author: TOM S. LEE, District Judge.

text:
    Ronnie M. BROCK, Plaintiff, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY and United Transportation Union, Defendants.
    Civ. A. No. J85-0692(L).
    United States District Court, S.D. Mississippi, Jackson Division.
    Sept. 19, 1985.

      Dale H. McDavitt, Southwest MS. Legal Services, McComb, Miss., for plaintiff.
    John L. Maxey, II, Cupit & Maxey, Jackson, Miss., Clinton J. Miller, III, Asst. Gen. Counsel, Cleveland, Ohio, for United Transp. Union.
   MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court on motion of defendant Illinois Central Gulf Railroad Company (Railroad) to dismiss the complaint filed by plaintiff Ronnie M. Brock. Plaintiff filed timely response to the Railroad’s motion, and the court has considered the memoranda of authority submitted by both parties.

Plaintiff was employed by the Railroad as a brakeman between January 10, 1980 and August 26, 1981. On August 12, 1981, he was involved in an incident in a shopping center parking lot in McComb, Mississippi, which led to his arrest on a charge of indecent exposure. He pled guilty to the charge on August 17, 1981 and was sentenced to serve six months in county jail, but the sentence was suspended and he was placed on probation for two years and fined $300.00. He was also ordered to report to the State Mental Health Department at McComb for psychiatric evaluation and treatment.

On August 25, 1981, a Board of Inquiry was convened in the Railroad’s offices in McComb for the purpose of determining plaintiff’s responsibility in connection with the indecent exposure charge. The Board of Inquiry was composed of two senior employees of the Railroad and plaintiff was represented at the hearing by the local chairman of the United Transportation Union (Union) of which plaintiff was a member. On the day following the hearing, Brock was advised by letter from the Railroad that he was being terminated “for your violation of Rule H.” He immediately exercised his right under the collective bargaining agreement between the Railroad and the Union to convene a Public Law Board for the purpose of reviewing his termination. On August 22, 1984, the Public Law Board held a hearing in Chicago, Illinois on plaintiffs request that he be reinstated with seniority unimpaired and paid for all time lost because of his allegedly unjust dismissal. In Public Law Board No. 3145, Case 96, Award 96, plaintiffs requested relief was denied. His complaint in the instant action seeks review of that decision.

Plaintiffs complaint sets out four grounds for review by this court of the Public Law Board’s decision: (1) Public Law Board No. 3145, Award 96 was outside the jurisdiction of the Railway Labor Act, 45 U.S.C. §§ 151-163, because the award was “arbitrary and capricious”; (2) the Union failed to adequately and fairly represent the plaintiff’s claim; (3) plaintiff’s dismissal evidenced underlying policy discrimination on the part of the Railroad, as other employees had misdemeanor convictions on their records and were not dismissed; and (4) the Railroad failed to accord Brock due process of law during the August 25, 1981 hearing.

The Railway Labor Act limits federal court review of a decision by a Public Law Board or the Adjustment Board to three specifically defined circumstances: (1) failure of the division (Public Law Board or Adjustment Board) to comply with the requirements of the Act; (2) failure of the order to conform, or confine itself, to matters within the scope of the division’s jurisdiction; and (3) fraud or corruption by a

member of the division making the order. 45 U.S.C. § 153 First (p) and (q); Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89, 93, 99 S.Ct. 399, 402, 58 L.Ed.2d 354 (1978).

In Diamond v. Terminal Railway Alabama State Docks, 421 F.2d 228, 233 (5th Cir.1970), the Fifth Circuit characterized the scope of judicial review of an award by the Adjustment Board, or a Public Law Board, as follows:

The federal courts do not sit as super arbitration tribunals in suits brought to enforce awards of the Adjustment Board. They may not substitute their judgments for those of the Board divisions. They need not inquire whether substantial evidence supports the Board’s awards. Under the Railway Labor Act, ... the range of judicial review in enforcement cases is among the narrowest known to the law. Board awards are ‘final and binding’ upon the parties. In court the findings and orders of the Board are ‘conclusive.’ (quoting 45 U.S.C. § 153 First (m) and (P)).

The rationale underlying the rule of limited judicial review in cases arising under the Railway Labor Act is that Congress intended “minor” grievances of railroad workers to be decided finally by the Railroad Adjustment Board since the mechanisms for adjudicating such grievances depend upon an interpretation of railroad collective bargaining agreements. Gunther v. San Diego & Arizona Eastern Ry. Co., 382 U.S. 257, 263, 86 S.Ct. 368, 371, 15 L.Ed.2d 308 (1965); Kotakis v. Elgin, Joliet & Eastern Ry. Co., 520 F.2d 570, 575 (7th Cir.1975), cert. denied, 423 U.S. 1016, 96 S.Ct. 451, 46 L.Ed.2d 388 (1976). When an award issued by a Public Law Board or the Adjustment Board draws its essence from the collective bargaining agreement between the railroad and the union, the federal courts may not review the merits of the case or refuse to enforce the award. W.R. Grace & Co. v. Local 759, International Union of Rubber Workers, 461 U.S. 757, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983); Zeviar v. Local No. 2747, Airline, Etc., Employees, 733 F.2d 556 (8th Cir.1984). The rationale is particularly persuasive in cases involving discharge grievances, where the rights of discharged employees to arbitration of their disputes with their employees arise exclusively from the collective bargaining agreement. See Andrews v. Louisville & Nashville Railroad, 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972); United Steelworkers of America v. Union R. Co., 648 F.2d at 911. Bonin v. American Airlines, Inc., 621 F.2d 635, 637 (5th Cir.1980). Since Brock’s right to arbitration of his claim of wrongful discharge was provided in the collective bargaining agreement, judicial review of the award of the Public Law Board is limited to the three situations set forth in the Railway Labor Act. Andrews, 406 U.S. at 325, 92 5. Ct. at 1565.

None of the grounds for review asserted by plaintiff in his complaint fall within the Act so as to allow this court to take jurisdiction and review plaintiff’s termination. In his first asserted ground for judicial review, plaintiff alleges that Award 96 of Public Law Board No. 3145 was “outside the jurisdiction of the Railway Labor Act” in that such dismissal based upon a misdemeanor conviction was “arbitrary and capricious.” (Complaint at 4). The “arbitrary and capricious” standard of review is not applicable to cases dealing with arbitration awards under the Railway Labor Act. Rather, the test for determining whether the Board acted beyond the scope of its jurisdiction under the Act is whether the “award is without foundation in reason or fact.” Brotherhood of Ry., Airline and Steamship Clerks v. Kansas City Terminal Ry. Co., 587 F.2d 903, 906 (8th Cir. 1978), cert. denied 441 U.S. 907, 99 S.Ct. 1997, 60 L.Ed.2d 376 (1979); Brotherhood of Railroad Trainmen v. Central of Georgia Ry. Co., 415 F.2d 403, 414 (5th Cir. 1969). It can scarcely be contended, given the nature of Brock’s offense, that the conclusion of Public Law Board No. 3145 in Award 96 was “without foundation in reason or fact.” Even if this court agreed with plaintiff that his dismissal was arbitrary, it would be powerless to reverse the ruling in Award 96 because the Railway Labor Act vests exclusive discretion to determine the merits in such disputes with the Board. Diamond, 421 F.2d at 233.

Plaintiff’s second asserted ground for judicial review is that the Union failed to fairly and adequately represent him in his claim before the Board of Inquiry and the Public Law Board. Specifically, he charges that the union representative who presented his case before both reviewing boards committed a number of tactical errors in the hearings. In sum, Brock’s contentions amount to an attack on mere errors of judgment by the union representative. Even if this court were to credit plaintiffs contentions, it would be unable to overturn the Board’s decision on these grounds. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570, 96 S.Ct. 1048, 1059, 47 L.Ed.2d 231 (1976). To prevail on his claim of unfair representation by the Union, plaintiff must demonstrate arbitrary or bad faith conduct leading to prejudice on the part of the Union in processing his grievance. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). Besides showing bad faith and breach of the duty of fair representation by the Union, plaintiff must show that such breach “seriously undermined the integrity of the arbitral process.” Hines, 424 U.S. at 567, 96 S.Ct. at 1057; Del Casal v. Eastern Airlines, Inc., 634 F.2d 295 (5th Cir.1981), reh. denied, 638 F.2d 1234, cert. denied, 454 U.S. 892, 102 S.Ct. 386, 70 L.Ed.2d 206 (1982). Errors or omissions in the presentation of evidence before the Board do not indicate bad faith or a breach of the duty of fair representation sufficient to set aside the Board’s award. Franklin v. Southern Pacific Transportation Co., 593 F.2d 899 (9th Cir.1979). In Hines, the United States Supreme Court held that even when newly discovered evidence reveals that the charges against discharged employees were false and that in fact they were fired without cause, the finality provision of the Act has sufficient force to overcome the equities which would otherwise demand the setting aside of the grievance procedure. 424 U.S. at 570-571, 96 S.Ct. at 1059.

The Union’s failure to present, and the Board’s failure to consider, certain evidence tending to exculpate plaintiff of the charge or to mitigate the severity of the award does not meet the test of arbitrary or bad faith conduct on the part of the union representative, nor does it seriously undermine the integrity of the arbitral process. Plaintiff’s contentions in this respect do not justify setting aside the award under the Railway Labor Act.

Plaintiff’s third asserted ground for judicial review based upon alleged policy discrimination does not satisfy the criteria set out in the Act. The Board’s alleged failure to consider that other Railroad employees had been convicted of misdemeanors and were not discharged is in the nature of an error in the grievance process. Hines, 424 U.S. at 570, 96 S.Ct. at 1059. As such, it cannot necessitate the setting aside of the Board’s order.

In his fourth and last asserted ground for judicial review, plaintiff alleges that the Railroad failed to accord plaintiff his right to due process of law by not giving him an opportunity to present witnesses at the Board of Inquiry hearing to substantiate his claims and not giving him an opportunity to appear with his union representative before the Railroad supervisors, or sending him any written notice of the Board of Inquiry findings after the initial investigation and before the Public Law Board No. 3145 convened. Plaintiff’s right to hearing before the Board of Inquiry and the Public Law Board arose out of the collective bargaining agreement, the final interpretation of which lies with the Public Law Board. Gunther, 382 U.S. at 261-262, 86 S.Ct. at 307-371. The only basis for judicial review of Brock’s case would be if the Board failed to comply with proper procedures. Andrews, 406 U.S. at 335, 92 S.Ct. at 1570. Assuming arguendo that plaintiff were to adduce sufficient proof that the Board departed from proper procedures in this case, he would have to prove further that the Board’s action constituted sufficient denial of due process to allow a collateral attack on the jurisdiction of the Public Law Board. Woolley v. Eastern Air Lines, 250 F.2d 86 (5th Cir.1957); Clayton v. Missouri Pacific R. Co., 452 F.Supp. 107, 109 (M.D.La.1978), aff'd 590 F.2d 332 (5th Cir.1979).

Insofar as plaintiff’s claims relate to denial of due process in the Board of Inquiry hearing, the federal court is without jurisdiction, the presumption being that his due process rights will be afforded before the Public Law Board. Otto v. Houston Belt and Terminal Ry. Co., 319 F.Supp. 262 (S.D.Tex.1970), aff'd 444 F.2d 219 (5th Cir.), cert. denied, 404 U.S. 984, 92 S.Ct. 449, 30 L.Ed.2d 368 (1971). Plaintiff’s claim that he was denied due process because he was not notifed of the Board of Inquiry findings prior to the Public Law Board hearing does not establish a separate ground for review. The Act, 45 U.S.C. § 153 First (j) and (q), does require the Public Law Board to notify any employee or his representative of any proceeding that may result in that employee’s losing his job. Brotherhood of Railway, Airline, and Steamship Clerks, Freight Handlers, Express & Station Employees v. St. Louis Southwestern Ry. Co., 676 F.2d at 135. However, where an individual employee has authorized his union to represent him before such boards and to receive any notices in his behalf, the statute does not require that individual notice be given the employee. O’Neill v. Public Law Board No. 550, 581 F.2d 692 (7th Cir.1978). It appears that plaintiff was given notice of the Public Law Board hearing and did in fact appear before the Board. Nothing in the Act gives plaintiff the right to written notice of the findings of the Board of Inquiry before the Public Law Board convenes. The plaintiff’s claim for review of Award 96 by this court on the ground that he was denied due process in the termination proceedings must also fail.

Based upon the reasons stated herein-above, this court concludes that the Railroad’s motion to dismiss should be granted. A separate judgment shall be submitted pursuant to the local rules.

      . Plaintiff consistently maintains in his pleadings that he was innocent of the indecent exposure charge and claims that the charge stemmed from an incident in which he "out of necessity urinated” in a shopping center parking lot. He further claims that his guilty plea was uncounseled. The court notes, however, that the August 12, 1981 charge was the second such offense with which plaintiff was charged and that a copy of a report of a psychologist, attached to Brock’s complaint, states that he was making progress in dealing with his "problems.”

      . Rule H, a Railroad company rule, reads:
      Dishonesty, desertion from duty, insubordination, willful neglect, gross carelessness, making false reports or statements, concealing facts concerning matters under investigation, immoral character or serious violations of the law are prohibited.

      . Pursuant to the Railway Labor Act, 45 U.S.C. § 153 Second, a Public Law Board can be utilized to serve as a private alternative forum to the National Railroad Adjustment Board (Adjustment Board) provided for in 45 U.S.C. § 153 First. Such Board must consist of one person designated by the carrier, one person designated by the union or the representative of the employees, and a “neutral person” designated by the National Mediation Board, an independent executive agency established by the Act to hear and determine disputes not referable to the Public Law Boards or the Adjustment Board. 45 U.S.C. §§ 153, 154, 155. The board must conform to the same procedural restraints imposed on the Adjustment Board, and its decisions are entitled to the same degree of finality as the decisions of the Adjustment Board. Brotherhood of Ry., Airline and Steamship Clerks, Freight Handlers, Express & Station Emp. v. St. Louis Southwestern Ry. Co., 676 F.2d 132 (5th Cir.1982), reh. denied 680 F.2d 1389; Murray v. Consolidated Rail Corp., 736 F.2d 372 (6th Cir. 1984).

      . Plaintiff has not alleged fraud or corruption on the part of any of the three members of Public Law Board No. 3145, and the court is thus limited to a review of the award for its compliance with the requirements of the Railway Labor Act.

      . While the provisions of 45 U.S.C. § 153 First and Second are different in many respects, the language of the statute and judicial construction of that language indicates that the same standard of judicial review applies to decisions of the Public Law Boards and the Adjustment Board. 45 U.S.C. § 153 Second; Wilson v. Chicago and North Western Transportation Co., 728 F.2d 963 (7th Cir. 1984); United Steelworkers of America v. Union R. Co., 648 F.2d 905, 910 (3rd Cir.1981); Cole v. Erie Lackawanna Ry., 541 F.2d 528, 532 (6th Cir.1976), cert. denied, 433 U.S. 914, 97 S.Ct. 2987, 53 L.Ed.2d 1100 (1977).

      . Gunther used the term "minor” to refer to those disputes set out in 45 U.S.C. § 153 First (i), which provides that “disputes between an employee ... and a carrier ... growing out of grievances or ... the interpretation or application of agreements concerning rates of pay, rules or working conditions" may be referred to the Adjustment Board, (emphasis added).

      . A 1966 proposal to amend the Railway Labor Act to include arbitrariness or capriciousness on the part of the Board as a ground for setting aside an award was specifically rejected by the Senate Labor and Public Welfare Committee. 1966 U.S.Code Cong. & Ad.News 2286, 2287.

      . Plaintiff contends that the union representative failed to: (1) properly present his record of service with the Railroad; (2) present the issue of whether the misdemeanor sentence justified dismissal; (3) present reports from a psychologist saying plaintiff was working “to understand and overcome his problems and that he was able to function effectively in his present work”; (4) present evidence of other employees' misdemeanor offenses not sanctioned by dismissal; and (5) properly present the evidence of plaintiffs conduct under the charge of violation of Rule H.

      . The type of "policy discrimination” alleged by plaintiff has no relation to the type of discriminatory practices in the collective bargaining context over which the federal court may exercise jurisdiction. While plaintiff, a black male, may invoke federal jurisdiction upon sufficient proof of a Railroad-Union conspiracy to deny rights to blacks under the collective baragaining agreement, no such allegations have been made here. See Glover v. St. Louis-San Francisco Ry. Co., 393 U.S. 324, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969); Smith v. B & O R. Co., 473 F.Supp. 572 (D.C.Md.1979).

      . It appears from the record that plaintiff was represented at both the Board of Inquiry and the Public Law Board by a duly authorized union representative.


source: Caselaw Access Project

author: MUNSON, Chief Judge.

license: Public Domain

text:
    Frank R. FISCHER, Plaintiff, v. INTERNAL REVENUE SERVICE, Defendant.
    No. 84-CV-1670.
    United States District Court, N.D. New York.
    Sept. 26, 1985.

      Frank R. Fischer, Olean, N.Y., pro se.
    Frederick J. Scullin, Jr., U.S. Atty., Craig A. Benedict, Paula Ryan Conan, Asst. U.S. Attys., N.D.N.Y., Syracuse, N.Y., Robert L. Gordon, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, D.C., for defendant.
   MEMORANDUM-DECISION AND ORDER

MUNSON, Chief Judge.

Plaintiff commenced this action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (1982), to compel the production of documents requested from the IRS. Plaintiff exhausted his administrative remedies after appealing the denial of a portion of his request to the IRS on October 9, 1984. Jurisdiction is properly invoked under 5 U.S.C. § 552(a)(4)(B). Upon cross-motions for summary judgment and plaintiff’s motion for a default judgment, summary judgment is granted to the defendant and the complaint is dismissed.

Plaintiff initially made an extensive and detailed request under the FOIA on July 13, 1984 for production of records relating to himself held by the IRS office in Buffalo, New York. Photocopies of the documents requested were mailed to plaintiff on September 24, 1984. The cover letter of the IRS District Disclosure Officer claims that some of the documents requested fall under the attorney-client privilege exemption and one falls within the deliberative process privilege; these were not provided to the plaintiff.

The affidavit of Robert Moreno, an attorney in the Disclosure Litigation Division of the IRS who participated in the review of the documents requested by plaintiff, describes the documents and the privileges under which defendant has asserted they fall. The IRS withheld eight documents under the intra-agency privilege of 5 U.S.C. § 552(b)(5). In addition, several documents were provided but with names of “lower level” IRS employees deleted pursuant to the personal privacy exemption for investigatory records, 5 U.S.C. § 552(b)(7)(C).

Defendant has moved for summary judgment claiming that the documents and portions of the documents denied to plaintiff fall within the privileges of 5 U.S.C. § 552(b)(5) and (b)(7) and therefore were properly withheld by defendant. The eight documents withheld entirely are pre-decisional recommendations, deliberations, opinions and suggestions as to how the IRS should respond to questions posed by plaintiff with respect to the Service’s authority to collect taxes. These documents are individually described in detail in Moreno’s affidavit.

The IRS argues that these eight documents fall within the intra-agency exemption to the FOIA, 5 U.S.C. § 552(b)(5). This exemption protects documents that would normally be privileged in civil discovery, United States v. Weber Aircraft Corp., 465 U.S. 792, -, 104 S.Ct. 1488, 1492-93, 79 L.Ed.2d 814 (1984), here the traditional governmental privilege, see NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504, 1516, 44 L.Ed.2d 29 (1975); Lead Industries Ass’n, Inc. v. OSHA, 610 F.2d 70 (2d Cir.1979). The eight documents withheld were generated by the IRS in deciding within the agency how to respond to what the agency determined were typical “tax protestor” questions posed by the plaintiff with respect to the Service’s authority to assess and collect taxes from the plaintiff. These documents are of the type of internal working papers formulating and expressing opinions and policies of the IRS which the intra-agency exemption shields from disclosure under the FOIA, see International Paper Co. v. Federal Power Commission, 438 F.2d 1349 (2d Cir.), cert. denied, 404 U.S. 827, 92 S.Ct. 61, 30 L.Ed.2d 56 (1971), and therefore defendant properly asserted the exemption from disclosure under 5 U.S.C. § 552(b)(5).

The documents which were provided to plaintiff with deletions of the names of IRS personnel are claimed to have been properly partially deleted under the following disclosure exemption:

investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ... (C) constitute an unwarranted invasion of personal privacy

5 U.S.C. § 552(b)(7). These documents, according to the IRS, were generated with respect to plaintiff’s tax liability. Investigations by the IRS into civil or criminal tax liability constitute “investigatory records compiled for law enforcement purposes.” See Williams v. IRS, 345 F.Supp. 591, 593 (D.Del.1972), aff'd, 479 F.2d 317 (3d Cir.), cert. denied, 414 U.S. 1024, 94 S.Ct. 448, 38 L.Ed.2d 315 (1973). Upon considering “the privacy interest and the extent of the invasion thereof against the public interest in disclosure ...” Diamond v. FBI, 532 F.Supp. 216, 244 (S.D.N.Y.1981), aff'd, 707 F.2d 75 (2d Cir.1983), cert. denied, 465 U.S. 1004, 104 S.Ct. 995, 79 L.Ed.2d 228 (1984), the names of the “lower level” IRS employees were properly deleted under 5 U.S.C. § 552(b)(7).

Plaintiff moved for summary judgment on two grounds: (1) defendant failed to file its answer within the 30-day statutory period provided in 5 U.S.C. § 552(a)(4)(C), and (2) defendant did not answer the complaint properly. As to plaintiff’s first contention, defendant did file its answer within the 30-day period: the complaint was filed on December 3, 1984, service was effected thereafter and defendant filed an answer on January 2, 1985. Based on the discussion above, defendant’s answer is not improper in that it sets forth as an affirmative defense the exemptions claimed by the IRS, 5 U.S.C. § 552(b)(5) and (b)(7).

Plaintiff also moved for a default judgment for the agency’s failure to proceed diligently in this litigation. Although the answer was filed within the statutorily-prescribed period, plaintiff in his request for default judgment requests the court to take notice of the government’s general dilatory attitude toward this litigation. Plaintiff bases his argument on 5 U.S.C. § 552(a)(4)(D) which provided that a court is to give FOIA cases priority. This statutory provision was repealed on Nov. 8, 1984. Pub.L. No. 98-620, Title IV, § 402(2), 98 Stat. 3357 (1984). Plaintiff’s complaint was filed after the date the statute was repealed so that statute is inapplicable to plaintiff’s present lawsuit. Plaintiff also asserts that the government’s request for an adjournment of the date for oral arguments on these motions entitles him to relief under Rule 56(g), Fed.R.Civ.P. However, there is no evidence of bad faith on the part of the defendant in making this routine request which was granted by the court. Therefore plaintiff is not entitled to relief under Rule 56(g). Because defendant has proceeded generally in a timely manner Rule 55(e), Fed.R.Civ.P. prevents this court from granting plaintiff’s motion for a default judgment.

In conclusion, this court determines that the IRS properly claimed the intra-agency and governmental privilege exemptions to the disclosure request by plaintiff of IRS records. Defendant is hereby granted summary judgment in its favor; plaintiffs motion for summary judgment and for an award of costs under 5 U.S.C. § 552(a)(4)(E) is denied; plaintiffs motion for a default judgment and for relief under Rule 56(g), Fed.R.Civ.P. is denied.

IT IS SO ORDERED.


text:
    The DEPARTMENT OF WILDLIFE CONSERVATION of the STATE OF MISSISSIPPI, Plaintiff, v. Robert A. JANTZEN, Director, United States Fish and Wildlife Service and Donald Hodel, Secretary, Department of the Interior of the United States of America, Defendants.
    Civ. A. No. J85-0832(L).
    United States District Court, S.D. Mississippi, Jackson Division.
    Sept. 30, 1985.

      W.O. Chet Dillard, Sp. Asst. Atty. Gen., Jackson, Miss., for plaintiff.
    Daniel E. Lynn, Asst. U.S. Atty., Jackson, Miss., Jean E. Williams, U.S. Dept. of Justice, Washington, D.C., for defendants.
   MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause came before the court on the motion of the plaintiff, Mississippi Department of Wildlife Conservation (MDOWC), for a preliminary injunction requiring defendants, Robert A. Jantzen, Director, United States Fish and Wildlife Service, and Donald Hodel, Secretary, Department of the Interior of the United States of America, to retain January 31 as the closing date of the Mississippi duck hunting season. The parties submitted briefs and, at a hearing, presented witnesses and offered exhibits into evidence. The court is of the opinion that plaintiff’s motion for preliminary injunction should be denied.

In July of 1976, the MDOWC requested approval of an experimental duck hunting season in Mississippi. In November 1979, the MDOWC and the United States Fish and Wildlife Service (FWS) entered a memorandum of agreement allowing for an extension of the 1979-80, 1980-81 and 1981-82 Mississippi duck hunting seasons from January 20, the framework closure date for other states in the Mississippi Flyway, to January 31. The agreement further provided that MDOWC’s final report on the experimental late hunting season, unless extended, would be due before the 1982 summer Flyway Council meeting and that the final decision regarding future late hunting seasons would be made by FWS following completion of the study and review of the final report. The experimental season extension was renewed by subsequent memorandum of agreement whereby the January 31 closure date was approved for the 1982-83, 1983-84 and 1984-85 seasons.

On March 14, 1985, Lon Strong, Executive Director of the MDOWC, wrote Dr. Rollin Sparrowe, Chief of the Migratory Bird Management Office of the FWS, to request continuation of the January 31 closure date for the 1985-86 season. He also sought to delay submission of the final report on the Mississippi experiment in order to use final harvest data to be compiled by FWS. Robert Jantzen, Director of the FWS, responded by letter dated May 9, 1985, stating that, because of the recent drought in the prairie breeding grounds and the consequent declining population of the mallard, the service would not consider extending the season. Jantzen noted that late hunting seasons present the potential for increased mallard harvest at a critical stage in their life cycle. He furthermore approved Mississippi’s request to delay submission of its final report. Strong repeated his request for an extended season by letter to Jantzen dated May 29, 1985.

FWS published in 50 Fed.Reg. 23459 (June 4, 1985) its proposal to return Mississippi to the Mississippi Flyway framework. Following issuance of the 1985 Status of Waterfowl and Fall Flight Forecast and public meetings in Denver and Washington, D.C. which were attended by representatives of MDOWC, FWS published its proposed Mississippi Flyway framework dates as October 8 through January 13 and its responses to comments regarding the proposed season dates. FWS noted a statement presented by a representative of the MDOWC and 81 other comments regarding the closure date of the Mississippi season. The FWS iterated its continued desire to review the final report to be submitted on the Mississippi experiment; because, however, of the declining status of mallards and the substantial impact of late season hunting, the FWS stated that the Mississippi season should not be extended pending receipt of the final report. On September 5, 1985, the final frameworks were published as October 5, 1985 through January 13, 1986. See 50 Fed.Reg. 36198 (Sept. 5, 1985).

The criteria for the issuance of a preliminary injunction are well settled in the Fifth Circuit. The moving party must demonstrate:

1. A substantial likelihood that the movant will prevail on the merits;

2. A substantial threat that the movant will suffer irreparable injury if the injunction is not granted;

3. That the threatened injury to the movant outweighs the threatened harm the injunction may do to the nonmoving party; and

4. That granting the preliminary injunction will not disserve the public interest. Canal Authority v. Callaway, 489 F.2d 567, 572 (5th Cir.1974). A preliminary injunction is extraordinary relief and should only be granted upon a clear showing by the plaintiff. Id.

The scope of this court’s review of the FWS decision is governed by 5 U.S.C. § 706 which provides in part:

The reviewing court shall—
(2) hold unlawful and set aside agency action, findings, and conclusions found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

See Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973). Only questions of fact are subject to the “arbitrary and capricious” standard; “questions of law ... are freely reviewable by the courts.” Coca Cola Co. v. Atchison, Top. & S.F.Ry. Co., 608 F.2d 213, 218 (5th Cir.1979); See Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897, 904 (5th Cir.1983). Review is further limited to the administrative record made in the proceedings before the FWS.

Plaintiff first charges that the decision of FWS to restrict Mississippi to the flyway closure date was arbitrary and capricious and not in accordance with law. 16 U.S.C. § 704, which provides the statutory authority for creation of hunting seasons by FWS, states:

Subject to the provisions and in order to carry out the purposes of the conventions, referred to in section 703 of this title, the Secretary of the Interior is authorized and directed, from time to time, having due regard to the zones of temperature and to the distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of such birds, to determine when, to what extent, if at all, and by what means, it is compatible with the terms of the conventions to allow hunting, taking, capture, killing, possession, sale, purchase, shipment, transportation, carriage, or export of any such bird, or any part, nest, or egg thereof, and to adopt suitable regulations permitting and governing the same, in accordance with such determinations, which regulations shall become effective when approved by the President.

Defendants’ decision was based on the declining status of mallards and the substantial impact caused by late hunting seasons. Ken Gambell, wildlife biologist for FWS, acknowledged that the correlation between hunting and duck mortality is only suggestive and not conclusive. He further testified that the present status of mallards is unprecedented and FWS decided that a conservative approach was necessary to prevent further decline. The fact that FWS has allowed other states in the Mississippi Flyway to extend the framework season cannot be interpreted as discrimination against Mississippi. The extensions allowed to other states are all limited to the beginning of the seasons and have little impact on mallard population. Plaintiff’s claims that defendants’ decision is not in accordance with law for its failure to consider specifically all the factors set out in 16 U.S.C. § 704 must also fail. The evidence did not establish that defendants did not consider all the factors. Furthermore, the unprecedented declining mallard population clearly justified the limitations on hunting seasons, regardless of the effect of consideration of other factors.

Plaintiff next argues that defendants breached their agreement. All witnesses, including those of the plaintiff, testified that no agreement is currently in effect. Plaintiff apparently contends that FWS had some obligation to continue the extension pending submission of the final report on the experiment. Such an obligation is clearly not embodied in either of the agreements and plaintiff failed to establish the existence of any practice of FWS that would imply such a duty.

Plaintiff finally argues that, in the rulemaking process, defendants denied plaintiff a fair hearing and failed to use information and facts compiled by plaintiff in establishing the 1985-86 frame work. Plaintiff and its representatives participated in all aspects of the process. In the Federal Register, defendants responded to comments made by plaintiff and others challenging the return of Mississippi to the framework closure dates. The final report of the Mississippi experiment was not considered because it has not been submitted, although the testimony did not establish that FWS failed to consider preliminary data from the study or any other information submitted by the plaintiff during the comment period. In any event, the study agreements only obligated FWS to review the final report before making a final decision, which FWS has not yet made.

Accordingly, this court is of the opinion that plaintiff has not established a substantial likelihood of success on the merits of its claims.

Plaintiff further fails to show that the harm it will suffer absent issuance of the injunction outweighs any harm threatened to the defendant if the motion is granted. Plaintiff argues that, without the injunction, the state will suffer economically from a loss of revenue created by sales of duck hunting licenses and other duck hunting accoutrements. Duck hunters will be irreparably injured, according to the plaintiff, by the loss of companionship and comradery experienced in the blinds. These alleged losses, while certainly serious to one experiencing them, cannot compare with the threatened danger to defendants, and the general public, of the risk of loss of the mallard duck,

It is, therefore, ordered that plaintiff’s motion for preliminary injunction is denied.

      . The Mississippi Flyway, one of four migratory flyways in the United States, is composed of fourteen states.

      . Counsel for plaintiff stated in closing argument that the Administrative Procedure Act is not applicable to the instant case, citing Humane Society v. Watt, 551 F.Supp. 1310, 1318 n. 2 (D.C.D.C.1982), aff'd, 713 F.2d 865 (1983), wherein the court rejected the argument of National Wildlife Federation that
      the court should apply strict scrutiny tests to determine whether defendants’ actions here have a rational basis in the record. It argues that the intensity of the scrutiny a court should give to agency action depends upon several factors, including whether the action represents a major change in public policy, whether the action appears on its face to be contrary to congressional intent, whether there has been an evidentiary hearing below, and whether all relevant factors have been considered.
      Even if plaintiff had established, as it contended in argument, that defendants failed to consider all of the elements set out in 16 U.S.C. § 704, a review of the facts of this case makes it clear that plaintiff has not demonstrated the necessity of a stricter standard.

      . Counsel for defendants informed the court that the administrative record has not yet been compiled and is, accordingly, not available for the court to review in its determination of whether a preliminary injunction should be issued. Counsel for defendants furthermore represented that the evidence before the court comprises a sufficient portion of the administrative record from which the court can determine whether the FWS decision is arbitrary and capricious. Plaintiff contends that the administrative record is not necessary pursuant to its argument which this court rejects in footnote 2.

      . Billy Joe Cross, a representative of Ducks Unlimited, a conservation organization, challenged the accuracy of FWS’ numbers but stated that, were the numbers accurate, he would disallow duck hunting seasons altogether.

      . Iowa was allowed to use a small part of its season in September rather than during the regular framework. The experience has been that the mallard harvest decreased as a result of allowing this pre-framework extension. Kentucky and Tennessee were also allowed extensions at the beginning of the framework season which were limited to teal and wood duck hunting. The western portion of Louisiana has been experimentally placed in the Central Flyway rather than the Mississippi Flyway and allowed to utilize the framework dates for the Central Flyway.

      . The information upon which plaintiff is waiting to complete its study has not been released yet by FWS. The delay, however, cannot be blamed on FWS since such information is generally not available at this time and plaintiff, in May 1985, requested a delay so that this particular information could be used.

      . A witness for the plaintiff, an avid duck hunter, testified that the sport requires the leasing of land and purchase of shells, guns, licenses and a four-wheel drive vehicle.