct. 2701, 2705 n. 5, 61 L.Ed.2d 450 (1979); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). Further, summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. S.J. Groves v. International Brotherhood of Teamsters, 581 F.2d 1241 (7th Cir.1978).

FACTS

The Defendant surety company issued a livestock dealer’s bond to Kenneth W. Arzt, who is the resident stockyardman who took delivery of the livestock in question without paying. The transactions between the sellers and this buyer took place between June 30, 1982, and August 9, 1982. {See Affidavit in support of defendant’s motion for summary judgment, 11/16/82, docket entry 6.) The four sellers made claims with the Packers and Stockyards Administration pursuant to the Packers an Stockyards Act of 1921. 7 U.S.C. § 181, et seq. Only three of the claimants filed in time. However, the Department hearing that was held July 27, 1983, would allow the other claim to be heard because that hearing was, in fact, a “case” or “suit,” which was ruled upon by the Department on August 15, 1983. Thus, the second provision of C.F.R. § 201.33(d) was met. (See infra). No appeal was taken by the surety company which was represented at the hearing (at least it does not deny that it was not and the plaintiff asserts that the Defendant was present. Plaintiff’s reply ... 1/23/85, docket entry 16, p. 2).

ISSUES

The surety company fights this suit on the ground that the claims of the four sellers were not timely considered because the hearing of the Department was not a “case” or “suit” brought within the time limits set in the bond, which contained the limitations codified in 9 C.F.R. § 201.33(d) which states:

The surety on the bond, ... shall not be liable to pay any claim if it is not filed in writing within 120 days from the date of the transaction or which the claim is based, or if suit thereon is commenced less than 180 or more than 51¡.7 days (which is approximately 18 months from the date of the transaction on which the claim is based. (Emphasis added)).

The Defendant surety company’s argument is that this case was not instituted until the Department of Agriculture brought this suit in the Sangamon County Court on October 2, 1984, more than two years after the original transactions. Thus, this case is time-barred because the above regulation requires that any actions on bonds must be brought within approximately eighteen months.

The Defendant argues that the Department hearing held in July of 1983 could not be an action that is contemplated by the above regulation because that would violate the due process clause as it would be unfair for the payee of the bond to adjudicate the liability of that bond. Furthermore, it is argued that the Department of Agriculture is without the statutory power to convene such a hearing for the purposes of determining bond liability. {See “Defendant’s Memorandum in Response ...” 1/15/85, docket entry 14 for the above arguments.)

AUTHORITIES

The argument that the Department of Agriculture is without statutory jurisdiction is grounded on the surety company’s interpretation of Ill.Rev.Stat. ch. 127 § 40.-23 (1983), which states in part, starting at § 40:

40. The Department of Agriculture has the powers enumerated in Sections 40.1 through 40.29.
40.23 Surety bonds and trust funds— Trust accounts and bank accounts — Storage obligations
The Department shall promulgate and file procedural rules and regulations to be followed concerning the establishment and segregation of trust accounts and bank accounts and the holding of administrative hearings to identify and verify claimants and claim amounts, to claim and collect the proceeds of surety bonds and other assets, and to distribute monies in trust funds and bank accounts to claimants. The trustee shall maintain and retain records and make available for audit or review by any person, firm, corporation or government entity such trust accounts and bank accounts, check registers, can-celled claimants’ checks, and records accumulated and used by the Department to ascertain the claimants and claims against surety bonds or trust funds. (Emphasis added.)

I.

It is interpreted by the surety company that this statute does not authorize the Department to hold hearings to adjudicate the liabilities of bond companies. However, the opposite is true. The emphasized portions of the above statute give the department the power to “promulgate and file procedural rules and regulations ... concerning the ... holding of administrative hearings ...” The statute does not specifically state who is to hold those hearings, but it does not prohibit the Department from holding them, and there is an inference that the Illinois legislature, through this statute, intended that the department be allowed to hold these hearings.

As to the issue that it is unfair for the payee of a bond to hear and adjudicate the liability, we first can look to statute that expressly authorizes this, Ill.Rev.Stat. ch. 127 § 40.23. Further, though technically the Department is the payee of the bond, it is not the ultimate beneficiary of these bonds. The department is the named payee because at the time the bonds are issued, no one can possibly know who, if ever, is going to be the ultimate beneficiary, as that person is the injured party in some future transaction that has failed. A perfect example is found here in the case before us, wherein the bond between the defendant and its surety (which made the department payee) was executed in 1974 and the claimants did not make the complained of transaction until 1982. Thus, by necessity, the department is made the payee who then becomes trustee for those who, in fact, have been harmed.

It should be noted that the bond in question was executed pursuant to federal law as now codified in 9 C.F.R. § 201.33 and that the claims were filed with a federal agency, the Packers and Stockyards Administration; section 210(b) of Title 7, and 9 C.F.R. § 201.32 expressly authorizes the states to act exactly as the Illinois Legislature has done in promulgating the “surety bond” statute.

The Department had jurisdiction to hold a hearing to determine liability, we must now turn to the issues of whether the claims filed were timely and whether the hearing was a “suit” such that the claims were timely adjudicated or, if not, whether the claims can still be heard here, as the time limitations were tolled by the Department’s hearing.

II.

The next issue before this court is whether the July 2, 1983, hearing of the Department was a proper “suit” within the meaning of 9 C.F.R. § 201.33(d). This court finds that it was a proper “suit.”

In answering this question in the negative, the Defendant relies on several cases, such as Weston v. City Council of Charleston, 27 U.S. 448, 2 Pet. 449, 7 L.Ed. 481 (1829) which states that a suit is a “very comprehensive term, and is understood to apply to any proceeding.” Id. 464, and United States v. Firemen’s Fund Insurance Co., 191 F.Supp. 317 (D.Idaho 1961), which held that a claim based on a bond liability similar to the one before us could not be considered to have been properly filed if all that was done by the claimant was to register a claim with the Idaho Agriculture Department. Because the Idaho Code of Civil Procedure stipulated that a case could only be properly filed with a court of law if it were to toll the applicable statute of limitations. The Surety Company believes that Firemen’s Fund should apply to all states and that any filing with any Department of Agriculture cannot be a good suit. But Firemen’s Fund only turns on a question of Idaho procedural law, and so is not universal. Id. at 320-21.

On the other hand, the Plaintiff cites an Illinois case, Community Unit School District No. 5 v. Country Mutual Insurance Co., 95 Ill.App.3d 272, 50 Ill.Dec. 808, 419 N.E.2d 1257 (3d Dist.1981), for the proposition that:

Thus, the Departmental hearing was a proper suit for the purposes of § 201.33(d).

A suit, in common understanding and meaning, is an attempt to gain legal redress or to enforce a right. It need not be in a common law court, but may be before administrative and quasi-judicial bodies, such as workmen’s compensation boards, police and fire commissions, or the Human Rights Commission. The common meaning of suit does not limit it to legal actions in the common law courts.

There is also a United States Supreme Court case that generally supports this position, Herb v. Pitcairn, et al., 325 U.S. 77-79, 65 S.Ct. 954, 955, 89 L.Ed. 1483 (1945), which states:

An action is commenced as a matter of federal law when instituted by service of process issued out of a state court, even if one which itself is unable to proceed to judgment, if the state law or practice permits the transfer through change of venue or otherwise to a court which does have jurisdiction to hear, try and other-, wise determine the cause ... Clearly, however, when process has been adequate to bring in the parties and to start the case on a course of judicial handling which may lead to final judgment without issuance of initial process, it is enough to commence the action within the federal statute, (which in this case was the Federal Employers’ Liability Act (FELA)).

This case dealt with the question of whether the statute of limitations which governed the bringing of a FELA action had been tolled by the initial filing of a claim with the “city court” of Granite City, Illinois. The Supreme Court held that the claim had properly been filed as the “city court” met the criterion stated above.

In the case before the Court, we must see if the Department’s hearing meets the Pitcairn test. First, was this action instituted by service of process? In the Department’s order that resulted from the hearing, they made a finding that service was proper and in the state complaint filed by the Department it alleges that service on the surety company was proper. There is no denial as to this by the surety. Second, was this case begun on a course of judicial handling which could lead to final judgment without the issuance of initial process? The Plaintiff takes the position that the Defendant could have appealed the decision of the hearing board by filing a complaint of administrative review pursuant to Ill.Rev.Stat. ch. 110 113-101 et seq. The filing and service of process of appeals from administrative hearings are practically indistinguishable from filing and the service of process of appeals from the Illinois circuit courts to the appellate courts. (See Ill.Rev.Stat. ch. 110A ¶ 11, and Ill.Rev.Stat. ch. 110A 11 303(d).) The transfer from the administrative court to the circuit court of the state is similar to the process that is needed when one is appealing the final decision of a trial court. Thus, the second prong of the Pitcairn test is met in that once an administrative hearing is properly begun, its decision is final and only appeal-able to the circuit court, just like an appeal from the circuit court is appealable to the state appellate court. So this case can be considered a “suit” for the purposes of the time limitations period in 9 C.F.R. § 201.-33(d).

CONCLUSION

The Illinois Department of Agriculture hearing of July, 1983, was the commencement of a suit for the purposes of the applicable regulations. Thus, this action was timely brought and since no appeal was taken within the time limit for appeals from administrative orders (which is 35 days from the date of the hearing order, Ill.Rev.Stat. ch. 110 ¶ 3-103), this action is properly before this Court on the basis of diversity jurisdiction to enforce the judgment rendered at the hearing, and all four claims are valid here.

It is therefore ordered that the Defendant’s Motion for Summary Judgment (filed 11/16/84, docket entry 5) is hereby DENIED as the applicable time limitations of 9 C.F.R. § 201.33(d) were met, as a “suit” was commenced after 180 days but within 547 days of the transactions in question.