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

text:
    VARI-BUILD, INC., Plaintiff, v. CITY OF RENO, Barbara Bennett, Jim Thornton, Janice Pine, Peter Sferrazza, Joe McClellan, Dick Scott, Florence Lehners, Phil Herrington, Leann McElroy, and Robert S. Shoemaker, Defendants.
    No. CV-R-83-250-ECR.
    United States District Court, D. Nevada.
    Sept. 18, 1984.

      Franklin Cal Hoover, Reno, for plaintiff.
    Charles L. Eddleman, Asst. City Atty., Reno, for defendants.
   MEMORANDUM DECISION AND ORDER

EDWARD C. REED, Jr., District Judge.

Defendants’ motion to dismiss this 42 U.S.C. § 1983 action has required consideration of matters outside the pleading. The Court, by Order filed December 16, 1983, advised the parties that the motion was being treated as a Fed.R.Civ.P. 56 motion for summary judgment. Both sides have supplemented the record, so that the Court feels fully advised.

The Complaint asks damages for Defendants’ failure to issue a business license to Plaintiff for an eight kitchen/thirty-two bedroom living facility Plaintiff constructed under building permits issued to it. The individual defendants are all officers and employees of defendant City of Reno. The First Claim for Relief alleges violations of Plaintiff’s due process and equal protection rights; the Second Claim for Relief charges breach of contract, based on the building permits and certificate of occupancy; the Third Claim for Relief sounds in negligence for failure to issue the business license.

Factual Setting

Plaintiff submitted plans for its “common kitchen” apartment-type facility to the Regional Planning Commission of Reno and Washoe County about February 4, 1981. The Commission approved the plans and, on February 17,1981, building permits were issued. However, on April 27, 1981, the Reno City Council ordered that a stop work order be issued, because of alleged building code and zoning violations. Plaintiff commenced an action in State court and obtained an order lifting the stop work order. The basis for the court order was the failure of the City Council to give written notice to Plaintiff of the meeting at which the violations were considered. Construction resumed.

On June 1, 1981, the City of Reno ceased affiliation with the Regional- Planning Commission. The City’s Board of Adjustment then conducted a hearing on July 15, 1981, concerning Plaintiff’s facility. It decided that Plaintiff was in violation of the building code and zoning restrictions. The Reno City Council affirmed the Board’s decision. As to zoning, the Council reinterpreted a City ordinance. Instead of counting kitchens in a “common kitchen” facility to determine density, the Council decided the proper procedure was to count bedrooms. The longstanding policy of the City had been to count kitchens; at least three other similar “common kitchen” facilities had been approved and constructed in Reno during 1979 and 1980. Since Plaintiff’s facility had thirty-two bedrooms, the new interpretation of the ordinance resulted in too many living units on the parcel of land. Thus, it was found to violate the zoning law, as well as the building code. Nevertheless, a certificate of occupancy was issued pursuant to order of the State court.

Plaintiff’s application for a business license (required before the apartment units could be rented) was denied on August 6, 1981. The denial was upheld by the City Council on August 17, 1981, upon Plaintiff’s appeal to it.

Plaintiff then commenced an action in State court, praying for damages and for a writ of mandamus commanding the City of Reno to issue a business license. On October 12, 1981, Nevada District Judge Peter I. Breen dismissed the claim for damages for the purpose of simplifying the trial of the mandamus action.

Judge Breen’s Decision was handed down December 3, 1981, after a five-day trial. He found that it had been the policy of the City administrators, the City Attorney and the Regional Planning Commission to count the kitchens in ascertaining the number of units in a “common kitchen” apartment facility. He also stated that Plaintiff’s project would have complied with zoning requirements had the policy not been changed by the City Council. The change was made when Plaintiff’s construction was 85% completed. After the project had been finished, Plaintiff’s application for a business license was denied on zoning grounds.

The Decision stated that the central issue was estoppel. “This is an equitable principle and I must consider if one who seeks equity is doing equity.” Judge Breen pointed out that setback requirements had been violated, that the number and size of parking spaces were not in accordance with requirements, that the parking lot paving and base materials were not of required thickness, that certain railings were below standard, and that the facility was undervalued by Plaintiff in its application for building permits. In each instance the City was held to have had knowledge of the defects and to have approved them.

In discussing the principles of estoppel as applied against a city (generally a city can’t be estopped by an erroneous act of its agent), Judge Breen noted that the doctrine could be invoked where municipal officers’ actions had induced a party to act and where substantial loss would be suffered. He found that the City of Reno’s former policy of counting kitchens induced Plaintiff to construct his project, with attendant expenditure of large sums of money.

Nevertheless, the Decision noted that Petitioner’s twenty years experience as a builder in the area should have made it aware of the building code. The Judge found that Plaintiff was not induced to rely on anyone when it violated setback, parking space, railing, parking lot and valuation requirements. Combining this finding with the adverse effects of the project on its neighbors, Judge Breen held that it would be inequitable to apply estoppel against the City, and he denied the request for a writ of mandamus.

Toward the end of his Decision, Judge Breen wrote:

“As I have stated, I would grant the Writ were I dealing solely with the issue of the ‘common kitchen.’ But I am not. Mandamus is an extraordinary remedy. A clear legal right to such relief must be shown. I have some doubt as to whether these violations can be corrected. In view of my conclusion, I see no need to discuss the other issues and motions presented.”

Statute of Limitations

Nevada statute states that no action for judicial relief with respect to any final decision of any governing body “... granting or changing any land use classification or granting any special use or variance” is permitted unless the action is commenced within 25 days of the filing of notice of the decision. NRS 278.0235. Defendants contend that planning and zoning procedures constitute the basis for Plaintiff’s Complaint herein, so that the statute applies. The Complaint was filed almost two years after the Reno City Council’s upholding of the denial of a business license to Plaintiff.

The California statute involved in Willis v. Redden, 418 F.2d 702 (9th Cir.1969), was similar to NRS 278.0235 in that it, also, conditioned the right to sue upon a timely (within six months) filing of the action. The opinion declared that the effect was to qualify a federally created right. Therefore, the State statute was held to be inapplicable. See also Metropolitan Water District of Southern California v. State, Nev., 665 P.2d 262, 264 (1983); Aitchison v. Raffiani, 708 F.2d 96, 102 (3rd Cir.1983). Aitchison reasoned that a Pennsylvania six-month statute of limitations governing suits against government officials would be inconsistent with the remedial spirit of federal civil rights actions.

Since the Civil Rights Act provides no statute of limitations for an action brought under § 1983, federal courts look to the state within which the action arose. Smith v. Cremins, 308 F.2d 187, 189 (9th Cir.1962); Mason v. Schaub, 564 F.2d 308, 309 (9th Cir.1977). In the Ninth Circuit the state limitations statute applicable to actions upon a liability created by statute is borrowed. Plummer v. Western International Hotels Company, Inc., 656 F.2d 502, 506 (9th Cir.1981); Clark v. Musick, 623 F.2d 89, 92 (9th Cir.1980). The appropriate Nevada statute is NRS 11.190(3)(a), which imposes a three-year limitation. Mason v. Schaub, supra at 309.

Although the limitation period for a federal civil rights action may vary from state to state, all such actions brought within a single state are subject only to the period specified for a liability created by statute. Clark v. Musick, supra at 92; Garcia v. Wilson, 731 F.2d 640, 651 n. 4 (10th Cir.1984). Thus, the particular nature of a defendant’s conduct is not determinative. Plaintiff’s lawsuit herein is not barred by the statute of limitations.

Res Judicata and Collateral Estoppel

Defendants argue that the parties and the subject matter of the instant action are the same as those that were before Judge Breen in State court. They urge that his Decision operates as a bar because of the doctrines of res judicata and collateral estoppel.

Those doctrines do apply in § 1983 actions, so that a federal court must give preclusive effect to state court judgments involving the same issues or claims for relief. Heath v. Cleary, 708 F.2d 1376, 1379 (9th Cir.1983). The doctrine of res judicata precludes parties or their privies from relitigating a claim for relief that has been finally determined by a court of competent jurisdiction. Landex, Inc. v. State ex rel. List, 94 Nev. 469, 582 P.2d 786, 790 (1978). The preclusive effect in federal court is the same that the judgment would have in the courts of the state where it was obtained. Migra v. Warren City School Dist. Bd. of Education, — U.S.-, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984); Heath v. Cleary, supra at 1379.

In order for res judicata to act as a bar:

(1) The issue decided in the prior adjudication must have been identical with the issue presented in the later action;
(2) There must have been a judgment on the merits; and
(3) The party against whom the doctrine is asserted must have been a party to the earlier action or in privity with such a party.

Horvath v. Gladstone, 97 Nev. 594, 637 P.2d 531, 533 (1981). The state court judgment is conclusive not only on the claims for relief actually contested and determined, but also as to claims which might have been litigated and decided. York v. York, Nev., 664 P.2d 967, 968 (1983); see also Bd. of Trustees of Carpenters Pension v. Reyes, 688 F.2d 671, 673 (9th Cir. 1982).

In Nevada, damages are generally a proper request in a petition for writ of mandamus. Gulbranson v. City of Sparks, 89 Nev. 93, 506 P.2d 1264, 1265 (1973). Nevertheless, Plaintiffs claim for damages in the State court action was dismissed by the Court as a procedural means of expediting trial of the mandamus action. Therefore, it can’t be said that the instant claim for damages might have been litigated in the prior action. See Gallagher v. Frye, 631 F.2d 127, 130 (9th Cir.1980). Res judicata does not bar Plaintiff’s claims for relief herein.

Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different claim for relief involving a party to the first action. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980). For the doctrine to be invoked it is necessary that:

(1) There have been a final judgment on the merits in the prior action;
(2) The party against whom it is asserted must have been a party or in privity with a party to the earlier adjudication; and
(3) The issue decided in the prior litigation must have been identical with the one presented in the later action.

Clark v. Watchie, 513 F.2d 994, 998 (9th Cir.1975). Factors (1) and (2) are fulfilled here. Factor (3) is not. The right to mandamus is not the same issue as to the right to damages for deprivation of federal rights. Heath v. Cleary, 708 F.2d 1376, 1379-80 (9th Cir.1983); Gallagher v. Frye, supra at 130; see also Haslund v. City of Seattle, 86 Wash.2d 607, 547 P.2d 1221, 1231 (1976). Therefore, collateral estoppel is not a bar to Plaintiff herein.

Negligence

In its Third Claim for Relief, Plaintiff alleges that defendant City of Reno had a duty to it to issue a business license and negligently breached that duty.

The power of a city to require a license implies the power to revoke a license which has been improperly issued. See Kudla v. Moore, 537 F.Supp. 87, 89 (E.D.Mich.1982), affd w/o op. 711 F.2d 1057 (6th Cir.1983). Also, an administrative body generally is not bound by the erroneous acts of a predecessor board in deciding whether to permit a particular use for property. Archdiocese of Portland v. County of Washington, 254 Or. 77, 458 P.2d 682, 687 (1969). However, these general rules do not apply where official conduct has created specific reliance by an individual. See Frye v. Clark County, 97 Nev. 632, 637 P.2d 1215, 1216 (1981); In re M/T Alva Cape, 405 F.2d 962, 968 (2nd Cir. 1969). Judge Breen already has found that Plaintiff was induced to rely on the earlier policy and practice of the City of Reno in counting kitchens in “common kitchen” facilities to determine density with respect to zoning restrictions. Defendants’ motion for summary judgment must be denied as to the Third Claim for Relief.

§ 1983

Defendants contend that a § 1983 action can be maintained in federal court only if an adequate state administrative remedy is not available, and that such a remedy was available to Plaintiff. Further, they point out the several hearings and the State court review afforded Plaintiff as indicative that any deprivation of its rights was not without due process of law.

Defendants’ argument is based on the landmark case of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), in which the plaintiff was held not to have stated a claim for relief under § 1983 because due process was available to him in the state court system. However, the opinion emphasizes, on p. 543, 101 S.Ct. p. 1916, that “the deprivation did not occur as a result of some established state procedure.” The deprivation had occurred as a result of the unauthorized failure of the state’s employees to follow established procedure. See also Keniston v. Roberts, 717 F.2d 1295, 1301 (9th Cir.1983). Here it is the effect on Plaintiff of the established State procedure that has given rise to this litigation. From Plaintiff’s point of view, Defendants’ decision against him was arbitrary. An arbitrary decision cannot be validated by a procedurally correct review process that produces an equally arbitrary ruling. J.W. v. City of Tacoma, Wash., 720 F.2d 1126, 1132 (9th Cir.1983). In addition to its due process contentions, Plaintiff also claims violation of his equal protection guarantee. It does apply to the power of a city to regulate the use of land. Kinzli v. City of Santa Cruz, 539 F.Supp. 887, 894 (N.D.Cal.1982). Genuine issues of material fact remain as to Plaintiff’s § 1983 claims.

Contract

In its Second Claim for Relief, Plaintiff alleges that the issuance of building permits and a certificate of occupancy constitutes a contract which defendant City of Reno has breached. Defendants correctly contend that a license issued in the exercise of the City’s police power confers no contractual rights upon the licensee. See Butcher v. Maybury, 8 F.2d 155, 158 (W.D. Wash.1925); Palmetto Fire Ins. Co. v. Beha, 13 F.2d 500, 505 (S.D.N.Y.1925); Rosenblatt v. California State Bd. of Pharmacy, 9 Cal.App.2d 69, 158 P.2d 199, 202 (1945). Defendant City of Reno is entitled to dismissal of the Second Claim for Relief.

Inverse Condemnation

Plaintiff’s Complaint alleges that, as a result of Defendants’ conduct, it has been denied its rights to own and use property, to freedom of contract, and to due process and equal protection of the law. Defendants argue that there has been a mere decrease in value of the property and not a total taking, therefore inverse condemnation principles are not applicable.

A taking is effected if the application of a zoning law denies a property owner of economically viable use of his land. Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980). This can consist of preventing the best use of the land or extinguishing a fundamental attribute of ownership. Id. at 262, 100 S.Ct. at 2142. Plaintiff could use his land for apartment buildings that comply with the City’s zoning restrictions, therefore inverse condemnation is not here involved. However, Plaintiff’s pleadings ask for damages under § 1983, and not for taking per se. The overregulation of land by a municipality can give rise to damages under § 1983. Martino v. Santa Clara Valley Water Dist., 703 F.2d 1141, 1148 (9th Cir.1983).

Conclusion

Where a motion for summary judgment is at issue, the moving parties have the burden of establishing the non-existence of any triable issue of fact. Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1250 (9th Cir. 1982). All facts and inferences therefrom must be viewed in the light most favorable to the non-moving party. Ibid.

Genuine issues of material fact exist as to Plaintiff’s First and Third Claims for Relief, so that it may not be concluded that Defendants are entitled to judgment thereon as a matter of law. To the extent that the Third Claim could be construed as a claim based on common law negligence, this Court would have pendent jurisdiction. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). Defendant City of Reno is entitled to judgment on the Second Claim for Relief, which sounds in breach of contract, for the reason discussed above.

IT IS, THEREFORE, HEREBY ORDERED that judgment shall be entered in favor of defendant City of Reno dismissing the Second Claim for Relief.

IT IS FURTHER ORDERED that Defendants’ motion for summary judgment be, and the same hereby is, denied as to the First and Third Claims for Relief.


source: Caselaw Access Project

author: VINSON, District Judge.

license: Public Domain

text:
    Gary McDOUGALD, Plaintiff, v. Vivian L. JENSON, Clarence Ehli, and the Honorable Arthur Verharen, in his capacity as Superior Court Judge of the State of Washington, Defendants.
    No. MCA 84-2030-RV.
    United States District Court, N.D. Florida, Panama City Division.
    Sept. 26, 1984.

      Edward S. Stafman, Tallahassee, Fla., for plaintiff.
    Douglas C. Kearney, Tallahassee, Fla., for defendants Jenson and Ehli.
    David A. Bateman, Olympia, Wash., for Judge Verharen.
   ORDER AND MEMORANDUM OPINION

VINSON, District Judge.

This case involves inconsistent child custody decrees entered by the Florida and Washington state courts. It is now before this Court on the father-plaintiff’s four-count amended complaint: (1) Count I seeks relief and damages pursuant to Title 42, United States Code, Section 1983; (2) Count II seeks the enforcement of the Florida custody decree on the basis of diversity jurisdiction and constitutional “full faith and credit;” (3) Count III seeks damages in tort for the child’s “kidnapping;” and (4) Count IV seeks relief under Title 28, United States Code, Section 1738A. Additionally, plaintiff has moved for a preliminary injunction. By motion or agreement of the parties, and pursuant to this Court’s order of August 30, 1984, this matter is also before the Court for summary judgment.

A. Factual Background.

On June 1, 1979, the Circuit Court of Calhoun County, Florida entered a divorce decree dissolving the marriage of plaintiff Gary McDougald, and defendant Vivian McDougald Jenson, and providing for the custody of the couple’s then thre'e-year-old son, Jerimy. In accordance with the custody provisions of the decree, Jerimy lived with each parent for alternating six-month periods for the next three and one-half years. It is undisputed that he lived with his father from June 23, 1980, to the latter part of December 1980, an important period for purposes of this order. During this six-months period, the father and Jerimy resided in their long-established home in Blountstown, Calhoun County, Florida, until some time in November of 1980. During November 1980, McDougald and Jeri-my moved to Dothan, Alabama, about 20 miles from the Florida state line, and about 70 miles from Blountstown, Florida.

On or about February 26, 1981, the father filed a petition for modification of the custody decree in the Circuit Court of Calhoun County, Florida. The Florida court set a hearing on the petition for May 15, 1981. This petition for modification and a notice of hearing were properly served upon the mother, Mrs. Jenson, in the State of Washington. Soon after she was served with the Florida petition and notice, the mother also filed, on April 21, 1981, a petition for modification in the Superior Court of Pierce County, Washington. The Washington court entered a temporary restraining order immediately. For the next month or two, there was an exchange of communications between the Florida court and the Washington court, and the Florida hearing was continued. Finally, with the apparent approval of all parties and both states’ courts, a hearing was held in Blountstown, Florida, on August 14, 1981, before the same judge who had entered the original 1979 divorce and custody decree.

Both Mr. McDougald (father) and Mrs. Jenson (mother) appeared personally before the court in Florida, with counsel, and testifed. At the conclusion of this hearing, the Florida judge ruled from the bench, modified the custody, and awarded primary custody to the mother, with summer visitation and holiday rights to the father. However, before this order was,reduced to writing and entered, a motion for rehearing was filed by the father [alleging various irregularities that do not directly affect the issues before this Court] and the Florida court set the matter for further hearing on October 9, 1981. At that hearing, the mother’s Florida attorney was permitted to withdraw, and the mother was directed to secure substitute counsel before the next hearing. Meanwhile, the mother’s attorney in Washington continued to seek custody of Jerimy through the Washington court. Pursuant to proper notice, another hearing was held in Florida on December 11, 1981. However, the mother was not present at the December 11 hearing, nor was she represented by counsel. As a result of this hearing, a written Order of Modification was entered by the Florida court on January 4, 1982. In this order, the Florida court reversed its earlier ore tenus ruling, and awarded primary custody of Jerimy to the father, with summer visitation and holiday rights for the mother.

As previously noted, by apparent agreement of both the Florida court and the Washington court, defendant Jenson’s own petition for modification in the Superior Court of Pierce County, Washington had been stayed, pending the outcome of the Florida proceeding. However, Mrs. Jenson had continued to petition the Washington court to assert jurisdiction and award her custody, particularly after the Florida hearing was held on October 9, 1981. Finally, on May 20, 1982, the Washington Superior Court entered an order finding that it had jurisdiction over the matter, and that the Florida court’s order “was based on a lesser burden of proof than is required by the State of Washington’s stringent requirements for modifying child custody.” It subsequently awarded primary custody to Jenson, with visitation rights to McDougald. Thus, the two courts had entered conflicting orders and, thereby, created a legal impasse that still persists.

Jerimy remained in the father’s custody pursuant to the Florida order of January 4, 1982 (and, according to the father, with the mother’s consent), until the mother and grandfather (defendants Jenson and Ehli) abducted the child from Florida on April 14, 1983, and took Jerimy to Washington. Jerimy has remained exclusively in his mother’s custody since then. With this tangled factual background, and with court proceedings continuing in the state courts of Florida and Washington, the matter has now been presented to this court.

B. The Legal Issues.

(1) Count 1 42 U.S.C. § 1983 action against defendants Verharen and Jenson.

(a) Defendant Verharen

Defendant Arthur Verharen, as Superior Court Judge of Pierce County, Washington, has filed a motion to dismiss, alleging various grounds in support. This court need only address one of those grounds, lack of personal jurisdiction, to properly dispose of the motion.

In order to establish the jurisdictional nexus required by due process, plaintiff must meet the “minimum contact” requirement as defined in International Shoe Co. v. Washington, 326 U.S. 310, 90 L.Ed. 95, 66 S.Ct. 154 (1945). To do so, plaintiff must indicate that the foreign defendant has “purposefully availed” himself of the privilege of acting in the forum state. Hanson v. Denckla, 357 U.S. 235, 2 L.Ed.2d 1283, 70 S.Ct. 1228 (1958); World-Wide Volkswagen Corporation v. Woodson, 444 U.S. 286, 62 L.Ed.2d 490, 100 S.Ct. 559 (1980).

Plaintiff has made no allegations to indicate that Washington state court Judge Verharen conducts or solicits business in Florida, other than the fact that he has engaged in various telephone calls and correspondence with Judge Bailey of the Calhoun County, Florida Circuit Court. Conduct of this nature does not constitute sufficient “minimum contact” with the state of Florida to subject defendant to the jurisdiction of this Court. Nor is there any suggestion that this defendant has purposefully availed himself of the benefits of doing business in Florida, or that this defendant has acted in any other manner that might subject him to this Court’s jurisdiction. International Shoe Co. v. Washington, supra. Consequently, this Court does not have personal jurisdiction over defendant Verharen, and his motion to dismiss is hereby GRANTED.

(b) Defendant Jenson

Defendant Jenson has moved for dismissal on the grounds that Count I fails to state a cause of action against her. Plaintiff has brought Count I of this action pursuant to Title 42, United States Code, Section 1983. It is well established that in order to establish a Section 1983 cause of action, there must be action taken “under color of state law.” Section 1983 does not reach purely private conduct. District of Columbia v. Carter, 409 U.S. 418, 34 L.Ed.2d 613, 93 S.Ct. 602 (1973); Parker v. Graves, 479 F.2d 335 (5th Cir.1973); Dykes v. Weinberg, 564 F.Supp. 536 (M.D.Fla. 1983).

The plaintiff contends that Mrs. Jenson’s participation in the Washington state court litigation, and her current custody of Jerimy pursuant to the Washington court’s order, constitutes action taken under color of state law.

I do not find this argument persuasive. On the contrary, I find that the use of the state’s judicial processes by the plaintiff in this instance does not constitute action taken under color of state law. See, Dahl v. Akin, 630 F.2d 277 (5th Cir.1980); Gresham Park Community Org. v. Howell, 652 F.2d 1227 (5th Cir.1981); Dykes v. Weinberg, supra. Accordingly, defendant Jenson’s motion to dismiss as to this count is hereby GRANTED. Since all of the defendants named in Count I have been dismissed, Count I is dismissed in its entirety.

(2) Count II — Enforcement of a Florida custody decree on the basis of diversity jurisdiction and constitutional “full faith and credit.”

Federal courts have traditionally avoided involvement in child custody disputes. Barber v. Barber, 62 U.S. (21 How.) 582, 584, 16 L.Ed. 226 (1859); Ex parte Burris, 136 U.S. 586, 10 S.Ct. 850, 34 L.Ed. 500 (1890); C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure § 3609 (1975). However, a judgment that is final and, therefore, res judicata in the courts of one state ordinarily must be given full faith and credit by all other courts in the United States. United States Constitution, Art. IV, § 1; 28 U.S.C. § 1738. Although the United States Supreme Court has determined that it has jurisdiction to decide whether a state judgment involving domestic relations is enforceable [ Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945); Sutton v. Leib, 342 U.S. 402, 72 S.Ct. 398, 96 L.Ed. 448 (1952)], the United States Supreme Court has expressly declined ruling on the question of whether full faith and credit principles apply to custody decrees. Ford v. Ford, 371 U.S. 187, 192, 83 S.Ct. 273, 276, 9 L.Ed.2d 240 (1962); Kovacs v. Brewer, 356 U.S. 604, 607, 78 S.Ct. 963, 965, 2 L.Ed.2d 1008 (1958).

To determine whether full faith and credit principles have been violated, it will frequently be necessary for the court to consider whether circumstances have, in fact, changed sufficiently to justify modification of the custody decree. Custody decrees are, of course, always subject to modification “in the best interest” of the child. Thus, full faith and credit cannot readily be applied to custody decrees because federal courts may only enforce final state decrees that are no longer subject to modification, and the general rule is that such decrees are not subject to full faith and credit. Ex parte Burris, supra.; Sistare v. Sistare, 218 U.S. 1, 16-17, 30 S.Ct. 682, 686, 54 L.Ed. 905 (1940); Maner v. Maner, 401 F.2d 616, 618 (5th Cir.1968).

Here, the Washington court, in determining not to give full faith and credit to the Florida custody decree, has declared that it is taking the best interest of Jerimy into account. Therefore, it is impossible for this Court to apply full faith and credit principles without readjudicating the underlying custody dispute ... something this Court cannot, and will not, do. Therefore, Count II of the amended complaint is hereby DISMISSED for lack of jurisdiction over the subject matter, lack of jurisdiction over the person, and failure to state a claim upon which relief can be granted.

(3) Count III — “Kidnapping” by Defendants Jenson and Ehli.

It is not unusual for interstate child custody disputes such as this to also include one parent attempting to forcibly obtain custody over a child awarded to the other parent. Every year between 25,000 and 100,000 children of broken marriages are abducted by one of the parents. Flood v. Braaten, 727 F.2d 303, 304 (3d Cir.1984). As appalling as this may be, and as emotionally wrenching as these family tragedies are, it is not a matter for this Court to further condemn or condone. Under the circumstances of this case, I find that plaintiff’s allegations of “child snatching” do not constitute an actionable tort under Florida law. Perhaps more importantly, such custody matters are not within this Court’s diversity jurisdiction because of the “domestic relations exception.” Ex parte Bums, 136 U.S. 586, 10 S.Ct. 850, 34 L.Ed. 500 (1890); Hernstadt v. Hernstadt, 373 F.2d 316, 317-18 (2d Cir.1967). Consequently, Count III fails to state a cognizable cause of action and is hereby DIS-

MISSED.

(4) Count IV — Relief under 28 U.S.C. § 1738A.

The initial inquiry that must be made with regard to plaintiff’s reliance upon Title 28, United States Code, Section 1738A, is whether Congress intended for federal courts to have jurisdiction to enforce compliance with that provision, in light of the long-established policy of federal court non-involvement. [See part B(2), supra.] By enacting this provision, Congress unequivocally and mandatorily imposed federal duties on the states, and, further, granted federal rights to the child custody parties of state court proceedings. Congress has, in my opinion, made this matter a “federal question” within the application of Title 28, United States Code, Section 1331. Accordingly, I find that this court does have jurisdiction to consider this case under the particular circumstances and posture that it is now presented. Flood v. Braaten, 727 F.2d 303, 310-313 (3d Cir.1984). Such jurisdiction, however, must be limited to a review of the action taken by the respective courts to determine the application of Section 1738A, in the “most restricted” manner. Cf, Flood v. Braaten, supra., at 306.

Although plaintiff seeks, in Count IV of his amended complaint, injunctive, declaratory, and monetary relief, this court will treat Count IV as seeking only declaratory relief regarding the application of Section 1738A to the Florida court’s custody modification order of January 4, 1982. Such review is, in this case, this Court’s “most restrictive role,” and will be sufficient to resolve the controversy. The only issue before the court then, is whether the Florida court exercised proper jurisdiction in making a child custody determination pursuant to Section 1738A(c), and retained that jurisdiction in accordance with Section 1738A(d), thereby invoking the full faith and credit clause of Section 1738A(a).

After a thorough and complete evaluation of the testimony presented at the evidentiary hearing held on June 18, 1984, and the pleadings and other matters of record, I find that the Circuit Court of Calhoun County, Florida did have proper jurisdiction of the matter when it rendered the divorce decree and original custody determination on June 1, 1979, pursuant to the requirements of Section 1738A(c), for the following reasons:

(a) Florida was the home state of the child at the date of the commencement of the divorce (and attendant child custody) proceeding;

(b) Florida had been the child’s home state within six months prior to the commencement of the action;

(c) The child was then absent from Florida as a result of the removal by his mother; and

(d) Plaintiff McDougald remained a resident of Florida after his child’s removal.

Defendant Jenson does not contest the Florida court’s jurisdiction to enter the original 1979 divorce decree and child custody determination. Once a valid custody determination has been made, as was made by the Florida court in 1979, that court will presumptively retain jurisdiction, pursuant to Section 1738A(d), so long as: (a) it has jurisdiction under the law of the state, and (b) the state remains the residence of the child or a parent or any “contestant.”

The first part of the Section 173A(d) test is a matter of state law: the Calhoun County, Florida Circuit Court had, for purposes of the petition for modification filed on February 26, 1981, the hearings of August 14, 1981, October 9, 1981, and December 11, 1981, and the order of January 4, 1982, jurisdiction under the laws of the State of Florida, pursuant to Florida’s “Uniform Child Custody Jurisdiction Act,” Sections 61.1302-.1348, Florida Statutes (1981). It also appears that the state court found, for jurisdictional purposes of Florida law, that Florida was the “residence” of plaintiff McDougald. That finding, however, only applies to the first part of the test.

The second part of the Section 1738A test turns upon the term “residence” as used in the federal statute. Factually, the only real issue before the court is whether “such state [Florida] remains the residence” of plaintiff McDougald at the time the Florida court obtained jurisdiction to enter the order of custody modification of January 4, 1982. In my opinion, this statutory residence requirement must have been met either at the time of the filing of the petition for modification, on February 26, 1981, or at the time of the first Florida hearing on August 14, 1981. Continual residence from the time of filing to the time of entry of the court’s order is, obviously, not required.

Plaintiff McDougald testified that he left Blountstown, Florida, and moved to an apartment near Dothan, Alabama, in order to be nearer to his place of employment at the Farley Nuclear Plant of Alabama Power Company. Dothan is approximately 20 miles from the Florida line, and McDougald testified that, because he was then working extensive overtime at the plant, he rented the apartment to avoid the added strain of driving back and forth while working the additional overtime. After living in the apartment for about nine months, the plaintiff then moved to a mobile home located across the state line in Georgia, a location that is also approximately 20 miles from Florida. This Georgia location was, apparently, also relatively close to his work at the Farley Nuclear Plant. Altogether, plaintiff resided at these two locations out of the state of Florida for approximately one and one-half years.

During the time that plaintiff was living on a daily basis outside the state of Florida, he testified that: he retained his home in Blountstown, Florida; he retained his Florida driver’s license; he remained a Florida registered voter; he retained his church membership in Blountstown; and he regularly returned to Blountstown where his parents lived. He testified that he always intended to return to Blountstown, and considered himself to always be a Florida resident during this period. He is in mid-1984, and has been for about two years, physically residing in Florida.

Defendant maintains that the plaintiffs “residence” for purposes of Section 1738A is where the plaintiff actually lived at the time, and is not the more complex concept of legal domicile or constructive residence, relying upon a law review article by Russell Coombs (a draftsman of Section 1738A). [“Jurisdiction, Recognition and Enforcement,” 66 Minn.L. Rev. 711 (June 1982), at page 822, n. 643.] In Florida, “residence” for purposes of divorce and child custody matters under Section 61.021, Florida Statutes, is deemed to mean both residence and domicile. Jefferies v. Jefferies, 133 So.2d 751 (Fla. 3d D.C.A.1961); Sheppard v. Sheppard, 286 So.2d 37 (Fla. 1st D.C.A.1973); Gillman v. Gillman, 413 So.2d 412 (Fla. 4th D.C.A.1982). A distinction between “legal residence” and “actual residence” is sometimes made, with “actual residence” having a transitory, temporary character, and “legal residence” used as the equivalent of domicile. 25 Am. Jur.2d, Domicile, § 6 (1966). In determining the meaning of “residence,” as used in a statute “its context within the statute and the legislative purpose are examined.” 25 Am.Jur.2d, Domicile, § 4 (1966). When the statutory use of “residence” is to be the equivalent of “domicile,” then two elements are necessary: (1) bodily presence in a place, and (2) the intention of remaining in that place; neither alone is sufficient to create a legal residence. Id.

For purposes of the construction of Section 1738A(d), I am persuaded the context requires that “residence” be deemed the equivalent of “legal residence,” at least under these factual circumstances. The Calhoun County Circuit Court obviously found that McDougald met the jurisdictional requirements of Section 61.1308, Florida Statutes (1981), and the general requirements of the “Uniform Child Custody Jurisdiction Act,” which incorporates, essentially, the same language and intent as Section 1738A. To interpret “residence” as meaning the bodily presence on a given day, as defendant contends, would only generate further questions of whether one day’s presence is sufficient, .. or one week’s, or one month’s, etc. It would encourage forum shopping for child custody modification, contrary to the obvious intent of Section 1738A. It is apparent to me that neither Alabama nor Georgia would have been an appropriate forum to begin custody modification, and that Florida clearly was the state that best met the Section 1738A criteria for plaintiff McDougald in this situation. In practice, defendant’s interpretation would create uncertainty in border areas of the various states where, as here, it is common for workers to move back and forth across states lines for temporary periods. There is no need to create uncertainty when there is now, generally, a high degree of certainty about state residency requirements in these type cases. Applied to plaintiff McDougald, I find that he remained a legal resident of Florida, notwithstanding his temporary physical presence in the states of Alabama and Georgia.

There are also alternative ways to approach this issue, and these result in a similar conclusion:

(1) If the modification petition filed by plaintiff McDougald in Florida on February 26, 1981, is deemed to be the beginning of the “child custody determination” for purposes of Section 1738A(c) [disregarding the 1979 original proceeding], then the Florida court’s jurisdictional requirements to enter a child custody decree entitled to full faith and credit in accordance with Section 1738A(a) are established by the following:

(a) The Calhoun County court had jurisdiction under the laws of the state of Florida, pursuant to Florida’s “Uniform Child Custody Jurisdiction Act,” Sections 61.-1302-.1348, Florida Statutes (1981).

(b) As of February 26, 1981, Florida had been Jerimy’s home state within six months before the date of the commencement of the proceeding, and Jerimy was absent from Florida because of his removal to live in the state of Washington with his mother, and plaintiff McDougald continued to “live” in Florida. [See the discussion above regarding residence.] In lieu of Section 1738A(c)(2)(A), then Section 1738A(c)(2)(E) would apply as the residence, for reasons previously discussed.

(c) These requirements meet the dual standard set by Sections 1738A(c)(l) and 1738A(c)(2).

(2) If, for whatever reason, Section 1738A(c)(2)(A) or (E) should not apply, then Section 1738A(c)(2)(D) would apply because the courts in both Florida and Washington had agreed that Florida would proceed to exercise jurisdiction over the custody matter, and the “best interest of the child” dictated that a single court assume jurisdiction.

(3) It is also very significant that plaintiff McDougald, defendant Jenson, and Jerimy all were in Florida for the court’s hearing of August 14, 1981, and that all of the parties consented and submitted themselves to the Florida court’s jurisdiction, without any apparent objection at that time. Once jurisdiction was established for purposes of Section 1738A, this Court’s inquiry is ended, in the absence of fraud or other extraordinary circumstances ... none of which have been alleged by the defendants. Moreover, in determining the “best interest of the child,” the Uniform Child Custody Jurisdiction Act sets out two tests to be applied:

1. The child and his parents, or the child and at least one contestant, have a significant connection with this state, and
2. There is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
[§ 61.1308(b), Fla.Stats. (1981) ]

The Florida court had, on August 14, 1981, a factual basis for determining that the “significant connection” and the “substantial evidence” existed in Florida.

(4) Finally, the Uniform Child Custody Jurisdiction Act provides that a court of one state shall not exercise its jurisdiction under the Act if, at the time the petition is filed, a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with the Act. § 61.1314, Fla.Stats. (1981). In point of time, the Florida modification proceedings were opened on February 26, 1981, while the Washington proceedings were subsequently opened on April 21, 1981. This same provision is incorporated into the federal statute as Section 1738A(g). Undoubtedly, it was in observance of these statutory provisions that the Washington court initially consented to the Florida court’s exercise of jurisdiction. The Washington court later concluded that Florida did not apply the same standards as required in the state of Washington, and, therefore, determined that it could adjudicate the matter anew. This was not the test to be applied under Section 1738A(g). I find that the Florida court did exercise jurisdiction “consistently with the provisions” of Section 1738A.

C. Conclusion.

I conclude, therefore, that this Court has jurisdiction to consider and declare the rights of the parties under Title 28, United States Code, Section 1738A, as that statute applies to the custody modification order entered by the Florida court on January 4, 1982. 28 U.S.C. § 2201; Rule 57, F.R. Civ.P. I further conclude that there is no genuine issue as to any material fact, and that this is a matter that the Court can decide as a matter of law by summary judgment. Rule 56, F.R.Civ.P. The Court declares that the “Order of Modification” entered by the Circuit Court of Calhoun County, Florida, on January 4, 1982, was made consistently with the provisions of Title 28, United States Code, Section 1738A, and is entitled to enforcement according to its terms. Finally, the plaintiffs motion for preliminary injunction is hereby DENIED, since this order is intended to be dispositive of the case. For the reasons set forth in this opinion, the plaintiffs motion for summary judgment is hereby GRANTED in part, and the Clerk is directed to enter judgment in accordance herewith in favor of the plaintiff, but without taxation of costs or attorneys’ fees.

      . There obviously may be a significant difference between the place where one lives and the place of one's residence. In this regard, the Coombs article in the Minnesota Law Review [see page 16, supra.] correctly notes that the question of where a person actually lives is a simple determination. It may change weekly, or more frequently, for many segments of the working population. Section 1738A interchanges the two concepts of “living” and "residing" in a manner that is not entirely consistent. I am of the opinion that the entire section must be construed so as to avoid any internal inconsistencies and to give effect to what I perceive to have been the intent of the Congress. Under the facts of this case, where McDougald continued to retain a home in Florida, etc., he may properly be characterized as “living” there.

      . Defendant Jenson also raises the issue of exhaustion of state court remedies, noting that neither Flood v. Braaten, 727 F.2d 303, 312 n. 28, (3d Cir.1984), nor Bennett v. Bennett, 682 F.2d 1039, 1044 (D.C.Cir.1982), address exhaustion. Defendant's argument is applicable to the full faith and credit aspect [see part (B)(2), above], but it has questionable validity under Section 1738A. If Section 1738A has created both federal rights and duties, then it may be the basis for a resolution in federal courts. I find no requirement, either expressed or implied, that the parties exhaust any available state remedies through an appeal to the highest available state court when, as here, the custody dispute has already led to clearly conflicting orders entered by the two states, and it is unlikely that appeals in both (or either of the) states would result in a resolution that would be accepted as final in both states. Finally, as the Flood court noted, it is unreasonable to expect these cases to be routinely presented to the United States Supreme Court for a final decision,


author: JOHN T. NIXON, District Judge.

text:
    Romie P. HOPPER v. Richard S. SCHWEIKER, Secretary of Health and Human Services.
    No. 81-3630.
    United States District Court, M.D. Tennessee, Nashville Division.
    Sept. 26, 1984.

      Frank S. Block, Nashville, Tenn., for plaintiff.
    John Williams and Judith Ledbetter, Asst. U.S. Attys., Nashville, Tenn., for defendant.
   MEMORANDUM AND ORDER

JOHN T. NIXON, District Judge.

This action brought by Romie P. Hopper seeks to declare unconstitutional 42 U.S.C. § 402(x), which suspends social security benefits for prisoners convicted of felonies for the duration of their incarceration unless the prisoner is involved in a court approved rehabilitation program. This case is before the Court on plaintiff’s motion for class certification and on cross motions for summary judgment. For the reasons stated below, plaintiff’s motions for class certification and summary judgment are DENIED, and defendant’s motion for summary judgment is hereby GRANTED.

The plaintiff is an inmate in the Tennessee State Penitentiary. He received social security disability benefits until notified by the Department of Health and Human Services that effective October 1, 1980, his benefits would be suspended pursuant to 42 U.S.C. § 402(x)(l). Mr. Hopper also received notice that the rehabilitation program he was enrolled in did not qualify under § 402(x)(l) to prohibit suspension of his benefits. The parties agree that Mr. Hopper is not participating in any court approved rehabilitation program. Mr. Hopper duly exhausted his administrative remedies; thus, this Court has jurisdiction to hear this case. 42 U.S.C. § 405(g).

Plaintiff seeks class certification pursuant to FED.R.CIV.P. 23 on behalf of all individuals similarly situated. The alleged class is composed of all persons who are presently or will be confined to penal or correctional facilities in Tennessee who have been or will be suspended from receipts of Social Security Disability Insurance Benefits because of a felony conviction. Plaintiff further limits the class “to those persons who have responded to the suspension of their Disability Insurance Benefits by filing requests for reconsideration or by submitting to defendant another writing objecting to the suspension.” Plaintiffs Memorandum in Support of Summary Judgment and Class Certification, at 4.

A district court has wide discretion in determining whether a particular case should proceed as a class action. Cross v. National Trust Life Ins. Co., 553 F.2d 1026, 1029 (6th Cir.1977). Plaintiffs seeking class certification have the burden of satisfying all four of the requirements of Rule 23(a) and then of demonstrating that the class falls within one of the subcategories of Rule 23(b). Senter v. General Motors Corp., 532 F.2d 511 (6th Cir.), cert. denied, 429 U.S. 870, 97 S.Ct. 182, 50 L.Ed.2d 150 (1976). Moving plaintiffs must do more than simply recite the provisions of Rule 23 to the Court; a convincing argument must be made for each requirement. Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 1312 (9th Cir.1977); Duncan v. State of Tenn., 84 F.R.D. 21, 27 (M.D. Tenn.1979).

Rule 23(a) requires the party seeking class certification to prove the following: (1) that the class is so numerous that joinder is impracticable, (2) that questions of law or fact are common to the class, (3) that claims or defenses of named parties are typical of the claims or defenses of the class, and (4) that the named parties will fairly and adequately protect the interests of the class.

In the case at bar, the plaintiff has failed to meet its requirements of proof as to numerosity. As stated above, plaintiff has limited the class to prisoners whose disability benefits have been suspended because of a felony conviction and who have objected to that determination. The only support as to numerosity is the affidavit of Mr. Bill Little, a field representative of the Social Security Administration. Mr. Little estimates that, based on conversations with other social security employees, between forty and forty-five prisoners in Tennessee have had their benefits suspended as of February 19, 1982. The plaintiff, however, in limiting the class to prisoners who have actually objected to that determination, has shown no evidence as to how many of the forty to forty-five prisoners have objected. The number of inmates who have actually objected is crucial to plaintiff’s motion for class certification inasmuch as final review by the Secretary is necessary to convey subject matter jurisdiction on this Court. 42 U.S.C. § 405(g). Section 405(g), also known as Section 205(g) of the Social Security Act, requires, in part, that “[a]ny individual, after any final decision of the Secretary made after a hearing to which he was a party, ... may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision____” Section 405(g) is the exclusive route for judicial review of the Secretary’s decision. 42 U.S.C. § 405(h). See Weinberger v. Salfi, 422 U.S. 749, 762, 95 S.Ct. 2457, 2465, 45 L.Ed.2d 522 (1975).

The Supreme Court interpreted section 405(g) in Weinberger and found that actions commenced under section 405(g) must satisfy three requirements: (1) a nonwaivable requirement that the Secretary make a final decision after a hearing, (2) a waivable requirement that the action be commenced within sixty days after the Secretary’s decision is mailed, and (3) a waivable requirement that the action is filed in the appropriate district court. Id. at 763-64, 95 S.Ct. at 2465-66. The nonwaivable requirement that the Secretary make a final decision is “central to the requisite grant of subject-matter jurisdiction” of the district court. Id. at 764, 95 S.Ct. at 2466. Before a decision of the Secretary is a “final decision”, a claimant must exhaust administrative remedies. Id. at 765, 95 S.Ct. at 2466; Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 899, 47 L.Ed.2d 18 (1976). The plaintiff has shown no estimate as to the number of prisoners who object to the suspension of their disability benefits. Therefore, the Court DENIES plaintiff’s motion for class certification.

Plaintiff’s principal argument on the merits of this case is that the suspension of his disability benefits constitutes a deprivation of property rights without due process of law in violation of the Fifth Amendment to the United States Constitution. He argues that Section 423(f) is an arbitrary classification unrelated to any legitimate governmental interest, that it is intended to punish an unpopular group, and that the program unreasonably discriminates against Tennessee prisoners because Tennessee prisoners are unable to obtain placements in court-approved rehabilitation programs.

First, plaintiff maintains that social security disability differs from welfare assistance in that disability benefits are not based on need. Mathews v. Eldridge, 424 U.S. at 340, 96 S.Ct. at 905. Plaintiff contends that because he has earned the right to disability payments because of taxes paid based on his earnings, the government may deny those benefits only if the government is attempting to achieve a legitimate governmental purpose. See Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971). Plaintiff insists that Congress has denied benefits to plaintiff because it deems that disabled convicted felons have less need than non-prisoners for the benefits and that this objective is inconsistent with the non-need orientation of the system. Furthermore, even if lack of need is a proper basis for the suspension, plaintiff emphasizes his need for newspapers, cigarettes, and toilet articles as well as the ineligibility of many disabled prisoners to earn money in work programs because of their disabilities, although plaintiff did not claim that he is ineligible for work programs. Plaintiff also points out that other disabled persons confined to institutions other than prisons do not have their benefits suspended while institutionalized.

In Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960), the Court emphasized that it was not Congress’ intent to create in the Social Security System a rigid system of property rights so that “every defeasance of ‘accrued’ interests [would be] violative of the Due Process Clause of the Fifth Amendment.” Id. at 610-11, 80 S.Ct. at 1372-73. Nevertheless, the Court firmly stated that the Due Process Clause did provide protection against arbitrary governmental action vis-a-vis the Social Security system. Id. at 611, 80 S.Ct. at 1372. Eschewing a judicial role in ratifying the wisdom of Congressional judgment, the Court held that “the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.” Id.

The burden on plaintiff in this action is to prove that the suspension of benefits to convicted and incarcerated felons not participating in court approved rehabilitation programs is arbitrary and void of any rational justification. Furthermore, this Court will not engage in any second-guessing of Congress as to any alleged inconsistency in the Social Security system. The Court concludes that plaintiff has not satisfied this burden. Congress clearly intends the disability benefits to aid the injured worker in anticipation of the impact of the worker’s loss of earnings. Mathews v. de Castro, 429 U.S. 181, 185-86, 97 S.Ct. 431, 434-44, 50 L.Ed.2d 389 (1976). In deciding to suspend the disability benefits of incarcerated felons, Congress made a determination that the needs of such persons are not as great as the needs of others. See S.Rep. No. 96-987, 96th Cong., 2d Sess., upon the bill H.R. 5295 as reported in 1980 U.S. Code Cong. & Ad.News, 4787, 4794-95. The Court finds unconvincing plaintiff’s argument that his need for “newspapers, cigarettes, and toilet articles” indicates that the decision of Congress was arbitrary. The fundamental needs of inmates such as food, shelter, clothing, and medical care are provided during the period of incarceration. Therefore, this Court cannot conclude that the decision to suspend incarcerated felons’ benefits was without rational justification. Washington v. Secretary of Health and Human Services, 718 F.2d 608, 611 (3rd Cir.1983); Cobb v. Secretary of Health and Human Services, No. 81-60224 (E.D.Mich. July 21, 1982); Moreno v. Schweiker, No. 82-180 PHX-WECC (D.Ariz. July 8, 1982).

Plaintiff’s second argument is that Section 402(x) constitutes a bill of attainder in violation of Article I Section 9 of the United States Constitution. A bill of attainder is a legislative act which imposes punishment without benefit of a judicial trial. United States v. Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 1078, 90 L.Ed. 1252 (1946), quoting Cummings v. State of Missouri, 4 Wall. 277, 323, 18 L.Ed. 356 (1867). When an individual or a group claims that a disqualification or suspension from governmental benefits amounts to the imposition of a punishment by the legislature, the courts must examine the source of the legislative concern in establishing the disqualification. Flemming v. Nestor, 363 U.S. at 613-14, 80 S.Ct. at 1373-74.

Where the source of legislative concern can be thought to be the activity or status from which (the individual is barred, the disqualification is not punishment even though it may bear harshly upon one affected. The contrary is the case where the statute in question is evidently aimed at the person or class of persons disqualified.

Id. at 614, 80 S.Ct. at 1374. Here, as in Nestor, the denial of a noncontractual government benefit cannot be said to amount to a punishment. The Congress clearly focused on the fact of incarceration in determining suspension of disability benefits. Although the impact on plaintiff may be harsh, he has not succeeded in establishing that Congress’ desire was obviously aimed at the plaintiff or individuals similarly situated to plaintiff. As discussed above, the Court is convinced that one of the major reasons that Congress provided for the suspension of disability benefits while felons are incarcerated is that their needs are already provided for by the government.

In accordance with the above discussion, defendant’s motion for summary judgment is hereby GRANTED and this case is ORDERED DISMISSED.

      . Since the filing of this suit, Congress has repealed 42 U.S.C. § 423(f) and substituted in its place 42 U.S.C. § 402(x), which is almost identical in wording to Section 423(f). This change has no impact on this lawsuit. See Section 339 of the Social Security Amendments of 1983, Public Law 98-21, 97 Stat. 134 (passed April 20, 1983).

      . Although plaintiff consistently refers to three plaintiffs, the Court reminds plaintiff that the Court has dismissed Jerry Treadaway and Herman Vitatoe from this suit.

      . Section 405(h) provides:
      The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under Section 41 of Title 28 to recover on any claim arising under this subchapter, (emphasis added).
      42 U.S.C. § 405(h).


text:
    Michael GREENWELL and Willie Lott v. Harry N. WALTERS, Administrator of the Veterans Administration.
    No. 82-3145.
    United States District Court, M. D. Tennessee, Nashville Division.
    Sept. 26, 1984.

      Susan L. Kay, Vanderbilt Legal Clinic, Nashville, Tenn., for plaintiffs.
    Joe Brown, U.S. Atty., Nashville, Tenn., for defendant.
   MEMORANDUM AND ORDER

JOHN T. NIXON, District Judge.

This action, brought by Michael Green-well and Willie Lott, seeks to declare unconstitutional 38 U.S.C. § 1682(g), which limits educational benefits for a veteran, who is incarcerated in a federal, state, or local institution, to the cost of tuition, fees, and supplies, thereby denying them the subsistence benefits to which they would be otherwise entitled had they not been incarcerated. This provision also limits veterans’ benefits to the extent that the incarcerated veterans’ costs are paid by other federal, state, or local government agencies. This case is before the Court on cross-motions for summary judgment. For the reasons stated below, plaintiffs’ motion for summary judgment is DENIED and defendant’s motion for summary judgment is hereby GRANTED.

In their attack on the constitutionality of Section 1682(g), plaintiffs maintain that the provision violates the Due Process Clause of the Fifth Amendment and constitutes a bill of attainder in violation of Article I Section 9 of the United States Constitution. Plaintiffs ask for a permanent injunction so that they may receive the full educational benefits available to nonincarcerated veterans.

Plaintiffs maintain that Section 1682(g) denies plaintiffs equal protection of the law in violation of the Fifth Amendment. There is no express constitutional requirement of equal protection applicable to the federal government, but the Supreme Court has inferred such a requirement from the Due Process Clause of the Fifth Amendment. Johnson v. Robison, 415 U.S. 361, 364 n. 4, 94 S.Ct. 1160, 1164 n. 4, 39 L.Ed.2d 389 (1974). The threshold question in traditional equal protection analysis is whether the strict scrutiny, United States v. Carotene Products Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 783 n. 4, 82 L.Ed. 1234 (1938), “middle-tier” Craig v. Boren, 429 U.S. 190, 197-98, 97 S.Ct. 451, 456-57, 50 L.Ed.2d 397 (1976), or rational basis standard, Richardson v. Belcher, 404 U.S. 78, 81, 92 S.Ct. 254, 257, 30 L.Ed.2d 231 (1971), of review should be used to measure the propriety of governmental action. In the instant case, the plaintiffs acknowledge that they are not entitled to a strict scrutiny standard but argue that prisoners are entitled to the intermediate level of review because they are politically powerless. There is, however, no authority for the proposition that prisoners are entitled to the strict scrutiny or intermediate standard of review. The Supreme Court has limited the intermediate level of review to no more than two situations: classification based on sex and perhaps classification based on illegitimacy. See Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). See also Schweiker v. Wilson, 450 U.S. 221, 101 S.Ct. 1074, 67 L.Ed.2d 186 (1981). Therefore, the Court concludes that the proper standard for evaluating the constitutionality of the denial of full veterans’ educational benefits to plaintiffs is the rational basis test. Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974).

The Supreme Court established the standard for the rational basis test in Richardson v. Belcher: “[i]f the goals sought are legitimate, and the classification adopted is rationally related to the achievement of those goals, then the action of Congress is not so arbitrary as to violate the Due Process Clause of the Fifth Amendment.” 404 U.S. at 84, 92 S.Ct. at 258. In this case Congress enacted the provision to reduce duplicative payments of government benefits to incarcerated veterans and to reduce funds that were being used to purchase narcotics in prison. 1980 U.S.Code Cong, and Ad.News 4555, 4604-05. Plaintiffs recognize that it was Congress’ intent to reduce duplicative payments for individuals who receive educational assistance from other sources, but plaintiffs maintain that veterans have earned their benefits regardless of any other assistance that they may be receiving. Because eligibility for veterans’ educational benefits has never been based on need, plaintiffs further maintain that discontinuing the benefits for incarcerated veterans because the state provides for their subsistence amounts to an arbitrary and irrational classification.

Congress need not be perfectly consistent, fair, or effective in order to satisfy the rational basis test; the legislation simply must bear a rational relation to the ends sought. Dandridge v. Williams, 397 U.S. 471, 486, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491 (1970). Congress has extensive power in determining how veterans’ benefits should be allocated. Cleland v. National College of Business, 435 U.S. 213, 220-21, 98 S.Ct. 1024, 1028-29, 55 L.Ed.2d 225 (1978). The challenged provision in this case is designed to reduce duplication of governmental payments to incarcerated veterans and to reduce funds available to purchase contraband in prison. As such, it clearly satisfies the rational relationship test. The burden is on plaintiffs to prove that denial of educational subsistence benefits to convicted and incarcerated felons is arbitrary and without rational justification. The Court concludes that government had a legitimate interest in promulgating the provision and that plaintiff has not satisfied this burden.

Plaintiffs’ final argument is that Section 1682(g) constitutes a bill of attainder in violation of Article I Section 9 of the United States Constitution. A bill of attainder is a legislative act which imposes punishment without benefit of a judicial trial. United States v. Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 1078, 90 L.Ed. 1252 (1946) (quoting Cummings v. State of Missouri, 4 Wall. 277, 323, 18 L.Ed. 356 (1867)). When an individual or a group claims that a disqualification or suspension from governmental benefits amounts to the imposition of a punishment by the legislature, the courts must examine the source of the legislative concern in establishing the disqualification. Flemming v. Nestor, 363 U.S. 603, 614, 80 S.Ct. 1367, 1374, 4 L.Ed.2d 1435 (1960).

Where the source of legislative concern can be thought to be the activity or status from which the individual is barred, the disqualification is not punishment even though it may bear harshly upon one affected. The contrary is the case where the statute in question is evidently aimed at the person or class of persons disqualified.

Id.

Here, as in Nestor, the denial of a noncontractual government benefit cannot be said to amount to a punishment. Congress clearly focused on the fact of incarceration in determining denial of subsistance benefits. Although the impact on plaintiffs may be harsh, they have not succeeded in showing that Congress’ desire was aimed at the plaintiffs or individuals similarly situated to plaintiffs. As discussed above, the Court is convinced that one of the major reasons that Congress provided for the denial of subsistence benefits to veterans while they are incarcerated is that their needs are already provided for by government.

The Court concludes that Section 1682(g) is constitutional and that the position of plaintiffs is without merit. The Court thus DENIES summary judgment for plaintiffs and GRANTS summary judgment for defendant.

      . Plaintiffs’ complaint attacks the constitutionality of 38 U.S.C. §§ 1682(g), 1780(a)(6). Since the filing of this suit. Congress made several amendments to the provisions which do not affect the issues raised in this suit. The amendments eliminated 38 U.S.C. § 1780(a)(6) and essentially incorporated the provision into 38 U.S.C. § 1682(g)(1) and made other minor alterations.

      . 38 U.S.C. § 1682(g) provides:
      (1) Subject to the provisions of paragraph (2) of this subsection, the amount of the educational assistance allowance paid to an eligible veteran who is pursuing a program of education under this chapter while incarcerated in a Federal, State, or local penal institution for conviction of a felony may not exceed such amount as the Administrator determines, in accordance with regulations which the Administrator shall prescribe, is necessary to cover the cost of established charges for tuition and fees required of similarly circumstanced nonveterans enrolled in the same program and to cover the cost of necessary supplies, books, and equipment, or the applicable monthly educational assistance allowance prescribed for a veteran with no dependents in subsection (a)(1) or (c)(2) of this section or section 1787(b)(1) of this title, whichever is the lesser. The amount of the educational assistance allowance payable to a veteran while so incarcerated shall be reduced to the extent that the tuition and fees of the veteran for any course are paid under any Federal program (other than a program administered by the Administrator) or under any State or local program.
      (2) Paragraph (1) of this subsection shall not apply in the case of any veteran who is pursuing a program of education under this chapter while residing in a halfway house or participating in a work-release program in connection with such veteran's conviction of a felony.