author: DUNCAN, District Judge.

text:
    Jorge GONZALES & Michael McDonald, Plaintiffs, v. The FRANKLIN COUNTY MUNICIPAL COURT; H. Alfred Glascor, Donna Bowman, Sidney H. Golden, Steven B. Hayes, Richard H. Ferrell, C. Howard Johnson, Bruce Jenkins, James J. O’Grady, James A. Pearson, Charles R. Petree II, Marvin Romanoff, George C. Smith and Robert Wasylik, Judges; Ohio Bureau of Motor Vehicles and Kenneth Cox, Director, Defendants.
    No. C-2-84-1046.
    United States District Court, S.D. Ohio, E.D.
    Aug. 1, 1984.

      Thomas Conaty, Scott Schiff, Columbus, Ohio, for plaintiffs.
    Ronald J. O’Brien, City Prosecutor, William B. Shimp, Asst. County Prosecutor, Stanley J. Dobrowski, Asst. Atty. Gen., Columbus, Ohio, for defendants.
   MEMORANDUM AND ORDER

DUNCAN, District Judge.

This is an action for declaratory and injunctive relief filed by plaintiffs Jorge Gonzales and Michael McDonald. Defendants in this case are The Franklin County Municipal Court (Municipal Court), the judges of the Municipal Court in their official capacity (Judges), the Bureau of Motor Vehicles, and Kenneth Cox, Administrator of the Bureau of Motor Vehicles.

The plaintiffs’ driving privileges were suspended pursuant to R.C. 4511.191(k)(l). Plaintiffs seek relief enjoining the continuation of their license suspensions. Plaintiffs claim that R.C. 4511.191(K) is unconstitutional on its face and as applied, and denies them the due process and equal protection guaranteed by the Fourteenth Amendment.

Plaintiffs’ assertion of facial invalidity is premised on the following inadequacies: (1) the section imposes a penalty on plaintiffs based on the fact that they have been charged with a criminal offense and this penalty takes effect prior to any adjudication of their guilt or innocence; (2) the section is unconstitutionally vague; (3) the unavailability of occupational driving rights for pretrial suspension, which are available for post-conviction suspensions; (4) the statute does not provide notice to an accused that the suspension proceedings will be held at the time of the initial appearance; (5) the absence of any provision for a hearing at which evidence can be presented or witnesses confronted; and (6) the statute fails to provide for appeal of the license suspension.

On May 25, 1984, this Court heard oral argument on plaintiffs' motion for a temporary restraining order. The motion for a temporary restraining order was denied and the matter set for hearing on the request for a preliminary injunction. The case is presently before the Court on plaintiffs’ motion for a preliminary injunction. The Court has received memoranda of law from and heard oral argument by counsel.

Jurisdiction in this matter is founded on 42 U.S.C. § 1983 and 28 U.S.C. § 1343. The Court is now prepared to rule on this motion.

I

The parties have submitted a stipulation of facts in addition to the transcripts of the plaintiffs’ initial appearances in the Franklin County Municipal Court. Therefore, these facts need not be set forth in detail herein.

In addition to the facts agreed to by the parties, the Court finds the following:

1. The citation issued for OMVI at the time of arrest informs the driver that he or she is ordered to appear in municipal court on a certain date. The citation does not specifically inform the defendant that, if the court finds certain factors present, his or her driver’s license is subject to immediate suspension.

2. At the initial appearance neither plaintiff offered evidence or confronted witnesses against him.

Ohio Revised Code 4511.191(K) provides that:

If a person is charged with a violation of Section 4511.19 of the Revised Code or of a municipal ordinance relating to operating a motor vehicle while under the influence of alcohol and if the results of a chemical test administered pursuant to this section indicate that ... a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of breath ... at the time of the alleged offense ... the court shall immediately suspend the person’s operator’s ... license ... if the court ... at the initial appearance, which shall be held within five days of the citation or arrest, determines that ...
(1) The person has previously been convicted of a violation of Section 4511.-19 of the Revised Code or a municipal ordinance relating to operating a motor vehicle while under the influence of alcohol,
(5) The court or referee decides that the person’s continued driving will be a threat to public safety.

R.C. 4511.191(E) provides that this suspension shall continue until the complaint “is adjudicated on the merits by the trial court, or until the trial court, upon motion, determines ... that there was no probable cause for arrest.”

II

Prior to addressing the issues raised by the motion for preliminary injunction, the Court finds it necessary to reiterate its reasons for not abstaining on Younger principles. A detailed, well written analysis of abstention as it relates to R.C. 4511.191(E) is provided by Judge Holschuh in Cook v. Franklin County Municipal Court, 596 F.Supp. 490 (S.D.Ohio 1983). The issues in Cook were quite analogous to those in the case at bar. Judge Holschuh wrote:

One final but very important observation must be made. It should be apparent that defendants have persuaded this Court that the established principles of the Younger doctrine are applicable to this case and that the federal plaintiffs have failed to convince this Court that any of the recognized exceptions to that doctrine can be found on the present state of this record. This latter conclusion is based upon this Court’s belief that procedures exist in the Ohio judicial system to timely review and correct any erroneous rejection of the constitutional claims of the federal plaintiffs asserted in the trial courts of that state. There are thus no “exceptional circumstances” which would warrant federal injunctive relief at this time and on this record. It does not follow, in this Court’s opinion, that federal relief is foreclosed forever. If it should appear that the Ohio judicial system does not afford these federal plaintiffs or state court defendants in comparable positions the opportunity to not only assert their constitutional claims in the state court but also to have those claims considered by the trial and appellate courts in a timely and meaningful manner, then such persons may very well be in a position of showing “exceptional circumstances” which would warrant federal injunctive relief. Cf, Parker v. Turner, 626 F.2d [1] at 10. We decide today only that these plaintiffs on this record at this time have not persuaded this Court that those circumstances are present to the extent required to justify a departure from the doctrine of Younger v. Harris and its progeny.

The Supreme Court of Ohio has now ruled that the pretrial license suspension is not a final appealable order. Columbus v. Adams, 10 Ohio St.3d 57, 461 N.E.2d 887 (1984).

It is unclear how the validity of the pretrial license suspension could be raised as part of the criminal appeal. If those issues are not raised at trial, it is difficult to understand how they are to be considered on appeal of the conviction. If a person is acquitted of the criminal charges, his ability to then appeal the license suspension is dubious at best. Counsel for the Franklin County defendants has invited this Court’s attention to a journal entry of the Court of Appeals of Ohio, Tenth Appellate District, in the cases of City of Columbus v. Sears, Cases No. 83Ap-415, 83AP-417, dated August 4, 1983, wherein the Court of Appeals noted that the issues (R.C. 4511.19(K) suspension issues) are not regarded as “mooted by those issues and the limited time available for resolving those issues in view of the time restraints involved in trying defendants on misdemeanor charges.” In this Court’s view, however, the matter of appellate rights concerning the pretrial suspension remains clouded. This unusual and uncertain set of circumstances constitutes the type of extraordinary circumstance creating an exception to Younger. This Court will therefore not abstain, at least for the purpose of ruling on plaintiffs’ request for preliminary injunctive relief.

HI

It should be noted at the outset that at this stage of the proceedings the case is not before the Court on the merits but rather on the question whether a preliminary injunction is warranted. This Court’s inquiry is limited to whether the plaintiffs have shown (1) a substantial likelihood or probability of success on the merits; (2) whether plaintiffs have shown irreparable injury; (3) whether a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuing the injunction. Mason County Medical Assn. v. Knebel, 563 F.2d 256, 261 (6th Cir.1977). No single factor mentioned in Mason County is necessarily dispositive; proper judgment entails a balancing of all the above-cited elements.

The courts have developed a two-part analysis for determining whether a person has been denied due process of law in violation of the Fourteenth Amendment. The first determination is whether the individual has been deprived of a constitutionally-protected interest. It is clear that a driver's license is such an interest and may not be suspended or revoked without due process. Mackey v. Montrym, 443 U.S. 1, 10, 99 S.Ct. 2612, 2616, 61 L.Ed.2d 321 (1979); Dixon v. Love, 431 U.S. 105, 112, 97 S.Ct. 1723, 1727, 52 L.Ed.2d 172 (1977); Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586,1589, 29 L.Ed.2d 90 (1971). Once this first determination is made, the Court then considers what process is required before the state may deprive the individual of his property interest. In the case at bar, the process provided is set forth in R.C. 4511.191(E).

In Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the Court set forth the factors to be considered in determining whether the process given was the process due.

identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Id. at 335, 96 S.Ct. at 903; Montrym, supra 443 U.S. at 10, 99 S.Ct. at 2616; Love, supra 431 U.S. at 112, 97 S.Ct. at 1727.

Several courts have upheld statutes which provided for the prehearing suspension or revocation of a driver’s license in the face of a due process challenge. Montrum, supra; Love, supra; Heddan v. Dirkswager, 336 N.W.2d 54, 59 (Minn. 1983); Horodner v. Fisher, 38 N.Y.2d 680, 382 N.Y.S.2d 28, 345 N.E.2d 571 (1976), appeal dismissed, 429 U.S. 802, 97 S.Ct. 33, 50 L.Ed.2d 62 (1976).

The statutory provisions at issue in these cases differed from each other and the one at bar in several respects but each provided for the prehearing suspension or revocation of driving privileges. Moreover, where a prehearing deprivation was upheld, each statute also provided for a post-deprivation hearing or appeal. The person whose license was suspended was provided with some opportunity to present evidence on his own behalf, to challenge adverse evidence and to confront adverse witnesses. Montrym, supra, 443 U.S. at 7, 99 S.Ct. at 2615; Love, supra, 431 U.S. at 109, 97 S.Ct. at 1725; Heddan, supra, at 58. However, limited the scope of the evidentiary hearing, the licensee was statutorily provided an opportunity to be heard “at a meaningful time and in a meaningful manner.” Moreover, there was an additional avenue of review available after the evidentiary hearing.

In consideration of R.C. 4511.191(K) under the Eldridge analysis, the first factor considered is the nature and weight of the private interest involved. The plaintiffs have a substantial interest in continued enjoyment of driving privileges pending outcome of the criminal proceedings against them. The Supreme Court has acknowledged that the state will not be able to fully compensate an individual for any personal inconvenience or hardship that may be suffered by reason of an erroneous deprivation. Montrym, supra, 443 U.S. at 11, 99 S.Ct. at 2617; see Heddan v. Dirkswager, supra. The weight to be given this interest depends on three factors: (1) the duration of any potentially wrongful deprivation; (2) the availability of prompt post-revocation review; and (3) the availability of hardship relief. Montrym, supra at 11-12, 99 S.Ct. at 2617-2618; Heddan, supra at 60.

Under R.C. 4511.191(K) the potential duration of an erroneous deprivation is, at most, 90 days. Unless speedy trial limits are somehow altered, trial on a misdemean- or must occur within that period of time. Although the potential duration is not as prolonged as the 1 to 10 years in Love or even the 1 year under R.C. 4511.191(D), it is still significant. Ninety days is sufficient time to be subjected to substantial hardship, particularly in connection with one’s employment. In this case plaintiff McDonald drives as an integral part of his employment. The hardship imposed upon McDonald and the potential duration of an erroneous deprivation is of particular significance because occupational driving privileges apparently are not available under this section of the statute.

Plaintiffs’ first line of attack asserts that the statute is unconstitutional- on its face because of due process and equal protection infirmities. I do not agree. The suspension can only take effect by court action after the court makes certain prescribed findings. The defendant has an opportunity to appear and be heard. I cannot infer that the General Assembly intended that a defendant not be heard concerning the Court’s determination as to whether one or more of the factors critical to suspension are present. There is available the reasonable inference that the General Assembly, by requiring a prompt appearance of the defendant in Court and giving a court the power of suspension, is in keeping with the tradition that judicial officers in court decide matters after affording the parties some right to be heard.

R.C. 4511.191(K) also provides that “... suspension shall continue until the complaint ... is adjudicated on the merits by the trial court, or until the trial court, upon motion, determines by a preponderance of the evidence that there was no probable cause for the arrest.” Plaintiffs appear to suggest that this language limits a defendant to raising, at the initial appearance, the issue of whether there was probable cause for the arrest. It is clear to the Court that the probable cause standard is applicable only after there has been a court-ordered suspension. It does not limit the process of determining at the outset whether the license should be suspended.

Additionally, the Court simply finds no denial of equal protection where convicted defendants can be granted limited driving privileges but those who have pretrial suspensions cannot. First, all pretrial suspendees are treated in the same fashion. It is within the legislative rationality to provide that the matter of limited suspension is to be considered by the Court only after a full adjudication of the action. Given the seriousness of the threat to public safety created by the impaired driver, this Court cannot say that the legislation approach is either unwise or without sufficient nexus to the problem.

Although the statute under review is troublesome in some respects and far from a paragon of clarity, plaintiffs have not persuaded the Court that they have a substantial likelihood of success on the facial unconstitutional issue.

IV

Plaintiffs also take the position that the statute is unconstitutional as applied to them by these defendants. In this regard they complain that

1. There is no notice of a proceeding to suspend their licenses.
2. There is no provision for a hearing where evidence can be presented or witnesses confronted and cross-examined.
3. Defendants rely on unsworn written statements.

First, the statute itself provides reasonable notice of the fact that the suspension matter will be before the court five days from the date of citation or arrest. A defendant may have counsel at the hearing.

In a well-written opinion in the case Dayton v. Rutledge, 7 Ohio Misc.2d 14, 454 N.E.2d 611 (1983), Judge Merz of the Dayton Municipal Court comments on the statute at p. 18, 454 N.E.2d 611, as follows:

No suspension occurs at all until there has been a hearing before a neutral magistrate at which the driver must be present (Crim.R. 5 and Traf.R. 8[C]). The driver hears what the evidence against him is; and although it is hearsay, he has a chance to respond to it, criticize it, and offer contrary evidence. He has a right to be accompanied by his attorney; and if he is indigent, an attorney will be appointed for him and will, in fact, be present at the same time, since the public defender’s office is represented at all times in arraignment court. ... Finally, this statute treats those who take the test and those who refuse equally: both are subject to immediate suspension at initial appearance if they satisfy one of the other five criteria.

If Judge Merz’s interpretation of the statute is accurate, and I believe that it is, then a person who has had his license suspended under R.C. 4511.191(E) has had all the process that is due prior to that suspension.

It appears that due process in this instance does not require the application of evidence rules restricting the use of hearsay.

This Court, again, finds wisdom in Judge Merz’s conclusion that the findings required by R.C. 4511.191(E) for pretrial license suspension in cases involving operation of a motor vehicle while under the influence of alcohol may be based on reliable hearsay, including the intoxilyzer printout and a defendant’s police record, so long as a defendant is advised what evidence the court is relying on and given a chance to respond. Dayton v. Rutledge, 7 Ohio Misc.2d 14, 15, 454 N.E.2d 611 (1983). Insofar as plaintiffs contend that procedural due process mandates formal confrontation and cross-examination, that contention is rejected.

In argument, plaintiffs, as a part of their “unconstitutional as applied” contention, note that the judicial officer, defendants, in practice, have not allowed any matters to be presented in opposition to the basis of the pretrial suspension. The Court has carefully reviewed the facts of the Municipal Court transcripts of proceedings of record in this case. In the case concerning Mr. McDonald, counsel participated on his behalf. Counsel raised a hearsay issue, the appeal problem, the constitutional claim based on lack of confrontation, and requested limited driving privileges for Me-Donald. McDonald’s license was suspended.

In Mr. Gonzalez’s case, he was also represented by counsel at the initial appearance. Counsel noted that a prior conviction was four years old, and that the test was .11. Counsel also raised the cross-examination and confrontation matters, the appeal problem, and made a request for limited driving privileges. Gonzalez’s license was suspended.

Obviously, neither Municipal Court Judge found plaintiffs’ arguments persuasive. However, a reading of the transcripts and consideration of all of the information before this Court does show that plaintiffs were denied the right to respond to the basis for the suspensions. Admittedly, the nature of the suspension is such that the standards are different from those when a case is tried on the merits. I believe that plaintiffs have failed to demonstrate that the judicial defendants have by ordinary practice or procedure refused to allow a defendant to be heard at the initial appearance.

In my view plaintiffs do not make a case that R.C. 4511.191(K) is unconstitutional as applied to either of them.

In sum, the Court believes that plaintiffs do not have a substantial likelihood of success on the merits. The public safety interest in this matter also is weighted in favor of the continued enforcement of R.C. 4511.191(K).

Accordingly, plaintiffs’ motion for a preliminary injunction is DENIED.


source: Caselaw Access Project

author: BARKER, District Judge.

license: Public Domain

text:
    HOOSIER HOME THEATER, INC. d/b/a TVQ, a Delaware Corporation, Plaintiff, v. Steven L. ADKINS, Defendant.
    No. IP 83-1004-C.
    United States District Court, S.D. Indiana, Indianapolis Division.
    Aug. 7, 1984.

      Raymond W. Conley, General Counsel, Movie Systems, Inc., Des Moines, Iowa, Steven G. Cracraft, Salyers, Eiteljorg & Cracraft, Indianapolis, Ind., for plaintiff.
    Christopher C. Zoeller, Indianapolis, Ind., for defendant.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

BARKER, District Judge.

This case is before the Court on the motion for partial summary judgment pursuant to Rule 56(d), Federal Rules of Civil Procedure, filed by plaintiff on Counts I, II, and III of the complaint. The plaintiff and defendant stipulate that there are no genuine issues of material fact with respect to the issues relating to liability. However, there are remaining facts in controversy with respect to the issue of damages, assuming a finding of liability. Accordingly, the issues relating to specific remedies are not reached or resolved by this ruling on the motion for partial summary judgment.

Based upon the stipulations of undisputed facts, the briefs and oral argument of counsel, the Court now submits its findings of fact and conclusions of law. In accordance therewith, plaintiff’s motion for partial summary judgment is GRANTED IN PART and DENIED IN PART.

Findings of Fact

1. Plaintiff, Hoosier Home Theater, Inc. d/b/a TVQ (“TVQ”), is a Delaware corporation and a wholly-owned subsidiary of Movie Systems, Inc. TVQ is duly qualified and admitted to do business in the State of Indiana as a foreign corporation, and is a citizen of the State of Indiana by virtue of maintaining its principal place of business at 5937 West 71st Street, Indianapolis, Indiana 46278. Defendant, Steven L. Adkins (“Adkins”) is a resident of the State of Indiana, residing at 6319 West Castle Avenue, Indianapolis, Indiana.

2. TVQ is engaged in the business, among other things, of marketing and delivering to its subscribers in the Southern District of Indiana a commercial-free, paid television service, which features uncut motion pictures, sporting events and other forms of video entertainment programming, which programming is, therefore, distinguishable from that offered by the major national commercial television networks.

3. All of the programming which TVQ currently delivers to its subscribers as a part of its television entertainment service is provided by Home Box Office, Inc. (“HBO”).

4. HBO has granted an exclusive license to TVQ to market, sell, and deliver HBO’s programming as a television entertainment service by microwave transmission to residents in a portion of the Southern District of Indiana.

5. HBO currently originates the program which it provides for TVQ’s television entertainment service from HBO studios in New York, New York.

6. HBO transmits programming for its television entertainment service from the studios by wire (New York Telephone Company and Manhattan Cable Corporation) to Radio Corporation of America (“RCA”) Television Operations Center microwave transmitter in New York, New York.

7. Both New York Telephone Company and Manhattan Cable Corporation are common carriers as that term is defined by the Federal Communications Commission (“FCC”).

8. RCA relays the programming from its Television Operations Center microwave transmitter through a “3-hop” microwave wave length to a microwave “up link” transmitter at Vernon Valley, New Jersey.

9. The programming is relayed from the “up link” transmitter to a RCA-American satellite at microwave radio frequency [6235 Megahertz (“MHz”) ]. The programming is then relayed from the satellite to a “down link” receiver near Morristown, Indiana, at a microwave radio frequency (4100 MHz).

10. RCA is a common carrier.

11. The programming is transmitted from the “down link” receiver by “one-hop” microwave length to a microwave receiver atop the Indiana National Bank tower in Indianapolis, Indiana, at microwave radio frequency (approximately 11,000 MHz).

12. The “one-hop” microwave length is operated by Video Services, Inc., which is a common carrier.

13. The programming is transmitted by wire from the receiver to a transmitter atop the Indiana National Bank tower.

14. The transmitter atop the Indiana National Bank tower is operated by Micro-band Corporation of America (“Micro-band”), which is a common carrier.

15. The FCC licenses Microband to transmit in the greater Indianapolis metropolitan area at microwave radio frequency (2150-2162 MHz). The FCC licenses Micro-band to transmit an omni-directional signal, and Microband’s FCC license is denominated a multipoint distribution service (“MDS”). Microband’s MDS is licensed for the express purpose of carrying for-hire private communications.

16. TVQ has contracted with Microband and “subscribes” to Microband’s MDS in the greater Indianapolis metropolitan area. Under the terms of the contract between TVQ and Microband and under the terms of Microband’s tariff, TVQ pays a monthly fee to Microband for Microband’s MDS in the greater Indianapolis metropolitan area. TVQ uses Microband’s MDS to distribute TVQ’s television entertainment service in the Southern District of Indiana. Micro-band’s MDS carries one way, subscriber supplied communications from the stationary transmitter atop the Indiana National Bank tower to multiple fixed points designated by TVQ, the subscriber.

17. Microband distributes TVQ’s programming at microwave radio frequencies (2150-2156 MHz).

18. A standard television set is currently designed to receive transmissions at very high frequencies (“VHF”) (54-216 MHz) (channels 2-13) and at ultra high frequencies (“UHF”) (470-844 MHz) (channels 14-83).

19. Because of the higher frequencies of Microband’s MDS transmissions, Micro-band’s MDS transmissions cannot be received by such a standard television set without the use of additional equipment.

20. A microwave antenna and down converter are required to receive Micro-band’s MDS signal and down convert or demodulate that signal to a VHF frequency so that the signal can be received and displayed in an intelligible form on such a standard television set.

21. Successful reception and use of Microband’s MDS in certain portions of the Southern District of Indiana requires a clear or line-of-sight transmission path from the transmitter atop the Indiana National Bank tower to the fixed reception point.

22. TVQ normally provides its fee-paying subscribers with the receiving equipment necessary to receive and down convert Microband’s MDS microwave transmission for reception on the subscribers’ standard television set.

23. TVQ provides equipment to its subscribers that is fined-tuned to receive transmission at 2150-2156 MHz, and the equipment is installed so as to be in line with the transmitter atop the Indiana National Bank tower and with a clear transmission path.

24. The transmissions originating at the HBO studios in New York, New York, proceed uninterrupted to the ultimate receiver and user in and around the Indianapolis metropolitan area; however, the signal is transmitted via a combination of means such as wire, cable, satellite, light and radio transmissions.

25. TVQ subscribers normally pay TVQ an installation charge, a generally refundable deposit for the receiving equipment and a monthly charge for the television entertainment service.

26. TVQ’s principal source of revenue for providing its television entertainment services is the monthly fees paid by subscribers.

27. As part of its service, TVQ maintains a staff of servicemen who perform equipment maintenance and servicing for most of its subscribers at no additional charge.

28. TVQ pays HBO a monthly fee for the programming which HBO provides.

29. TVQ has undertaken an advertising campaign to promote its television entertainment service in the Southern District of Indiana.

30. Steven L. Adkins at all times pertinent to this litigation was a resident of the State of Indiana, residing at 6319 West Castle Avenue, Indianapolis, Indiana.

31. Steven L. Adkins received and used at his residence TVQ’s home entertainment service microwave signal transmitted from the top of the Indiana National Bank building for approximately three (3) months during the period from November 1, 1981, to January 30, 1982.

32. Steven L. Adkins assembled equipment necessary to receive TVQ’s signal from standard electronic parts readily available in most electronic stores.

33. Steven L. Adkins assembled the equipment for the sole purpose of receiving and using TVQ’s signal.

34. Steven L. Adkins was never authorized by TVQ to receive and use the signal, and Adkins was never a paying subscriber of TVQ.

35. TVQ only intends its signal to be received and used by its paying subscribers.

36. Any conclusion of law stated below, to the extent that it constitutes a finding of fact, is herein incorporated by reference as an additional finding of fact by the Court.

Conclusions of Law

1. The Court has jurisdiction over the parties and subject matter of this action pursuant to 28 U.S.C. § 1331(a) and § 1337(a) and pursuant to its pendant and ancillary jurisdiction.

2. Count I of this action asserts a claim pursuant to Section 605 of the Communications Act of 1934, 47 U.S.C. § 605, which states in applicable part as follows:

“No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect or meaning of such intercepted communication to any person. No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto____ This section shall not apply to the receiving, divulging, publishing, or utilizing the contents of any radio communication which is transmitted by any station for the use of the general public

47 U.S.C. § 605 (Supp.1983).

3. Count II of this action asserts a claim pursuant to Title 18 United States Code § 2511 and § 2520, the “wiretap” statutes, which provisions state as follows:

“§ 2511. Interception and disclosure of wire or oral communications prohibited (1) Except as otherwise specifically provided in this chapter [18 USCS §§ 2510 et seq.] any person who—
(a) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire or oral communication ... shall be fined not more than $10,000 or imprisoned not more than five years, or both.
§ 2520. Recovery of civil damages authorized
Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter [18 USCS §§ 2510 et seq.] shall (1) have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications, and (2) be entitled to recover from any such person—
(a) actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;
(b) punitive damages; and
(c) a reasonable attorney’s fee and other litigation costs reasonably incurred.
A good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this chapter [18 USCS §§ 2510 et seq.] or under any other law.

4. Count III of this action asserts a claim pursuant to I.C. 35-43-4-2, I.C. 35-43-4-3, and I.C. 35-43-5-3(a)(6), and I.C. 34-4-30-1, which provisions state as follows:

“35-43-4-2 Theft; receiving stolen property
Sec. 2. (a) A person who knowingly or intentionally exerts unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use, commits theft, a Class D felony.
(b) A peson who knowingly or intentionally receives, retains, or disposes of the property of another person that has been the subject of theft commits receiving stolen property, a Class D felony____
“35-43-4-3 Conversion
Sec. 3. A person who knowingly or intentionally exerts unauthorized control over property of another person commits criminal conversion, a Class A misdemeanor____
“35-43-5-3 Deception
Sec. 3. (a) A person who:
* * * * * >9
(6) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or cable TV service, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service;
“34-4-30-1 Offenses against property; damages; costs; attorney’s fees
Sec. 1. If a person suffers a pecuniary loss as a result of a violation of IC 35-43, he may bring a civil action against the person who caused the loss for:
(1) an amount equal to three (3) times his actual damages;
(2) the costs of the action; and
(3) a reasonable attorney’s fee.”

5. Defendant answers with admissions and denials by asserting four affirmative defenses as follows:

First, that the defendant received, without solicitation on his part, the microwave signal which therefore is appropriately to be deemed a gift from HBO to the defendant entitling him to use and dispose of it in any manner he chooses;
Second, that there has been no “divulging” of any intercepted signal by the defendant pursuant to 47 U.S.Code § 605;
Third, the defendant’s actions have caused no damages to plaintiff; and
Fourth, that HBO’s programming is no different than that of the major broadcast networks which, therefore, requires comparable, rather than preferential legal treatment.

5. A private right of action exists in favor of an aggrieved party under 47 U.S.C. § 605 for injuries arising out of a violation of that statute.

6. The use of the word “radio” in 47 U.S.C. § 605 includes television transmissions.

7. The term “broadcasting” is defined at 47 U.S.C. § 153(o) as meaning “the dissemination of radio communications intended to be received by the public.”

8. TVQ is not a “broadcaster” under 47 U.S.C. § 605.

9. The FCC has designated TVQ’s multipoint distribution service as “non-broadcast” and has allocated the applicable frequencies “exclusively to common carriers.”

10. Protection is provided by 47 U.S.C. § 605 for the transmission of signals by satellite and those which do not constitute a “broadcast or (transmission) ... for the use of the general public____”

11. TVQ’s transmissions are not intended to be “broadcast” pursuant to 47 U.S.C. § 605 because, when done legally, authority to receive and use the programming must be given by TVQ.

12. Assuming arguendo that TVQ’s transmissions are a “broadcast,” which they are not, it is not a broadcast or transmission for the use of the general public.

13. TVQ’s transmissions are not a communication “intended to be received by the public” because TVQ intends that it be received only by subscribers who pay for that programming.

14. The TVQ transmissions are distinguishable from the major national commercial television networks who broadcast for the use of the general public.

15. Persons who receive and use TVQ’s transmissions for their own benefit without authorization from TVQ are in violation of 47 U.S.C. § 605. More particularly, Steven L. Adkins violated Section 605 of the Communications Act of 1934, as amended, by using a microwave antenna and down converter to receive and use TVQ’s television entertainment service for his personal benefit without the permission or authorization of TVQ and without paying to TVQ its monthly subscription fee.

16. TVQ’s transmissions, which were received and used by Steven L. Adkins, were not “wire communications” as that term is defined in 18 U.S.C. § 2510(1) for the reason that at the point at which Adkins acquired the signal it was not a communication transmitted by one party to another between a “point of origin connected to a point of reception” with which Adkins interfered. Rather, the signal had been dispersed from the top of the Indiana National Bank building into and through the air and at that point not carried along, by means of, or subject to a wire, cable, or other like connection to a specific receiver and prior to receipt by Adkins, the signal had not been received by anyone.

17. Steven L. Adkins did not “intercept” TVQ’s transmissions as “intercept” is defined in 18 U.S.C. § 2510(4) because he did not aurally acquire the contents of any wire or oral communication, as that term is defined at 18 U.S.C. § 2510(1), since the signal, at the time it was received by Adkins, had come as an “unconnected” omnidirectional frequency capable of receipt by anyone possessing the required equipment, and TVQ had no protectable privacy interest in the signal prior to its being received.

18. The legislative history of 18 U.S.C. § 2510 et seq. (the “wiretap” statutes) establishes that the intent of this Act was to proscribe eavesdropping on “oral conversations (otherwise) made in private, without the consent of any of the parties to such communications” and to protect “the privacy of individual thought and expression,” and Steven L. Adkins, did not, by his receipt and use of TVQ’s transmissions violate the privacy of wire and oral communications between any such parties without their consent. Omnibus Crime Control and Safe Street Act of 1968, (PL 90-351, Title III, 82 Stat. 211); U.S. v. U.S. Dist. Ct. for Eastern Dist. (1972), 407 U.S. 297, 302, 92 S.Ct. 2125, 2129, 32 L.Ed.2d 752.

19. Defendant Adkins did not violate Title 18 U.S.C. § 2511 and is not liable in damages to Plaintiff TVQ pursuant to Title 18 U.S.C. § 2520.

20. Steven L. Adkins, by receiving and using a microwave antenna and down converter to receive and use TVQ’s television entertainment service for his personal benefit without the permission or authorization of TVQ and without paying to TVQ its monthly subscription fee, was in violation of IC 35-43-5-3(a)(6), 35-43-4-3 and 35-43-4-2, and accordingly is liable to TVQ for damages pursuant to IC 34-4-30-1.

21. TVQ is under no legal obligation to “scramble” its transmitted signals in order to hinder or prevent its receipt and use by unintended, unauthorized recipients such as the defendant.

22. Adkins’ first affirmative defense fails in light of the evidence that, in order to receive the TVQ signal, Adkins had to install the antenna and down converter to his existing television. That uncontroverted proof negates Adkins’ premise that he received the signal “without solicitation on his part.”

23. Adkins’ second affirmative defense fails because it is immaterial whether or not he “divulged” the signal upon its receipt since that is only one way in which 47 U.S.C. § 605 can be violated and it was established through uncontroverted evidence that the statute was violated in at least one other way, namely, by Adkins’ unauthorized receipt and use of the signal for his own benefit.

24. Adkins’ third affirmative defense was not raised or resolved by this motion for partial summary judgment and is, therefore, specifically reserved for subsequent consideration by the Court.

25. Adkins’ fourth affirmative defense fails because of the Court’s prior findings and conclusions to the contrary.

26. The law is with the plaintiff on all claims asserted in Counts I and III, but the law is with the defendant in Count II of the complaint.

27. TVQ is entitled to injunctive relief and money damages, if any should be proven, pursuant to 47 U.S.C. § 605, but the amount of money damages and the form of injunctive relief due, if any, is reserved for subsequent proceedings before the Court.

28. Any finding of fact stated above, to the extent that it constitutes a conclusion of law, is herein incorporated by reference as an additional conclusion of law by the Court.

MEMORANDUM

Plaintiff, “TVQ,” is in the business of providing for a fee television entertainment programming to residences and hotels in the Indianapolis metropolitan area. The actual programming is supplied by HBO in New York and through a series of linkages, by wire, satellite, radio and microwave transmissions, the signal is ultimately made available to the consumers. TVQ’s specific role in the process relates to the last step in the transmission and delivery of the signal as the exclusive licensee of HBO to market and sell in Indianapolis the programming HBO has produced. TVQ’s signal is an omnidirectional signal emanating from the top of the Indiana National Bank in downtown Indianapolis and is capable of being received within a fifteen mile straight-line radius by and through a system of antennae and converters into ordinary television sets.

TVQ subscribers ordinarily pay a fee to receive the programming which consists in the main of commercially uninterrupted movies and sporting events. In addition, the TVQ subscribers pay an installation charge and a refundable deposit for the receiving equipment. The monthly fees are the primary source of revenue for TVQ.

This television entertainment service is subject to specific regulation by the FCC as a nonbroadcast function, not intended for the use of the general public. Each of the component links over, by and through which the transmission of the signals occurs is a common carrier and subject to FCC regulation as such. Though there are technical similarities between the way in which TVQ provides its programming and the way in which the national commercial television broadcasters provide theirs, they differ in their intended audience, their means of generating revenue, and their regulatory restraints.

The defendant, Mr. Adkins, installed his own antenna and downconverter and for a period of time used the equipment to receive TVQ’s entertainment programs. Adkins did not pay the subscriber’s fee to TVQ, did not pay the deposit to utilize TVQ’s equipment, and was not authorized by TVQ to receive the programming.

The Court, in its afore-referenced Findings of Fact and Conclusions of Law, has found Adkins in violation of the Communications Act of 1934 and certain Indiana statutes relating to theft, conversion, and deception, but has found Adkins not liable under the “wiretap” statutes.

Applying the facts of this case to the Federal Communications Act (47 U.S.C. § 605) raises issues which are not novel and have been passed on in substance by many other courts. Furthermore, this Court is persuaded by the clear interpretation given the statute by the FCC, the agency most directly effected by the law and the agency possessing the institutional expertise relating to its proper interpretation, to which this Court must pay the deference normally due the opinions of expert agencies. Udall v. Tollman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965).

In its “Public Notice” dated January 24, 1979, the FCC stated in part as follows:

“... [T]he unauthorized reception and beneficial use of addressed communications in the Multipoint Distribution Service (MDS) is a violation of Section 605 of the Communications Act of 1934 (47 U.S.C. § 605)____ MDS is a common carrier service which utilizes an omnidirectional radio transmission____ MDS stations are not television broadcasting stations____ Nor are MDS stations disseminating radio communications intended to be received by the general public____ Because material transmitted over stations is not intended to be ‘broadcast’ material within the meaning of Section 605, authority for its reception and use must be given by the sender. Therefore, persons will be in violation of the law if they divulge, publish, or use for their own benefit any MDS communications which they were not authorized to receive____”

In Movie Systems, Inc. v. Heller, 710 F.2d 492, 494 (8th Cir.1983), the court denied the claim by a defendant similarly situated to Adkins, observing that “courts have held that for the purposes of Section 605, the crucial factor in determining whether the programming is broadcasting for the use of the general public is not whether the content of the program has mass appeal or mass availability but rather, whether it was intended for the use of the general public.” (citations omitted)

That court went on to hold, after observing that the only way access to the MDS programming can be received is through the use of specialized equipment, as follows:

“We hold that the MDS transmissions are not broadcasting for the use of the general public and thus Section 605 prohibits unauthorized interceptions of the MDS signal. Movie Systems, Inc., supra, at 495.”

This decision as to the applicability of Section 605 to unauthorized receipt and use of the MDS signal is consistent with the holdings in the overwhelming majority of similar cases. See Chartwell Communications Group v. Westbrook, Ind., 637 F.2d 459 (6th Cir.1980); KMLA Broadcasting Corporation v. Twentieth Century Cigarette Vendors Corporation, 264 F.Supp. 35 (C.D.Calif.1967); Home Box Office, Inc. v. Advanced Consumer Technology, Movie Antenna, Inc., 549 F.Supp. 14 (S.D.N.Y.1981). The case at bar offers no basis on which to distinguish as inapplicable the other holdings or to challenge the clear wording of the statute.

The more difficult legal question in this case relates to whether or not the unauthorized acquisition of the TVQ signal by Adkins constituted a violation of the “wiretap” statutes at 18 U.S.C. 2510 et seq. There is little by way of case law which is directly on point from which the Court can be assisted in interpreting these statutes. However, in analyzing the statutes themselves and in reviewing the legislative history, it is clear that Adkins’ actions do not constitute a violation of the wiretap statutes.

The wiretap statutes, originally enacted as a part of the Omnibus Crime Control Act of 1970, were directed at proscribing those acts which threatened to violate the privacy interests of individuals in their personal conversations. In enacting this Statute, Congress found it necessary to provide a means to “safeguard the privacy of innocent persons and protect effectively the privacy of wire and oral communications” from illegal interception. 18 U.S.C.S. § 2510, (citing the Legislative History and Findings, at page 54).

Section 2510(1) and (4), Title 18, United States Code, set forth the operative definitions as follows:

“(1) ‘wire communication’ means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications;
(4) ‘intercept’ means the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical or other device.”

(emphasis supplied)

The violation is set forth at Section 2511(1)(a), wherein it says, “[A]ny person who ... willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire or oral communication ... shall be fined not more than $10,000 or imprisoned not more than five years, or both.” (Civil penalties are provided for at § 2520.)

The communications with which Adkins interfered in the case at bar were not private conversations between individuals. Furthermore, at the time Adkins received the TVQ signal, it had been dispersed in an omnidirectional path throughout the Indianapolis metropolitan area and not connected up to any reception point prior to its receipt by Adkins. TVQ would make Adkins liable under the wiretap statutes by alleging that the signal it had produced was a “wire communication” as defined at 18 U.S.C. § 2510 and that Adkins had “intercepted” it, also as defined in that section. That assertion of liability by TVQ distorts both the definitions of “wire communication” and “intercept,” as more fully enunciated in the preceding Conclusions of Law, and distorts the thrust of the statute generally, as evidenced from its legislative history. Accordingly, TVQ’s claims on this ground fail.

Finally, it deserves mention that Mr. Adkins, who must have known that he was getting something for nothing when he devised his own method for receiving the HBO programming at his home without paying the required fee for that service, nonetheless might also have surmised, from the ease with which he could acquire the signal, that there was little actual value in what he took and that his taking it was not a serious matter (in a legal sense). The fact that the signal was readily available to Mr. Adkins, or anyone else similarly skilled in devising his own means of acquiring the “free” programming, might lend itself to a conclusion that what was done was harmless, or, at least, that any law or judicial opinion to the contrary is unenforceable.

This view, however, is in error and obscures the real issues in this case by failing to take into account the distinction between a television service which is available to the general public and a program intended for the use of the general public. Obviously, TVQ’s business hopes are based on its ability to sell its private programming service to as wide a sector of the consuming public as possible, that is to say, it hopes for as great a number of subscribers as possible. Thus it transmits its communications signal in a way designed to reach that market breadth, while at the same time maintaining essentially a private programming service. This is not the same situation which exists with a radio broadcast which is intended for use by the general public without payment of a fee, without specialized equipment and without the consent of the producer. Congress has, in its wisdom, provided for both types of programming service, with their respective advantages and disadvantages in both a business and regulatory sense. A failure to distinguish between the two systems overlooks their uniqueness and their respective value to the public. TVQ and other similar entities which transmit programming through an MDS format are entitled to protection under 47 U.S.C. § 605, irrespective of the possible enforcement problems which those protections imply.

The Sixth Circuit, in 1980, observed in Chartwell Communications Group v. Westbrook, supra, 462-3, that “subscription radio and television have been in existence for over 30 years, but their widespread availability to residential consumers is a relatively recent phenomenon. There has been very little litigation on the question of unauthorized reception of subscription television signals and the remedies, if any, available to the subscription television services.”

Since 1980, the amount of law on the subject has increased but the public understanding of those statutes and their interpretations seems nonetheless to have lagged. This Court is faced, therefore, with a situation where its function is as much to explain the applicable law, as to decide the immediate controversy. In doing so, and primarily because of the problems which enforcement of the rights protected by Section 605 portends, it is hoped that this ruling will serve as an aid to understanding by those who otherwise would err through inadvertence or confusion and a deterrent to those who otherwise would allow themselves to be in violation of these statutes.


author: EDWARD C. REED, Jr., District Judge.

text:
    George A. JENKINS, Plaintiff, v. ROCKWELL INTERNATIONAL CORPORATION, James F. Cox, Construction Manager, James A. Pintaro, Superintendent, Defendants.
    No. CV-R-84-132-ECR.
    United States District Court, D. Nevada.
    Aug. 8, 1984.

      George A. Jenkins, pro se.
    Virgil H. Wedge, Reno, Nev., for defendants.
   MEMORANDUM DECISION AND ORDER

EDWARD C. REED, Jr., District Judge.

Defendants have made a motion to dismiss the complaint pursuant to Rule 12(b)(6) Fed.R.Civ.P. Defendants allege that plaintiff has failed to state a claim upon which relief can be granted. The action is brought pursuant to 42 U.S.C. §§ 1983 and 1985.

The complaint alleges the following: Plaintiff submitted a W-4 exemption withholding certificate (W-4 form) to defendant Rockwell International Corporation (Rockwell) at the time he was hired by that corporation. Plaintiff represented on his W-4 form that he was exempt from withholding of federal income tax. Subsequently, the Internal Revenue Service (IRS) in Ogden, Utah, informed Jenkins that his W-4 form was being reviewed. In response, plaintiff insisted that his W-4 form be honored. Later, the IRS, by letter, advised Rockwell to disregard plaintiff’s W-4 form and to withhold tax as if he were single and claimed one exemption. Plaintiff then urged James F. Cox, Construction Manager for Rockwell, to leave the issue of the W-4 form as a matter between the IRS and himself. Nevertheless, Rockwell followed the instructions of the IRS. Thereafter, plaintiff refused to pick up his paycheck. He claimed it was $247.11 short because of the tax withheld. He also refused to pick up his check for the following pay period for the same reason. Subsequently, the other codefendant, Mr. Pintaro, Superintendent for Rockwell, told plaintiff he would be fired if he didn’t pick up his paychecks. Two days later Mr. Pintaro gave plaintiff the checks that had been refused and a termination notice. The notice stated the reason for discharge was plaintiff’s failure to accept his paychecks because of income tax withheld. Jenkins claims that he was deprived of his property without being afforded his constitutional right of due process. In his 1983 claim, plaintiff alleges deprivation of constitutional rights. In his 1985 claim, plaintiff alleges violation of rights secured by both the Constitution and laws of the United States.

A complaint should not be dismissed on the pleadings “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 60 (1957); Maurer v. Ind. And As Members of Los Angeles Cty., 691 F.2d 434, 437 (9th Cir.1982). In addition, in analyzing a complaint any doubt must be resolved in favor of the pleader. The Court recognizes that civil rights complaints brought by pro se plaintiffs, as in this instance, are held to a less stringent standard than pleadings drafted by attorneys. Ibid; Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir.1980).

I. 1983 Claim

To establish a claim under 42 U.S.C. § 1983 a plaintiff must allege: (A) that defendant was acting “under color of state law” at the time of the acts complained of, and (B) that defendant deprived plaintiff of a right, privilege, or immunity secured by the Constitution or Laws of the United States. Freier v. New York Life Ins. Co., 679 F.2d 780, 783 (9th Cir.1982); Briley v. State of California, 564 F.2d 849, 853 (9th Cir.1977).

A. “Under Color of State Law”

§ 1983 provides redress only for action under color of state law. The action taken by a private party pursuant to the directions of the IRS in accordance with federal law (Treasury Regulations) does not state a claim under § 1983. See Zernial v. United States, 714 F.2d 431, 435 (5th Cir.1983); Betlyon v. Shy, 573 F.Supp. 1402, 1407 (1983); District of Columbia v. Carter, 409 U.S. 418, 423-25, 93 S.Ct. 602, 605-606, 34 L.Ed.2d 613 (1972). This is precisely what defendants did in disregarding plaintiff’s W-4 form. The treasury regulations that the IRS followed are explained below.

There is no allegation that defendant was acting under color of state law in discharging plaintiff. In fact the allegations indicate that the discharge was due to the private conduct of defendants. § 1983 is not invoked by “purely private conduct.” District of Columbia v. Carter, supra at 424, 93 S.Ct. at 606. Jenkins hasn’t stated a cause of action under Section 1983 because he has failed to allege any constitutional deprivation under color of state law. See Stonecipher v. Bray, 653 F.2d 398, 401 (9th Cir.1981).

B. Deprivation of a Right Secured by Federal Law or the Constitution.

Plaintiff claims that his employer should have honored his W-4 form, and that he should have received a hearing before it was dishonored.

The treasury regulation that is pertinent here indicates that if the IRS determines that a W-4 form is defective, the employer should consider the W-4 form to be defective. In a case such as this the IRS then directs the employer to disregard the W-4 form and to withhold amounts from the employee’s wages on the basis of the maximum number of exemptions specified in the letter from the IRS to the employer. Treasury Regulation § 31.3402(f)(2)-1(g). Furthermore, other analogous cases have held that employers and their agents did not violate federal law by complying with the IRS instructions to disregard a W-4 form. Cambell v. Amax Coal Co., 610 F.2d 701, 701-702 (10th Cir.1979); Stefanelli v. Silvestri, 524 F.Supp. 1317, 1320 (D. Nevada 1981); Rapp v. Peper, 80-1 U.S.T.C. 119204 (D. Alaska 1979). Defendants complied with the Treasury Regulations in disregarding plaintiff’s W-4 form. By their actions, defendants did not deprive Jenkins of any right secured by federal law. They also sought to preclude their own liability. Employers can be held liable for the payment of the tax required to be deducted and withheld. 26 U.S.C. § 3403; Stefanelli v. Silvestri, supra at 1320. In addition, officers and officials of a corporation can be held personally liable for any tax not truthfully accounted for. Ibid; 26 U.S.C. § 6672.

Moreover, an employer’s action in withholding taxes prior to a hearing relative to whether an employee’s W-4 form should be honored is not a deprivation of due process. Stonecipher v. Bray, supra at 403; Campbell v. Amax Coal Co., supra at 702; see Stefanelli v. Silvestri, supra at 1320. The prompt collection of taxes is essential for the nation’s continued existence and is an important governmental interest that justifies postponing a hearing. See Phillips v. Commissioner, 283 U.S. 589, 595-97, 51 S.Ct. 608, 611-612, 75 L.Ed. 1289; Stonecipher v. Bray, supra at 403. Plaintiff’s due process rights are protected by the statutory scheme which allows him to contest his tax liability in the Tax Court prior to paying the disputed tax or to sue for a refund in federal district court or in the Court of Claims. Ibid. Therefore, the withholding of taxes, as was done here, prior to a hearing did not deprive plaintiff of any constitutional right.

II. § 1985 Action

Plaintiff’s claim under § 1985(3) alleges that the IRS conspired with his employer Rockwell Corporation to deprive the plaintiff of a hearing prior to being discharged. A claim under § 1985(3) requires an allegation that defendants’ conduct was motivated by racial or other class based individiously discriminatory animus. United Broth. of Carpenters & Joiners v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 3354, 77 L.Ed.2d 1049 (1983); Wilhelm v. Continental Title Co., 720 F.2d 1173, 1175 (10th Cir.1983). Plaintiff’s complaint does not allege that he was the victim of any racial or other class-based discrimination. Therefore, his § 1985 cause of action is properly dismissed for failure to state a claim.

III. Jurisdiction

A court may dismiss an action sua sponte for lack of jurisdiction. Franklin v. State of Or., State Welfare Division, 662 F.2d 1337, 1342 (9th Cir.1981). The jurisdiction for actions under 42 U.S.C. §§ 1983 and 1985 is conferred by 28 U.S.C. § 1343. Luttrell v. United States, 644 F.2d 1274, 1275 (9th Cir.1980). According to 1343(3), federal courts have jurisdiction to entertain 1983 actions where there has been a constitutional deprivation under color of state law. 28 U.S.C. § 1343(3). Hagans v. Lavine, 415 U.S. 528, 539, 94 S.Ct. 1372, 1380, 39 L.Ed.2d 577; Aasum v. Good Samaritan Hospital, 542 F.2d 792, 794 (9th Cir.1976). The complaint fails to allege any act under color of state law, consequently this Court is without jurisdiction to hear plaintiff’s 1983 claim.

Furthermore, to invoke jurisdiction under § 1343 for a § 1985(3) claim requires the plaintiff to make specific allegations of “class based discriminatory animus.” Ellis v. Cassidy, 625 F.2d 227, 229 (9th Cir.1980). Since Jenkins has failed to allege any racial or class based discriminatory animus this Court is without jurisdiction to decide his 1985(3) claim.

Plaintiff also claims jurisdiction is conferred by the first amendment which guarantees to the people the right “to petition the government for a redress of grievances.” A constitutional violation does not establish jurisdiction in a federal court in and of itself. Plaintiff’s § 1983 action requires an additional requirement of color of state law to confer jurisdiction under § 1343(3). Furthermore, to confer jurisdiction for a 1985(3) action according to § 1343 requires class based discriminatory animus. Therefore, plaintiff has failed to meet the jurisdictional requirements.

Plaintiff further claims that jurisdiction is conferred on this Court by Article 8, Section 5, of the Nevada State Constitution which states “Corporations may sue and be sued in all courts, in like manner as individuals.” A provision of the Nevada Constitution cannot confer jurisdiction on the federal court. Even if this allegation were to be deemed to allege a claim, rather than merely a basis for jurisdiction, it would at most be a pendent claim. Where, as here, all federal claims are dismissed before trial, pendent state claims should also be dismissed. Jones v. Community Redevelopment Agency, 733 F.2d 646, 651 (9th Cir.1984). Therefore, plaintiff’s claim of jurisdiction based on the Nevada constitution will also be dismissed.

Moreover, federal courts are courts of limited jurisdiction, and the presumption is that they are without jurisdiction unless the contrary affirmatively appears. General Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 970 (9th Cir. 1981). The party seeking jurisdiction “must allege in his pleading the facts essential to show jurisdiction. If he fails to make the necessary allegations he has no standing.” Fifty Associates v. Prudential Insurance Co. of America, 446 F.2d 1187, 1190 (9th Cir. 1970). Since Jenkins has not alleged any facts to show jurisdiction, dismissal is the appropriate disposition. See Demarest v. United States, 718 F.2d 964, 965 (9th Cir. 1983). Nevertheless, dismissal for lack of jurisdiction allows the plaintiff to seek relief in state courts or to assert a claim in which the federal courts have jurisdiction. Franklin v. State of Or., State Welfare Division, 662 F.2d 1337, 1343 (9th Cir. 1981).

IV. Dismissal of Complaint

The Court recognizes that a pro se plaintiff should be given “an opportunity to amend his complaint to overcome any deficiency unless ‘it clearly appears ... that the deficiency cannot be overcome by amendment.’ ” Maurer v. Ind. and as Members of Los Angeles Cty., supra at 437; quoting Potter v. McCall, 433 F.2d 1087, 1088 (9th Cir.1970). Plaintiff has set forth in detail the nature of his claim. It does not appear that there is any amendment which could be made to the complaint to overcome the deficiencies described above. Therefore, he is not given leave to amend his complaint.

V. Attorney Fees

Defendants have requested attorney fees. Attorney fees in civil rights actions should be awarded to a defendant only where the action brought is found to be unreasonable, frivolous, meritless or vexatious. Hughes v. Rowe, 449 U.S. 5, 14-15, 101 S.Ct. 173, 178-179, 66 L.Ed.2d 163 (1980); Mayer v. Wedgewood Neighborhood Coalition, 707 F.2d 1020, 1021 (9th Cir.1983). Plaintiffs contention that he was improperly discharged for failure to pick up his checks may have some merit. Therefore, defendants will not be awarded attorney fees.

IT IS, THEREFORE, HEREBY ORDERED that the Clerk shall enter judgment dismissing the complaint.


author: BLUMENFELD, Senior District Judge.

text:
    AMERICAN POSTAL WORKERS UNION, et al. v. UNITED STATES POSTAL SERVICE.
    No. H-84-809 Civil.
    United States District Court, D. Connecticut.
    Aug. 14, 1984.
    On Motion for Reconsideration or Stay Oct. 18, 1984.

      Christopher C. Burdett, Stamford, Conn., Robert A. Cantore, Vladeek, Waldman, Elias, Engelhard, New York City, for plaintiffs.
    W. Philip Jones, Asst. U.S. Atty., Hartford, Conn., for defendant.
   RULING ON MOTION FOR A PRELIMINARY INJUNCTION

BLUMENFELD, Senior District Judge.

The plaintiffs seek a preliminary injunction restraining the Postal Service from terminating the employment of Philip N. Danko, pending arbitration of the dispute. The defendant opposes the motion and has moved to dismiss for failure to state a claim. The plaintiffs’ motion was heard on August 8, 1984, but no evidence was taken because the defendant conceded that the facts as stated in the plaintiffs’ complaint were true.

Facts

This dispute began with the decision of the Postal Service to “excess” (i.e., eliminate) fourteen positions at the New London Post Office and transfer a number of those employees to other offices in Connecticut. Danko, who is President of the union local, opposed this action; in particular, he claimed that the loss of these positions caused delayed mail service for customers of the New London Post Office. Danko publicized his opposition by contacting the local newspapers, the Senators from Connecticut, and his local Congressman.

The dispute was brought to a head by a letter that Danko sent to Mystic Color Lab, the largest customer of the New London Post Office. Danko informed Mystic Color Lab that, as a result of the elimination of the fourteen positions, its mail was being delayed. The defendant concluded that this letter constituted conduct prejudicial to the interest of the Postal Service and decided to discharge Danko.

The firing was to have taken effect on July 26, 1984, but Judge Clarie issued a temporary restraining order precluding the firing on July 24, 1984, which I extended for an additional ten days on August 3, 1984. The plaintiffs, Danko and the union representing employees at the New London Post Office, seek a preliminary injunction restraining the discharge until the arbitration of the dispute is completed.

The collective bargaining agreement requires arbitration of this dispute and the parties have commenced the arbitration process. The collective bargaining agreement establishes four steps in the arbitration process, two of which have been completed.

Discussion

The plaintiffs have presented several arguments in support of their contention that Danko should not have been fired by the Postal Service. The defendant disputes the merits of all of the plaintiffs’ arguments and contends that a preliminary injunction should not issue because the plaintiffs have not established any irreparable harm. The defendant also challenges the court’s jurisdiction because primary jurisdiction lies with the NLRB.

To obtain a preliminary injunction, the plaintiff must show:

(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the [plaintiff].

Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). Danko’s financial difficulties resulting from his discharge are not sufficient to establish irreparable injury. See Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974). But the plaintiffs contend that Danko’s discharge will have a chilling effect on his and the other employees’ exercise of their first amendment rights. The union contends that the chilling effect on its members’ first amendment rights is an irreparable injury. To determine whether there will be a chilling effect one must first inquire whether Danko’s actions were protected by the first amendment.

First Amendment

The Postal Service contends that Danko’s letter did not address a matter of public concern and thus was not protected speech under the first amendment. From the other side, the plaintiffs contend that Danko’s letter did not address a matter of purely private concern; they contend that the public has a vital interest in the efficient operation of the mails.

Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.

Connick, 103 S.Ct. at 1690 (footnote omitted).

In Connick, an assistant district attorney distributed to other employees a questionnaire criticizing the internal workings of the district attorney’s office, which was held not to be a matter of public concern. But see Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (speech about a dress code for teachers was a matter of public concern because it affected public support for bond issues). However, one of the questions on the questionnaire did address a matter of public concern: whether public employees were pressured into participating in political campaigns. Connick, 103 S.Ct. at 1691. Similarly, in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the Court held that a schoolteacher’s complaints about the allocation of funds between academic and athletic programs were addressed to a matter of public concern.

In this case, Danko’s letter was about a matter of public concern as well as a purely private dispute. The letter was designed to aid the union in its efforts to convince the Postal Service to reinstate the jobs which had been terminated at the New London Post Office. This dispute over the jobs is a private dispute between the union and the Postal Service, but the effects of this dispute were not a purely private matter. It should be noted that Danko’s letter was but one part of a campaign to inform the public of delays in mail deliveries at the New London Post Office. This campaign had received some attention in the local newspapers, which is some evidence that the matter is of public concern. The public has a legitimate and pressing interest in the prompt delivery of the mails. Thus, to the extent that the lost jobs caused a delay of the mails, the private dispute was a matter of public concern.

Irreparable Harm

The loss of first amendment rights for even a short period of time is an irreparable injury. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Furthermore, “a plausible claim of a ‘chilling effect’ on the exercise of [first amendment rights] meets the irreparable harm requirement.” Maceira v. Pagan, 649 F.2d 8, 18 (1st Cir.1981); see also Katz v. McAulay, 438 F.2d 1058, 1060 n. 3 (2d Cir.1971), cert. denied, 405 U.S. 933, 92 S.Ct. 930, 30 L.Ed.2d 809 (1972); Chicago Area Military Project v. City of Chicago, 508 F.2d 921, 926 (7th Cir.), cert. denied, 421 U.S. 992, 95 S.Ct. 1999, 44 L.Ed.2d 483 (1975). I conclude that the plaintiffs have shown that the failure to enjoin Danko’s discharge would result in a chilling of his and the other employees’ exercise of their first amendment rights; thus the plaintiffs have satisfied the irreparable harm requirement.

Success on the Merits

The defendant contends that Danko committed an act of disloyalty and thus his discharge was justified. The plaintiffs argue that the discharge was unlawful because Danko was discharged for exercising his first amendment rights. Although the defendant might argue that it would have discharged Danko even in the absence of the protected conduct, see Mount Healthy, 429 U.S. at 281-87, 97 S.Ct. at 573-76, the only instance of disloyalty which the defendant has presented is the letter to Mystic Color Lab. Thus, this case is distinguishable from Mount Healthy in which the defendant claimed that the plaintiff had engaged in conduct justifying his discharge completely apart from the conduct which was protected by the first amendment. Id. at 281-82, 97 S.Ct. at 573-74. In light of my conclusion, at this stage of the proceedings, that Danko’s letter addressed a matter of public concern, the defendant’s admission that Danko was discharged for writing that letter is a sufficient basis to find that the plaintiffs have shown a likelihood of success on their claim that Danko’s discharge was unlawful.

Jurisdiction

The defendant has moved to dismiss this suit because primary jurisdiction lies with the NLRB and therefore this court does not have jurisdiction to issue an injunction. In Boys Markets, Inc. v. Retail Clerk’s Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), the Supreme Court held that a union may be enjoined from striking over a grievance which the collective bargaining agreement consigned to arbitration. Otherwise, the union could frustrate the arbitration process by using a strike to wring concessions from an employer before the arbitrator could decide the issue. The availability of injunctions has been narrowed in Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976), but an injunction may be issued in aid of arbitration. See Columbia Local, American Postal Workers Union v. Bolger, 621 F.2d 615 (4th Cir.1980); United Steelworkers v. Fort Pitt Steel Casting, 598 F.2d 1273 (3d Cir.1979). In addition to the traditional requirements for the issuance of a preliminary injunction, the failure to issue an injunction must “deprive the union of an effective remedy in the event the arbitrator decided the grievance in the union’s favor.” Local Lodge No. 1266 v. Panoramic Corp., 668 F.2d 276, 283 (7th Cir.1981); Lever Bros. Co. v. Int’l. Chemical Workers, 554 F.2d 115 (4th Cir.1976).

The inquiry into whether the arbitration would be frustrated by the failure to issue an injunction is closely related to the question of whether the plaintiffs will suffer an irreparable injury. See Panoramic, 668 F.2d at 286. The arbitrator would be able to remedy Danko’s loss of employment by ordering reinstatement and back pay, but the failure to issue an injunction would frustrate the arbitration process because the arbitrator would be unable to remedy the chilling effect on the employees’ exercise of their first amendment rights.

For the foregoing reasons, the defendant’s motion to dismiss is denied, and the plaintiffs’ motion for a preliminary injunction is granted.

SO ORDERED.

ON MOTION FOR RECONSIDERATION OR STAY

Defendant in this action has moved for reconsideration or stay of my previous decision to grant a preliminary injunction restraining the discharge of plaintiff Philip Danko pending arbitration of a labor dispute. American Postal Workers Union v. United States Postal Service, 593 F.Supp. 403 (1984) (Blumenfeld, J.). The facts are set forth adequately in that decision, and I need not restate them here. In a lengthy, repetitive, and somewhat disorganized brief, defendant advances various arguments to the effect that this court was without jurisdiction to issue an injunction in this case. These arguments are addressed below.

I. Statutory Basis for Jurisdiction

As an initial matter, 39 U.S.C. § 1208(b) appears to vest jurisdiction in this court. Defendant argues, however, that the body of case law applicable to section 1208(b) precludes the exercise of jurisdiction. The parties agree that the law developed under section 301 of the Labor Management Relations- Act, 29 U.S.C. § 185, applies by analogy. See National Ass’n of Letter Carriers v. Sombrotto, 449 F.2d 915, 918-19 (2d Cir.1971). It is equally well established that in resolving issues under section 301, a district court may apply the case law developed under the Railway Labor Act, 45 U.S.C. § 151 et seq. Boys Markets v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970).

II. Exhaustion of Contractual Remedies

Defendant contends that the plaintiffs may not seek relief in federal court until they have complied with contractual arbitration procedures to the final step. In effect, defendant’s position is that while a court may enforce an arbitration award, a court has no power to maintain the status quo pending the results of arbitration. However, neither the case law nor the Congressionally-established policy favoring arbitration as the means of resolving labor disputes requires this result.

Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965), cited by defendant in support of its contention, is inapposite. In Republic, a discharged employee who had made no effort to utilize contractual grievance/arbitration procedures brought suit in state court to recover severance pay which he alleged was owed him under the terms of the contract. On appeal from a state court judgment in favor of the employee, the Supreme Court held that federal policy prohibits an individual from electing “to completely sidestep available grievance procedures in favor of a lawsuit.” Id. at 653, 85 S.Ct. at 616.

In contrast to the situation in Republic Steel, the plaintiff in the instant case is actively pursuing contractual remedies. But in a classic plea for equitable relief, he alleges that he will suffer irreparable injury if the status quo is not maintained during the possibly lengthy grievance/arbitration process. Such an action has repeatedly been held to be within the jurisdiction of the district court. E.g., Local 553, Transport Workers Union v. Eastern Air Lines, 695 F.2d 668 (2d Cir.1982); Columbia Local, American Postal Workers Union v. Bolger, 621 F.2d 615 (4th Cir.1980); Lever Brothers Co. v. International Chemical Workers Union Local 217, 554 F.2d 115 (4th Cir.1976); Hoh v. Pepsico, Inc., 491 F.2d 556, 560 (2d Cir.1974); Teamsters Local Union No. 764 v. Branch Motor Exp. Co., 463 F.Supp. 282 (D.Pa.1978).

Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976), is not to the contrary. In Buffalo Forge, the Supreme Court held that section 4 of the Norris-LaGuardia Act, 29 U.S.C. § 104, prohibits an injunction against a sympathy strike which both employer and union agreed was itself over a non-arbitrable issue. 428 U.S. at 407-08, 96 S.Ct. at 3147-48. The Court went on to say that although the parties in Buffalo Forge could arbitrate the issue of whether the sympathy strike violated the contract’s express no-strike clause, an injunction against the strike would violate section 4(a) of the Norris-LaGuardia Act’s express prohibition against injunctions prohibiting any person from “[cjeasing or refusing to perform any work or to remain in any relation of employment.” Behind this holding lay the Congressional policy decision that courts should not predetermine factual and contract interpretation issues which the parties have agreed to place in the province of the arbitrator, as well as the Court’s recognition that “[injunctions against strikes, even temporary injunctions, very often permanently settle the issue.” 428 U.S. at 412, 98 S.Ct. at 3149.

Buffalo Forge does not control the instant case. There is no strike here. The dispute is over an arbitrable issue. The preliminary injunction does not settle the dispute, nor does it predetermine either factual issues or the interpretation of the contract. The Norris-LaGuardia Act does not by its policy or its terms forbid an injunction, and an injunction here furthers, rather than derogates, federal policy in favor of arbitration as a means of resolving labor disputes. Cf Boys Markets, supra, 398 U.S. at 249-53, 90 S.Ct. at 1591-94. The injunction merely preserves the present relationship between the parties in recognition of the fact that, should plaintiff Danko prevail in the grievance/arbitration process, the arbitrator’s award of reinstatement and back pay could not remedy the damage done to plaintiffs by chilling the exercise of their first amendment rights. See Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Sheehan v. Purolator Courier, 676 F.2d 877, 885 (2d Cir.1981).

III. Preemption

Defendant next contends that this court is without jurisdiction to issue an injunction in this case because the question whether the Postal Service violated Danko’s rights under sections 7 and 8 of the NLRA is within the exclusive jurisdiction of the NLRB. The argument is a curious one, since plaintiffs have not sought to litigate Danko’s section 7 and 8 rights in this forum. In addition to this action, plaintiffs have filed an unfair labor practice charge with the NLRB, upon which the Board has indicated no action will be taken until the arbitrator has rendered a decision. Plaintiffs do not ask this court to interfere with the NLRB’s jurisdiction by determining the merits of the unfair labor practice charge, but rather to preserve the status quo pending the arbitrator’s decision. The law does not preclude the court from doing so.

In Carey v. Westinghouse Corp., 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320 (1964), the Supreme Court held that the existence of an unfair labor practice remedy before the Board did not bar a union from seeking a court order compelling arbitration. See also Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962) (suit for damages not barred by existence of NLRB remedy). At least since then, it has been beyond dispute that the NLRB and the District Court have concurrent jurisdiction over suits to enforce labor contracts, even where the conduct involved might well be an unfair labor practice. Hines v. Anchor Motor Freight, 424 U.S. 554, 562, 96 S.Ct. 1048, 1055, 47 L.Ed.2d 231 (1976); Pari Mutuel Clerks Union of La. v. Fair Grounds Corp., 703 F.2d 913, 917-18 (5th Cir.1983).

Defendant suggests, citing Eastex, Inc. v. NLRB, 437 U.S. 556, 98 S.Ct. 2505, 57 L.Ed.2d 428 (1978) and NLRB v. International Brotherhood of Electrical Workers, 346 U.S. 464, 74 S.Ct. 172, 98 L.Ed. 195 (1953), that the NLRB would not find an unfair labor practice on the facts of this case. That argument does not go to this court’s jurisdiction to issue an injunction pending arbitration, but rather to the merits of the dispute between the parties. The merits are for the arbitrator, in the first instance, to decide. I have concluded only that plaintiffs’ claims of irreparable injury to their first amendment rights are sufficiently strong to require an injunction pending a merits decision.

It is not, however, the jurisdiction of the court which is premised on the constitutional claim. While in the absence of such a claim a court might properly choose, as a discretionary matter, to refrain from issuing an injunction, jurisdiction here is based on statute. The constitutional claim goes to the existence of irreparable injury, a prerequisite for equitable relief.

In sum, I conclude that I am not required by law to defer to the NLRB in this matter. The court shares jurisdiction with the Board. In light of the Board’s decision to defer to the arbitrator, and in the circumstances of this case, it was no invasion of the Board’s authority to issue the injunction in this case.

IY. The Statutory Remedial Scheme

In a final assault on the jurisdiction of the court, defendant argues that under Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), and Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), the existence of a statutory remedial scheme precludes the implication of a remedy under the Constitution. These cases are not on point, because this is not a Bivens action. Plaintiffs here seek the intervention of this court not to award damages for a constitutional violation, nor to bypass the avenues of relief established by Congress and the collective bargaining agreement. Rather, they seek temporary injunctive relief to preserve their constitutional rights while they pursue remedies under the very statutory and contractual scheme invoked by defendant. In these circumstances, the discussion of implied constitutional damage remedies is wide of the mark.

The legal issue in Bush v. Lucas was quite different from the issue in the case at bar. Bush, an employee of the National Aeronautics and Space Administration’s Marshall Space Flight Center, was demoted for making public comments critical of the Center. Through the Civil Service appeals process, he sought and was eventually awarded both reinstatement and back pay. Simultaneously, he filed an action seeking to recover damages for alleged violation of his first amendment rights. The issue presented to the Supreme Court was whether, in light of the elaborate remedial system provided by Congress, the Court should imply a non-statutory damages remedy against the supervisor who demoted Mr. Bush. The Court held in the negative, emphasizing that “Congress is in a far better position than a court to evaluate the impact of a new species of litigation between federal employees on the efficiency of the Civil Service.” 462 U.S. at-, 103 S.Ct. at 2417.

In the instant case, however, plaintiff does not seek an implied damages remedy. Congress has already provided a statutory basis for the jurisdiction of the court and no “new species of litigation” is contemplated. Moreover, plaintiff occupies a position of some importance — i.e., President of his union local — in the system of collective bargaining which Congress has sought through the labor laws to encourage, and protect, and plaintiff alleges not only a violation of his own first amendment rights, but also a chilling effect on the rights of the members of his local. See Sheehan v. Purolator Courier, supra. Nothing in Bush v. Lucas addresses this situation or requires a court to forbear from exercising its traditional power to fashion an equitable remedy.

V. Additional Issues

Defendant raises several additional arguments, going to issues other than the jurisdiction of the court.

First, defendant continues to insist that under Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), Danko’s speech was not protected by the first amendment. In my previous decision in this matter, I made plain my view that under these circumstances, the letter which Danko was fired for signing addressed a matter of sufficiently public concern to bring Danko under the amendment’s protection. In Connick, the Court stated that its holding was a limited one:

We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.

461 U.S. at 147, 103 S.Ct. at 1690. In my view, both the content of Danko’s statements and the circumstances under which they were made take them outside the scope of the holding in Connick.

Second, defendant argues that plaintiffs have failed to demonstrate irreparable injury, since if Danko should prevail in arbitration he will receive reinstatement and back pay. However, it is clear that such an award will not remedy the damage done to the first amendment rights of Danko and the members of his union local. This is the type of case to which the court in Lever Brothers referred when it stated that an injunction could issue “where it is necessary to prevent conduct by the party enjoined from rendering the arbitral process a hollow formality ... [since] ... the arbitral award when rendered could not return the parties substantially to the status quo ante.” 554 F.2d at 123. The Supreme Court has held, moreover, that harm to first amendment rights satisfies the irreparable injury requirement for equitable relief. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (opinion of Brennan, J.).

Defendant also contends that the local union has no standing to sue, and impliedly argues that this court abused its discretion when it considered the harm that would be done to members of the local if Danko’s discharge were allowed to stand pending arbitration.

It is clear, however, that the statute does not require a party to be a signatory to the contract in order to bring suit. Santos v. Dist. Council of New York City, 547 F.2d 197, 200 n. 3 (2d Cir.1977). Cf. Columbia Local, supra. Since the main requirement for standing under Article III is “injury in fact,” see Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978), and there is no question that the union may assert its members’ rights, see NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), I find the standing contention to be without merit.

Finally, defendant contends that the court has improperly balanced the hardships in this case, since the public interest will suffer if defendant must retain this miscreant on its payroll. But defendant has never alleged that plaintiff Danko performs his work in less than adequate fashion. However, defendant now alleges, by affidavit of Francis Boughan, Director of Employee and Labor Relations for the Connecticut Valley District of the United States Postal Service, that the injunction is harmful to United States Postal Service efficiency, because it undermines management authority to discipline employees for cause.

The existence of “cause” for Danko’s discharge is of course an issue to be adjudicated before the arbitrator. Should he or she determine that cause existed, Danko will be discharged, and management authority will be vindicated. The issue, then, is whether the public interest suffers from the fact that Danko must be maintained in work status until a decision is rendered. This question is complicated by the presence of the first amendment issues in the case. I find that the loss of face which management may incur, not from Danko’s speech itself but simply from the inability to discharge him pending resolution of his grievance, is insufficient to outweigh the damage which would be done to plaintiffs’ first amendment rights if Danko were discharged pending arbitration, even if the discharge were subsequently reversed. Conclusion

I reiterate what I said in my previous decision in this matter: “If the trial on the merits were held in this court, I would not be bound by the conclusion of law or fact reached in this decision.” The purpose of this injunction is not to prejudge the case or to influence the arbitrator. It is merely to preserve the status quo until the arbitrator decides the issues raised by Danko’s grievance. Should the matter come before me once again after that event, different considerations might apply to a determination of the merits. At this stage, however, defendant has not convinced me either that issuance of the injunction was incorrect, or that a stay is warranted.

The decision granting a preliminary injunction having been reconsidered, for the reasons made clear above the decision is adhered to and a stay is denied.

SO ORDERED.

      . The plaintiffs have also filed an unfair labor practice charge with the National Labor Relations Board ("NLRB"), which has decided to defer action pending arbitration. See Collyer Insulated Wire, 192 N.L.R.B. 837 (1971).

      . Such speech does not fall in the same category as obscenity which is never protected under the first amendment; rather, if the speaker is a public employee, he may be fired for such speech without violating the first amendment.
        Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983).

      . In Connick, the Court balanced the extent to which the plaintiffs first amendment rights were infringed against the government’s interest in promoting the efficiency of public services:
      The limited First Amendment interest involved here does not require that Connick tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships.

        Id. at 1694. In this case, the Postal Service does not contend that Danko’s continued presence in the New London Post Office will result in the disruption of the office or the destruction of working relationships. Furthermore, the fact that Danko’s speech did not occur at the workplace decreases the likelihood that his continued employment would have an adverse effect on the operation of the Post Office. Cf. Connick, 103 S.Ct. at 1693 n. 13.

      . Although the person to whom speech is directed is not dispositive, it is a factor to be considered. Compare Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979) (speech protected by the first amendment although directed only to the employer) with Mount Healthy (fact that communication was broadcast by a radio station was evidence that it was a matter of public concern).

      . If the trial on the merits were to be held in this court, I would not be bound by the conclusions of law or fact reached in this decision. Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 742 (2d Cir.1953). Similarly, the arbitrator of this dispute will not be bound by my conclusions. Cf. Teamsters Local 71 v. Akers Motor Lines, Inc., 582 F.2d 1336, 1341-42 (4th Cir.1978), cert. denied, 440 U.S. 929, 99 S.Ct. 1266, 59 L.Ed.2d 485 (1979).

      . While the defendant has not explicitly equated the first amendment activity of the plaintiff with the contention that the plaintiff was guilty of disloyalty, at this point in the proceedings, the defendant has offered no other logical basis for its contention.

      . Although the plaintiffs need not show a balancing of the hardships tipping decidedly in their favor, the defendant will not suffer an irreparable injury from Danko’s continued employment. Where, as here, the defendant will suffer no irreparable harm if the motion is granted and the plaintiff will suffer irreparable harm if the motion is denied, the balance of the hardships tips decidedly in favor of the plaintiffs. Cf. Hamilton Watch Co., 206 F.2d at 743; Dino DeLaurentiis Cinematografica v. D-150, Inc. 366 F.2d 373, 375 (2d Cir.1966).

      . The statute provides:
      Suits for violation of contracts between the Postal Service and a labor organization representing Postal Service employees, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy.

      . Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974), also relied on by defendant, holds only that speech protected under federal labor laws cannot be the subject of a state court libel judgment.

      . Cf. Holt v. Continental Group, Inc., 708 F.2d 87 (2d Cir.1983) (In Title VII case, court in determining whether irreparable injury requirement for preliminary injunction has been met should consider risk that other employees may be chilled in the exercise of their rights by permitting plaintiff's discharge pending the outcome of state administrative proceedings.)

      . The Connick decision is discussed in Developments in the Law — Public Employment, 97 Harv. L.Rev. 1611 (1984), where the authors state:
      The public has a substantial interest in the robust and informed discussion of governmental affairs. Pickering [v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)] recognized that public employees, by virtue of their expertise and experience, are often among the citizens who are best informed about the workings of government and that their opinions are thus especially valuable to the public. Although the Court in Connick found that Pickerings protection extends only to employee speech regarding "matters of public concern,” courts should be wary of deciding that informed discussion of government’s internal operations is of no concern to the public.
      In particular, courts should not automatically regard labor grievances over office policy to be purely personal matters. Grievances relating to compensation levels and the problems of discipline and morale within public agencies trigger public concern when they threaten the competency or efficiency of public servants. In Connick, the Court held that an employee who distributed a questionnaire relating to office morale and practices had expressed a personal concern; yet the Court stressed that its holding rested on the particular facts at issue. Connick did not hold that speech relating to labor grievances is always a personal matter; indeed, such a holding would depart from the Court's commitment to case-by-case balancing. Rather, the Court held only that the plaintiffs particular grievances were personal. In the short time since Connick was decided, two lower federal courts have found, based on the particular facts before them, that speech relating to labor grievances addressed matters of public concern.

        Id. at 1768-69 (footnotes omitted).

      . It has come to my attention that on October 12, 1984, defendant filed a notice of appeal in this matter. Such notice does not, however, divest this court of jurisdiction to decide the instant motion. Although defendant styled its motion for reconsideration as a motion under Fed.R.Civ.P. 60, defendant specified no proper Rule 60 grounds for the motion. I have treated the motion as one made under Rule 59(e), and the notice of appeal is therefore a nullity under Fed.R.App.P. 4(a)(4). See 6A Moore’s Federal Practice ¶ 59.12[1], p. 59-280 (1984).