author: BARRINGTON D. PARKER, District Judge:

text:
    James P. McKELVEY, Plaintiff, v. Harry N. WALTERS, Administrator of Veterans Affairs, et al., Defendants.
    Civ. A. No. 83-2063.
    United States District Court, District of Columbia.
    Oct. 19, 1984.

      Keith A. Teel, Douglas E. Winter, Covington & Burling, Washington, D.C., for plaintiff.
    Loretta Reid Pitt, Dept, of Justice, Washington, D.C., for defendants.
   MEMORANDUM OPINION

BARRINGTON D. PARKER, District Judge:

The plaintiff, James P. McKelvey, a former alcoholic, challenges the Veterans Administration’s (“V.A.”) denial of his request for an extension of the cut-off date for the use of his educational benefits as an honorably discharged veteran. McKelvey’s request was denied because the V.A., relying upon a regulation prohibiting extensions on the basis of “willful misconduct,” 38 C.F.R. § 3.301(c)(2), considered that his alcoholism was the result of his own willful misconduct.

The issue now presented for determination by the Court is whether the regulation is arbitrary, irrational and exceeds the agency’s statutory authority by denying lawful benefits to veterans who suffer from alcoholism. The plaintiff’s challenge arises under the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), and the due process and equal protection prongs of the Fifth Amendment. The plaintiff’s challenge also calls for consideration of his claim that in denying his request for relief, his rights under the Rehabilitation Act of 1973, 29 U.S.C. § 794, which prohibits discrimination against alcoholics, were violated.

This matter comes before the Court on cross motions for summary judgment filed by the parties and the defendants’ motion to dismiss. The Court determines that the V.A. regulation, 38 C.F.R. § 3.301(c)(2), discriminates against alcoholics in violation of the Rehabilitation Act. Summary judgment is therefore granted to the plaintiff on this claim.

FACTUAL BACKGROUND

The facts in this case are essentially undisputed. In 1977, Mr. McKelvey applied for veterans’ education benefits pursuant to 38 U.S.C. § 1661. As the result of his service in the United States Army, he was entitled to thirty-six months of benefits, id., so long as he utilized them within ten years of his discharge from active duty. 38 U.S.C. § 1662(a)(1). He was honorably discharged from the Army on September 9, 1966. Thus, he was required to utilize his benefits prior to September 10, 1976, unless he “was prevented from initiating or completing [his] education ... because of a physical or mental disability which was not the result of [his] own willful misconduct.” Id. In his 1977 application for such benefits, he sought an extension of the September 1976 deadline on the grounds that his alcoholism had prevented him from using the benefits earlier.

On May 1, 1978, the regional office of the Veterans Administration denied Mr. McKelvey’s request for an extension. That office informed him that an extension was unwarranted because his alcoholism constituted “willful misconduct.” Under the governing law, any disease which follows from an individual’s “willful misconduct” precludes an extension of the ten-year delimiting date. The regional office accepted McKelvey’s admission that he was an alcoholic, but made no additional findings of fact. The plaintiff appealed this decision to the Board of Veterans Appeals (“Board”); and after a hearing, the appeal was denied on August 6, 1980.

The Board found that the plaintiff did not suffer from an underlying psychiatric problem which gave rise to his alcoholism, and that his alcoholism did not cause a separate disability which by itself would support an extension. In reaching this decision, the Chairman of the Board stated that 38 C.F.R. § 3.301(c)(2) precluded consideration of any evidence concerning the plaintiff’s alcoholism other than:

evidence that the alcoholism may have been secondary to a psychiatric or organic condition of some kind ... or alternatively, [evidence] that there were other conditions either psychiatric or organic which in themselves would have precluded [him] from pursuing a course of education during the relevant period.

Memorandum of Law in Support of Defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment (“Defendants’ Memorandum”), Ex. 6, Tab I at 15-16. In essence, the Board found that the plaintiff suffered from primary alcoholism, and concluded that his request for an extension must be denied. Id., Tab H at 6.

On February 23, 1982, the Board affirmed its earlier decision on reconsideration, and on July 20,1983, the plaintiff filed this complaint challenging the denial of his request for an extension.

LEGAL ANALYSIS

A.

Jurisdiction

Initially, the Court must resolve the defendants’ contention that 38 U.S.C. § 211(a) bars judicial review of the Board’s decision, and deprives this Court of jurisdiction over the statutory issues raised in the plaintiff’s complaint. Here, the plaintiff does not seek review of any factual findings of the Veterans Administration; instead, he seeks a judicial determination that a regulation promulgated by the V.A. is contrary to Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 and exceeds the agency’s statutory authority. Thus, the issue presented is a narrow one: whether section 211(a) deprives a federal court of jurisdiction over a purely legal challenge to a V.A. regulation which asserts that the regulation is contrary to other federal statutes.

Although the issue is narrowly circumscribed, it is by no means simple. In Kirkhuff v. Nimmo, 683 F.2d 544, 548 (D.C.Cir. 1982), the Court reversed the lower court’s finding that a V.A. regulation was arbitrary and capricious. In deciding the case on the merits, the Court deftly avoided deciding what it termed the “difficult question” of “[t]he extent to which Veterans Administration decisions are exempt from [judicial] review.” Id. Thus, the Court avoided confronting the lower court’s determination that section 211(a) did not bar jurisdiction over the plaintiff’s statutory challenges. Kirkhuff v. Cleland, 516 F.Supp. 351, 360 (D.D.C.1981).

A number of other circuits have considered whether section 211(a) divests federal courts of jurisdiction over nonconstitutional challenges to V.A. regulations, and a majority have held this section does not prevent judicial review of challenges to the V.A.’s authority to promulgate regulations. See, e.g., Evergreen State College v. Cleland, 621 F.2d 1002, 1008 (9th Cir.1980); University of Maryland v. Cleland, 621 F.2d 98, 100-01 (4th Cir.1980); Merged Area X (Education) v. Cleland, 604 F.2d 1075, 1078 (8th Cir.1979); Wayne State University v. Cleland, 590 F.2d 627, 631 (6th Cir.1978). Contra Anderson v. Veterans Administration, 559 F.2d 935, 936 (5th Cir.1977). The seminal case upholding jurisdiction is Wayne State, where the Sixth Circuit explicitly found that it had the power to consider a claim that a V.A. regulation governing veterans’ education benefits was promulgated without statutory authority. 590 F.2d at 629-31.

This Court adopts the reasoning of the Wayne State decision and its progeny, and finds that it has jurisdiction over the plaintiff’s statutory challenges. The specific Wayne State holding that a court has jurisdiction to consider whether the V.A. has exceeded its statutory authority applies with equal force in this case. Moreover, the court’s rationale for exercising jurisdiction over the Administrative Procedure Act claim provides even stronger support for jurisdiction over the Rehabilitation Act claim in this case. .Under Wayne State, judicial review is permissible where it would neither “involve the courts in the complex and technical niceties of V.A. policy,” 590 F.2d at 632 (emphasis added), nor “spawn suits requesting federal courts to second guess the Administrator on the merits of particular claims for benefits or the termination of such benefits.” Id. at 631 (emphasis added).

Here, the plaintiff’s challenge is not limited to a particular claim for benefits, but instead, raises the broader legal issue of whether a V.A. regulation of general application violates a federal statute. Moreover, the federal statute in question is completely independent of the complex statutory and regulatory scheme for dispersing veterans’ benefits. This means that the Veterans Administration has no special expertise in measuring the validity of its regulations against the Rehabilitation Act. Accordingly, this Court will exercise jurisdiction over the statutory claims presented by the plaintiff, and turn to the merits of his contentions.

B.

Propriety of the Willful Misconduct Regulation Under the Administrative Procedure Act

Plaintiff’s counsel argues that the willful misconduct regulation prohibits a finding that primary alcoholism is a disease, and preempts Congress’ directive that extensions of delimiting dates shall be granted “in the case of any eligible veteran who was prevented from initiating or completing such veteran’s chosen program of education ... because of a physical or mental disability which was not the result of such veteran’s own willful misconduct.” 38 U.S.C. § 1662(a)(1). Thus, the plaintiff contends that the regulation exceeds the V.A.’s statutory authority and is “arbitrary, capricious, ... or otherwise not in accordance with law” within the meaning of the Administrative Procedure Act (“APA”). 5 U.S.C. § 706(2)(A).

Despite the defendants’ arguments to the contrary, the plaintiff correctly states that the language of the willful misconduct regulation and its application by the Board precludes a determination that primary alcoholism is a disease which permits an extension of the delimiting dates. Under the language of 38 C.F.R. § 3.301(c)(2), willful misconduct is conclusively presumed “[i]f in the drinking of a beverage to enjoy its intoxicating effects, intoxication results approximately and immediately in disability or death.” Moreover, the Veterans Administration has also adopted an interpretation which is consistent with this analysis. As the chairman of the hearing conducted by the Board in July 1980 explained:

As far as we are concerned at the Board [], we don’t have discretion to say that primary alcoholism is a disease____ [W]e have no authority to do that, we’re bound by those regulations.

Defendants’ Memorandum, Ex. 6, Tab I at 16.

While section 3.301(c)(2) singles out alcoholism for disfavored treatment, it does not contravene any implicit or explicit congressional intent. Contrary to the plaintiff’s contention, the statute does not mandate that a finding of “willful misconduct” must turn on an issue of fact. Rather, the statute is silent on the parameters of “willful misconduct,” and the V.A. has promulgated regulations, including section 3.301(c)(2), which are intended to give meaning to the term.

In the absence of a more explicit congressional directive, this promulgation is clearly within the agency’s

... authority to make all rules and regulations which are necessary or appropriate to carry out the law administered by the Veterans Administration and are consistent therewith____

38 U.S.C. § 210(c)(1). As this Circuit has noted, section 210(c)(1) gives the V.A. “the primary responsibility for interpreting and applying the various veterans’ benefits statutes.” Kirkhuff v. Nimmo, 683 F.2d at 549. The appropriate standard of review for the V.A.’s construction of a veterans’ benefit statute is thus:

whether the [agency’s] construction was ‘sufficiently reasonable’ to be accepted by a reviewing court____ To satisfy this standard it is not necessary for a court to find that the agency’s construction was the only reasonable one or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.

Id. (citing FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 46, 102 S.Ct. 38, 49, 70 L.Ed.2d 23 (1981)).

Here, the V.A.’s construction of the statute would pass muster even under a less deferential standard of review. The legislative history of Pub.L. No. 95-202, 91 Stat. 1433, the statute which adopted the exception to the utilization of education benefits within ten years of military discharge, shows Congress’ intent to incorporate the Veterans Administration’s existing interpretation of “willful misconduct” into existing law. The report of the Veterans’ Affairs Committee stated that in determining willful misconduct:

the Committee intends that the same standards be applied as are utilized in determining eligibility for other VA programs under title 38. In this connection, see 38 C.F.R., part III, paragraphs 3.1(n) and 3.301____

S.Rep. No. 468, 95th Cong., 1st Sess. 69-70, reprinted in 1977 U.S.Code Cong. & Ad. News 3747, 3805-06. This passage indicates that Congress believed that the V.A.’s construction of willful misconduct was the proper one.

Even if the statement in the Senate report can be discounted as but a single, isolated instance of congressional acceptance of the V.A.’s interpretation, this Court must defer to the agency’s construction of the statute because Congress has never overridden this interpretation. Kirkhuff v. Nimmo, 683 F.2d at 549. Here, deference is due because Congress has not repudiated the V.A.’s construction of the “willful misconduct” regulation, which was promulgated befóre the enactment of 38 U.S.C. § 1662. In fact, the Senate has affirmed the V.A.’s longstanding interpretation of willful misconduct, stating that “in light of the legislative history, the V.A. has had little choice but to deny such extensions involving alcohol and drug abuse or addiction disabilities.” S.Rep. No. 314, 96th Cong., 1st Sess. 9, 25 (1979).

Moreover, Congress has subsequently rejected attempts to amend the statute to provide that primary alcoholism is not per se willful misconduct. Although the Senate Veterans’ Affairs Committee proposed an amendment (S.870) to 38 U.S.C. § 1662(a)(1) which would have removed recovered alcoholics from the scope of a per se finding of willful misconduct, see S.Rep. No. 314, 96th Cong., 1st Sess. (1979), the Veterans’ Affairs Committees of both houses reached a compromise on the bill which rejected this amendment. 126 Cong. Rec. 27,355 (joint explanatory statement of Veterans’ Rehabilitation and Education Amendments of 1980) (“joint statement”), 27,578 (remarks of Sen. Cranston), 27,585 (joint statement) (1980). The compromise agreement was enacted on October 17, 1980 as Pub.L. 96-466, 94 Stat. 2171.

A similar scenario occurred in 1981, when Senator Cranston introduced an amendment (S. 458) which would have “put alcohol and drug disabilities on essentially the same footing as other disabilities with respect to delimiting and eligibility period restrictions.” A bill containing this amendment was passed by the Senate on June 16, 1981, but a compromise between the two Veterans’ Affairs Committees once again eliminated the amendment. 127 Cong.Rec. H6814 (daily ed. Oct. 2, 1981).

C.

The Willful Misconduct Regulation Violates the Rehabilitation Act

1.

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, proscribes discrimination in federal programs and grants and provides that:

No otherwise qualified handicapped individual in the United States, as defined in section 7(7) [29 U.S.C. § 706(7)], shall, solely by reason of his handicap, ... be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service____

In 1978, Congress amended Section 505(a)(2) of the Rehabilitation Act, by specifically providing that:

The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 [42 U.S.C. § 2000d et seg.] shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 504 of this Act [29 U.S.C. § 794].

29 U.S.C. § 794a(a)(2). Title VI of the Civil Rights Act of 1964 (“Title VI”), 42 U.S.C. § 2000d, bars a wide variety of discrimination in programs receiving federal financial assistance.

Although the majority of cases litigated under section 504 have alleged employment discrimination, see, e.g., Consolidated Rail Corp. v. Darrone, — U.S. -, 104 S.Ct. 1248, 1254 n. 13, 79 L.Ed.2d 568 (1984), the discrimination prohibited under section 504 is by no means confined to employment discrimination claims. See, e.g., Smith v. Robinson, — U.S.-, 104 S.Ct. 3457, 3473 n. 22, 82 L.Ed.2d 746 (1984) (education discrimination).

2.

In this case, Mr. McKelvey asserts that he suffered discrimination on the basis of his handicap by virtue of a V.A. regulation which treats primary alcoholism differently than other disabilities for purposes of granting extensions of the ten-year delimiting period. As an alcoholic, he is an “otherwise qualified handicapped individual” within the meaning of the Rehabilitation Act, 29 U.S.C. § 706(7)(B), and is protected from discrimination solely on the basis of this status. 43 Op.Atty.Gen. No. 12, at 2 (April 12, 1977).

Moreover, the willful misconduct regulation discriminates against McKelvey on the basis of his handicap: primary alcoholism. The Board’s interpretation of the regulation precluded it from considering relevant evidence which was causally related to his handicap. For instance, the fact that he began drinking alcohol at age 13 and other information concerning his family’s history of alcoholism were considered evidence of primary alcoholism, and could not legally rebut the presumption of willful misconduct. This interpretation means that a showing that an individual suffers from alcoholism as a primary disease, without an accompanying psychiatric disorder or secondary illness, could never overcome the presumption of willful misconduct.

On the other hand, other individuals who seek an extension of the ten-year delimiting date are not conclusively presumed to be guilty of willful misconduct. With respect to nonalcoholics, willful misconduct “involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences.” 38 C.F.R. § 3.1(n)(l). These individuals, unlike alcoholics, are not required to prove the existence of a secondary disease in order to escape a finding of willful misconduct with respect to their primary condition. Thus, the conclusive presumption of willfulness is directed at alcoholics, and constitutes discrimination on the basis of handicap.

Given that the V.A. regulation discriminates against Mr. McKelvey and other primary alcoholics, the Court next considers the government’s justification for its overtly discriminatory policy. At a minimum, the government must assert a rational justification for any policy which discriminates on the basis of handicap. See Jennings v. Alexander, 715 F.2d 1036, 1044 (6th Cir.1983) (disparate impact analysis). Where a regulation facially discriminates against a class of individuals on the basis of their handicap, it is at least arguable that the government must satisfy a greater burden of proof — such as a substantial justification for its discriminatory policies. For instance, in Shirey v. Devine, 670 F.2d 1188, 1204 (D.C.Cir.1982), the Court held that section 501 of the Rehabilitation Act, 29 U.S.C. § 791, does not permit disparate treatment absent a “substantial governmental justification.” Here, even if the government is only required to articulate a rational justification, the V.A.’s three asserted justifications for the “willful misconduct” regulation are grossly deficient. The sufficiency of these justifications may be resolved on motions for summary judgment. See Shirey v. Devine, 670 F.2d at 1191, 1203-04.

First, the government argues that the regulation represents the V.A.’s reasonable determination that alcoholism is a voluntary handicap. Second, the government argues that an irrebutable presumption that alcoholism is a voluntary condition will reduce problems of proof. Third, the government contends that financial resources for veterans are limited, and administrative cost considerations justify differential treatment of alcoholics.

None of these reasons adequately supports discrimination against individuals who suffer from alcoholism as a primary disease. While the contention that alcoholism is a voluntary handicap is superficially plausible, it is factually incorrect because the regulation itself permits a finding of “involuntariness” if alcoholism is accompanied by an additional disability. Moreover, the arguments with respect to questions of proof and cost savings miss the mark entirely. A regulation which forbid all handicapped persons from receiving education benefits would even more clearly meet the objective of cost savings, but it cannot be seriously argued that such a practice would satisfy the requirements of the Rehabilitation Act.

In the absence of some justification for the V.A.’s discriminatory practices, the willful misconduct regulation, as applied to primary alcoholics, violates the Rehabilitation Act. The Court notes that this conclusion is fully supported by the recent well-reasoned decision in Tinch v. Walters, 573 F.Supp. 346, 348 (E.D.Tenn.1983), appeal docketed, No. 83-5926 (6th Cir. Dec. 12, 1983), where the Court also determined that the V.A.’s application of the willful misconduct regulation violated the Rehabilitation Act.

This Court’s findings under the Rehabilitation Act make short shrift of the government’s argument that sovereign immunity bars the plaintiff’s claim for benefits. The relief available under section 505(a)(2) of the Act, 29 U.S.C. § 794a(a)(2), includes a claim for back pay, Consolidated Rail Corp. v. Darrone, 104 S.Ct. at 1252, and by analogy, also includes a claim for education benefits wrongfully withheld. Thus, the doctrine of sovereign immunity does not apply in this case because the government has consented to suit. Frazier v. Merit Systems Protection Board, 672 F.2d 150, 168 (D.C.Cir.1982).

CONCLUSION

The plaintiff should prevail on his claim that the willful misconduct regulation, 38 C.F.R. § 3.301(c)(2), violates the Rehabilitation Act. The willful misconduct regulation, however, does not exceed the defendants’ statutory authority under 38 U.S.C. § 210(c)(1), nor is it contrary to 38 U.S.C. § 1661 or 1662(a)(1). The Court reaches no conclusion with respect to the constitutional issues raised in the plaintiff’s complaint.

In light of the above findings, this case is remanded to the Veterans Administration for consideration of whether the plaintiff’s alcoholism constituted “willful misconduct” within the meaning of the statute. Kirkhuff v. Cleland, 516 F.Supp. at 369. Although the V.A. improperly denied McKelvey benefits on the basis of the willful misconduct regulation, the agency must still determine whether the plaintiff is entitled to benefits, notwithstanding the invalid regulation. Under 38 U.S.C. § 211(a), this determination is within the exclusive purview of the V.A., and is not subject to judicial review.

An appropriate Order accompanies this Memorandum Opinion.

      . The Court is pleased to note that the plaintiff has apparently conquered his drinking problem. He reports that he has abstained from alcohol since 1975 and has been employed full time for a considerable period. During the past four years he has been employed as an alcoholism counselor by Montgomery County, Maryland.

      . Section 3.301(c)(2) provides:

        Alcoholism. The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results approximately and immediately in disability or death, the disability or death will be considered the result of the person’s willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin.

      . Section 211(a) provides in relevant part that: the decisions of the Administrator on any question of law or fact under any law administered by the Veterans’ Administration providing benefits for veterans ... shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision____

      . Although the plaintiff also asserts equal protection and due process claims, the Court declines to decide these issues under the established principle that unnecessary adjudication of constitutional issues should be avoided. Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1933).

      . Despite its reluctance to consider the jurisdictional issue, the Court apparently accepted the availability of judicial review in the "constitutional arena.” Id.; see Ralpho v. Bell, 569 F.2d 607, 620 (D.C.Cir.1977).

      . The antidiscrimination provisions of Title VI provide that:
      No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
      42 U.S.C. § 2000d.

      . A few other luckless individuals, such as drug addicts, are also covered by special provisions governing “willful misconduct.” See 38 C.F.R. § 3.301(c)(3), 3.302.


source: Caselaw Access Project

author: BATTISTI, Chief Judge.

license: Public Domain

text:
    Stephen J. GDOVIN, et al., Plaintiffs, v. CATAWBA RENTAL CO., INC., et al., Defendants.
    No. C84-2419.
    United States District Court, N.D. Ohio, E.D.
    Oct. 19, 1984.
    Louise M. Klubert, James M. Kehn & Assoc., Cleveland, Ohio, for plaintiffs.
    Frank Soldat, Cleveland, Ohio, for defendants.
   MEMORANDUM OPINION AND ORDER

BATTISTI, Chief Judge.

Defendants have moved for a change of venue, transferring the above-captioned case from this Court to the United States District Court, Southern District of West Virginia, Beckley Division, under 28 U.S.C. § 1404(a). For the reasons outlined below, this Court denies Defendants’ Motion for Change of Venue and retains this action in the Northern District of Ohio, Eastern Division.

I.

On March 25, 1988, Plaintiffs Stephen J. Gdovin and Margaret D. Gdovin, residents of the State of Ohio, were travelling by car north on the West Virginia Turnpike near Mile Post 43. Plaintiff Margaret D. Gdovin was driving the car, a 1980 Oldsmobile, at the time. Plaintiffs’ car collided with a tractor-trailer owned by Defendants. Defendant Victor Fulbright, an employee of Defendants Southern Furniture, Inc. and Catawba Rental Company, was driving the truck at the time of the collision. Fulbright as well as the two corporate defendants are all residents or domiciled in the state of North Carolina. Plaintiffs sustained multiple injuries as a result of the collision and brought this action on July 31, 1984. This Court exercises its diversity jurisdiction pursuant to 28 U.S.C. § 1332.

II.

“For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). It is clear that Plaintiffs could have originally brought this action in the Southern District of West Virginia [hereinafter referred to as the transferee district] since the allegedly negligent acts of the Defendants and the situs of the collision occurred in that district; venue, jurisdiction and service of process would all have been proper there in the first instance. See Sherman v. Moore, 86 F.R.D. 471 (S.D.N.Y.1980); Miller v. Cousins Properties, Inc., 378 F.Supp. 711 (D.Vt.1974); see also 28 U.S.C. § 1391(a).

Having satisfied the requirement that the transferee district be one in which the action could have been originally brought, this Court must consider only the convenience of the parties, the convenience of the witnesses and the interest of justice. Forest Nursery Co. v. Crete Carrier Corp., 319 F.Supp. 213 (D.C.Tenn.1969). This Court exercises broad discretion, Lemon v. Druffel, 253 F.2d 680 (6th Cir.1958), cert. denied 358 U.S. 821, 79 S.Ct. 34, 3 L.Ed.2d 62. To succeed in its motion to transfer, the moving party must show the preponderance of the balance in his favor. Crawford Transport Co. v. Chrysler Corp., 191 F.Supp. 223 (E.D.Ky.1961).

Defendant-Movant’s initial argument is that the condition of the turnpike is an element of proof and that a view of the turnpike by the finder of fact supports transfer to the district in which the turn-pike is located. However, Defendant has not stated why the view is necessary in the interest of justice. As Plaintiff notes in its Brief in opposition, Defendant has not (nor has the Plaintiff) raised the condition of the road as an issue in its pleadings. In addition to denying negligence, Defendants’ only other defense is that the negligence of third parties caused the collision. Hence, Defendant has not stated sufficient grounds to conclude justice can only be served through an inspection. See Marbury-Pattillo Constr. Co. v. Bayside Warehouse Co., 490 F.2d 155 (5th Cir. 1974). Furthermore, in collision cases, photographs of the accident scene may be used instead of an actual view of the site, making transfer unnecessary. Sell v. Greyhound Corp., 228 F.Supp. 134 (E.D.Pa. 1964).

Another factor to be considered is the availability of witnesses. Defendants contend that all of the available witnesses, namely the employees of Defendants, are in the transferee district or North Carolina. The moving party must once again do more than merely assert the appropriateness or value of a different forum for witnesses; rather, he must show that the witnesses will not attend or will be severely inconvenienced if the case proceeds in the forum district. Weltman v. Fletcher, 431 F.Supp. 448 (N.D.Ohio 1976). In the instant case, Defendants have made no such showing. The balance might shift if Defendants were moving for transfer to North Carolina, the state of their domicil. However, Defendants by transferring this action to West Virginia would still have to travel out-of-state. Given the proximity of West Virginia and Ohio, this Court cannot deem the additional distance Defendants (or their witnesses) will have to travel substantial enough to pose a serious inconvenience. Furthermore, those witnesses who are unavailable can be deposed. Securities and Exchange Commission v. Dimensional Entertainment Corp., 493 F.Supp. 1270 (S.D.N.Y.1980). It is of little value to this Court’s determination that Plaintiffs’ expert witnesses reside in Ohio; even were this matter to be transferred, expert witnesses could be found and retained in the transferee district. Berkshire International Corp. v. Alba-Waldensian, Inc., 352 F.Supp. 831 (S.D.N.Y.1972). It is more important that Plaintiffs’- treating physicians reside in Ohio. Meyers v. Freedom Newspapers, 274 F.Supp. 93 (N.D.Ohio 1967).

This Court finally places great weight on Plaintiffs’ original choice of forum. See Norwood v. Kirkpatrick, 349 U.S. 29, 75 S.Ct. 544, 99 L.Ed. 789 (1955). Since Defendants have not raised more compelling grounds to transfer, this Court is indisposed to deny Plaintiffs’ choice. Furthermore, since Plaintiffs have sustained severe injuries, it is likely that transfer would impose additional physical and financial hardship on them. It does not appear that Plaintiffs in choosing the Northern District of Ohio sought to harass or oppress Defendants by imposing unnecessary legal expenses on them. See Holiday Rambler Corp. v. American Motors Corp., 254 F.Supp. 137 (W.D.Mich.1966). Since Plaintiffs reside in Rocky River, Ohio, which is in the forum district, it can be assumed they are bringing this action in the district closest and most convenient to their home. This is Plaintiffs’ prerogative and it will not be upset by this Court.

III.

For the foregoing reasons, this Court finds that Defendant-Movant has not demonstrated the necessity of transferring the instant case to the Southern District of West Virginia. Defendants’ Motion to Change Venue is denied. This action will proceed in United States District Court, Northern District of Ohio.

IT IS SO ORDERED.

      . The Court is aware that the purpose of 28 U.S.C. § 1404(a) was to make it easier for a movant to transfer a case than under the old forum non conveniens standard. See C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction §§ 3847, 3848. Despite the difficulty of articulating the differences between the standards, this Court believes in the instant case Defendants have not met even the lower but still substantial standard under § 1404(a).


author: SIMMONS, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Michael VEATCH, Defendant.
    Crim. No. 84-38.
    United States District Court, W.D. Pennsylvania, Pittsburgh Division.
    Oct. 22, 1984.

      Timothy K. Lewis, Asst. U.S. Atty., Pittsburgh, Pa., for plaintiff.
    George Schmacher, Federal Public Defender, Pittsburgh, Pa., for defendant.
   OPINION

SIMMONS, District Judge.

Following a three count indictment for unlawful possession of an illegal firearm, the defendant, Michael Veatch, moved to suppress physical evidence stemming from an allegedly illegal arrest, search and seizure. A hearing was held on the defendant’s motion. The testimony is contradictory; the defendant vigorously disputes the government’s version of the facts. This case, therefore, pivots on the credibility of the witnesses and their stories.

I. FACTUAL BACKGROUND.

On a fall afternoon in 1983, Police Officer Vince DeCarlo was conducting an undercover investigation of a jitney stand reputed as a fencing operation for stolen goods. DeCarlo observed Louis Wisensee emerge from the front passenger seat of a 1972, fire-engine-red, Chevrolet and enter the jitney station carrying several fishing rods. The defendant, Michael Veatch, owner and operator of the vehicle, and his brother, William Veatch, sitting in the rear seat, awaited Wisensee’s return.

Officer DeCarlo observed Wisensee sell the fishing rods and then exit the jitney stand. While returning to Veatch’s automobile, Wisensee, who had had prior brushes with the law, recognized DeCarlo as an undercover police officer, and hurriedly entered the awaiting vehicle, which sped away. DeCarlo gave pursuit. With the aid of two uniformed officers in a police van, who had responded to DeCarlo’s radio call for assistance, Veatch’s vehicle was quickly stopped and its occupants apprehended.

When Veatch’s car was stopped, the officers detected the odor of paint lacquer emanating from within the passenger compartment and noted that the occupants’ faces were red and their eyes bloodshot. In plain view, on the front seat of the car, sat a gin bottle containing a clear substance. A sundry of rags soaked in paint lacquer, laid about the passenger compartment. When ordered out of the vehicle, the occupants appeared unsteady and swayed. Officer DeCarlo testified that, in his law enforcement experience, paint lacquer soaked into rags and inhaled, was a common method of “getting high.” The occupants of the vehicle were then arrested for illegal use of solvents.

Prior to the arrest, the occupants were frisked for weapons. The frisk produced a live, 12-gauge shotgun shell from the front pocket of Veatch’s trousers. When the officer discovered the shotgun shell, Veatch abruptly exclaimed: “I have a gun in the car!” The occupants were advised of their Miranda rights and a search of the automobile revealed a Harrington and Richardson, 12-gauge, single-barrel, shotgun. The weapon’s shoulder and barrel were sawed-off and the serial number obliterated; the chamber contained one live round.

In his testimony, Veatch denied that Wisensee quickly fled the jitney stand and that the car was driven erractically and speedily to avoid apprehension. Veatch also disputes the basis of the arrest. Veatch denies that the occupants had been inhaling paint lacquer and that its fumes were emanating from within the stopped vehicle, but argues that the lacquer-filled bottle was found, not at the time of the arrest, but in a subsequent inventory search after the arrest.

In addition, Veatch disputes the government’s version of the facts regarding the search of his car. Veatch testified that after he was placed under arrest, Officer DeCarlo immediately opened the trunk of Veatch’s car and discovered the weapon. Veatch denies admitting ownership of the shotgun and that his Miranda warnings were given. Although Veatch acknowledges that he was frisked at the arrest scene, he avers that the shotgun shell was not found until a second frisk which occurred at the police station. Veatch testified that two uniformed officers, who knew Veatch and his brother, came to Veatch’s cell after their incarceration, conducted a second search and discovered the shotgun shell.

II. DISCUSSION.

This case requires no protracted factual or legal analysis. At the outset, it should be noted, the defendant paints an incredulous picture and this Court accordingly discounts his version of the facts. Although corroborated by a supposedly independent observer, this Court finds incredible Veatch’s story that no chase occurred; the objective facts point to the contrary. Whether a chase occurred, however, is a question of fact to be determined by this Court from the totality of the circumstances.

Officer DeCarlo testified that when Wisensee recognized him as a police officer, Wisensee hurriedly returned to the awaiting car and Veatch speedily drove away. Wisensee was not called to testify. A seven year acquaintance of Veatch testified that he saw Veatch’s car that fall afternoon traversing on North Avenue near the arrest scene, immediately prior to the arrest, and that he observed no evidence of a chase. Veatch testified that no chase occurred, but acknowledged that Wisensee recognized DeCarlo as a law enforcement officer and informed Veatch that the officer was closely following Veatch’s ear with his emergency lights flashing.

Absent purpose of evasion, Wisensee’s statement to Veatch that they were being followed by a police officer, stands as an anomaly in the record. More telling evidence of a chase, however, is DeCarlo’s request for assistance in stopping Veatch’s automobile and the manner in which the car was stopped. Veatch testified that the officers boxed his car in with their service vehicles to impede his car’s mobility. Moreover, there is no evidence to suggest that, absent evasion, Officer DeCarlo could not have singularly stopped Veatch’s car or apprehended Wisensee before he returned to the car. Leaving aside the disputed testimony, the objective facts suggest that Veatch attempted to avoid apprehension.

A. Temporary or Investigatory Detention: Reasonable Suspicion of Criminal Activity.

It is beyond doubt that Veatch’s vehicle was lawfully stopped. The Supreme Court has long ago recognized that a temporary or investigatory detention for the purpose of investigating possible criminal behavior, even though there is no probable cause to arrest, is consistent with the Fourth Amendment’s proscription against unreasonable searches and seizures. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Circumstances short of probable cause to arrest may justify a stop for questioning. Likewise, a law enforcement officer may lawfully stop a motor vehicle and conduct a limited investigatory inquiry of its occupants. See United States v. Kelley, 462 F.2d 372, 374-75 (4th Cir.1972).

In this case, Officer DeCarlo was conducting an undercover surveillance of a business establishment known by him to be a fencing operation. After the officer witnessed Louis Wisensee, a passenger in Veatch’s car, sell fishing rods at that establishment, he was lawfully clothed with the authority to conduct a temporary investigatory detention of Wisensee to ascertain whether criminal activity was afoot. Merely because the suspect’s activity is consistent with innocent behavior or is obstensibly innocuous does not alone make a detention and a limited investigation unlawful. See United States v. Forero-Rincon, 626 F.2d 218, 221-23 (2d Cir.1980). This is so, because the “reasonable suspicion” to detain standard, which is less stringent than the “probable cause” to arrest standard, permits an investigatory stop where the facts within the officer’s knowledge and his reasonably drawn inferences support a fair suspicion that a crime is being committed. Here, an investigatory detention was warranted.

B. Probable Cause to Arrest.

To test the legality of an arrest the Court must determine whether, at the time of the arrest, the officers had probable cause to believe a crime had been committed and that the suspect had committed the crime. See Hill v. California, 401 U.S. 797, 804, 91 S.Ct. 1106, 1110, 28 L.Ed.2d 484 (1971). Probable cause has been defined as “facts and circumstances ‘sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.’ ” See Gerstein v. Pugh, 420 U.S. 103, 111-12, 95 S.Ct. 854, 861-62, 43 L.Ed.2d 54 (1975), citing, Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225-26, 13 L.Ed.2d 142 (1964). The determination of probable cause is dependent on the facts and circumstances of each case and on “practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. See Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949).

The police officer in this case testified that when Veatch’s car was stopped, the officer detected the odor of paint lacquer emanating from within the vehicle. When the officer ordered the occupants out of the car, the occupants exhibited visible signs of intoxication, and the officer saw in plain view, paraphernalia used for inhaling solvents. The officer concluded that the occupants were intoxicated from inhaling solvent fumes and placed them under arrest for illegal use of solvents.

That the officers may have wrongfully concluded that the occupants of Veatch’s motor vehicle were intoxicated from unlawfully inhaling paint lacquer does not render the arrest invalid. The Supreme Court in Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949), recognized that errors on the part of arresting officers will not invalidate an arrest if the errors are “those of reasonable men, acting on facts leading sensibly to their conclusion of probability.” Id. at 176.

In reaching the probable cause determination, a police officer must draw upon his law enforcement experience and personal knowledge and rely upon his direct observations. See United States v. White, 648 F.2d 29 (D.C.Cir.1981), cert. denied, 454 U.S. 924, 102 S.Ct. 424, 70 L.Ed.2d 233 (1981). Officer DeCarlo testified that, in his experience, inhaling paint lacquer is a common method of “getting high.” Under the circumstances of this case, the officer was armed with sufficient facts to justly conclude that solvents had been improperly used in Veatch’s vehicle and that the occupants were culpable. To this end, the officer acted as any reasonable and prudent law enforcement officer on the scene would have, given his experience and training, in arresting the occupants for illegal use of solvents. The arrest was therefore lawful.

G. The Automobile Exception to the Warrant Requirement: Warrantless Searches.

Under the automobile exception to the warrant requirement, the United States Supreme Court has adopted a common sense approach to determine whether probable cause justifies the warrantless search of a lawfully stopped vehicle. Nearly sixty years ago, the Supreme Court established that a warrantless search of a lawfully stopped vehicle, based on a reasonable or probable belief that the automobile has contraband, does not offend the Fourth Amendment. See Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). More recently, that Court held that the scope of a warrantless search under the automobile exception “is no broader and no narrower than [the facts upon which] a magistrate could legitimately issue [a search warrant]. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” See United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572 (1982). In its most recent pronouncement, the Court precisely defined the standard for probable cause determinations, noting that probable cause to conduct a warrantless search must be based on objective facts using “a practical, common sense decision whether, given all the circumstances ..., there is a fair probability that contraband or evidence of a crime will be found in a particular place.” See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

Using this standard, this Court must decide whether the officers justifiably concluded, under the totality of the circumstances, that they would discover contraband in Veatch’s automobile. Here, this Court holds that the officers had a substantial basis for concluding that there was probable cause to search the defendant’s vehicle. The Court’s conclusion is reached on three basis.

First, the automobile exception to the warrant requirement donned the officers with the legal authority to conduct a highway search of Veatch’s vehicle, because the officers had probable cause to believe that the automobile contained solvents for illegal use. The circumstances surrounding the arrest gave rise to a fair probability that Veatch had solvents in his automobile: Veatch’s car was erractically driven; the odor of paint lacquer emanated from within the car; the occupants appeared to be intoxicated; and the instrumentalities of solvent inhalation was in plain view in the passenger compartment. Under these circumstances, similar to United States v. Schecter, 717 F.2d 864, 869-70 (3d Cir.1983), this Court believes that the objective facts support the officers conclusion that they would find additional evidence of the illegal use of solvents throughout Veatch’s vehicle.

Second, a warrantless roadside search of Veatch’s vehicle was justified because the officers also had probable cause to believe that the automobile contained stolen goods. Officer DeCarlo testified that he was conducting an undercover investigation of a jitney stand when Louis Wisensee emerged from Veatch’s car, entered the stand and, once inside, sold several fishing rods. The officer had independent knowledge that the jitney stand was involved in receiving stolen goods. When Wisensee exited the stand and recognized DeCarlo as a police officer, he fled the scene in Veatch’s car. Standing alone, flight does not rise to the level of probable cause; but in light of the circumstances accompanying Wisensee’s conduct, coupled with the officer’s personal knowledge that the jitney stand was a fencing operation and his observation of an atypical sales transaction, Wisensee’s flight warranted the officer’s conclusion that he would find stolen goods in Veateh’s trunk.

Finally, the automobile exception justifies the warrantless search of Veatch’s vehicle because the officers had probable cause to believe that a weapon was hidden in the car. At the arrest scene, Veatch was frisked for weapons. When the frisk produced a 12-gauge shotgun shell from Veatch’s front trouser pocket, Veatch blurted out: “I have a gun in the car!” The officers found a sawed-off shotgun in the trunk of Veatch’s car. After an automobile is lawfully stopped, additional articulable facts may develop to support probable cause for a warrantless search. See United States v. Laird, 511 F.2d 1039, 1040 (9th Cir.1975). Here, after the discovery of the shotgun shell, Veatch’s statement that a gun was in the car, provided the additional and sufficiently articulable fact to support a probable cause belief that the ear contained a concealed weapon. This is especially true in view of Veatch’s earlier attempt to avoid apprehension. Cf United States v. Burke, 506 F.2d 1165, 1171 (9th Cir.1974), cert. denied, 421 U.S. 915, 95 S.Ct. 1576, 43 L.Ed.2d 781 (1975).

For these reasons, the suppression motion of the defendant, Michael Veatch, is denied.

      . The evidence in this case strongly supports a conclusion that a chase occurred. When Veatch attempted to avoid apprehension he manifestly committed a crime in the officer's presence and was subject to arrest on that basis. That Veatch was not charged by the officer for traffic violations or attempting to avoid apprehension makes his arrest for unlawful use of solvents no less valid.