author: HUYETT, District Judge.

text:
    Charles CERVA v. Harvey FULMER, et al.
    Civ. A. No. 82-2331.
    United States District Court, E.D. Pennsylvania.
    Aug. 7, 1984.

      John P. Karoly, Jr., Allentown, Pa., for plaintiff.

      Stuart G. Blackburn, Philadelphia, Pa., for defendants.
    Donald L. Zerbe, pro se.
   MEMORANDUM AND ORDER

HUYETT, District Judge.

In this action under 42 U.S.C. § 1983, plaintiff Charles Cerva asserts claims against Anthony Zerbe [sic] and James Stratford [sic], both Union County, Pennsylvania constables, for alleged violations of his constitutional rights and for two claims under state law. The allegations stem from defendants’ conduct in connection with an arrest of plaintiff in 1981 for criminal trespass. I have granted summary judgment in favor of defendant James Stratford and against plaintiff on all counts. I now enter judgment in favor of defendant Anthony Zerbe who is pro se. This memorandum opinion is a statement of the reasons for these rulings.

A. Factual Background

The arrest of plaintiff, which is the basis for this action, was the culmination of a series of events occurring over a seven month period. These earlier events are not relevant to the resolution of the motion for summary judgment. An arrest warrant for plaintiff had been issued by a Union County, Pennsylvania magistrate in connection with plaintiff’s alleged removal of his tractor from a repair shop without payment of the bill. On the date of the arrest, defendant Stratford went with three other officers, including defendant Zerbe, to the home of plaintiff’s sister in Lehigh County, in order to make the arrest. Stratford had telephoned her shortly before going to the home and had determined that plaintiff was living with her and would be at home. Upon arriving, the officers spoke to plaintiff’s sister, wife and father. The father went into the house and spoke to plaintiff, who was in an upstairs bedroom. The parties dispute what happened next. Plaintiff alleges that his father told the officers that he would not come downstairs voluntarily because the arrest warrant showed an incorrect address. Plaintiff also alleges that defendants Stratford and Zerbe then forced their way into the house. Defendant Stratford contends that they were permitted entrance into the house. . In either case, Stratford and Zerbe entered the house and went to the second floor. As Stratford’s motion states, the “events of the actual placement of the plaintiff into custody are greatly disputed.” Plaintiff claims that the arrest was made with excessive force and physical abuse. He alleges that the defendants struck and slapped him while conducting a pat down search and “violently and maliciously” pushed and pulled him while removing him from the house and placing him into defendants’ car. Defendant Stratford claims that no physical contact was made with the plaintiff except the actual placement of the handcuffs on him.

Following his arrest, plaintiff was taken before a Lehigh County magistrate. Plaintiff could not make bail, and he was held overnight. He was released the next day.

Although there is a dispute as to the events which took place, for the reasons which I explain below, defendants are entitled to judgment as a matter of law, regardless of which party’s version of the facts is correct, because the facts which might be in dispute are not material to the resolution of the motion.

B. Plaintiffs Causes of Action

Plaintiffs amended complaint against defendants Stratford and Zerbe contains three counts. In Count I, plaintiff alleges that defendants used excessive force in making the arrest, in violation of the eighth amendment and the due process clause of the fourteenth amendment. He also alleges that defendants convinced the Lehigh County magistrate to set high bail and to refuse the proffered security, in violation of the due process clause and the equal protection clause of the fourteenth amendment. In Count II, plaintiff alleges that defendants used excessive force in making the arrest, in violation of their obligation to exercise due care under state law. In Count III, plaintiff alleges that defendants’ conduct in making the arrest constituted assault and battery under state law.

1. The Eighth Amendment Claim.

Plaintiff claims that defendants’ conduct in making the arrest constituted cruel and unusual punishment in violation of the eighth amendment. Plaintiff’s claim is without merit. The law on this issue is well settled. The constitutional ban against cruel and unusual punishment applies only to those who have been convicted of criminal offenses; Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 1871 n. 16, 60 L.Ed.2d 447 (1979); United States v. Lovett, 328 U.S. 303, 317-18, 66 S.Ct. 1073, 1079-80, 90 L.Ed. 1252 (1946); Romeo v. Youngberg, 644 F.2d 147, 156 n. 8 (3d Cir.1980) (en banc), vacated on other grounds, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982); Patzig v. O’Neil, 577 F.2d 841, 847 (3d Cir.1978). In the case before me, plaintiff was only under arrest when the alleged unconstitutional conduct occurred; he had not been convicted of any criminal offense and was not incarcerated. The eighth amendment ban, therefore, does not protect him. The only possible constitutional issue arising from defendants’ conduct in making the arrest is one of due process under the fourteenth amendment which I shall discuss below.

2. The Equal Protection Claim.

Plaintiff claims that defendants’ conduct in making the arrest and in attempting to have his bail increased deprived him of the equal protection of the laws in violation of the fourteenth amendment. This claim is without merit. An equal protection claim must be based on some allegation of invidious discrimination or discriminatory intent. Washington v. Davis, 426 U.S. 229, 238-48, 96 S.Ct. 2040, 2046-51, 48 L.Ed.2d 597 (1976). Plaintiff has offered no evidence whatsoever that defendants’ conduct involved either invidious discrimination or discriminatory intent, and plaintiff has offered no legal argument or authority in support of the allegation.

3. The Due Process Claim and the Setting of Bail.

Plaintiff claims that following his arrest, defendants convinced the magistrate to raise his bail and to refuse the security offered by his family, in violation of his right to due process under the fourteenth amendment. In support of this allegation, plaintiff states only that the magistrate’s actions “were taken at defendants’ instigation.” Plaintiff admits that there is no direct evidence on this issue; he merely argues that the inference should be drawn that defendants “somehow convinced” the magistrate that plaintiff should have been transferred back to Union County rather than posting bail in Lehigh County. Plaintiff’s claim is without merit. In order to defeat defendant’s motion for summary judgment on this issue, plaintiff, as the opposing party, must come forward with some evidence, by affidavit or otherwise, to show the existence of a material issue of fact. He cannot rest on the allegations of this complaint or on the conclusory arguments of counsel. Robin Constr. Co. v. United States, 345 F.2d 610 (3d Cir.1965); Hollinger v. Wagner Mining Equip. Co., 505 F.Supp. 894 (E.D.Pa.1981), vacated on other grounds, 667 F.2d 402 (3d Cir.1981). Plaintiff has failed to come forward with any facts to support his allegation and has failed to articulate how defendants’ conduct, even if true, constitutes a violation of his due process rights under the fourteenth amendment.

4. The Fourth Amendment Claims.

Plaintiff claims that defendants have violated his rights under the fourth amendment because the arrest warrant and the arrest itself were invalid. In support of this claim, plaintiff states that the warrant did not show the correct address and defendants executed it at an address different from the one shown. Plaintiff also claims that his fourth amendment rights were violated by defendants in forcing their way into the house after being refused entry by his sister. Both of these claims are without merit.

In an arrest warrant, unlike a search warrant, the listed address is irrelevant to its validity and to that of the arrest itself. An arrest may take place at any location so long as there is probable cause to support the arrest. United States ex rel. Moore v. Russell, 330 F.Supp. 1074, 1078 (E.D.Pa.1971); Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982). Plaintiff admits that he took his tractor from the repair shop without paying, and he does not deny that the defendants had telephoned his sister at the place of the arrest shortly before going there, and had confirmed that he would be there. Thus, there was probable cause for making the arrest. The error in the address was of no significance.

Further, plaintiff’s claim of foreeable entry into the house is not a basis for a fourth amendment violation because, given the fact that the arrest warrant was valid and based on probable cause, the defendants were entitled to enter the premises in order to carry out the arrest. Permission of the occupant or owner was not required. Commonwealth v. Stanley, supra.

5. The Due Process Claim and the Use of Excessive Force.

The heart of plaintiff’s complaint is that the defendants used excessive force in making the arrest, causing injuries to him. Plaintiff claims that defendants’ conduct constitutes a violation of his right to due process of law under the fourteenth amend- . ment. For the reasons which I will explain below, defendants are entitled to prevail on this issue because state law provides adequate postdeprivation remedies for the alleged deprivation and plaintiff has, therefore, not been deprived of a protected interest under the fourteenth amendment without due process of law.

The fourteenth amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” (emphasis added) Section 1983 of Title 42 of the United States Code, in turn, provides a cause of action for a fourteenth amendment violation:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action a^ law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983. Section 1343 of Title 28 of the United States Code confers jurisdiction on federal district courts to hear civil actions brought under § 1983.

A plaintiff suing under § 1983 must establish that some person has deprived him of a federal constitutional or statutory right and that the person acted under color of state law. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Cohen v. City of Philadelphia, 736 F.2d 81, 83 (3d Cir. 1984). In this case, there is no dispute that defendants were acting under color of state law; they were both constables of Union County, Pennsylvania, empowered under state law to make arrests, and at issue in this case is their conduct in making an arrést. There is no allegation that plaintiff was deprived of any federal statutory right or privilege; the focus of plaintiffs claim is an alleged violation of the fourteenth amendment to the constitution. Plaintiff’s claim is a pure procedural due process claim; it is not based on any specific constitutional provision other than the fourteenth amendment itself.

A proper identification of the interest involved in plaintiff’s claim is essential for a valid disposition of the claim. In a series of recent decisions, the Supreme Court has begun to clarify the meaning of the “liberty” interests and “property” interests which are protected by the due process clause. See, e.g., Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). In Ingraham, the Court stated that when state authorities bodily restrain or punish a person, as in the infliction of corporal punishment on school students, the liberty interests of the due process clause are implicated. See also Black v. Stephens, 662 F.2d 181, 188 (3d Cir.1981) (use of excessive force in making arrest implicates liberty interest), cert. denied, 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876 (1982); Everett v. City of Chester, 391 F.Supp. 26, 28 (E.D.Pa.1975) (excessive force by policeman is deprivation of liberty interest without due process). Other courts have assumed, without deciding, that a liberty interest is implicated where the allegation is one of excessive force or infliction of bodily injury by a state officer. See, e.g., Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1352 (9th Cir.1981), affd on other grounds sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983); Dandridge v. Police Dept. of Richmond, 566 F.Supp. 152, 155 (E.D.Va.1983); Barnier v. Szentmiklosi, 565 F.Supp. 869, 877-78 (E.D.Mich.1983). Under the analyses of the above decisions,' plaintiff’s claim in the case before me involves a deprivation of a liberty interest under the fourteenth amendment, allegedly without due process. I assume, because plaintiff has not claimed otherwise, that the alleged deprivation is one of procedural due process, not of substantive due process. I also assume, from the language of the complaint, that plaintiff is claiming intentional conduct by defendants, not merely negligent conduct.

The Supreme Court decision in Parratt v. Taylor, supra, is the starting point in the analysis of plaintiff’s claim. In Parratt, a prisoner had sued state prison officials under § 1983 for the negligent loss of hobhy materials that he had ordered through the mail. In ruling that the plaintiff had not sufficiently alleged a violation of the due process clause, the Court stated:

Nothing in [the fourteenth] amendment protects against all deprivations of life, liberty, or property by the State. The Fourteenth Amendment protects only against deprivations “without due process of law.” (citation omitted) Our inquiry therefore must focus on whether the [plaintiff] has suffered a deprivation .,. without due process of law. In particular we must decide whether the tort remedies which the State ... provides as a means of redress for property deprivations satisfy the requirements of procedural due process.

Id. 451 U.S. at 537, 101 S.Ct. at 1914.

The Court held that although conduct by defendants clearly constituted a deprivation of a property interest under the due process clause, the plaintiff did not have a claim under § 1983 because postdeprivation state tort claims procedures were available to him to compensate for his loss. On this basis, the Court concluded that the plaintiff had not been denied his property interest without due process. See also Holman v. Hilton, 712 F.2d 854 (3d Cir.1983) (negligent loss of prisoner’s personal property by officials in prison fire constitutes deprivation of property interest under due process clause).

In concluding that the state remedies available in Parratt satisfied the requirements of due process, the Court stated:

To accept [plaintiff’s] argument that the conduct of the state officials in this case constituted a violation of the Fourteenth Amendment would almost necessarily result in turning every alleged injury which may have been inflicted by a state official acting under “color of law” into a violation of the Fourteenth Amendment cognizable under § 1983. It is hard to perceive any logical stopping place to such a line of reasoning____ Such reasoning “would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States.” Paul v. Davis, 424 U.S. 693, 701 [96 S.Ct. 1155, 1160, 47 L.Ed.2d 405] (1976). We do not think that the drafters of the Fourteenth Amendment intended the Amendment to play such a role in our society.

451 U.S. at 544, 101 S.Ct. at 1917.

In Hudson v. Palmer, — U.S.-, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the Supreme Court extended the rule of Parratt to intentional deprivations of property. In Hudson, the Court held that the intentional destruction of a prisoner’s personal property by a prison official did not violate the due process clause of the fourteenth amendment because the prisoner had adequate postdeprivation remedies under state law for any loss suffered. Id. at-, 104 S.Ct. at 3203. The Court also held that the fact that the prisoner might not be able to recover under state law remedies the full amount which he might receive in a § 1983 action did not render the state remedies inadequate. Id. at-, 104 S.Ct. at 3205.

Likewise, the Third Circuit, in Cohen v. City of Philadelphia, supra, at 84, 86, has held that state officials’ deprivation of plaintiff’s property interest in his employment as a police officer does not deprive him of due process as long as the state provides him with the “means by which to receive redress for the deprivation.”

Although the decisions in Parratt, Hudson and Cohen involved deprivations of property interests, there is nothing in those decisions to suggest that their rationale is not applicable to liberty interests as well, and several circuit courts and a growing number of district courts have so held. The rationale is also supported by the Supreme Court’s earlier decision in Ingraham v. Wright, supra, in which the Court held that although a deprivation of a liberty interest resulted from the infliction of corporal punishment by school officials on students, the deprivation was not without due process because adequate state procedures, which required an initial determination of the propriety of the punishment, coupled with civil tort remedies and criminal prosecution, were available to remedy the deprivation. Id. 430 U.S. at 676-80, 97 S.Ct. at 1415-17.

The Ninth Circuit decision in Rutledge v. Arizona Bd. of Regents, supra, is particularly instructive. In Rutledge, a college football player sued his coach under § 1983 for allegedly punching him in the mouth and beating him about his head. The player claimed an intentional deprivation of his liberty interest for the alleged assault and battery. The court assumed that a liberty interest was implicated, and described the relevant issue as “whether the postdeprivation hearing available to the [plaintiff] under the law of the State of Arizona satisfied the due process requirement of the Fourteenth Amendment.” Id. at 1352. In finding that it did, the court affirmed the dismissal of the complaint and stated:

[S]ince [plaintiff] has sought redress in the Arizona state courts, and in the absence of suggestion that the postdeprivation procedures under state law are deficient, we must conclude that the alleged deprivation was not without due process of law. That the effect of our holding is to relegate [plaintiff] to his tort law remedy under Arizona law for [the] alleged assault and battery should surprise no one. That is the consequence of Parratt v. Taylor as applied to this action of [defendant].

Id.

Likewise, in Ellis v. Hamilton, 669 F.2d 510 (7th Cir.), cert. denied sub nom. Ellis v. Judge of Putnam Circuit Court, 459 U.S. 1069, 103 S.Ct. 488, 74 L.Ed.2d 631 (1982), albeit in a somewhat different factual context, the Seventh Circuit, on the basis of the Parratt analysis, affirmed the dismissal of a § 1983 action against welfare and judicial officers for the arbitrary removal of grandchildren from plaintiffs home. Characterizing defendants’ conduct as an intentional deprivation of plaintiffs’ liberty interests under the due process clause, the court ruled that plaintiffs had not established a denial of due process of law. The court held:

[Tjhere is no denial of due process if the state provides reasonable remedies for preventing families from being arbitrarily broken up by local domestic relations officers such as the defendants in this case____ [Tjhe law of Indiana provides a variety of remedies by which to correct, and promptly, this kind of misbehavior.

Id. at 514, 515. The court noted that plaintiffs’ state remedies included habeas corpus, mandamus, civil action for fraud and petition for visitation rights. Id.

In Vicory v. Walton, 721 F.2d 1062 (6th Cir.1983), the Sixth Circuit held that under the principles of Parratt a plaintiff who alleged an intentional deprivation of property rights under the due process clause, based on the seizure by defendants sheriff and county prosecutor of his mobile home in a homicide investigation, had not made out a claim under § 1983. In reversing a grant of summary judgment for plaintiff, the circuit court held that § 1983 “was not meant to supply an exclusive federal remedy for every alleged wrong committed by state officials.” Id. at 1065. Rather, the court stated:

[Tjhe statute is a remedy for only those wrongs which offend the Constitution’s prohibition against property deprivations without procedural due process. Thus we hold that in section 1983 damage suits claiming the deprivation of a property interest without procedural due process of law, the plaintiff must plead and prove that state remedies for redressing the wrong are inadequate. In a procedural due process case under section 1983, the plaintiff must attack the state’s corrective procedure as well as the substantive wrong.

Id. at 1065-66. The court noted that the plaintiff could pursue an action in an Ohio state court for forcible entry and detainer.

The Ninth Circuit, which had extended the Parratt authority to an intentional deprivation of a liberty interest in Rutledge v. Arizona Bd. of Regents, supra, applied it also to the negligent deprivation of a liberty interest in Haygood v. Younger, 718 F.2d 1472 (9th Cir.1983). In Haygood, a state inmate who had been incorrectly imprisoned for longer than his proper sentence because of miscalculations of time by prison officials filed an action against the prison officials under § 1983. At trial, the jury found in favor of plaintiff, and the trial court denied defendants’ motion for judgment n.o.v. The Ninth Circuit reversed, holding that the rule that state tort remedies for wrongful deprivations of property satisfied due process also applied to deprivations of liberty. The court cautioned that in applying the principles of Parratt, trial courts should not confuse the rights accorded by the fourteenth amendment’s due process clause with the remedy afforded by § 1983. The court said:

Parratt did not deny Taylo a remedy; it defined his rights. The decision does not require that state remedies be exhausted. It held that no constitutional violation had occurred. Resort to federal court in situations encompassed by its rationale is foreclosed, (citations omitted) And for that matter, so is recourse to state courts on a section 1983 claim____ The distinction between deprivations of property and those of liberty in that context is unimportant.

Id. at 1480. The court held that § 1983 “is not an insurance policy against mistakes being made by those acting under color of law. It only insures against mistakes made in the absence of ‘due process.’ ” Id. at 1481. The court found that adequate prison administrative remedies, habeas corpus proceedings and state tort law remedies were available to compensate plaintiff for his loss of liberty. See also Bonner v. Coughlin, 517 F.2d 1311, 1319 (7th Cir. 1975), modified en banc, 545 F.2d 565 (7th Cir.1976), cert. denied, 435 U.S. 932, 98 S.Ct. 1507, 55 L.Ed.2d 529 (1978).

Trial courts in several federal judicial districts have also adopted the Parratt analysis in deciding civil actions filed under § 1983. See, e.g., Thurman v. Rose, 575 F.Supp. 1488 (N.D.Ind.1983); Dandridge v. Police Dept., supra; Barnier v. Szentmiklosi, supra; Graham v. Mitchell, 529 F.Supp. 622 (E.D.Va.1982); Eberle v. Baumfalk, 524 F.Supp. 515 (N.D.Ill.1981); Meshkov v. Abington Township, 517 F.Supp. 1280 (E.D.Pa.1981).

The thorough and careful analysis of Judge Charles W. Joiner in Barnier v. Szentimiklosi, supra, is especially helpful because that case, like the case before me, arose from an allegation of excessive force by police in making an arrest. In Barnier, the-plaintiff had been stopped by two police officers for a traffic violation. After pulling him from his car, they allegedly beat and choked him with their flashlights and hands. At the close of defendants’ case, the court dismissed the § 1983 claim on a motion for a directed verdict. Assuming that plaintiff’s claim constituted an intentional deprivation of a liberty interest under the due process clause, the court applied the Parratt analysis and held that because the process provided by the state after the deprivation comported with constitutional requirements, plaintiff was not deprived of any protected interest without due process of law. The court noted that “a panoply” of state tort remedies was available to plaintiff, including a civil action for assault and battery. Barnier, supra, at 879.

Judge Joiner also observed in Barnier that once it becomes clear in a case, first, that plaintiff’s only viable federal claim is a violation of procedural due process, and, second, that state remedies are adequate to compensate plaintiff for his loss, the § 1983 action should be dismissed on a motion for summary judgment, and not later at trial. Id. at 881-82. This approach is both legally sound and judicially economical, and I have adopted it in the case before me.

Based upon the authorities cited above, I conclude that no deprivation of a liberty interest under the fourteenth amendment has occurred without due process where adequate state postdeprivation remedies are available to compensate a plaintiff who alleges excessive force by police officers in arresting him. It is, therefore, necessary to determine whether the postdeprivation remedies available to plaintiff under Pennsylvania law provide him with adequate due process.

Under traditional Pennsylvania common law principles, a police officer may be subject to suit for civil damages for unlawful conduct involving the use of excessive force in making an arrest. The officer is not immune from suit even though he is a governmental employee, and his conduct may constitute a claim for assault and battery. See Belcher v. United States, 511 F.Supp. 476, 482-84 (E.D.Pa. 1981); Kedra v. City of Philadelphia, 454 F.Supp. 652, 672-73 & n. 22 (U.D.Pa.1978); Lopez v. White, 443 F.Supp. 556, 557-59 (E.D.Pa.1977); Gagliardi v. Lynn, 446 Pa. 144, 285 A.2d 109, 112 n. 4 (1971); Osgood v. Borough of Shamokin Dam, 278 Pa.Super. 423, 420 A.2d 613, 615 (1980). See also Restatement (Second) of Torts § 118 com ment b; id. at § 132 (use of force to make arrest is not privileged if means employed are in excess of those reasonably necessary); id. at § 133 (officer is liable for excessive force in making arrest).

In the case before me, plaintiff has alleged that the conduct of the defendants in making the arrest constituted assault and battery. Thus, under traditional Pennsylvania common law, above, plaintiff has a claim for civil damages against defendants.

Because defendants are employees of a political subdivision, it must be determined whether potential causes of action against them as individuals are prohibited by the Political Subdivision Tort Claims Act, 42 Pa.Cons.Stat.Ann. §§ 8541-8564 (Purdon 1982). In general, the Act provides that under the principles of governmental and official immunity, political subdivisions and their employees are protected against civil damage actions, except as provided for under the Act itself. The Act in essence recognizes two types of civil damage actions: those asserted against the political subdivision based on certain enumerated negligent conduct by the political subdivision or its employees, id. at §§ 8541, 8542, and those against the employee of the political subdivision in which the conduct of the employee involves a crime, actual malice or willful misconduct, id. at § 8550. In the latter, the provisions of § 8545 (relating to official liability generally) and § 8546 (relating to defense of official immunity) do not apply.

In the case before me, plaintiff has not alleged that defendants were negligent in any way which may be reached by the negligence provisions of the Act. Rather, plaintiff claims that defendants’ conduct constituted assault and battery, which generally involves willful misconduct and possibly a crime under Pennsylvania law. Thus, under § 8550 of the Act, defendants would not be protected from suit under official immunity, and the traditional common law causes of action for damages under Pennsylvania law would be available to plaintiff.

I have found nothing in the reported decisions involving the Act or its predecessor act, 1978 Pa. Laws 1399 (repealed 1980), which would hold to the contrary. See Duffy v. Buchanico, No. 84-304 (E.D. Pa.Mar. 15, 1984) (assault by police officer might amount to crime, “e.g., assault and battery,” under state tort claims act). See also Hudson v. Palmer, supra, — U.S. at -, 104 S.Ct. at 3205 (under Virginia state tort claims act, state employees do not enjoy sovereign immunity for intentional torts).

I conclude that under the rationale of Parratt v. Taylor and Hudson v. Palmer, supra, the postdeprivation remedy which Pennsylvania law makes available to plaintiff is adequate under the due process clause to compensate him for any deprivation of a liberty interest which defendants’ conduct may have caused him. Accordingly, plaintiff has not made out a claim under 42 U.S.C. § 1983 because he has not been deprived of due process of law.

6. Pendent State Claims.

Plaintiff claims that defendants’ conduct in making the arrest also constitutes assault and battery and a failure to exercise due care under state law. These claims are before me as pendent state claims because they arise out of the same operative facts as plaintiff’s federal claims. However, under my discretionary power I will dismiss these claims because I have dismissed plaintiff’s federal claims and there are no “extraordinary circumstances” here to require that I retain jurisdiction of the state claims. United Mineworkers v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); Weaver v. Marine Bank, 683 F.2d 744, 746 (3d Cir.), rev’d on other grounds, 455 U.S. 551, 102 S.Ct. 1220, 71 L.Ed.2d 409 (1982).

7. Plaintiffs Claim Against Defendant Zerbe.

The only remaining defendant in the ease is Zerbe, the other Union County constable who was involved in making the arrest. Plaintiff claims that Zerbe’s conduct also constituted excessive force and deprived him of his rights under the fourteenth amendment. Plaintiff does not specify what Zerbe’s conduct was, so I assume that it was similar to that of defendant Stratford. Zerbe, who is proceeding pro se, has filed a “Notice of Motion for Dismissal” in which he seeks judgment in his favor. I will construe this document as a motion for summary judgment and will grant the motion on all counts for the same reasons that I granted summary judgment in favor of defendant Stratford.

Earlier I granted summary judgment in favor of defendant Stratford. I now grant summary judgment in favor of defendant Zerbe on all counts. This disposes all of plaintiff’s claims.

      . In his original complaint plaintiff filed suit against Union County, Lehigh Township, Moore Township, a Lehigh Township police officer, a Moore Township police officer, two Union County constables, Susquehanna Motor Co. and Harvey Fulmer (the owner of Susquehanna Motor Co.). Plaintiff alleged violations of the fourth, eighth and fourteenth amendments, liability under respondeat superior by the county and the two townships, and three pendent state claims for negligence, malicious trespass and assault and battery. In a series of orders I dismissed the complaint against all defendants except the two Union County constables. In an amended complaint plaintiff has again sued Harvey Fulmer, Susquehanna Motor Co. and the two Union County constables. I have dismissed the amended complaint against Fulmer and Susquehanna Motor Co. for failure to state a federal claim.
      It would appear from the briefs that Anthony Zerbe [sic] is Donald L. Zerbe and that James Stratford [sic] is James Stafford. No request was made at any time during the proceedings to have the caption corrected.

      . Defendants’ conduct may also constitute a crime under Pennsylvania law. Criminal charges can be brought against a police officer for the use of excessive force in making an arrest. See 18 Pa.Cons.Stat.Ann. § 2701 (simple assault); id. at § 2702 (aggravated assault); and id. at § 5301 (official oppression). See also Commonwealth v. Stumpo, 306 Pa.Super. 447, 452 A.2d 809 (1982) (conviction of on-duty police officer involved in physical altercations with civilians upheld).

      . The types of conduct which could be the basis for a negligence action recognizable under the Act involve vehicle liability, care of personal property, real property, traffic control, utility services and facilities, streets and sidewalks and similar functions. Id. at § 8542.

      . The arrest and defendants’ alleged use of excessive force might also provide a basis for a civil damage action under Pennsylvania common law based on false imprisonment, negligence and malicious prosecution. See Belcher v. United States, 511 F.Supp. at 483.


source: Caselaw Access Project

author: VANARTSDALEN, District Judge.

license: Public Domain

text:
    Katherine W. BURKHART, et al. v. William SAXBE, et al.
    Civ. A. No. 74-826.
    United States District Court, E.D. Pennsylvania.
    Aug. 22, 1984.
    David Rudovsky, Kairys, Rudovsky & Maguigan, Philadelphia, Pa., for plaintiffs.
    Gordon W. Daiger, Torts Branch, Civil Div., U.S. Dept, of Justice, Washington, D.C., for defendants.
   OPINION AND ORDER

VANARTSDALEN, District Judge.

The primary issue before the court is whether John N. Mitchell is liable in damages to persons whose conversations were overheard during non-consensual telephone wiretaps that were authorized by him as “national security” surveillances in his capacity as Attorney General of the United States. The parties have filed cross motions for summary judgment and agree that there are no genuine issues of material fact in dispute.

The two wiretaps in question, one on the telephone of William Davidon, the other on the telephone of the Black Panther Party, were authorized, installed, implemented and terminated more than a year prior to the decision in United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) (hereafter referred to as “Keith ”). By the time Keith was decided on June 19, 1972, the wiretaps at issue had long since been terminated (at least as of February 10,1971). In Keith, the Supreme Court held for the first time that a wiretap surveillance, even when authorized by the Attorney General for “domestic national security purposes,” required the issuance of a judicial warrant before installation of the wiretap.

In Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) (citations and footnote omitted), the Supreme Court announced a rule of law that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The Court further stated:

Reliance on the objective reasonableness of an official’s conduct, as measured by reference to clearly established law should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously identified as unlawful.

Id. (footnotes omitted).

In Forsyth v. Kleindienst, 729 F.2d 267 (3d Cir.1984) (Forsyth II), Circuit Judge Weis, in dissent, opined that former Attorney General John N. Mitchell was entitled, at least, to the type of “qualified immunity” described in Harlow, and on the basis of the record, entitled to summary judgment in his favor. Primarily for the reasons so clearly set forth by Judge Weis in Forsyth II, I conclude, on the basis of the record established in this case that the defendant, John N. Mitchell, is entitled to qualified immunity and that summary judgment should be entered in his favor.

This case and the Forsyth case have been the subject of several published opinions in both the district court and the court of appeals. See Burkhart v. Saxbe, 448 F.Supp. 588 (E.D.Pa.1978), aff’d in part and remanded sub nom. Forsyth v. Klein dienst, 599 F.2d 1203 (3d Cir.1979), cert. denied, 453 U.S. 913, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981) (Forsyth I); Forsyth v. Kleindienst, 447 F.Supp. 192 (E.D.Pa. 1978), affd in part and remanded, 599 F.2d 1203 (3d Cir.1979), cert. denied, 453 U.S. 913, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981) (also cited as Forsyth I because the court of appeals decided both cases in a single opinion); Forsyth v. Kleindienst, 551 F.Supp. 1247 (E.D.Pa.1982), stay granted, 700 F.2d 104 (3d Cir.1983), affd in part, dismissed in part, petition for mandamus denied, 729 F.2d 267 (3d Cir. 1984) (Forsyth II). Consequently, only a few essential facts need be reiterated.

I initially ruled that a full evidentiary hearing was required to determine

(1) whether the wiretaps in question were conducted for national security purposes or solely for the purpose of investigating criminal or political activity; (2) whether, even if conducted for national security purposes, the defendants are immune from any liability for their failure to secure a warrant in compliance with the fourth amendment and (3) whether, in any event, this surveillance was conducted in a reasonable manner under the fourth amendment as interpreted in Berger v. New York, [388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040] supra.

Burkhart, 448 F.Supp. at 610. The court of appeals’ decision directly addressed only the issue of absolute immunity: “We hold that the Attorney General will be absolutely immune from suit for his decision to authorize the warrantless electronic surveillances only if his decision was made in performance of a function that is intimately related'to the judicial process.” Forsyth I, 599 F.2d at 1217.

In Forsyth II, the court of appeals ruled that the former Attorney General had not established a right to absolute immunity as to the Davidon wiretap, under its formulation set forth in Forsyth I; namely, he had not proved that the wiretap was for “a function that is intimately related to the judicial process.” See Forsyth I, 599 F.2d at 1217. Although theoretically in the Burkhart case there could be different evidence as to the purpose of the Davidon wiretap, it would be a strange result to find absolute immunity in Burkhart and not in Forsyth where the overheard conversations for which damages are sought arose out of the same wiretap authorization on the telephone of William Davidon. In any event, to the extent the issue of absolute immunity may still be open, under the Forsyth I test, there is clearly no absolute immunity. The former Attorney General has always taken the position that both the Davidon and Black Panther Party wiretaps were for' “national security” and not for criminal investigative purposes. Because I conclude that the former Attorney General is entitled to qualified immunity as a complete defense to this action, it becomes, in any event, unnecessary to decide the issue of absolute immunity.

On the present motion for summary judgment, defendant John N. Mitchell relies solely on the contention that under Harlow he has established all that is necessary to come within the j 'otection of a qualified immunity. I fully agree. In Harlow the Supreme Court held:

[Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

457 U.S. at 818, 102 S.Ct. at 2738 (citations and footnote omitted). It is not necessary to review the long and uncertain path of the law leading up to Keith where the Supreme Court finally squarely ruled that “prior judicial approval is required for the type of domestic security surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as the Congress may prescribe.” 407 U.S. at 324, 92 S.Ct. at 2140.

Although logical argument may be made that the ultimate decision was “foreshadowed” by earlier case law and was not a break with prior law, nothing in Harlow suggests that officials must, at peril of being liable for civil damages, correctly foretell the future of Supreme Court and other court decisions in areas of constitutional conduct. The test enunciated in Harlow is that of “clearly established statutory or constitutional rights of which a reasonable person would have known.” 457 U.S. at 812, 102 S.Ct. at 2735 (citations and footnote omitted).

In the event that there may have been any lingéring doubts as to the Supreme Court’s holdings in Harlow, the Court recently emphasized in Davis v. Scherer, — U.S. -, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984), the necessity of applying an objective test and that the law must have been clearly established:

Harlow v. Fitzgerald, supra, rejected the inquiry into state of mind in favor of a wholly objective standard. Under Harlow, officials “are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” ... Whether an official may prevail in his qualified immunity defense depends upon the “objective reasonableness of [his] conduct as measured by reference to clearly established law.” ... No other “circumstances” are relevant to the issue of qualified immunity.
We conclude that the District Court correctly held that appellee has demonstrated no violation of his clearly established constitutional rights.

Id. at 3018, 3019 (emphasis in original). The Court made quite explicit that an official need not be clairvoyant when it noted:

Yet, under appellee’s submission, officials would be liable in indeterminate amount for violation of any constitutional right — one that was not clearly defined or perhaps not even foreshadowed at the time of the alleged violation____

Id. at 3019 (emphasis in original).

The decisions of the Supreme Court have consistently held that governmental officials, exercising discretionary functions are entitled to “some form of immunity from suits for civil damages.” Nixon v. Fitzgerald, 457 U.S. 731, 744, 102 S.Ct. 2690, 2699, 73 L.Ed.2d 349 (1982); Harlow, 457 U.S. at 806, 102 S.Ct. at 2732. Qualified immunity for executive officials is the norm. Harlow, 457 U.S. at 807, 102 S.Ct. at 2733. Where a defendant establishes that he is an executive official, performing discretionary duties, the plaintiff must “overcome” the qualified immunity. The concluding paragraph of Davis v. Scherer states:

A plaintiff who seeks damages for violation of constitutional or statutory rights may overcome the defendant official’s qualified immunity only by showing that those rights were clearly established at the time of the conduct t issue. As appellee has made no such showing, the judgment of the Court of Appeals is reversed____

104 S.Ct. at 3021.

The applicable Supreme Court decisions establish that in order to prevail plaintiffs have the burden of establishing two distinct elements. One, that the law was clearly established at the time the wiretaps were authorized; and two, that the former Attorney General, as a “reasonable person” would have known the law. Plaintiffs suggest that if a reasonable person would know that at some time in the future the law would be clearly established that certain conduct is (and logically always was) unconstitutional, such would be a sufficient showing to allow the case to proceed. As heretofore noted, the Supreme Court has never suggested that a governmental official must anticipate the future course of the law.

I think it is unnecessary to review the case law as it existed in 1970 when the Davidon and the Black Panther Party wiretaps were authorized by the Attorney General. In Keith the Supreme Court certainly recognized that it had never previously ruled on the question of the requirement for a warrant in domestic security wiretaps. The opening paragraph of Keith makes this clear:

The issue before us is an important one for the people of our country and their Government. It involves the delicate question of the President’s power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval. Successive Presidents for more than one-quarter of a century have authorized such surveillance in varying degrees, without guidance from the Congress or a definitive decision of this Court. This ease brings the issue here for the first time.

407 U.S. at 299, 92 S.Ct. at 2128 (emphasis added) (footnote omitted).

In short, I completely agree with the analysis of Judge Weis in his dissenting opinion in Forsyth II. I likewise am convinced that by any fair objective test, at the time the wiretaps in question were authorized by the Attorney General and throughout the entire time that the wiretaps were in place, the law that domestic national surveillance wiretaps authorized by the Attorney General required warrants was not “clearly established.” Indeed, the rule of constitutional law, for which plaintiffs seek damages from the former Attorney General, was not then even “established,” let alone “clearly established” by controlling case law.

The requirement that the surveillance be for “national security” must also be addressed. Case law does not clearly define what constitutes a “national security” wiretap. Also, in a case such as this, where the claim of qualified immunity should, if possible, be determined without a trial, see Harlow, 457 U.S. at 818, 102 S.Ct. at 2738; Davis v. Scherer, 104 S.Ct. at 3020-21, the procedure by which the factual determination that a. wiretap is a “national security” wiretap, as opposed to a routine criminal or administrative investigation, has not been outlined by appellate court decision.

The subjective state of mind of the Attorney General in authorizing the wiretap should not be investigated under Harlow. If the record discloses a rational national security concern, this should suffice, even though there may have been other possible reasons or motives. Halperin v. Kissinger, 578 F.Supp. 231 (D.D.C.1984). Plaintiffs argue that if it appears that there is “any significant purpose other than national security,” the government should not be allowed to rely on “the national security label.” Plaintiffs’ Brief at 28. I do not agree, because if such “other purposes” test is utilized, lengthy fact-finding hearings and testimony as to the subjective state of mind of the official authorizing the wiretaps would bring about the precise harms that Harlow sought to obviate.

Whatever may be a proper definition of a “national security” wiretap, and its full contours, both the Davidon and Black Panther Party wiretaps certainly qualify as national security wiretaps. In effect, I previously so ruled in this case, Burkhart, 448 F.Supp. at 596-98, although I concluded that there remained a factual issue as to whether the surveillances may have had some other purposes. To the extent that my prior opinion suggested that the “sole purpose” of the wiretap had to be for national security, it must be disavowed in light of Harlow. Harlow requires a determination of the facts without inquiry into the subjective state of mind of the official.

In addition to the facts set forth in the discussion of the “national security” issue in Burkhart, 448 F.Supp. at 596-98, the court of appeals also extensively reviewed the history leading up to the implementation of the Davidon and Black Panther Party wiretaps in Forsyth I, 599 F.2d at 1205-06. In Sinclair v. Kleindienst, 645 F.2d 1080, 1084 (D.C.Cir.1981), the District of Columbia Circuit held that the warrantless wiretap on the Black Panther Party was, under the submissions before that Court, “the clearest justification for a national security exception to Title III.” Finally, Judge Broderick of this court, in Forsyth v. Kleindienst, 551 F.Supp. 1247, 1252 (E.D. Pa.1982), stay granted, 700 F.2d 104 (3d Cir.1983), affd in part, dismissed in part, petition for mandamus denied, 729 F.2d 267 (3d Cir.1984), concluded that the Davidon wiretap was not authorized pursuant to the Attorney General’s prosecutorial duties. Judge Broderick noted that there was extensive evidence that showed the wiretap was for national security, including the deposition testimony of John N. Mitchell (taken before the Harlow decision) that the “ ‘focus’ ” of the wiretap was “ ‘[t]he gathering of information necessary to protect the national security and to get information on foreign intelligence.’ ” Judge Broderick stated that “[t]he Court has taken defendant Mitchell at his word.” Id.

I conclude, on the basis of the entire record in this case, that the two wiretaps in question, i.e., the Davidon and Black Panther Party wiretaps, were authorized by the defendant while he was the Attorney General of the United States, for national security purposes. I further conclude that at the time of the authorizations, including the authorized extensions of the wiretaps, the law was not “clearly established” that a warrant was required before implementing the wiretaps. The defendant is therefore entitled to qualified immunity.

In my prior opinion, 448 F.Supp. at 610, 1 directed that an evidentiary hearing would be held to determine whether the surveillances were conducted in a reasonable manner, compatible with the fourth amendment. Holding an evidentiary hearing for such purpose is doubtful procedure under Harlow. Nevertheless, there is probably some “reasonableness” requirement that must be met, to be determined from the objective record.

Where lawful wiretaps have been installed for purposes of normal criminal investigation, the law has long been clear that the carrying out of the wiretaps must be “narrowly circumscribed” with “appropriate safeguards” to prevent unnecessary invasions of privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). Although neither Katz nor Berger detailed the exact requirements for limiting the scope and duration of wiretaps, Congress, in response, enacted Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 212 (1968) (codified at 18 U.S.C. §§ 2510-2520), which included strictures upon authorized wiretaps that they “be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter ----” 18 U.S.C. § 2518(5). The inquiry as to whether the agents in carrying out the surveillance acted “reasonably” is to be based on an objective not a subjective standard. “Because of the necessarily ad hoc nature of any determination of reasonableness, there can be no inflexible rule of law which will decide every case.” Scott v. United States, 436 U.S. 128, 139, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978).

In Keith, the Supreme Court carefully avoided setting the standards of “reasonableness” for domestic national security surveillances. In doing so, the court further made clear, that although a warrant was required, the requirements of Title III might not be the proper tests:

Given these potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specific crimes in Title III. Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens.

Keith, 407 U.S. at 322-23, 92 S.Ct. at 2139-40. The Supreme Court further suggested that Congress might decide that “the time and reporting requirements need not not be so strict as those in § 2518.” Id. at 323, 92 S.Ct. at 2140. Considering that Keith was decided more than a year after the wiretaps involved in this case were terminated, one can only conclude that as to national security wiretaps, there was no “clearly established” constitutional or statutory standards or guidelines for the Attorney General to follow in authorizing the wiretaps, other than the nebulous concept that they must be “reasonable.”

Although plaintiffs have contended that the wiretaps do not properly fit within the somewhat unclear definition of “national security” surveillances, I do not understand plaintiffs to contend that it was unreasonable, per se, for the Attorney General to authorize the wiretaps. Clearly he had probable cause to believe that the wiretaps might provide valuable intelligence information as to the matters under investigation and that the matters being investigated were properly within the Attorney General’s sphere of duties. Plaintiffs do contend that the surveillances were not properly limited and minimized.

The Davidon wiretap was originally authorized on November 6, 1970, for one month, and an additional extension of one month was granted. The wiretap was terminated on January 6, 1971. The agents were instructed to record all conversations unless it was known that one of the parties to the conversation was a defendant in a federal criminal case or was an attorney for a criminal defendant Forsyth I, 599 F.2d at 1206. The Black Panther Party wiretaps were in place from June 1, 1970 until February 10, 1971. Although there appears to be little to suggest that the wiretaps were otherwise limited in time or scope, there was no “clearly established” law that national security wiretaps had to be in any way limited.

In the last chapter of Zweibon v. Mitchell, 720 F.2d 162 (D.C.Cir.1983) (Zweibon IV), summary judgment was entered in favor of John N. Mitchell in regard to wiretaps installed on the telephones of the Jewish Defense League in 1970 and 1971. The wiretaps had apparently been authorized to be installed without a warrant and against the advice of legal counsel to the Attorney General. The court of appeals in Zweibon IV concluded that as of the time of the authorizations “there existed no clearly established warrant or reasonableness requirement.” Zweibon IV, 720 F.2d at 170. The court noted, however, that the Attorney General had himself imposed some limited “minimization procedures”; i.e., federal criminal defendants and attorneys for criminal defendants were not to be monitored.

In Sinclair v. Kleindienst, 645 F.2d 1080, 1082 (D.C.Cir.1981), a case involving Black Panther Party wiretaps at locations different from those involved in the present case, the court stated that “there was no judicially imposed reasonableness requirement for national security wiretaps at the time____”

My final conclusion is that on the basis of the record, and consistent with Zweibon IV and Sinclair v. Kleindienst, of the District of Columbia Circuit, the former Attorney General of the United States, John N. Mitchell, is entitled to “qualified immunity,” as defined in Harlow and Davis v. Scherer, in that he did not violate any clearly established constitutional or statutory rights of any of the plaintiffs, whose conversations were overheard by government agents who were conducting wiretap telephone surveillances without a warrant, as authorized by John N. Mitchell. Summary judgment will therefore be entered in favor of all defendants, against all the plaintiffs.

      . Although I may not adopt a dissenting opinion of the Court of Appeals for the Third Circuit in preference to a majority opinion, in Forsyth II, the majority opinion did not address the substantive issue of qualified immunity. The majority of the panel concluded that the question was not properly before the court because the district court had not entered a final judgment as to damages.

      . The wiretap in Forsyth II involved a wiretap on the telephone at the residence of William Davidon. This same wiretap is one of the two wiretaps at issue here. Thus, if the Attorney General is immune in Forsyth II under the Harlow doctrine, he necessarily is likewise immune in the present action for all telephone conversations overheard on the Davidon wiretap.

      . Clarence Kelley and William Saxbe are the only other identified defendants. The record fails to show that they were in any way involved in authorizing, installing, monitoring or otherwise conducting or supervising the wiretaps. I previously so ruled, but judgment was never formally entered in their favor. See Burkhart v. Saxbe, 448 F.Supp. 588, 607 (E.D.Pa.1978), aff ’d in part and remanded sub nom. Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir.1979), cert. denied, 453 U.S. 913, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981). Consequently, summary judgment will be entered in favor of all defendants and against all plaintiffs.

      . If not foreclosed by Forsyth II, I would nevertheless conclude that the “special functions” doctrine suggested in Harlow, 457 U.S. at 811— 12, 102 S.Ct. at 2735, would provide absolute immunity from a civil damage action against the former Attorney General in this case. In addition, the Black Panther Party wiretap would appear to come within the "foreign national security wiretap" exception to the warrant requirement. See Forsyth I, 599 F.2d at 1206. See also United States v. Butenko, 494 F.2d 593 (3d Cir.), cert. denied, 419 U.S. 881, 95 S.Ct. 147, 42 L.Ed.2d 121 (1974).


author: RAYMOND J. BRODERICK, District Judge.

text:
    Darlene ATTA v. SUN COMPANY, INC. a/k/a Sun Refining and Marketing Company.
    Civ. A. No. 84-1446.
    United States District Court, E.D. Pennsylvania.
    Aug. 22, 1984.
    Rosalind M. Plummer, Philadelphia, Pa., for plaintiff.
    Lynn Delanty Spencer, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for defendant.
   MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

The plaintiff, Darlene Atta, alleges in her complaint that she is a black female and that she was a management level employee of the defendant, Sun Company, Inc., also known as Sun Refining and Marketing Company, from 1969 through January 17, 1983. The complaint alleges that although the plaintiff performed competently in each capacity in which she was employed by the defendant from 1969 until 1983, her performance rating was lowered in May of 1982, and her employment status was changed from that of “permanent exempt, salaried employee” to that of temporary, “nonexempt” employee. The complaint alleges that from 1981 through January 17, 1983, despite her satisfactory performance, the defendant discriminated against her on the basis of her race and gender by, inter alia, changing her status from permanent employee to temporary employee; excluding her from office conferences; failing to provide her with necessary performance feedback; and subjecting her to higher standards of performance and lower rates of pay than similarly situated “whites and/or males”. The plaintiff further alleges that she was terminated on or about January 17, 1983 because of her race and gender; that the, defendant’s procedures for reducing its employee pool were designed in such a manner as to discriminate against “blacks and/or females”; and that in fact these procedures had a disproportionate impact on “blacks and/or females”, including the plaintiff. . The plaintiff has alleged that the defendant’s conduct violated the Thirteenth and Fourteenth Amendments to the Constitution (Count One); Title VII of the Civil Rights Act of 1964 (as amended), Title 42 U.S.C. § 2000e et seq. (Count Two); the Equal Pay Act of 1963 (as amended), Title 29 U.S.C. § 206(d) (Count Three); and the Civil Rights Act of 1866, Title 42 U.S.C. § 1981 (Count Four). Count Five alleges that the defendant made certain false and misleading representations to the plaintiff concerning the terms and conditions of her employment, which representations fraudulently induced the plaintiff to accept employment with the defendant and to accept her temporary assignment in May of 1982. The plaintiff has claimed compensatory and punitive damages in connection with each of the five counts. The defendant has moved to dismiss Count One of the complaint and to strike the plaintiff’s claim for punitive and compensatory damages in connection with Count Two of the complaint. For the reasons set forth below the defendant’s motion will be granted.

I. Motion to Dismiss Count One

A. Fourteenth Amendment Claim

The defendant has moved to dismiss the plaintiff’s cause of action under the Fourteenth Amendment on the ground that the plaintiff has failed to allege the requisite state action. In Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 2769-70, 73 L.Ed.2d 418 (1982), the Supreme Court reaffirmed the fundamental principle that the Fourteenth Amendment applies only to matters which involve state action and stated “[a] state normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Rendell-Baker, 102 S.Ct. at 2771, quoting Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534 (1982). The plaintiff has not alleged that the defendant is a state entity, or that the state was involved in or benefited from the alleged misconduct, or that state officials conspired with the defendant in any manner, or that the alleged misconduct was approved or encouraged by the state. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 155-56, 90 S.Ct. 1598, 1607, 26 L.Ed.2d 142 (1970) (allegation of conspiracy between private actors and sheriff). Nor has the plaintiff alleged any pervasive ■ state regulation (or any benefit conferred upon the defendant by the state) sufficient to bring the defendant within the Fourteenth Amendment’s “state action” requirement. See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). The plaintiff has not alleged any facts or advanced any theory as to how this defendant’s alleged misconduct constituted state action for Fourteenth Amendment purposes. Accordingly, the plaintiff’s Fourteenth Amendment claim set forth in Count One will be dismissed.

B. Thirteenth Amendment Claim

The defendant also has moved to dismiss the plaintiff’s Thirteenth Amendment claim which is also set forth in Count One. The Thirteenth Amendment abolished slavery and involuntary servitude. The plaintiff has not alleged that any of the defendant’s conduct in relation to this “management level employee” constituted the imposition of slavery or involuntary servitude. The plaintiff has not alleged that the defendant imposed upon the plaintiff any “condition of enforced compulsory labor.” United States v. Shackney, 333 F.2d 475, 485 (2d Cir.1964), quoting Hodges v. United States, 203 U.S. 1, 16-17, 27 S.Ct. 6, 8, 51 L.Ed. 65 (1906). Nor has the plaintiff alleged that the defendant asserted control over the plaintiff’s person and labor either through physical force or coercive threats. See United States v. Booker, 655 F.2d 562, 566-67 (4th Cir.1981). It is clear that the plaintiff has failed to allege the “essential ingredient of involuntary servitude”, which is the “[inability to avoid continued service”. Family Div. Trial Lawyers v. Moultrie, 725 F.2d 695, 705 (D.C.Cir.1984). See Flood v. Kuhn, 443 F.2d 264, 268 (2d Cir.1971), affg. 316 F.Supp. 271 (S.D.N.Y.1970), affd on other grounds 407 U.S. 258, 92 S.Ct. 2099, 32 L.Ed.2d 728 (1972).

The complaint does allege that the plaintiff was subjected to racially-based discrimination in the terms and conditions of her employment. In Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), the Supreme Court, while holding that the enabling clause of the Thirteenth Amendment empowered Congress to “pass all laws necessary and proper for abolishing all badges and incidents of slavery”, declined to address the question of “[wjhether or not the Amendment itself did any more” than abolish slavery. 392 U.S. at 439, 88 S.Ct. at 2203 (emphasis in original). Subsequently the Supreme Court rejected the theory that a city’s decision to close its public swimming pools rather than operate them on a desegregated basis constituted a “badge or incident of slavery” which directly violated the Thirteenth Amendment. Palmer v. Thompson, 403 U.S. 217, 226-27, 91 S.Ct. 1940, 1945-46, 29 L.Ed.2d 438 (1971). Kecently, courts have declined to hold that the Amendment itself reaches forms of discrimination other than slavery and involuntary servitude. Alma Society, Inc. v. Mellon, 601 F.2d 1225, 1237 (2d Cir.1979). In Lopez v. Sears, Roebuck, & Co., 493 F.Supp. 801, 807 (D.Md.1980), the court stated:

The Amendment itself does not, in any way, address the issues of employment discrimination allegedly based on race or nationality. Although the Thirteenth Amendment provides the constitutional basis for claims arising under 42 U.S.C. § 1981 and other implementing statutes, it does not operate as an independent ground for a cause of action [for employment discrimination].

See also Clark v. Universal Builders, Inc., 409 F.Supp. 1274, 1275 (N.D.Ill.1976).

The plaintiff’s allegations of racially-based employment discrimination have been properly pleaded in Count Four of her complaint as a violation of 42 U.S.C. § 1981. The existence of this adequate federal statutory remedy for the plaintiff’s discrimination claim would, in any event, obviate any need to imply a direct cause of action under the Thirteenth Amendment for racially-based employment discrimination. Cf. Rogin v. Bensalem Township, 616 F.2d 680, 686-87 (3d Cir.1980) (available remedy under 42 U.S.C. § 1983 obviates need to imply direct cause of action under the Fourteenth Amendment for civil rights violations). Accordingly, the plaintiff’s Thirteenth Amendment claim set forth in Count One will be dismissed.

II. Motion to Strike Punitive and Compensatory Damages in Count Two

The defendant has moved to strike the plaintiff’s claim for punitive and compensatory damages in connection with her Title YII claim set forth in Count Two. In Richerson v. Jones, 551 F.2d 918, 926-28 (3d Cir.1977), the Third Circuit concluded as a matter of law that punitive damages cannot be recovered in a Title VII action. Thus the plaintiff’s claim for punitive damages in connection with Count Two must be stricken.

The plaintiffs claim for compensatory damages set forth in Count Two will also be stricken. In Richerson v. Jones, the Third Circuit noted that Title VII provides for the award of “such affirmative action as may be appropriate ... or any other equitable relief as the court deems appropriate.” 551 F.2d at 926, quoting 42 U.S.C. § 2000e-5(g). The Court pointed out in a footnote that although in Rosen v. Public Service Electric & Gas Co., 477 F.2d 90, 96 (3d Cir.1973), the Third Circuit had described an award of back pension benefits as “compensatory damages”, the relief authorized in Rosen was in fact “a form of equitable restitution rather than a form of legal damages”, and that any interpretation of Rosen as extending “the equitable relief of the statute to forms of legal relief” was “unwarranted”. 551 F.2d at 926 n. 13.

It appears that the great majority of courts which have considered the issue have held that compensatory damages are unavailable in connection with Title VII claims, because Title VII authorizes only equitable, rather than legal, forms of relief. See Walker v. Ford Motor Company, 684 F.2d 1355, 1363-64 (11th Cir.1982) (collecting cases); Bradley v. G. & W.H. Corson Ins., 501 F.Supp. 75, 76 (E.D.Pa.1980). Furthermore, subsequent to the Richerson decision, the Third Circuit observed in dicta that “compensatory and punitive damages are not generally available under Title VII.” Scott v. University of Delaware, 601 F.2d 76, 81 n. 8 (3d Cir.), cert. denied, 444 U.S. 931, 100 S.Ct. 275, 62 L.Ed.2d 189 (1979). Accordingly, the defendant’s motion to strike the plaintiff’s claim for compensatory damages in connection with Count Two will be granted.

For all the reasons set forth above, the defendant’s motion to dismiss Count One of the complaint and to strike the plaintiff’s claim for punitive and compensatory damages in connection with Count Two of the complaint will be granted.


author: MUECKE, Chief Judge.

text:
    CANYONEERS, INC., an Arizona corporation, d/b/a Grand Canyon Trail Guides, Plaintiff, v. William P. CLARK, Secretary, Department of the Interior, et al., Defendants.
    No. CIV 83-1881 PHX CAM.
    United States District Court, D. Arizona.
    Aug. 23, 1984.

      Francis J. Nielson, Arnovitz, Smith & Nielson, Salt Lake City, Utah, and Don Hummel, Tucson, Ariz., for plaintiff Canyoneers, Inc., an Ariz. Corp. d/b/a Grand Canyon Trail Guides.
    James P. Loss, Asst. U.S. Auty., Phoenix, Ariz., and Pamela S. West, Atty., Dept, of Justice, Land & Natural Resources Div., Washington, D.C., for defendants James G. Watt, Secretary, Dept, of Interior, Russell E. Dickenson, Director, Howard H. Chapman, Reg. Director, Nat. Park Service, Richard W. Marks, Supt., Grand Canyon Nat. Park.
    Dean H. Cannon, Henry L. Diamond, Beveridge & Diamond, Washington, D.C., for amicus Conference of Nat. Park Concessioners.
   ORDER

MUECKE, Chief Judge.

Having received and considered Plaintiff’s Motion for Summary Judgment and Statement of Facts pursuant to Local Rule 11®, filed January 31, 1984; Defendants’ Response to Plaintiff’s Motion for Summary Judgment and Statement of Facts pursuant to Local Rule ll(i), filed February 28, 1984; Defendants’ Cross-Motion for Summary Judgment and Statement of Facts pursuant to Local Rule ll(i), filed February 9, 1984; Plaintiff’s Response to Defendants’ Cross-Motion for Summary Judgment, filed March 5, 1984; Defendants’ Supplemental Brief in Support of Motion for Summary Judgment, filed March 27, 1984; Plaintiff’s Supplemental Memorandum in Support of Motion for Summary Judgment, filed May 15, 1984; Defendants’ Response to Plaintiff's Supplemental Memorandum, filed May 29, 1984; Brief of the Conference of National Park Concessioners as Amicus Curiae, filed July 2, 1984; Defendants’ Response to Amicus Curiae Brief, filed July 6, 1984; and the administrative record filed December 5, 1983; and having heard oral argument on the cross-motions for summary judgment on March 19, 1984, this Court finds as follows:

Summarizing the basic facts, the National Park Service (NPS) entered into Concession Contracts with Babbitt Brothers Trading Company (Babbitt) in 1968 and with Amfac Hotels and Resorts, Inc. d/b/a Fred Harvey (Harvey) in 1969, under which contracts the concessioners would provide accommodations, facilities, and services in Grand Canyon National Park. Both Concession Contracts contained a preferential right to provide new or additional services as defined in 16 U.S.C. § 20c and 36 C.F.R. § 51.3(c).

In 1975, the Secretary of the Interior through the Director of NPS granted Concession Permit No. CX821080004 to Plaintiff, under which Plaintiff was authorized to provide a hiking guide service and to rent and sell certain specified hiking, backpacking and camping equipment. Under the terms of the permit, the concessioner could offer for sale only those backpacking items for which it had secured the written approval of the park Superintendent. Over the years, the Superintendent approved several of Plaintiff’s requests to expand its line of merchandise for sale.

Plaintiff’s permit (attached as Exhibit 1 to Plaintiff’s Complaint filed September 23, 1983) by its terms expired December 31, 1978; the permit was then extended at various intervals through March 1, 1983. An interim permit was then issued to cover the period March 2 through September 30, 1983; under the terms of the interim permit, Plaintiff was not authorized to sell its merchandise. Exhibit 10, Administrative Record filed December 5, 1983.

In February 1982, Park Superintendent Marks published a notice of intention to issue a concession permit to Plaintiff for the term of October 1, 1981 through September 30, 1985. In that notice, the Superintendent recognized that Plaintiff was an existing satisfactory concessioner and was entitled to a right of preference. Such “right of preference” is described in 16 U.S.C. § 20d and 36 C.F.R. § 51.3(b).. A Statement of Requirements (SOR) for this proposed permit was published, to which Plaintiff submitted a responsive proposal on March 1, 1982. No other proposals were received by NPS. In a letter dated April 30, 1982, Superintendent Marks withdrew the previously-published SOR, citing “material and significant differences between the SOR and the proposal received.” Exhibit 12, Administrative Record.

Following this cancellation of the proposed four-year permit, Plaintiff contacted Superintendent Marks, Russell Dickenson (Director, NPS), and David E. Gackenbach (Chief, Concessions Management, NPS) regarding numerous grievances (Exhibits 8 and 14, Administrative Record), prompting the formation of a Task Force by NPS Regional Director Chapman to investigate Plaintiff’s grievances. That Task Force issued its Final Report on August 20, 1982 (Exhibit 12, Administrative Record). Following (1) the filing of a Complaint Against NPS Procedures filed by Plaintiff in October of 1982, (2) extensive briefing by Plaintiff, Babbitt, and Harvey, and (3) a memorandum opinion in July of 1983 by the Department of the Interior Field Solicitor, Regional Director Chapman decided in a July 12, 1983 letter that “all items of ‘sporting goods’ and ‘merchandise’ held for sale to the public by [Plaintiff] shall cease, be removed from public view, and removed from the park as soon as possible.” Exhibit 5 attached to Plaintiff’s Complaint filed September 23, 1983. Underlying this decision was Chapman’s conclusion that, based upon

.. .all of the pertinent material, including the extensive correspondence, the Task Force Report, legal briefs and responses, legal opinions and reviews, ...Babbitt has not waived its preferential right to the sale of “Sporting Goods” and that its rights must be protected by the National Park Service pursuant to law and contractual agreement... The sale of items of “Sporting Goods” or “Merchandise” as they relate to the contractual preferential rights of other Grand Canyon National Park concessioners shall not be permitted in a subsequent “Guided Hiking” concession authorization absent a written agreement between the appropriate parties and approval by the National Park Service.

Id.

Plaintiff appealed this decision to NPS Director Dickenson, who on August 8,1983 modified Regional Director Chapman’s order to the extent that Plaintiff was allowed to sell “existing on hand inventory, until September 30, 1983, under the temporary permit that is now in existence.” Exhibit 6 attached to Plaintiff’s Complaint filed September 23, 1983.

On August 23, 1983, NPS issued a new SOR for a hiking guide service permit, but deleted any form of sales; all proposals were due September 23, 1983. On September 27, 1983, Plaintiff filed this action and a motion for temporary restraining order enjoining Defendants from, inter alia, terminating Plaintiff’s right to operate as it existed on September 28, 1983, including the right to sell sporting goods and merchandise. The temporary restraining order was granted on November 8, 1983, and the parties have stipulated to its extension during the pendency of this action.

For the purposes of Plaintiff’s Motion for Summary Judgment, Defendants have agreed to Plaintiff’s Statement of Facts filed January 31, 1984, see Defendants’ Response to Plaintiff’s Motion for Summary Judgment, filed February 28, 1984, at page I. Plaintiff does not dispute any of Defendants’ February 9 Statements of Fact in Plaintiff’s Response filed March 5, 1984. Thus, there is no genuine issue of material fact which would preclude decision by summary judgment.

Plaintiff’s Motion for Summary Judgment seeks favorable decision on three basic issues:

I. That Babbitt waived its contractual preferential right to provide new or additional services and facilities, which is described in 16 U.S.C. § 20c and 36 C.F.R. § 51.3(c);

II. That 16 U.S.C. § 20d and 36 C.F.R. § 51.3(b) require the National Park Service to renew Plaintiff’s permit on terms and conditions which are substantially similar to those contained in Plaintiff’s previous permit which expired March 1, 1983; and

III. That the NPS’ refusal to renew Plaintiff’s permit on terms and conditions which are substantially similar to those contained in Plaintiff’s previous permit is arbitrary and capricious, and that Defendants should be es-topped from refusing to renew such permit.

I.

For a variety of reasons, no decision is necessary or desirable on the issue whether Babbitt waived its contractual preferential right to sell certain types of sporting goods. First, Babbitt is not a party to this lawsuit and has not been afforded the opportunity to state its position on the issue in this Court. Second, whether Babbitt waived its right is irrelevant to this action; an alleged waiver of a provision in a non-party’s contract has nothing to do with the rights and obligations of Plaintiff and Defendants which arose under Concession Permit No. CX821080004, which rights and obligations are expressly subject to “the laws of Congress governing the area and the rules and regulations promulgated thereunder...” (Concession Permit No. CX821080004, Exhibit 1 attached to Plaintiff’s Complaint filed September 23, 1983, U 13(a)). Although the perceived rights and duties of non-parties Babbitt and Harvey were the subject of extensive briefing on the administrative level, and although those perceived rights and duties form the basis of the agency’s decision not to renew Plaintiff’s permit on terms substantially similar to those of the previous permit, this action is properly confined to the rights and duties of the parties only.

II.

Plaintiff contends that 16 U.S.C. § 20d and 36 C.F.R. § 51.3(b) entitle it to a renewal of its permit on terms and conditions substantially similar to those contained in its previous permit, because it has performed as and has been recognized as a satisfactory concessioner. Plaintiff relies heavily on the following language from 36 C.F.R. § 51.3(b):

(b) “Right of Preference” refers to the right of existing satisfactory concessioners to a preference in the renewal or negotiation of a new contract or permit covering substantially the same accommodations, facilities and services as provided by the concessioner under the terms of its existing contract or permit

(emphasis added). Defendants respond that this language entitles Plaintiff, as a satisfactory concessioner, to a right of preference if the NPS determines that a new contract/permit or renewal thereof covering substantially the same services as that provided by the existing satisfactory concessioner should issue. That right of preference, argue Defendants, entitles the existing satisfactory concessioner to meet the best offer of an applicant for the permit who has no right of preference.

Based upon a review of the supplementary briefs on this issue requested by this Court, and of the amicus curiae brief submitted by the Conference of National Park Concessioners, it is apparent that this is an issue of first impression.

The language of 36 C.F.R. § 51.3(b) cannot be read in a vacuum. It must be read in the context of and in conjunction with 16 U.S.C. § 20 et seq. and with 36 C.F.R. § 51. Upon a reading of those provisions, it appears clear that Defendants’ interpretation is more consistent with the overall broad discretion granted to the Secretary in 16 U.S.C. § 20 et seq. and further defined in 36 C.F.R. § 51.

Congress has articulated precise goals with respect to the management of national parks, 16 U.S.C. § 20, and has directed the Secretary to limit the development of accommodations, facilities and services to “those that are necessary and appropriate for public use and enjoyment of the national park area... and that are consistent to the highest practicable degree with the preservation and conservation of the areas.” Id. To that end, Congress has vested in the Secretary the discretion to determine whether the operation of such accommodations, facilities and services should rest in the hands of one concessioner or several, 16 U.S.C. § 20c, and whether to enter into a contractual or permit arrangement with the concessione , 16 U.S.C. § 20d; see also 36 C.F.R. § 51.3(a).

It is true that Congress directed the Secretary, and thus his delegate Director of NPS, to “encourage continuity of operation and facilities and services by giving preference in the renewal of contracts or permits and in the negotiation of new contracts or permits to the concessioners who have performed their obligations under pri- or contracts or permits to the satisfaction of the Secretary.” 16 U.S.C. § 20d; see also 36 C.F.R. § 51.3(b). But this “right of preference” does not appear to be an enforceable right or entitlement to be offered a contract/permit renewal or a new contract/permit; such an interpretation would force the Secretary to award contracts, permits, and renewals thereof to satisfactory concessioners for unnecessary or undesirable services, which is inconsistent with the otherwise broad discretion vested in the Secretary to determine what services will best implement the Congressional intent articulated in 16 U.S.C. § 20.

It is clear to this Court that the Secretary and/or his delegate is not obliged to renew contracts or permits, 16 U.S.C. § 20d (“... the Secretary, at any time in his discretion, may extend or renew a contract or permit...”). Thus, Plaintiff is not entitled to a renewal of its permit. If however, the Secretary chooses to issue a new contract, permit, or renewal thereof, which contract, permit, or renewal thereof covers “substantially the same accommodations, facilities and services,” 36 C.F.R. § 51.3(b), as that provided under the contract or permit of an existing satisfactory concessioner, then the Secretary must recognize and honor the right of preference in the existing satisfactory concessioner and give that concessioner “an opportunity to meet the terms and conditions of the best proposal,” 36 C.F.R. § 51.5(b), made by a party with no right of preference. This appears to be the proper interpretation of the 36 C.F.R. § 51.3(b) language, when read in conjunction with its counterpart statutory language and accompanying regulations.

In this case, NPS did decide to issue a four-year permit. It recognized the right of preference enjoyed by Plaintiff in its February 1, 1982 Notice of Intention to Issue Concession Permit. It received Plaintiffs proposal and cited several “material and significant differences” between what it required and what Plaintiff proposed. It cancelled the Notice of Intention and Statement of Requirements in a letter to Plaintiff dated April 30, 1982. This cancellation is authorized by 36 C.F.R. § 51.-4(c), which reads in pertinent part: “The Director may choose to reject all proposals received at any time and resolicit or cancel the solicitation altogether in his discretion when in the best interests of the Government.”

III.

Plaintiff further argues that the NPS’ refusal to renew its permit on terms and conditions substantially similar to those contained in its previous permit is arbitrary and capricious, and that it should be es-topped from refusing to honor Plaintiff’s right of preference.

As described above, it is the opinion of this Court that Plaintiff has no right to a renewal of its permit on terms and conditions substantially similar to those contained in its previous permit. Further, NPS did recognize Plaintiff’s right of preference when it solicited proposals on February 1, 1982; the “right of preference” urged by Plaintiff here simply does not exist under this Court’s interpretation of 36 C.F.R. § 51.3(b).

The NPS did refuse to renew Plaintiff’s permit in toto, however. That action may be reviewed by this Court under the test outlined in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-17, 91 S.Ct. 814, 823-24, 28 L.Ed.2d 136 (1971), guided by the rule that “the Secretary’s decision is entitled to a presumption of regularity.” Id., 401 U.S. at 415, 91 S.Ct. at 823.

“The court is first required to decide whether the Secretary acted within the scope of his authority.” Id. As noted above, Congress specified in 16 U.S.C. § 20d that “... the Secretary, at any time in his discretion, may extend or renew a contract or permit...” Nothing in that provision requires the Secretary to renew a permit; thus, refusal to renew is within the scope of the Secretary’s authority. Further, Plaintiff’s permit was expressly subject to revocation or amendment at any time at the discretion of the Superintendent.

Next, the reviewing court must find that “the actual choice made was not ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Overton Park, supra, 401 U.S. at 416, 91 S.Ct. at 823, citing 5 U.S.C. § 706(2)(A) (1964 ed., Supp. V). The decision not to renew Plaintiff’s permit appears to have rested on the “material and significant differences” between NPS’ Statement of Requirements and Plaintiff’s proposal, as outlined in Superintendent Marks’ letter of April 30, 1982. Further, Plaintiff’s numerous grievances following this decision were fully aired administratively, resulting in a final decision by NPS Director Dickenson which was based on his review of the legal briefs submitted by Plaintiff, Babbitt, and Harvey; the Regional Director’s decision; the Field Solicitor’s memoranda of July 6 and July 15, 1983; and “the correspondence, memoranda, and reports associated with this entire dispute.” Exhibit 6 attached to Plaintiff’s Complaint filed September 23, 1983. Thus, it cannot be said that the decision was made arbitrarily; and with respect to the decision actually made, it is not this Court’s function to “substitute its judgment for that of the agency.” Overton Park, supra, 401 U.S. at 416, 91 S.Ct. at 824.

“The final inquiry is whether the Secretary’s action followed the necessary procedural requirements.” Id., 401 U.S. at 417, 91 S.Ct. at 824. Here, NPS complied with 36 C.F.R. § 51.5, recognizing Plaintiff’s 36 C.F.R. § 51.3(b) right of preference as a satisfactory concessioner. NPS cancelled the solicitation, which is permitted by 36 C.F.R. § 51.4(c). Plaintiff’s argument that Defendants have failed to follow 36 C.F.R. § 51.3(b) is based on a misinterpretation of that regulation; Plaintiff does not otherwise allege that Defendants have failed to comply with necessary procedural requirements.

Based upon the foregoing,

IT IS ORDERED that Plaintiff's Motion for Summary Judgment, filed January 31, 1984, is denied.

IT IS FURTHER ORDERED that Defendants’ Cross-Motion for Summary Judgment, filed February 9, 1984, is granted.

IT IS FINALLY ORDERED that the Temporary Restraining Order granted November 8, 1983 is hereby vacated.

      . Section 51.4 applies to the solicitation and award of concession contracts and permits where no right of preference exists. Here, of course, NPS recognized Plaintiffs right of preference. However, § 51.5, which applies to the solicitation and award of concession contracts and permits where a right of preference does exist, states that the § 51.4 procedures apply, with a few specified exceptions. Section 51.5 does not delete the Director’s authority to withdraw or cancel solicitations as described in § 51.4.