author: REYNOLDS, Chief Judge.

text:
    Dr. Marjorie Reiley MAGUIRE, Plaintiff, v. MARQUETTE UNIVERSITY, Defendant.
    Civ. A. No. 84-C-711.
    United States District Court, E.D. Wisconsin,
    Feb. 12, 1986.

      Walter F. Kelly, Milwaukee, Wis., for plaintiff.
    John G. Hill, Jr., Gen. Counsel, Milwaukee, Wis., for defendant.
   DECISION AND ORDER

REYNOLDS, Chief Judge.

This case presents a very interesting question and that is whether or not federal judges should decide who is eligible to teach in the theology department of a religious university — in this case, Marquette, which is run by the Jesuits of the Roman Catholic Church. The Court is troubled by the fact that both parties seem to agree that this Court should have something to say about plaintiff’s eligibility to teach in Marquette’s theology department.

Setting aside the question of the competence of this Court to decide who is and who is not a good Catholic, I think for the reasons stated in this decision that Title VII and the First Amendment to the United States Constitution, which provides for the separation of church and state, preclude this Court from assuming jurisdiction of the subject matter of this action.

Plaintiff alleges that Marquette University refused to hire her as an associate professor of theology because she is a woman and because of certain of Marquette’s agents’ “perceptions and/or misperceptions ... concerning the plaintiff’s views repect-ing the moral theology of abortion and/or the public policy of abortion _” (plaintiff’s supplemental complaint, par. XIV-A, filed July 25, 1985). Jurisdiction allegedly arises under 28 U.S.C. §§ 1331 and 1343 for her Title VII sex discrimination claim. The court has pendent jurisdiction over her state law claim that she was denied the academic freedom that Wisconsin law protects. The facts are taken from the parties' submissions.

Plaintiff brought this action in May of 1984. She successfully sought the recusal of two federal judges, and the case was then assigned to me in May of 1985. There are currently two motions before the Court. The plaintiff seeks leave to supplement her complaint and the defendant has moved for partial summary judgment. The defendant does not oppose the motion to supplement the complaint and that motion will be granted.

In its motion for partial summary judgment, the University seeks a court ruling that its policy of reserving half the teaching positions in the theology department for Jesuits is exempt from Title VII attack, that all of plaintiff’s allegations of discrimination arising before April 7, 1980, are untimely, and that plaintiff’s claims to academic freedom be dismissed because she was never a member of the school’s faculty-

The defendant appears willing to go to trial on the question of whether it discriminated against the defendant in regard to that half of the theology department positions that are not reserved for Jesuits. Although it is apparent to the Court that summary judgment is also appropriate on that question, the defendant has failed to request it.

The principle question before the Court was barely alluded to in the defendant’s moving papers and would remain even if Marquette is successful on its motion for summary judgment. It is whether a federal court is the appropriate forum in which to decide who should teach in the theology department at a Catholic University. Because I find that it is not, the defendant’s motion for partial summary judgment will be construed as a motion for summary judgment and be granted. The Court’s basis for decision renders the other issues the defendant has raised moot.

FACTS

Marquette University takes its name from Pere Jacques Marquette, a Jesuit missionary who explored New France, Wisconsin, and the Mississippi river in the 17th Century. The University was formally opened in Milwaukee, Wisconsin, in 1881 under the auspices of the Society of Jesus, the Jesuits. Marquette University currently consists of thirteen colleges, schools and programs, and offers both graduate and undergraduate degrees to the roughly ten thousand students enrolled at its sixty-eight acre campus. Undergraduate students in business administration, education, engineering, journalism, liberal arts, medical technology, nursing, physical therapy, and speech complete courses for credit in theology.

Marquette informs the Court that its basic goals and principles are as follows:

Marquette’s primary reason for being is a shared conviction on the part of its sponsors and sustainers that their Catholic belief has dimensions pertinent to and salutary for higher education, and that those dimensions can best be celebrated in distinctly Catholic institutions. In other words, a Catholic university is one of the inumerable witnesses Catholics may give of their faith. It surely is that a part of Catholic belief is the necessity of conforming life to faith, i.e., to be integral. For some the life to be made whole is the life of higher education, and Catholic universities are an expression of this drive to integrity.

(“University and Catholic: Final Report of the Special Committee on the Christian Character of Marquette University,” at 1, dated July 1, 1977. The report is an abbreviated version of a 1969 report entitled: ‘‘University and Catholic”).

Article I of the Amended By-Laws of Marquette University provides, in relevant part, that “The University shall be governed as an independent private corporate entity of the State of Wisconsin, conducted under the auspices, and consonant with the educational principles, of the Society of Jesus.” Article II, Section 1 of those by-laws sets up a governing board of twenty-nine trustees, eight of whom are to be Jesuits. Three-fourths of the trustees must vote affirmatively to elect a trustee or to change the by-laws. This gives the Jesuit trustees, if they vote as a block, the power to deny the other trustees the authority to make such changes without Jesuit approval.

Marquette University contracts with the Marquette Jesuit Associates, Inc. The Associate’s headquarters serves as the residence for the seventy Jesuits who work for Marquette University. This organization receives the salaries of its members, uses the money to defray the members’ expenses, and returns the surplus to the University for its unrestricted use. In fiscal year 1983-84 the associates returned $250,-000. Each year the group is one of the largest financial contributors to the University. In his affidavit in support of Marquette’s motion, the Executive Vice President of the University states that although they welcome the financial support, “Even more cherished ... is the moral and intellectual contribution which these Jesuits make to the purpose and mission of the University.” Affidavit of Quentin L. Quade at 4, September 24, 1984.

The University has adopted an affirmative action plan, which plan includes a clause in which the University reserves the right to “grant preferences in its employment practices to Jesuits to perform any work connected with the carrying on by Marquette University of its activities.” Marquette University Affirmative Action Program, Article 11(c), November 1980. In the instant action the plaintiff questions the validity of this preference as it is applied to the hiring of Jesuits in the theology department.

The plaintiff is a white woman who has unsuccessfully applied for a position as an associate professor of theology specializing in the area of systematics. The head of the Marquette theology department informs the court that systematics has been defined as “the total theological enterprise as this has been unified by the architectonic reason ... it seeks to articulate all the constituent elements of Theology in a coherent whole ...” Affidavit of Rev. William Kelly, September 24, 1984, quoting from John Macquarrie, Principles of Christian Theology, at 39 (1977). The plaintiff seeks damages for wages and benefits she would have received had she been hired. She also asks this Court to order the University to hire her for that position.

Approximately half of the current members of the theology department are Jesuits who are, by definition, male. Only one of the 27 full-time positions is held by a woman. That figure is apparently lower than numbers found in the theology departments of comparable institutions. Plaintiff has provided the Court with deposition testimony that female candidates are asked different questions than male candidates and that department members have on occasion made sexist comments.

The Jesuits are particularly influential in the theology department. In fact, they run it. At the time plaintiff was applying, the advisory/hiring committee was appointed by the head of the theology department, a Jesuit, who was himself appointed by the Jesuit Dean without an election by the faculty. The Jesuit chairman of the theology department would then appoint two other Jesuits and one non-Jesuit to the advisory/hiring committee. Jesuits take a vow to obey their superiors, and department chairmen and deans are considered to be superiors in the departments that they oversee.

Plaintiff applied for positions on at least six occasions over several years, and she questions whether her earlier applications were even considered. She claims that although she is a Catholic and qualified to fill the position, the University has refused to hire her because she is a woman and because of the beliefs of certain of the defendant’s agents respecting plaintiff’s views on the moral theology of abortion.

In its motion for partial summary judgment, the University seeks a ruling that it may give preference to Jesuits in making its hiring decisions, but, as indicated before, Marquette is apparently planning to go to trial on the question of whether the plaintiff was discriminated against with regard to hiring for the roughly fifty-percent of theology positions that are not reserved for Jesuits. Defendant’s briefs and plaintiff’s supplemental complaint reveal that an issue at trial would be whether the plaintiff’s views on abortion are consonant with the defendant’s understanding of the teachings of the Catholic church. It is not clear if this was the reason why the defendant was not hired, but the answer to the supplemental complaint indicates that that is the reason. The answer is as follows:

4. Even if the cognizant agent of Marquette University were to find the plaintiff’s academic record competitive, her application for employment would have been rejected because of her perceived hostility to the institutional church and its teachings, and to the goals and mission of Marquette University.

Defendant’s answer to supplemental complaint at 2, II4 (August 2, 1985).

LEGAL ANALYSIS

The entry level question for the court is whether it has jurisdiction to judge the hiring practices in the theology department of a Catholic university. The First Amendment to the United States Constitution prohibits Congress from making any “law respecting establishment of religion, or prohibiting the free exercise thereof ...” U.S. Const, amend. I. The plaintiff argues that Title VII’s prohibition on sex discrimination gives the court jurisdiction over hiring decisions made by Marquette’s theology department. That is not so.

Among other defenses, the defendant claims that it is exempt from plaintiff’s Title VII claim because of 42 U.S.C. § 2000e-2(e)(2) which provides an exception for educational institutions controlled by religious groups:

... [I]t shall not be unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society.... (emphasis added)

Marquette has established that it is “in substantial part, controlled, or managed” by the Jesuits as that phrase is used in 42 U.S.C. § 2000e-2(e)(2). Tagatz v. Marquette, No. 82-C-812, slip op. at 8, (E.D. Wis. July 16, 1985). Nothing the plaintiff has submitted in opposition to the defendant’s motion would cause it to question that conclusion. The Jesuit’s influence and control is especially apparent in the school’s theology department.

The plaintiff argues, however, that even if the Court finds that the Jesuits control or manage the University, the exemption is not available to the defendant because plaintiff is a Catholic. Defendant, by asserting the exemption and through its defenses, has revealed that it is not in agreement with plaintiff on this question. Assuming the court was willing to delve into the hiring decisions relating to the theology department at Marquette, one question at trial would be whether in failing to hire the plaintiff as an associate professor of theology the defendant did so because it chose to “employ employees of a particular religion”; i.e., whether or not the plaintiff is or is not a Catholic.

Such an inquiry would require the Court to immerse itself not only in the procedures and hiring practices of the theology department of a Catholic University but, further, into definitions of what it is to be a Catholic. That question is one the First Amendment leaves to theology departments and church officials, not federal judges.

If the Court were to grant plaintiff the relief she requests, a place on Marquette’s theology faculty, the government would, in effect, be forcing its interpretation of what Catholicism demands on the University and its students. Such a ruling would not only interfere with the theology department’s right to freely exercise its religion through the explication and analysis of Catholicism and other religions, but would also result in a governmental imprimatur of approval on a particular set of beliefs as “Catholic.” The Court can no more rule that the plaintiff is not a Catholic than it could find that members of the hiring committee are Catholic.

The plaintiff stresses that Marquette University is a university and not a seminary, and argues that there is no free exercise right to discriminate on the basis of sex. There is no question but that the government has a significant interest in eradicating sex discrimination. But as Title VII and the First Amendment recognize, the right to exercise religious faith free of governmental interference is fundamental.

Plaintiff seeks employment as a theology professor at a Catholic school, and her own pleadings reveal that one of the reasons she was not hired is that defendant felt her beliefs made her an inappropriate applicant to fill the position. She terms the Marquette agent’s beliefs as “perceptions and/or misperceptions,” but in the end the result is the same. The hiring committee of a Catholic University decided not to hire plaintiff to teach in its theology department. The allegation of misperception does not make this a special case.

Plaintiffs complaint of sex discrimination does not assert against Marquette a fundamental right against which the fundamental religious rights of Marquette’s Jesuit decision-makers must be balanced. Plaintiff is not the United States Government seeking to revoke the tax exempt status of a University that forbids interracial dating or marriage. Bob Jones University v. United States, 461 U.S. 574, 103 S.Ct. 2017, 76 L.Ed.2d 157 (1984). This is not the case of a fraternal organization asserting its right to free speech and association as a means to justify the blanket exclusion of women members. Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). Nor is the sensitive position of a theology professor similar to that of the editorial-secretary in E.E.O.C. v. Pacific Press Pub Ass’n, 676 F.2d 1272 (9th Cir.1982), who was fired for filing a discrimination action against a church-related publishing house, even though that was contrary to a church prohibition of suits against it by its members. Neither is the job of theology professor similar to a position on the support staff of a seminary. E.E.O.C. v. Southwestern Baptist Theological Seminary, 651 F.2d 277 (5th Cir.1981), cert. denied, 456 U.S. 905, 102 S.Ct. 1749, 72 L.Ed.2d 161 (1982).

There is probably no teaching position at Marquette University which is more closely tied to the University’s religious character than that of theology professor. Plaintiff has not applied for a position in one of the more secular departments, such as the plaintiff in E.E.O.C. v. Mississippi College, 626 F.2d 477 (5th Cir.1980), cert. denied, 453 U.S. 912, 101 S.Ct. 3143, 69 L.Ed.2d 994 (1981), who sought a full-time position in that school’s psychology department. The present suit is more analogous to McClure v. Salvation Army, 460 F.2d 553 (5th Cir.), cert. denied, 409 U.S. 896, 93 S.Ct. 132, 34 L.Ed.2d 153, (1972), wherein the Fifth Circuit Court of Appeals held that:

the application of the provisions of Title VII to the employment relationship existing between The Salvation Army and Mrs. McClure, a church and its minister would result in an encroachment by the State into an area of religious freedom which it is forbidden to enter by the principles of the free exercise clause of the First Amendment.

McClure at 560.

The court in McClure stressed that:

Only in rare instances where a “compelling state interest in the regulation of a subject within the State’s constitutional power to regulate” is shown can a court uphold state action which imposes even an “incidental burden” on the free exercise of religion. In this highly sensitive constitutional area “ '[ojnly the gravest abuses, endangering paramount interests, give occasion for permissible limitation’ ”. Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). Restrictions on the free exercise of religion are allowed only when it is necessary “to prevent grave and immediate danger to interests which the state may lawfully protect”. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). “[T]he power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom”. Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940).

McClure at 558.

The Fifth Circuit has had at least two occasions to review its McClure decision. In Southwestern Baptist, 651 F.2d at 277, it held that a seminary’s faculty, and those administrators “who equate to or supervise faculty,” were exempt from Title VII’s reporting requirements. 651 F.2d at 284-5. In the earlier case of Mississippi College, 626 F.2d at 477, the court had held that “section 702 of Title VII ... excludes from the application of the Act any employment practices of a religious educational institution that discriminates on the basis of religion regardless of whether the religious discrimination is a pretext for some other type of discrimination.” 626 F.2d at 489.

Plaintiff ignores that language and points to another part of the Mississippi College opinion where the court explained that “McClure v. Salvation Army ... exempts from the coverage of Title VII only the relationship between a church and its minister and does not apply to the relationship between a religious educational institution and its faculty.” 626 F.2d at 489. That broad statement is belied by the court’s earlier recognition of the right to discriminate for religious reasons, and the court’s analysis in that case of why Title VII did not apply to faculty.

The College’s faculty and staff do not function as ministers. The faculty members are not intermediaries between a church and its congregation. They nei ther attend to the religious needs of the faithful nor instruct students in the whole of religious doctrine. That faculty members are expected to serve as exemplars of practicing Christians does not serve to make the terms and conditions of their employment matters of church administration and thus purely of ecclesiastical concern.

Mississippi College, 626 F.2d at 485 (emphasis supplied).

The plaintiff here asks the Court to order a Catholic University to hire her to teach systematic theology, which has been defined for the Court as a discipline that “seeks to articulate all the constituent elements of theology in a coherent whole ...” John Macquarrie, Principles of Christian Theology, p. 39 (1977). A professor of systematic theology would necessarily “instruct the students in the whole of religious doctrine.” 626 F.2d at 485.

The Court is satisfied that if it were to issue an order that the University theology department hire plaintiff, it would necessarily violate the free exercise clause of the First Amendment and impermissibly entangle government with religion.

As the Fourth Circuit Court of Appeals summed up in Rayburn v. General Conference of Seventh Day Adventists, 772 F.2d 1164 (4th Cir.1985):

Each person’s right to believe as he wishes and to practice that belief according to the dictates of his conscience so long as he does not violate the personal rights of others, is fundamental to our system. This basic freedom is guaranteed not only to individuals but also to churches in their collective capacities, which must have “power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”_ Ecclesiastical decisions are generally inviolate; “civil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law,” .... The right to choose ministers without government restriction underlies the wellbeing of religious community ... for perpetuation of a church’s existence may depend upon those whom it selects to preach its values, teach its message, and interpret its doctrines, both to its own membership and to the world at large.

Rayburn, 772 F.2d at 1167-68 (citations and a footnote omitted, emphasis supplied).

For this Court to involve itself in the hiring process of a Catholic theology department, and to make the determination whether the school chose to “employ employees of a particular religion,” 42 U.S.C. § 2000e-2(a), would also violate the third prong of the test for “establishment” set forth in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), that statutes not foster “an excessive government entanglement with religion.” 403 U.S. at 613, 91 S.Ct. at 2111.

Entanglement here differs from the typical establishment case in that a court ruling on the question would not directly impact upon nonbelievers and believers of different faiths, but would only affect Catholics. The state, through this court, would involve itself in theological questions and then, if finding for plaintiff, impose upon the theology department at Marquette the Court’s judgment as to what comprises adherence to the Catholic faith. Apart from the impact upon the free exercise of religion at Marquette, such a decision would violate the prohibition that the state not establish a religion, which would be the effect of a court ruling that plaintiff is a Catholic and that Marquette may not rely on its determination that she is not as a defense in her suit for failure to hire.

The Supreme Court has in the past recognized the dangers of entanglement which arise from court determinations of adherence to church doctrine and belief. Presbyterian Church v. Hull Church, 393 U.S. 440, 89 S.Ct, 601, 21 L.Ed.2d 658 (1969). Although recognizing that “there are neutral principles of law, developed for use in all property disputes, which can be applied without ‘establishing’ churches to which property is awarded_,” 393 U.S. at 449, 89 S.Ct. at 606, the court held that civil courts cannot constitutionally make a determination whether a “substantial departure” from significant church doctrine has occurred.

If the court should determine that a substantial departure has occurred, it must then go on to determine whether the issue on which the general church has departed holds a place of such importance in the traditional theology as to require that the trust be terminated. A civil court can make this determination only after assessing the relative significance to the religion of the tenets from which departure was found. Thus, the departure-from-doctrine element of the Georgia implied trust theory requires the civil court to determine matters at the very core of a religion — the interpretation of particular church doctrines and the importance of those doctrines to the religion. Plainly, the First Amendment forbids civil courts from playing such a role.

Hull Church, 393 U.S. at 450, 89 S.Ct. at 606.

The Fourth Circuit Court of Appeals recently detailed the dangers of governmental entanglement in the context of a Title VII action brought by a white woman who was turned down for pastoral positions in the Seventh-Day Adventists Church. Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1169-71 (4th Cir.1985). The potential problems of entanglement outlined there are also present here.

The Court is aware that there are substantial differences between the role of a minister and that of a theology professor teaching students at a University. But the similarities between the two go to the very core of what religion is. Even if a theology professor avoids the temptation to proselytize, the subject matter of any course in theology is unavoidably intertwined with questions of faith and church doctrine. This is true whether the course focuses on Catholicism, or an analysis of Buddhism from a Catholic perspective. Every teachers’ methods and message are necessarily shaped by their own individual views. In addition, the reason that Marquette has chosen to establish itself as a Catholic University is necessarily most deeply reflected in its theology department. Court involvement in the hiring decisions of that department would necessarily entangle the court with questions of religious doctrine and the procedure by which a Catholic university chooses its theology faculty.

Finding that constitutional questions would be raised by the Court’s entry into the hiring decisions of a theology department at a Catholic university, the Court must determine if Title VII can be interpreted in such a way as to avoid the constitutional questions. “[A]n Act of Congress ought not to be construed to violate the Constitution if any other possible construction remains available_” National Labor Relations Board v. Catholic Bishop of Chicago, 440 U.S. 490, 500, 99 S.Ct. 1313, 1318, 59 L.Ed.2d 533 (1979).

The language and legislative history of § 702 reveal that Congress intended to allow religious institutions an exemption for employment decisions based upon religious preference. Rayburn, 772 F.2d at 1166-67. In 1972 Congress broadened the scope of the exemption, by deleting the word “religious” from a phrase which had limited the permissible discrimination to individuals of a particular religion hired to carry out the employers “religious activities.” P.L. 92-261 § 3, 86 Stat. 103 (March 24, 1972). Given this history, it is clear that the exemption applies to hiring decisions made in a theology department at a Catholic university.

The second question is whether plaintiff’s allegation that she is a Catholic requires the Court to involve itself in ecclesiastical concerns. Because the First Amendment prevents the Court from involving itself in the area, the Court finds that the exception to Title VII created by 42 U.S.C. § 2000e-2(e)(2) should be read to allow the hiring committee of a theology department in a college controlled by a religious society broad latitude when it makes a decision to hire “employees of a particular religion.”

In the instant action plaintiffs own complaint reveals that the defendant’s agents do not believe that her theological beliefs make her an appropriate person to teach in Marquette University’s theology department. Despite her protests that she is a Catholic, “of a particular religion,” the determination of who fits into that category is for religious authorities and not for the government to decide.

ACADEMIC FREEDOM

Plaintiff also alleges that in failing to hire her, Marquette University acted contrary to Wisconsin law and its own policies regarding academic freedom. The claim fails for two reasons. First, the First Amendment analysis set forth above would prohibit the Court from looking into hiring decisions made by the theology department at Marquette. Second, plaintiff has failed to provide the Court with any authority for the proposition that either the policies of Marquette University, or Wisconsin law, require the principles of academic freedom to be extended to hiring decisions.

ORDER

IT IS THEREFORE ORDERED that plaintiff Marjorie Maguire’s motion to supplement her complaint is granted.

IT IS FURTHER ORDERED that defendant Marquette University’s motion for partial summary judgment, construed as a motion for summary judgment, is granted and the action is dismissed.


source: Caselaw Access Project

author: WOLF, District Judge.

license: Public Domain

text:
    John CAROLLO and Frances Carollo, Plaintiffs, v. GLOBAL CAPE ANN CORP., Defendant.
    Civ. A. No. 83-3261-W.
    United States District Court, D. Massachusetts.
    Feb. 12, 1986.

      Michael B. Latti, Latti Associates, Boston, Mass., for plaintiffs.
    Thomas E. Clinton, Clinton & Muzyka, Boston, Mass., for defendant.
   MEMORANDUM AND ORDER

WOLF, District Judge.

Plaintiffs, John and Frances Carollo, have brought this seaman’s action against defendant, Global Cape Ann Corp., seeking compensation for injuries that John Carollo allegedly sustained while employed as a crewman on the F/V Global Cape Ann. These injuries allegedly occurred while the ship was traveling on the high seas, that is, more than three miles or a marine league from the shore. Count I of plaintiffs’ amended complaint asserts a claim for negligence under the Jones Act, 46 U.S.C. § 688. Count II alleges a claim for unseaworthiness under general maritime law. Count III raises a claim for maintenance and cure, also under general maritime law. Finally, in Count IV Frances Carollo has raised a claim for loss of her husband’s services, society, affection, companionship, relationship, and consortium.

On October 4, 1985, defendant moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss Count IV for failure to state a claim. It argued that neither the Jones Act nor general maritime law provides the spouse of a seaman injured on the high seas with a remedy for loss of consortium or society. As this motion was unopposed, the court granted it on November 11, 1985.

On November 21, 1985, plaintiffs moved pursuant to Fed.R.Civ.P. 60(b) to vacate the court’s dismissal of Count IV on the grounds that they did not receive a copy of defendant’s motion or supporting memorandum, and that dismissal is inappropriate on the merits because general maritime law provides the wife of a seaman injured on the high seas with a remedy for loss of society or consortium.

Because the court’s initial decision resulted from the mistaken impression that plaintiffs conceded the merits of the motion to dismiss and because the court finds that as a matter of law Frances Carollo could recover for loss of society and consortium in this case, the court has decided to vacate the dismissal of Count IV.

I. Relief from Judgment

Defendant does not dispute plaintiffs' representation that they did not receive defendant’s motion or supporting memorandum. Fed.R.Civ.P. 60(b) provides that the court may relieve a party from a final judgment or order where that judgment was based on “(1) mistake, inadver-tance, surprise, or excusable neglect; ... or (6) any other reason justifying relief from operation of the judgment.”

The motion to dismiss was granted by the court in the mistaken belief that plaintiffs received notice of it and conceded its merit. It is now apparent that it would be unfair and inappropriate to fail to vacate the dismissal of Count IV because plaintiffs did not receive notice of the motion until after it had been decided. Therefore, the dismissal of Count IV of the plaintiffs must be vacated pursuant to Fed.R.Civ.P. 60(b)(1) and (6).

II. Claim for Loss of Society

Defendant argues that neither the Jones Act nor general maritime law provides the spouse of a seaman injured on the high seas with a remedy for loss of society. Plaintiff does not dispute, and the court agrees, that the Jones Act does not provide a remedy for loss of society, whether the seaman’s injuries occurred on the high seas or within territorial waters. See American Export Lines v. Alvez, 446 U.S. 274, 281, 100 S.Ct. 1673, 1677, 64 L.Ed.2d 284 (1980); Cruz v. Hendy Int’l Co., 638 F.2d 719, 723 (5th Cir.1981); Do Carmo v. F.V. Pilgrim I. Corp., 612 F.2d 11, 13 (1st Cir.1979), cert. denied, 446 U.S. 956, 100 S.Ct. 2928, 64 L.Ed.2d 815 (1980); Ivy v. Security Barge Lines, Inc., 606 F.2d 524 (5th Cir.1979) (en banc), cert. denied, 446 U.S. 956, 100 S.Ct. 2927, 64 L.Ed.2d 815 (1980). At issue here is whether Mrs. Carollo has a remedy for loss of society under general martime law.

Defendant relies heavily on Igneri v. Cie. de Transports Oceaniques, 323 F.2d 257 (2d Cir.1963), cert. denied, 376 U.S. 949, 84 S.Ct. 965, 11 L.Ed.2d 969 (1964), in which the Court of Appeals for the Second Circuit held that an injured longshoreman’s wife was not entitled to recover for loss of her husband’s society under the Jones Act or general maritime law. The law, however, has evolved considerably since Igneri was decided in 1963. Indeed, Igneri was substantially overruled by the Supreme Court in Alvez.

In 1970, the Supreme Court, addressing a gap left by the Death on the High Seas Act (“DOHSA”), 46 U.S.C. §§ 762-67, ruled that general maritime law provides a cause of action for the wrongful death of seaman killed in territorial waters. Moragne v. State Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970) (overruling The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886)). Before Moragne, a seaman’s dependents could bring a wrongful death action under DOHSA, but only if the seaman had died more than a marine league from land.

In the course of deciding Moragne, the Court affirmed two well-established principles of maritime law that are relevant to this case. First, admiralty canons have always “included a special solicitude for the welfare of those men who undertook to venture upon hazardous and unpredictable sea voyages.” 398 U.S. at 387, 90 S.Ct. at 1780. Second:

“[Cjertainly it better becomes the humane and liberal character of proceedings in admirality to give than to withhold the remedy, when not required to withhold it by established and inflexible rules.”

Id. (quoting The Sea Gull, 21 F.Cas. 909 (12,578) (C.C.Md.1865)).

In 1974, the Supreme Court, relying heavily on Moragne, held that the spouse of a seaman killed in territorial waters has a remedy for loss of society under general maritime law, despite the fact that neither DOHSA nor the Jones Act provided such a remedy, and despite the fact that the seaman brought a successful action for his injuries before he died. Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9, reh’g denied, 415 U.S. 986, 94 S.Ct. 1582, 39 L.Ed.2d 883 (1974). The Court noted that it was attempting to act consistently with its decision in Mo-ragne to extend the “special solicitude” for seamen to “the dependents of the seafaring decedent.” 414 U.S. at 577, 94 S.Ct. at 811.

Several years later, the Supreme Court held that DOHSA precludes a decedent’s survivor’s claims for nonpecuniary losses, including loss of society, when a seaman is killed on the high seas. Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978). In reaching this conclusion, the Court relied on the explicit language of the statute, which provides:

The recovery [in a seaman’s action] shall be a fair and just compensation for the pecuniary loss sustained by the person for whose benefit the suit is brought....

46 U.S.C. § 762 (emphasis added); Higginbotham, 436 U.S. at 620, 98 S.Ct. at 2012. Based on this provision, the Supreme Court decided that:

Congress did not limit DOHSA beneficiaries to recovery of their pecuniary remedies in order to encourage the creation of nonpecuniary supplements.... There is a basic difference between filling a gap left by Congress’ silence and rewriting rules that Congress has affirmatively and specifically enacted. In the area covered by the statute, it would be no more appropriate to prescribe a different measure of damages than to prescribe a different statute of limitations, or a different class of beneficiaries.

436 U.S. at 625, 98 S.Ct. at 2015 (citations omitted).

The Supreme Court reconciled Higginbotham with Gaudet by limiting the application of Gaudet to deaths occurring in coastal waters. That is, a seaman’s spouse may only recover for loss of society in a wrongful death action if her husband was fatally injured while traveling on territorial waters. Id. at 623, 98 S.Ct. at 2014. The Court recognized that its ruling created an anomaly in the sense that the spouse of a seaman killed 2.9 miles from shore as a result of the vessel’s unseaworthiness would be able to recover for loss- of her husband’s society, pursuant to Gaudet, but the spouse of a seaman killed under identical circumstances while the ship was 3.1 miles from shore would have no claim for loss of society, under Higginbotham. The Court held that “even if this difference proves significant, a desire for uniformity cannot override the statute.” Higginbotham, 436 U.S. at 624, 98 S.Ct. at 2014.

Two years later, the Supreme Court decided that a seaman’s spouse has a claim for loss of society under general maritime law where her husband is injured, but not killed, while working on territorial waters. Alvez, 446 U.S. at 281, 100 S.Ct. at 1677. In doing so, the Supreme Court substantially limited the potential impact of the Higginbotham decision by holding that the preclusive effects of DOHSA must be confined to the scope of the act. It said:

DOHSA comprehends relief from fatal injuries incurred on the high seas, 46 U.S.C. § 761. To be sure, Mobil Oil Corp. v. Higginbotham, supra, construed DOHSA to forbid general maritime law supplementation of the elements of compensation for which the Act provides. But Higginbotham never intimated that the preclusive effect of DOH-SA extends beyond the statute’s ambit. To the contrary, while treating the statutory remedies for the wrongful deaths on the high seas as exclusive, Higgin-botham expressly reaffirmed that Gau-det governs recoveries for wrongful deaths on territorial waters. 436 U.S., at 623-25 [98 S.Ct. at 2013-15]; see Moragne, supra [398 U.S.] at 397-98 [90 S.Ct. at 1785-86], And if DOHSA does not preempt general maritime law where fatalities occur within territorial waters, it follows a fortiori that the Act does not exclude federal maritime law as a source of relief for nonfatal injuries upon the same waters.

Alvez, 446 U.S. at 282, 100 S.Ct. at 1678 (emphasis in original).

The Court also decided that the Jones Act does not sweep aside general maritime law remedies, stating that “the Jones Act does not exhaustively or exclusively regulate longshoreman’s remedies .... Furthermore, the Jones Act lacks such preclusive effect even with respect to true seamen_” Id. at 282-83, 100 S.Ct. 1678. In making this latter finding, the Supreme Court did not distinguish between Jones Act injuries occurring on territorial waters and those occurring the high seas, although the seaman in Alvez was injured on territorial waters. See Cruz, 638 F.2d at 724-25 (“Alvez drew no line at the marine league”). In fact, in Gaudet, the Supreme Court said “[t]he Jones Act ... established [a wrongful-death] action based on negligence for the wrongful death of a seaman regardless of the situs of the wrong. 414 U.S. at 576, 94 S.Ct. 806, 39 L.Ed.2d 9 (emphasis added).

In Alvez, Supreme Court concluded that because neither DOHSA nor the Jones Act forbid compensation for loss of society in cases involving nonfatal injuries in territorial waters, and because “a clear majority of states permit a wife to recover damages for loss of consortium from personal injury to her husband,” 446 U.S. at 284, 100 S.Ct. at 1679, Mrs. Alvez could properly maintain a claim for loss of society caused by her husband’s nonfatal injuries sustained in territorial waters.

In view of this line of cases, particularly Alvez, the court concludes that Mrs. Carollo should be allowed to maintain a claim for loss of her husband’s society resulting from nonfatal injuries that he allegedly sustained while the F/Y Global Cape Ann was traveling on the high seas. The court is persuaded that just as the Jones Act does not preclude recovery for loss of society in cases involving nonfatal injuries sustained in territorial waters, it does not preclude such recovery in cases in which nonfatal injuries are sustained on the high seas. Nor does DOHSA preclude recovery for loss of society in eases in which a seaman receives a nonfatal injury on the high seas. The preclusive effect of DOH-SA does not extend “beyond the statute’s ambit_” Alvez, 446 U.S. at 282, 100 S.Ct. at 1678. Rather Congress explicitly restricted the scope of DOHSA to wrongful death actions, as opposed to personal injury actions. Alvez, 446 U.S. at 282, 100 S.Ct. at 1678. In doing so, “ ‘[N]o intention appears that the [Death on the High Seas] Act have the effect of foreclosing any non-statutory federal remedies that might be found appropriate to effectuate the policies of general maritime law.’ ” Alvez, 446 U.S. at 284, 100 S.Ct. at 1679 (quoting Moragne, 398 U.S. at 400, 1787; citing Gaudet, 414 U.S. at 588 n. 22, 94 S.Ct. at 816 n. 22).

By its terms, DOHSA does not apply to cases involving nonfatal injuries. The Supreme Court said in Alvez:

[I]t is a settled canon of maritime jurisprudence that “ ‘it better becomes the humane and liberal character of proceedings in admiralty to give than withhold the remedy, when not required to withhold it by established and inflexible rules.’ ” Moragne v. State Marine Lines, supra [398 U.S.] at 387 [90 S.Ct. at 1781] ... accord, Sea-Land Services, Inc. v. Gaudet, supra, [414 U.S.] at 583 [94 S.Ct. at 814], Plainly, neither statute embodies an “established and inflexible” rule here foreclosing recognition of a claim for loss of society by judicially crafted general maritime law.

446 U.S. at 281-82, 100 S.Ct. at 1677-78. This conclusion is equally applicable in this case.

In reaching this result, the court concurs with the Court of Appeals for the Fifth Circuit’s decision in Cruz. There Judge Rubin concluded that:

[T]he general maritime law, a single and unitary body of jurisprudence, extends the same rights to all entitled to recover under it whether the injury occurs in territorial waters or on the high seas and that, accordingly, the spouse of a person entitled to recover for vessel unseaworthiness has a cause of action for loss of society whether the injured person was a member of a vessel crew or was for some other reason entitled to a seaworthy vessel.

638 F.2d at 725.

The court recognizes that neither the Supreme Court in Alvez, nor the Fifth Circuit in Cruz, addressed a case involving nonfatal injuries to a seaman on the high seas. Nor has the court found any reported opinion addressing this issue directly. In this sense, the issue is one of first impression.

The court also recognizes that this decision, while averting one anomaly, results in another. The necessary result of this decision is that the wife of a seaman who is injured on the high seas will be able to recover for the loss of her husband’s society, while the wife of a seaman killed on the high seas will not. To decide otherwise, however, would result in an equal anomaly because the spouse of a'seaman injured in territorial waters would have a general maritime law claim for loss of society, but the spouse of a seaman injured on the high seas would not.

Despite the recognized anomaly between the remedies available for injury and death on the high seas, the court’s conclusion follows from the clear direction of Supreme Court cases in this area. See Alvez; Higginbotham; Gaudet; Moragne. The court believes that sitting in admiralty, it must afford a “special solicitude for the welfare of those men who undertake] to venture upon the hazardous and unpredictable sea voyages.” Alvez, 446 U.S. at 285, 100 S.Ct. at 1679-80 (quoting Moragne, 398 U.S. at 387, 90 S.Ct. at 1780). This “special solicitude” is equally applicable “ ‘to the dependents of [seafarers].’ ” Alvez, 446 U.S. at 286, 100 S.Ct. at 1680 (quoting Gaudet, 414 U.S. at 577, 94 S.Ct. at 811). Where not required by statute to withhold a remedy, the court is counseled by “settled canon[s] of admiralty jurisprudence,” to grant the remedy. Alvez, 446 U.S. at 281, 100 S.Ct. at 1677.

Thus, the court holds that Mrs. Carollo may maintain a claim for loss of society under Count IV of plaintiffs’ complaint.

III. Elements of Count IV

In Count IV, Mrs. Carollo seeks recovery for loss of her husband’s services, society, affection, companionship, relationship, and consortium. The only issue remaining to be decided is which elements of Count IV, in addition to loss of society, may be maintained.

The dispute over Count IV has centered on Mrs. Carollo’s right to recover for loss of “society or consortium.” The parties have used these terms interchangeably although they are not identical. Cruz, 638 F.2d at 722. In Gaudet, the Supreme Court held that:

The term ‘society’ embraces a broad range of mutual benefits each family member receives from others’ continued existence, including love, affection, care, attention, companionship, comfort, and protection.

414 U.S. at 585, 94 S.Ct. at 815. Loss of society does not include, and a spouse may not recover for, mental anguish or grief suffered as a result of a seaman’s injury. Id. at 585-86 n. 17, 94 S.Ct. at 815 n. 17. Mrs. Carollo does not seek such relief.

Consortium is slightly broader than society. It includes loss of pecuniary services as well as “such non-pecuniary components as love, companionship, affection, society, sexual relations, comfort and solace, all sumed up in Gaudet as Toss of society.’ ” Cruz, 638 F.2d at 722. It is well-settled and undisputed that Mrs. Car-olio may recover for the loss of services provided by her husband, including services performed around the home, or in the nu-turing, training, and guidance of the seaman’s children. Gaudet, 414 U.S. at 585, 94 S.Ct. at 815. Thus, since Mrs. Carollo may state a claim for loss of society and loss of services, she may also state a claim for loss of consortium.

The court, therefore, finds that Count IV properly, although redundantly, states a claim for loss of John Carollo’s services, society, affection, companionship, relationship, and consortium.

IV. Conclusion

Upon reconsideration, the court finds that Mrs. Carollo is entitled under general maritime law to maintain a claim for loss of her husband’s society and consortium resulting from injuries he allegedly sustained while the F/V Global Cape Ann was traveling on the high seas. The court’s earlier decision to dismiss Count IV of plaintiffs’ complaint is hereby VACATED pursuant to Fed.R.Civ.P. 60(b), and defendant’s motion to dismiss Count IV is hereby DENIED.

      . The parties use the words society and consortium interchangeably. While the terms are similar, they are not identical. Consortium includes society as well as other elements of damage. Cruz v. Hendy Int’l Co., 638 F.2d 719, 722 (5th Cir.1981). Section II of this opinion addresses whether plaintiffs have stated a valid claim for loss of society. Section III addresses whether they have also stated a claim for the related forms of relief, including consortium.

      . DOHSA provides a wrongful death cause of action for dependents of seamen who are killed on the high seas. 46 U.S.C. § 761 et seq.

      . The Jones Act reads as follows:
      Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.
      46 U.S.C. § 688. DOHSA and the Jones Act provide alternative remedies for the spouse of a seaman whose death on the high seas is caused by the negligence of a shipowner. In Re Dearborn Marine Service, Inc., 499 F.2d 263, 270 (5th Cir.1974), reh’g denied, 512 F.2d 1061 (5th Cir.) cert. dismissed sub nom. Monk v. Chambers & Kennedy, 423 U.S. 886, 96 S.Ct. 163, 46 L.Ed.2d 1118 (1975). But unlike DOHSA, the Jones Act does not limit recovery to pecuniary losses. Rather, it allows recovery for "damages at law.” While it is well-settled that the Jones Act does not explictly provide spouses with a remedy for loss of society, it also does not expressly preclude such remedies under general maritime law. Alvez, 446 U.S. at 282-83, 100 S.Ct. at 1678.

      . The fact that 41 out of 50 states, as well as the District of Columbia, allow a wife to recover for loss of consortium or society from personal injury to her husband further supports this decision. Alvez, 446 U.S. at 284 n. 11, 100 S.Ct. at 1679 n. 11. "Apart from the question of statutory preemption, the liability schemes incorporated in DOHSA and the Jones Act should not be accorded overwhelming analogical weight in formulating remedies under general maritime law.... Far more persuasive at the present juncture are currently prevailing views about compensation for loss of society.” Alvez, 446 U.S. at 283-84, 100 S.Ct. at 1678-79.

      . Of course, Frances Carollo may not recover for any damages for which John Carollo has received or will receive compensation. Gaudet, 414 U.S. at 592, 94 S.Ct. at 818. Such an overlap is most likely to occur between a husband’s claim for loss of future wages and a wife’s claim for loss of future support. However, since Mrs. Carollo is not seeking compensation for loss of future support, the danger of double recovery is minimal and perhaps nonexistent in this case.


author: DONALD J. PORTER, Chief Judge.

text:
    Terry L. ARCOREN, Plaintiff, v. Wenton PETERS and John Schooler, Defendants.
    Civ. No. 83-3017.
    United States District Court, D. South Dakota, C.D.
    Feb. 13, 1986.

      Yvette Hall War Bonnett, Dakota Plains Legal Services, Mission, S.D., for plaintiff.
    Robert Mandel, Asst. U.S. Atty., Pierre, S.D., for defendants.
   MEMORANDUM OPINION

DONALD J. PORTER, Chief Judge.

This is an action for an alleged violation of plaintiff’s Fifth Amendment right to due process brought directly under the United States Constitution. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Named as defendants are John Schooler, District Director for the FmHA, and Wenton Peters, a supervisor for the FmHA. Plaintiff seeks damages for the allegedly unlawful repossession and sale of his cattle, pursuant to a security agreement with the FmHA, without prior notice and an opportunity to be heard.

JURISDICTION

Jurisdiction is predicated upon 28 U.S.C. § 1331 and 5 U.S.C. § 702.

FACTS

Plaintiff Arcoren received approximately $19,000 in FmHA loans during a period beginning in 1978. Arcoren used part of the loan proceeds to purchase cattle, which were subject to a FmHA security agreement. In late March, 1980, a local FmHA office was notified by third parties that Arcoren had abandoned his cattle. Without notifying plaintiff, Peters, after consulting with Schooler, repossessed plaintiff’s cattle and sold them.

Arcoren did not learn of the repossession and sale until April 1, 1980, when he received a bill of sale from the Winner Livestock Auction Company. FmHA applied the sum realized from the sale of plaintiff’s cattle, $9,068.34, to his FmHA account. Subsequently, plaintiff received a notice of acceleration from FmHA.

PROCEDURAL HISTORY

Upon learning of FmHA’s actions and his right to appeal, Arcoren pursued an administrative appeal through three of four possible levels. Unsuccessful in his agency appeals, Arcoren filed this Bivens-styled action in district court.

This court initially dismissed the case for failure to state a claim. Arcoren v. Schooler, Civ. 83-3017, (D.S.D. Nov. 2, 1984). This court held that the post-seizure appeals process was adequate to protect Arcoren’s due process rights. Id. at 4. In addition, this court found that the availability of a “comprehensive administrative appeal process”, id. at 5, was a “special factor[] counselling hesitation before authorizing a new kind of federal litigation.” Id., quoting Bush v. Lucas, 462 U.S. 367, 377, 103 S.Ct. 2404, 2411, 76 L.Ed.2d 648 (1983) (citations omitted).

The Eighth Circuit Court of Appeals reversed the dismissal, holding that “the FmHA administrative appeals process set forth in 7 CFR § 1900.53 (1980), under the unique circumstances of this case, does not defeat an action brought directly under the fifth amendment to the United States constitution.” Arcoren v. Farmers Home Administration, 770 F.2d 137, 141 (8th Cir.1985). The case was remanded for further proceedings, and now is before this court for decision of the defendant’s motion for summary judgment on the issue of absolute and qualified immunity of the individual defendants.

DISCUSSION

Absolute Immunity.

Defendants first assert absolute immunity under Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Although the court doubts the applicability of Imbler to this case, see Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), it is not necessary to decide that question, because the court’s holding on the issue of qualified immunity will be dispositive.

Qualified Immunity.

Prior to 1982, the leading case on qualified immunity was Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). Wood created a two-part test to determine the availability of qualified immunity. Qualified immunity was not an available defense if the government official “knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [person] affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the [person].” Wood, 420 U.S. at 322, 95 S.Ct. at 1001.

The purpose of qualified immunity is to allow the orderly processes of government to continue, while still protecting, to the fullest extent possible, the constitutional rights of individual citizens. With a qualified immunity defense available, “public [officials] understand that action taken in the good-faith fulfillment of their responsibilities and within the bounds of reason under all the circumstances will not be punished and that they need not exercise their discretion with undue timidity.” Id. at 321, 95 S.Ct. at 1000.

Recognizing that the Wood test was not serving its intended purpose of disposing of “insubstantial lawsuits” on motion for summary judgment, the Court revised the Wood test by eliminating the subjective element. Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982) (citations omitted). Applying the new test, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818, 102 S.Ct. at 2738. Even if the right violated is shown to have been “clearly established” at the time of the official’s alleged wrongdoing, if he “claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained.” Id. at 819, 102 S.Ct. at 2738. The qualified immunity defense applies equally to RzVews-styled constitutional tort actions and cases brought pursuant to 42 U.S.C. § 1983. Butz, 438 U.S. at 500-01, 98 S.Ct. at 2907-08.

Clearly Established Rights.

The Court has never plainly defined the term “clearly established.” See Wood, 420 U.S. at 329, 95 S.Ct. at 1004 (Powell, J., concurring in part and dissenting in part). As the Court of Appeals for the District of Columbia Circuit has observed:

Our task, in applying Harlow, is to measure the constitutionality of the acts alleged in this action by reference to clearly established rights at the time the acts occurred. At first blush, the task as so stated appears simple and straightforward. A moment of reflection, however, reveals various uncertainties in the Harlow decision and exposes a test of some imprecision. It is not clear, for example, how a court should determine well-established rights: Should our reference point be the opinions of the Supreme Court, the Courts of Appeals, District Courts, the state courts, or all of the foregoing? Furthermore, it is unclear whether we must assure ourselves only of the existence of a constitutional right such as the constitutional right of freedom of speech, or religion, at the relevant time. Alternatively, it might be claimed that a court must inquire more deeply into the constitutionality of the particular conduct of the Government actor, such as the legality of domestic national security warrant-less wiretaps, at a given time. Put another way, how broadly or narrowly defined is the right that must be well-established?
At the extremes, the answers are clear. Supreme Court precedent “establishes” the law; to the extent that the Court’s opinions give guidance we obviously do not doubt that the law is well-established. It is equally clear that the right at issue can be defined neither so broadly as to parrot the language in the Bill of Rights, nor so narrowly as to require that there be no distinguishing facts between the instant case and existing precedent. The former reading of Harlow would, of course, undermine the premise of qualified immunity that the Government actors reasonably should know that their conduct is problematic. The latter reading, on the other hand, would unquestionably turn qualified into absolute immunity by requiring immunity in any new fact situation.

Hobson v. Wilson, 737 F.2d 1, 25-26 (D.C.Cir.1984) cert. denied, — U.S. -, 105 S.Ct. 1843, 85 L.Ed.2d 142 (footnotes omitted) (emphasis in original).

It is true, of course, that to require “no distinguishing facts between the instant case and existing precedent” would undermine the rationale behind the qualified immunity defense. The question remains, however, to what extent the official involved must extend existing precedent to determine its potential applicability to his situation. Fortunately, the Supreme Court has given some guidance in this regard. Generally speaking, officials are not required to “anticipate subsequent legal developments, nor could [they] fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738.

In Mitchell v. Forsyth, — U.S.-, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Court narrowed even further the government official’s responsibility to predict the future course of the law. Plaintiff in Forsyth was an anti-war protestor who sued former Attorney General John Mitchell for alleged violations of the plaintiff’s Fourth Amendment rights by authorizing a warrantless wiretap for reasons of national security. Id. — U.S. at-, 105 S.Ct. at 2808-09, 86 L.Ed.2d at 416-17. The district court rejected Mitchell’s claim of qualified immunity. Even though warrantless wiretaps for national security purposes were not unlawful at the time of Mitchell’s actions, the district court felt that the Supreme Court decision in Keith, forbidding such wiretaps, was “merely a logical extension of general Fourth Amendment principles and in particular of the ruling in Katz, ...” in which the Court first outlawed war-rantless wire taps in general. Forsyth, — U.S. at-, 105 S.Ct. at 2811, 86 L.Ed.2d at 419 (citations omitted).

The Supreme Court reversed the district court, finding that

whatever the agreement with the Court’s decision and reasoning in Keith may be, to say that the principle Keith affirmed had already been “clearly established” is to give that phrase a meaning that it cannot easily bear. The legality of the warrantless domestic security wiretap Mitchell authorized in November 1970, was, at that time, an open question, and Harlow teaches that officials performing discretionary functions are not subject to suit when such questions are resolved against them only after they have acted. The District Court’s conclusion that Mitchell is not immune because he gambled and lost on the resolution of this open question departs from the principles of Harlow. Such hindsight-based reasoning on immunity issues is precisely what Harlow rejected.

Id. — U.S. -, 105 S.Ct. at 2820, 86 L.Ed.2d at 431 (footnotes omitted).

With these principles in mind, the court now turns to the question of whether plaintiff had a “clearly established” right to pre-seizure notice and a hearing.

Right to Pre-Seizure Notice and a Hearing.

Plaintiff argues that, at the time FmHA repossessed his cattle in 1980, there existed a “clearly established statutory or constitutional right” to notice and a hearing prior to any FmHA action such as that involved here. Defendants, however, claim that they relied on the self-help provisions of the U.C.C., which have generally been upheld as lawful. See Bichel Optical Laboratories, Inc. v. Marquette National Bank, 487 F.2d 906 (8th Cir.1973); Brodsky, Constitutionality of Self-Help Repossession Under the Uniform Commercial Code: The Eighth and Ninth Circuits Speak, 19 S.D.L. Rev. 295 (1973). While it is true that Bichel dealt with a commercial lender, and not an agency of the federal government, defendants argue that they were not on notice in 1980 that FmHA would be treated differently than a private lender. Since commercial self-help, which FmHA believed it was entitled to utilize, had not been declared unlawful, defendants argue that their actions in March of 1980 violated no “clearly established” rights of the plaintiff.

Plaintiff contends that the availability of due process is a cornerstone upon which this country was built. “The Plaintiff urges that the complete lack of notice and no opportunity to respond to the evidence against him violated the established, settled law in 1980 that when a protected property interest is involved[,] prior to deprivation the individual must be afforded some rudiments of due process...” Response to Defendants’ Motion for Summary Judgment at 6 (filed July 13, 1984). In order for a constitutional guarantee applicable to a particular situation to be clearly established, however, it is “clear that the right at issue can[not] be defined ... so broadly as to parrot the language in the Bill of Rights-” Hobson, 737 F.2d at 26. Such a reading of Harlow “would, of . course, undermine the premise of qualified immunity that the Government actors reasonably should know that their conduct is problematic.” Id. (emphasis in original). Thus, this broad claim cannot “clearly establish” the rights plaintiff asserts.

Arcoren next argues' that the Supreme Court’s decision in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), clearly established his right to pre-seizure notice and a hearing. In Goldberg, the Court held that only pre-termi-nation notice and a hearing afforded a welfare recipient procedural due process, because “termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits.” Id. at 264, 90 S.Ct. at 1018 (emphasis in original). Arcoren claims that FmHA loan programs are predominantly a form of social welfare legislation, see Coleman v. Block, 562 F.Supp. 1353 (D.N.D.1983) (preliminary injunction), 580 F.Supp. 194 (1984) (permanent injunction); Curry v. Block, 541 F.Supp. 506 (S.D.Ga.1982) aff'd. 738 F.2d 1556 (11th Cir.1984), and thus the FmHA is subject to the holding in Goldberg. Although plaintiff argues that the Coleman and Curry decisions were no ‘.‘revelation” to the FmHA, the fact remains that prior to those decisions, FmHA had reasonably relied on its status as a quasi-commercial lender in order to take advantage of fhe self-help provisions of the U.C.C. Even if the requirement of pre-sei-zure notice and a hearing is a “logical extension” of Goldberg, the FmHA was entitled to “gamble”, Forsyth, — U.S. at -, 105 S.Ct. at 2820, 86 L.Ed.2d at 431, that as far as its farm lending practices were concerned, it would be treated as a commercial lender, rather than a Goldberg-' type welfare agency. Assuming that the FmHA may have subsequently “lost” its gamble, Coleman, 580 F.Supp. 194, Curry, 541 F.Supp. 506, that does not deprive it of qualified immunity. Forsyth, — U.S. at -, 105 S.Ct. at 2820-21, 86 L.Ed.2d at 431.

Plaintiff also contends that Fuentes v. Shevin, 407 U.S. 67 (1972) and Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) clearly establish his right to pre-seizure process. In Fuentes, the Court struck down Florida and Pennsylvania replevin statutes as lacking due process, because they provided for no pre-seizure notice to the debtor and the creditor was not required to make any factual showing in support of his contention that he was entitled to póssession. 407 U.S. at 82-83, 93, 92 S.Ct. at 1995, 2000. The Sniadach decision similarly outlawed garnishment statutes which provide no pri- or notice to the garnishee. Sniadach, 395 U.S. at 340-42, 89 S.Ct. at 1822-23.

Neither Fuentes nor Sniadach outlawed self-help such as is provided for in U.C.C. ’§ 9-503. There is some doubt that, if given the opportunity, the Court would extend Fuentes and Sniadach to statutory self-help provisions. Further, even if a ruling such as plaintiff urges were the next “logical step” in the progression of due process law, defendants were once again entitled to proceed on the assumption that such an extension would not take place. Forsyth, supra; see Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 ,(1974).

Finally, plaintiff contends that defendants violated his “clearly established” statutory rights under SDCL § 57A-9-504(3) and 7 CFR § 1962.42(c)(5). It is “clearly established”, plaintiff argues, that cattle are not collateral of a type “customarily sold on a recognized market.” Arcoren cites United States v. Mid-State Sales, 336 F.Supp. 1099 (D.Neb.1971); State Bank of Towner v. Hansen, 302 N.W.2d 760 (1982) and Wippert v. Blackfeet Tribe, 695 P.2d 461 (Mont.1985), in support of his argument. None of the cases cited, however, “clearly establishes”, as of March, 1980, that cattle are not collateral of a “type customarily sold on a recognized market.” Mid-State Sales Co. held that cattle were not “perishable” within the meaning of U.C.C. § 9-504(3), but said nothing about the issue presented here. 336 F.Supp. at 1103. Hansen and Wip-pert, although they both held that cattle are not collateral of a “type customarily sold on a recognized market”, were decided after March, 1980. In addition, two state court cases, from states other than South Dakota, can hardly be said to “clearly establish” the law applicable here. Defendants therefore violated no “clearly established” statutory rights of the plaintiff.

CONCLUSION

Although the law was apparently headed in the direction of requiring notice and a hearing prior to FmHA repossession of collateral, it cannot be said that the law was “clearly established” on that point in March, 1980. Similarly, it is not clear that the defendants violated the U.C.C. or their own regulations, as they stood in 1980. Having violated no clearly established statutory or constitutional rights of plaintiff, the individual defendants must be dismissed on the basis of qualified immunity.

      . All of the original defendants except Schooler and Peters, sued as individuals, were dismissed from the case on August 6, 1984.

      . FmHA regulations define default, in part, as "[w]hen a borrower ... [c]eases to conduct farming or other operations for which the loan was made [or] has not cared properly for [the security]....” 7 CFR § 1962.4(g)(2) & (3) (1980).

      Plaintiff claims he had not abandoned his cattle. Whether he was actually in default, however, is immaterial. Plaintiff seeks relief for deprivation of his property without prior notice and a hearing. It is undisputed that no such notice and hearing were provided.

      . United States v. United States District Court (Keith), 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). Keith was decided after Mitchell’s allegedly unlawful conduct.

      . Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

      . The relevant provisions of the U.C.C. are found at S.D.C.L. §§ 57A-9-503, 57A-9-504(3). SDCL § 57A-9-503 provides, in pertinent part, that "[u]nless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action.” SDCL § 57A-9-504(3) provides, in pertinent part, that “[u]nless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale ...” must be given.

      . Although the self-help provisions of the U.C.C. have been declared unconstitutional in at least two cases, Watson v. Branch County Bank, 380 F.Supp. 945 (W.D.Mich.1974), rev'd without opin. 516 F.2d 902 (6th Cir.1975); Boland v. Essex County Bank & Trust Co., 361 F.Supp. 917 (D.Mass.1973), those were "exceptional cases. A greater number of decisions have held that repossession under the provisions of the U.C.C. does not entail state action.” Cook & Sobieski, 2 Civil Rights Actions ¶ 7.27[B] at 7-151. (1985) (footnote omitted). See infra note 10.

        .See Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971).

      . The court need not and does not decide what due process, if any, the FmHA must afford its ' borrowers in the circumstances presented by this case.

      . Even if it were clearly established in 1980 that FmHA programs were social welfare legislation, it is not clear that Goldberg would be extended to the FmHA. See Mathews, 424 U.S. 319, 96 S.Ct. 893.

      . See United States v. Whiting Pools, Inc., 462 U.S. 198, 206 n. 14, 103 S.Ct. 2309, 2314 n. 14, 76 L.Ed.2d 515 (1983); Mitchell v. W.T. Grant Co., 416 U.S. 600, 618 n. 13, 94 S.Ct. 1895, 1905, n. 13, 40 L.Ed.2d 406 (1974); Fuentes, 407 U.S. at 103, 92 S.Ct. at 2005 (White, J.,’ dissenting); Brodsky, 19 S.D.L.Rev. at 301-02.

      . The foregoing discussion is not intended as any indication of the role which state action may or may not play in federal Constitutional tort análysis. Rather, its purpose is to demonstrate that, no matter what analytical approach is taken, there was no clearly established right to notice and a hearing prior to the FmHA’s repossession of Arcoren’s cattle in March, 1980.

      . See supra note 5.

      . 7 CFR § 1962.42(c)(5)(i) provides, in pertinent part, that "[n]otice of public or private sale of repossessed property when required will be given to the borrower_” (Emphasis added). Notice is not required if the sale involves collateral of “a type customarily sold on a recognized market....” 7 CFR § 1962.42(c)(5)(i).(A) (1980). i