author: LOWE, District Judge.

text:
    CRAZY EDDIE, INC., Plaintiff, v. LOIS PITTS GERSHON, INC., Lafayette Stores, Circuit City, Stores, Inc., et al., Defendants.
    No. 84 Civ. 8689 (MJL).
    United States District Court, S.D. New York.
    Dec. 21, 1984.

      Solomon Antar, Brooklyn, N.Y. by Ezra Sutton, P.A., Woodbridge, N.J., for plaintiff.
    Stein, Zauderer, Ellenhorn, Friedman & Kaplan, by Mark C. Zauderer, Harry Frischer, New York City, for defendant Lafayette.
    Hall, Dickler, Lawler, Kent & Friedman, by Joseph Chase, Douglas Wood, New York City, for defendant Lois Pitts Gershon.

      Ronald Guttman, New York City, for defendant CBS.
    Cahill, Gordon & Reindel, by Roy L. Regozin, W. Drew Kastner, New York City, for defendant NBC.
   LOWE, District Judge.

Plaintiff by order to show cause, seeks a temporary restraining order (“TRO”) from this Court restraining the defendants from distributing, televising, displaying or otherwise publicizing certain T.V. commercials on behalf of defendant Lafayette Stores, Circuit City Stores, Inc., hereinafter (“Lafayette”) which mention the trade name Crazy Eddie in a derogatory or disparaging manner.

Plaintiff is the owner of a registered trademark for the service mark Crazy Eddie as applied to retail and distributorship services in the field of audio and video electronic equipment.

Defendant Lafayette owns retail stores in the New York — New Jersey metropolitan area which sell products in direct competition with Crazy Eddie stores.

Plaintiff contends that the commercials use the service mark and trade name CRAZY EDDIE to such an extent that it dominates the use by defendant of its trade name Lafayette and constitutes trademark infringement, false description, false designation of origin, and false and confusing advertising. Plaintiff also alleges that defendant’s TV commercials include a number of statements which are false, misleading, disparaging, derogatory, and defamatory, and which constitute trade disparagement and unfair competition.

Plaintiff alleges a claim under 15 U.S.C. § 1114 (Section 32(l)(a) of the Lanham Act) for trademark infringement; 15, U.S.C. § 1125(a) (Section 43(a) of the Lanham Act) for false description and false designation of origin; trade disparagement and unfair competition under the common law of New York and New Jersey and trademark dilution under Section 368-d of the New York General Business Law. N.Y.G.B.L. § 368-d (McKinney 1984).

Plaintiff claims that the commercials create a reasonable likelihood that purchasers will be confused as to their sponsorship. More particularly plaintiff alleges that the commercial entitled “The Confessions of Crazy Eddie” (Ex. 4A) shows a person, who looks like Crazy Eddie, is dressed like him and uses his mannerisms, sitting in a confessional booth making derogatory statements concerning Crazy Eddie’s business practices.

Plaintiff offered evidence at the TRO hearing that it has received a number of phone calls from television viewers complaining that “The Confessions of Crazy Eddie” commercial is derogatory of the Catholic Church. The complaining customers are confused in that they attributed sponsorship of the commercial to Crazy Eddie.

Plaintiff argued that the balance of the commercials (Exhibits 4B-J) were offending because they falsely advertise that Crazy Eddie’s prices are the lowest in town only if the customer “haggles” with the salesman; that Crazy Eddie has a coded price system and that Lafayette has ten times the buying power of plaintiff.

The non-media defendants argued that the statements concerning the coded price system and Lafayette’s buying power are true. Furthermore the characterization of plaintiff’s selling practice as “haggling” and the use of the confessional scene are not actionable but legitimate parody.

Discussion

A TRO may be issued only for a short period of time and upon a showing of its necessity to prevent further injury until the parties have had adequate time to prepare for a hearing on the underlying application for a Preliminary Injunction. A court must weigh the probability of irreparable harm, probability of success on the merits and balance the interests of the parties. Only if the plaintiff is able to show serious harm which cannot be undone and for which money damages are an inadequate remedy should the court exercise its equitable power to disturb the status quo pendente lite. Coca Cola Co. v. Tropicana Products, Inc., 690 F.2d 312 (2d Cir.1982).

Plaintiff pleads his federal claims under both Sections 32(l)(a) (First Claim) and 43(a) (Second Claim). On oral argument plaintiff failed to distinguish between the two sections and in post hearing argument, placed its primary claim to relief upon the holding in Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema Ltd., 604 F.2d 200 (2d Cir.1979) a case decided under Section 43(a). Defendants, in rebutting plaintiff’s Section 43(a) argument, urged this Court to deny plaintiff relief on the ground that plaintiff was complaining of defendant Lafayette’s advertisements concerning plaintiff’s mark rather than defendant’s own mark. They contended that such an allegation is not actionable under 43(a), Fur Information and Fashion Counsel Inc. v. E.F. Timme and Sons Inc., 501 F.2d 1048, cert. denied, 419 U.S. 1022, 95 S.Ct. 498, 42 L.Ed.2d 296 (1974).

In examining plaintiff’s complaint, it is apparent that plaintiff pleads that it is the owner of a registered service mark, “Crazy Eddie”. An owner of a registered mark has a cause of action under 15 U.S.C. § 1114 (32(l)(a)) for deception by another in the use of the mark. Section 32(l)(a) provides:

(1) Any person who shall, without the consent of the registrant—
(a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or
(b) reproduce, counterfeit, copy, or color-ably imitate a registered mark and apply such reproduction, counterfeit, copy, or colorable imitation to____ advertisements intended to be used in commerce upon or in connection with the sale, offering for sale, distribution, or advertising of goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive shall be liable in a civil action____

A service mark is defined in 15 U.S.C. § 1127 as “a mark used in the sale or advertising of services to identify the services of one person and distinguish them from the services of others.” The same standards are used to determine whether a trademark or service mark has been infringed, West & Co., Inc. v. Arica Institute, Inc., 557 F.2d 338, 340 n. 1 (2d Cir.1977), with the distinction noted, that a service mark is used as an identification mark which performs the same function in the selling and advertising of services that a trademark performs in respect of goods. 3 Callman, Unfair Competition, Trademarks and Monopolies, 68.1 at 71.

Plaintiff has proven the following elements of a claim under Section 32(l)(a) by presenting the videotapes:

1. The videotapes were used in commerce;

2. They are a copy or colorable imitation of the Crazy Eddie service mark;

3. They are used in connection with advertising.

Plaintiff, by bringing this action has claimed that the videotapes were made without his consent, therefore the only remaining element is whether they are likely to cause confusion, mistake or to deceive.

In Coca-Cola Co. v. Tropicana Products, Inc., 690 F.2d 312, 316-317 (2d Cir.1982) Judge Cardamone, writing for the Court, explained that a Lanham Act plaintiff must submit proof which provides a reasonable basis for the belief that he will be harmed by the false advertising. Citing prior cases in this Circuit, the Court stated that where products are in head-to-head competition “sales of plaintiffs products would probably be harmed if the competing products’ advertising tended to mislead consumers” as to their all-around superiority or by misdescription. Id. The Court concluded that if consumers were misled by Tropicana’s commercial, plaintiff would lose customers and thereby suffer irreparable injury.

In the instant case, plaintiff offered evidence of consumer’s calling to complain about the use of the confessional in Exhibit 4A and expressing indignation that Crazy Eddie would put a religious symbol to commercial use. Although defendants objected to the hearsay nature of the evidence and the small size of the sample, this Court finds that it is sufficient for a TRO hearing because plaintiff, by the very nature of the application, must act quickly to restrain the allegedly offending commercial. This Court finds that the manner in which the complaints were received provides a circumstantial guaranty of trustworthiness. In any event, plaintiff, at the hearing on the preliminary injunction, will be required to sustain his claim of consumer perception of the commercial by way of market surveys or other evidence.

The videotape “Confessions of Crazy Eddie” (Ex. 4A) runs about thirty (30) second, however the alleged offending portion is less than ten (10) second. The commercial begins with large white letters on a blue background — “Confessions of Crazy Eddie” there is background music and a voice over — “Lafayette presents the confessions of Crazy Eddie”: The scene fades and a person who looks like, is dressed like and who imitates the mannerisms of Crazy Eddie appears on the screen, sitting in a confessional booth, apparently confessing his commercial sins. The video then fades to other subjects.

This Court is of the opinion that the short duration of the confessional scene makes a significant visual impact, especially when coupled with the large print— “Confessions of Crazy Eddie”; this visual image is not lessened or explained by the almost imperceptible voice over “Lafayette Presents”.

This Court finds for purposes of granting a TRO that plaintiff has shown irreparable harm and likelihood of success on the merits. A significant number of the viewing public is likely to be confused and deceived into believing that plaintiff is exploiting the confessional booth for commercial purposes thereby causing plaintiff harm in his business. This Court restrains defendants’ use of Exhibit 4A pending the hearing on the preliminary injunction.

As to the other advertisements, plaintiff offered no evidence of customer confusion. The claims of infringement were based on the ' usual uncomplimentary comparisons between products, prices and sponsors that have become prevalent in the jungle of comparative advertising.

A trademark owner has a protectable property right only insofar as is necessary to prevent consumer confusion and deception. Advertisements must be judged in the context of the marketplace and particularly in the context in which they appear. Television viewers are less likely to be confused or deceived by pejorative comparisons by competitors, who clearly present themselves as such. American Brands Inc. v. R.J. Reynolds Tobacco Co., 413 F.Supp. 1352 (S.D.N.Y.1976). This Court declines to restrain defendants’ use of Exhibits 4-B through 4-J because there is no likelihood of confusing plaintiff as the sponsor of those commercials. The Lanham Act was not intended to bring within its orbit every kind of undesirable business practice which practices may be remedied by other federal regulatory bodies such as the federal Trade Commission. See Norwich Pharmacal Company v. Sterling Drug, Inc., 271 F.2d 569 (2d Cir.1959).

For the above reasons this Court grants plaintiff’s application and issues a temporary restraining order, restraining defendants Lois Pitts Gershon, Inc. and Lafayette Circuit City Stores, Inc. from exhibiting or contributing to the exhibition on any radio or television or in any newspaper plaintiff’s Exhibit 4-A, plaintiff’s application is in all respects denied as to Exhibits 4-B through 4-J. Based on an agreement among the parties, which appears on the record (Transcript of December 10, 1984 hearing at 136-38), the Court will not restrain the media defendants. This restraining order will be in effect upon the posting of a $5000 security bond by the plaintiff.

The parties are to contact this Court upon receipt of this Order to schedule the Preliminary Injunction hearing.

It Is So Ordered.

      . Lois Pitts Gershon, Inc. is the advertising agency that produced the commercials; Lafayette Stores, Circuit City is a retail seller of products in direct competition with plaintiff; the six media defendants were offered, and some accepted the commercials for broadcasting to the public.

      . Plaintiff alleges in his complaint, ¶ 18:
      Plaintiff’s trademark, service mark and trade name CRAZY EDDIE have been used continuously since 1969 to the present time in interstate commerce as a trade name on retail stores and as a trademark on merchandise, and as a result of plaintiffs extensive advertising and sales under the mark CRAZY EDDIE, plaintiffs mark has developed a valuable goodwill and reputation, and the mark CRAZY EDDIE identifies plaintiff and its licensees as the source of retail store services and products under the famous mark CRAZY EDDIE. For television advertising purposes, plaintiff uses a person with distinctive type dress and mannerisms to advertise his product. This person symbolizes the Crazy Eddie mark to the television viewing public.

      . The commercials are identified in the record as Exhibit 4:
      A. Confessions of Crazy Eddie;
      B. Why Haggle;
      C. World’s Greatest Haggler;
      D. King of Hagglers;
      E. The Santa Ad;
      F. Great Hagglers of History;
      G. Worst Hagglers of History;
      H. Clearance Sale;
      I. President’s Day Sale; and
      J. Grand Opening Sale.

      . Under such a system a price is placed on the tagged item and beneath the price is a coded number. The coded number represents the price below which a salesman may not go in negotiating with a customer. (Tr. December 4, 1984, at pp. 20-21).

      . Transcript of Hearing, December 4, 1984, pp. 2-9; transcript of December 10, 1984 hearing pp. 85-90.

      . In Fur Information, the Circuit held that under Section 43(a) the claim of false description or representation must be made concerning defendant’s goods.


source: Caselaw Access Project

author: MURRAY M. SCHWARTZ, District Judge.

license: Public Domain

text:
    Warren V. HOPKINS, Plaintiff, The MAYOR & COUNCIL OF the CITY OF WILMINGTON, et al., Defendants.
    Civ. A. No. 82-677 MMS.
    United States District Court, D. Delaware.
    Dec. 26, 1984.

      Sheldon N. Sandler, Young, Conaway, Stargatt & Taylor, Wilmington, Del., for plaintiff.
    Jeffrey S. Goddess, Saul, Ewing, Remick & Saul, Wilmington, Del., for defendants.
   OPINION

MURRAY M. SCHWARTZ, District Judge.

This is a civil rights action brought pursuant to 42 U.S.C. § 1983. Jurisdiction is predicated on 28 U.S.C. §§ 1331 and 1343. The plaintiff, Sergeant Warren A. Hopkins, was employed by the defendant, the City of Wilmington (“the City”) since November 14, 1966, as a member of the Department of Police (“the Department”). On March 26, 1982, Hopkins was arrested by the Wilmington Police on drug charges and immediately suspended from the force without pay. After an administrative hearing and appeal, the Department terminated Hopkins’ employment. Hopkins subsequently instituted this action for injunctive, declaratory, and monetary relief against the May- or and Council of the City of Wilmington and various officers of the City and the Department in their individual and official capacities. He claims that his suspension and eventual termination were effectuated in violation of his rights under the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the United States Constitution. The action is presently before the Court on cross motions for summary judgment.

1. FACTS

For purposes of this motion, the material facts are undisputed. At the time of his discharge, plaintiff was a sergeant in the Detective Division of the Wilmington Police Department with fifteen years of service. In early March, 1982, Detective Dennis Williams, then a subordinate of Hopkins, received information from an unidentified party implicating Hopkins and his girlfriend, Nancy Carter, in drug trafficking. After the information was passed through appropriate police channels, a full investigation was ordered. As a result of this investigation, a warrant was issued authorizing a search of Ms. Carter’s residence. On March 25,1982, police followed Hopkins to Carter’s home and waited outside until they were sure the couple was asleep. They returned early the next morning to execute the warrant. A thorough search of the second floor bedroom where Hopkins and Carter were sleeping revealed drugs and drug paraphernalia, some of which were in plain view. Hopkins and Carter were arrested and charged with possession with intent to deliver controlled substances — marijuana and amphetamines,— but the charges against Hopkins were later reduced to simple possession. At 9:30 that same morning, Hopkins was suspended from the force without pay pending a hearing before a complaint hearing board. Although he was personally informed of his suspension, he was not apprised of the departmental charges against him nor was he given an opportunity to discuss the facts or explain his position.

Twenty-five days later, on April 20, 1982, Hopkins received written notification that a trial board hearing was scheduled for April 28, 1982. Attached to the hearing notice was a letter informing Hopkins for the first time that he was charged with violation of the Department’s good conduct regulation because he had been found in possession of marijuana and amphetamines. At the request of Hopkins’ attorney, the hearing was postponed until May 13, 1982. It was again postponed until May 25, 1982, for reasons which are in dispute. After the hearing was finally held, the board concluded that Hopkins had been in possession of marijuana. The board found such conduct to be “prejudicial to the good order and best interests of the Police Department” and recommended that Hopkins be dismissed.

Sergeant Hopkins appealed the recommendation to a three member panel that included the Chief of Police, Dennis Regan. Chief Regan had been involved in the earlier investigation of Hopkins and stated in his deposition that at the time of the appeal board hearing he mistakenly believed the trial board determined Hopkins had sold and used drugs, though the trial board found only that Hopkins possessed marijuana. After hearing argument from Hopkins’ attorney and the Department prosecutor, the appeal board, on June 29, 1982, upheld the penalty of discharge and Hopkins was dismissed. On July 28, 1982, all criminal charges against Hopkins were nolle prossed by the state prosecutor.

Hopkins subsequently filed this action in federal district court alleging 1) his suspension and termination were effectuated in violation of procedural due process, 2) the Department conduct regulation was unconstitutionally vague and overbroad, 3) the Department action violated his rights to privacy and substantive due process, and 4) the penalty imposed by the Department violated his right to equal protection of the laws.

II. PROCEDURAL DUE PROCESS

A. Plaintiffs Property Interest

Plaintiff has challenged two distinct actions in this suit: first, his summary suspension without pay, beginning on March 26,1982, and second, his termination from employment after an administrative hearing and appeal. The propriety of both actions must be tested against the appropriate constitutional framework. As in any procedural due process analysis, the Court must consider whether plaintiff was deprived of a liberty or property interest sufficient to invoke the procedural protections of the Due Process Clause and if so, whether the procedures followed complied with the minimum requirements of the Constitution. The parties do not dispute plaintiff had a constitutionally protected right to continued employment as a permanent employee of the Wilmington Police Department. That right prevented either suspension without pay or termination from his position without due process of law. See Hayes v. City of Wilmington, 451 F.Supp. 696, 706 (D.Del.1978); accord Doe v. Anker, 451 F.Supp. 241 (S.D.N.Y.1978), remanded without opinion, Doe v. Sandner, 614 F.2d 1286 (2d Cir.1979), cert. denied, 446 U.S. 986, 100 S.Ct. 2970, 64 L.Ed.2d 844 (1980). There remains the more difficult question whether the process afforded to plaintiff was sufficient for Fourteenth Amendment purposes.

B. The Suspension Without Pay

Sergeant Hopkins was initially deprived of his right to paid employment with the Wilmington Police Department when he was suspended on March 26, 1982. Hopkins was given no notice of the charges against him and no opportunity to speak on his own behalf. The Department’s due process protections were not triggered until over three weeks later when Hopkins received written notification that he was accused of violating the police conduct regulation and that a hearing was scheduled for the following week. Hopkins does not suggest that a full evidentiary hearing should have been held prior to the deprivation, but argues that the Department could not constitutionally dispense with all procedural safeguards until twenty-five days after his suspension. The issue is thus whether, despite the existence of post-deprivation process, some earlier additional process was necessary to comport with the constitutional minimum.

The requirements of notice and an opportunity to be heard at a meaningful time and in a meaningful manner are fundamental to the concept of procedural due process. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). The “timing and content of the notice and the nature of the hearing will depend upon an appropriate accommodation of the competing interests involved.” Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729, 738, 42 L.Ed.2d 725 (1975). As a general rule, an opportunity for notice and “some kind of hearing” must precede the deprivation. See Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971); accord Goss v. Lopez, 419 U.S. at 582, 95 S.Ct. at 740. Occasionally, however, circumstances warrant immediate government action without pause for extensive procedural precautions. Such action must be measured against the considerations set forth by the Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), to determine if minimal constitutional requirements are met. Thus, the Court must evaluate: “[fjirst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest including the function involved and the fiscal or administrative burdens that the additional or substitute procedural requirement would entail.” Id. at 333, 96 S.Ct. at 902.

It has been recognized that a city employee’s interest in the uninterrupted receipt of his salary and continuation of the benefits of employment is significant. Hayes v. City of Wilmington, 451 F.Supp. 696 (D.Del.1978). When deprivation of that interest is temporary in nature, as in the case of a short, finite disciplinary suspension, the impact on the individual is most often less severe than when termination of employment has been imposed. See id. at 708. A lesser degree of process is acceptable in connection with a temporary suspension if the government interest is strong and immediacy great.

The distinctions between suspension and termination are blurred, however, where imposition of the former is for an indefinite period culminating in an assessment of whether termination is in order. Indeed, when suspension deprives one of all the benefits of employment, subject to restitution only if the decision was erroneous, the impact on the individual is essentially indistinguishable from the effect of a decision to terminate an employee subject to reinstatement with back pay upon reversal of that decision. See Thurston v. Dekle, 531 F.2d 1264, 1272 (5th Cir.1976), vacated on other grounds, 438 U.S. 901, 98 S.Ct. 3118, 57 L.Ed.2d 1144 (1978). In such instances, the loss of salary for an unknown time period hinders the ability to pursue post-deprivation remedies. Moreover, a suspension which may end in severance leaves the employee uncertain as to whether alternative employment should be sought. For these reasons, it is not surprising that developing case law provides some protection against the risk of an erroneous suspension. See Hayes, supra; see also Thurston v. Dekle, supra; Bagby v. Beal, 455 F.Supp. 881 (M.D.Pa.1978), vacated as moot, 606 F.2d 411 (3d Cir.1979); Doe v. Anker, supra.

The impairment of the employee’s personal interest must, however, be balanced against the government interest at stake. The Wilmington Police Department has the important responsibility of protecting the lives and property of Wilmington’s citizens. The Department’s ability to perform its functions would be hampered by the imposition of excessive pre-suspension procedures that would materially extend the period in which unsuitable employees could remain on the job. Unquestionably, a police officer’s involvement with illegal drugs sheds doubt on his fitness to discharge his duties. Moreover, retention of the officer on the force could pose an undue risk to the individual members of the Department and, in any given case, threaten the integrity of the entire Department.

It may well be that the Department’s interests could only have been accommodated by withholding a full evidentiary hearing until after the suspension had been effectuated. Nevertheless, the employee’s interests may not be altogether overlooked. The “risk of erroneous deprivation ... through the procedures used” must be weighed against the “probable value, if any, of additional or substitute procedural safeguards.” Mathews, 424 U.S. at 335, 96 S.Ct. at 903. A wealth of case law suggests that an extended delay in affording the full panoply of Fourteenth Amendment rights may only be tolerated if adequate precautions are taken in conjunction with the deprivation to minimize the risk of erroneous action. Such precautions generally appear in the form of notice of the charges and at least an abbreviated opportunity to rebut those charges. See, e.g., Barry v. Barchi, 443 U.S. 55, 65, 99 S.Ct. 2642, 2649, 61 L.Ed.2d 365 (1979) (horse trainer’s license could be suspended where prior notice and informal opportunity to present his position were provided); Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (social security beneficiary received notification of proposed termination and an opportunity to respond and submit additional evidence prior to termination of benefits); Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (civil servant afforded thirty days advance notice of adverse action and opportunity to appear before decision maker pri- or to effectuation of decision); see also Thurston v. Dekle, 531 F.2d 1264, 1273 (5th Cir.1976) (“Where a governmental employer chooses to postpone the opportunity of a nonprobationary employee to secure a full-evidentiary hearing until after dismissal, risk reducing procedures must be accorded. These must include prior to termination, written notice of the reasons for termination and an effective opportunity to rebut those reasons.”), vacated on other grounds, 438 U.S. 901, 98 S.Ct. 3118, 57 L.Ed.2d 1144 (1978); Aiello v. City of Wilmington, 426 F.Supp. 1272, 1289 (D.Del.1976) (“While a rudimentary confrontation may satisfy the dictates of due process for the purpose of a short suspension in an ‘emergency’ case, something more may be required prior to an extended unpaid suspension....”); accord Loudermill v. Cleveland Board of Education, 721 F.2d 550 (6th Cir.1983), cert. granted, — U.S. -, 104 S.Ct. 2384, 81 L.Ed.2d 343 (1984); Louise B. v. Coluatti, 606 F.2d 392 (3d Cir.1979); Doe v. Anker, 451 F.Supp. 241 (S.D.N.Y.1978), remanded without opinion, Doe v. Sandner, 614 F.2d 1286 (2d Cir.1979), cert. denied, 446 U.S. 986, 100 S.Ct. 2970, 64 L.Ed.2d 844 (1980); Bell v. Board of School Commissioners, 450 F.Supp. 162 (S.D.Ala.1978); but see Ciechon v. City of Chicago, 634 F.2d 1055, 1059 (7th Cir.1980) (fireman could be suspended for violation of residency requirement without any pre-suspension process; residency a clear cut issue easily documented by tax records, bills, etc., all of which were examined before decision to suspend was made); Roy v. Jones, 349 F.Supp. 315, 319 (W.D.Pa.1972) (justice of peace may be temporarily suspended without notice or hearing, pending proceedings on the merits), aff'd on other grounds, 484 F.2d 96 (3d Cir.1973).

Here, no preliminary measures were utilized to ensure that the Department’s action was appropriate. Hopkins was suspended immediately after criminal charges were lodged against him but he was not advised of the interdepartmental violations. Prompt notice of the reasons for Hopkins’ suspension, coupled with an informal opportunity to address the charges, would have increased the probability that suspension was appropriate at little cost to the Department. Assuming arguendo that there may be circumstances where even rudimentary pre-suspension process is impracticable, the defendants have offered no justification for their failure to provide such process immediately after removing Hopkins from his position. As the Supreme Court noted in overturning a fifteen-day suspension in Barry v. Barchi, supra, “[o]nce suspension has been imposed, the [individual’s] interest in a speedy resolution of the controversy becomes paramount.” 443 U.S. at 66, 99 S.Ct. at 2650. Cf. Fusari v. Steinberg, 419 U.S. 379, 95 S.Ct. 533, 42 L.Ed.2d 521 (1975) (“[t]he rapidity of review is an important factor in assessing the sufficiency of the entire process”). An employee should not be expected to forego his salary for an extended period without at least having notice of the charges and an informal opportunity to rebut them. See Loudermill v. Cleveland Board of Education, 721 F.2d at 563. On these facts, I conclude that the process afforded Hopkins was insufficient to survive constitutional attack. As to this issue, defendants’ motion for summary judgment will be denied and plaintiff’s motion will be granted.

C. Termination From Employment

Plaintiff was afforded a full evidentiary hearing and appeal prior to termination from his position on the police force. He challenges the validity of the hearing board and appeal panel decisions on the grounds that several of the board and panel members were not impartial. Specifically, Hopkins asserts that Inspector Friedman and Captain Edwards, both of whom sat on the hearing board, were exposed to and influenced by department rumors of Hopkins’ dealings with drugs. Plaintiff further complains that Chief Regan, the chair of the appeal board, played an integral part in the earlier police investigation of Hopkins’ drug involvement and was privy to information not disclosed at the hearing. Moreover, Regan sat on the appeal panel while allegedly under the misapprehension that the trial board recommended a finding that Hopkins had sold, as well as possessed, marijuana. Plaintiff urges the Court to find that the named officials either impermissibly based their conclusions on facts outside the record or inalterably prejudged Hopkins’ claim. On this basis, plaintiff attacks not only the fairness of the penalty imposed, but the grounds for the boards’ findings that he had committed the offense charged.

Plaintiff cites passages from the depositions of Friedman and Edwards as evidence that both men believed Hopkins had been using drugs, and that Friedman thought Hopkins might have been selling drugs as well. No direct evidence was proffered at the hearing to implicate Hopkins for more than possession. Plaintiff therefore maintains that the officers’ views were based on rumors rather than on the facts before them.

Evaluation of plaintiffs charge against the trial board members must begin with the presumption that the Department officials are “men of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances.” United States v. Morgan, 313 U.S. 409, 421, 61 S.Ct. 999, 1004, 85 L.Ed. 1429 (1941). Accord Schweiker v. McClure, 456 U.S. 188 at 195, 102 S.Ct. 1665, 1670, 72 L.Ed.2d 1; Sedule v. Capital School District, 425 F.Supp. 552, 561 (D.Del.1976), aff’d without opinion, 565 F.2d 153 (3d Cir.1977), cert. denied, 434 U.S. 1039, 98 S.Ct. 780, 54 L.Ed.2d 789 (1978). To survive a motion for summary judgment, plaintiff must offer evidence that this presumption has been rebutted. Given the summary judgment procedural context, and drawing all reasonable inferences in plaintiff’s favor, it will be assumed that rumors of Hopkins’ drug involvement had actually reached the board members. In addition, the depositions raise at least an inference that the officers were influenced by extraneous information. On this evidence, it is impossible for the Court to determine unequivocally whether these individuals should have been disqualified from participation on the trial board.

Unquestionably, the decision to deprive one of a constitutionally protected interest must be made only on the facts of record. See Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955). Moreover, due process demands disqualification of a decision maker who has inalterably determined the outcome of the case before hearing all the facts. See, e.g., King v. Caesar Rodney School District, 380 F.Supp. 1112, 1118-19 (D.Del.1974); see also Simard v. Board of Education, 473 F.2d 988, 993 (2d Cir.1973). That is not to say that because the board members were cognizant of rumors unfavorable to the plaintiff, they necessarily reached an adverse decision without considering the record. That view would contradict the litany of Supreme Court precedent that requires more than “mere familiarity with the facts of a case” to disqualify a decision maker. Hortonville Joint School District v. Hortonville Education Association, 426 U.S. 482, 493, 96 S.Ct. 2308, 2314, 49 L.Ed.2d 1 (1976). See also Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975); FTC v. Cement Institute, 333 U.S. 683, 700-03, 68 S.Ct. 793, 803-05, 92 L.Ed. 1010 (1948). Our notions of fairness would, however, be violated if those unsubstantial rumors formed the basis of a decision to deprive one of his constitutionally protected interests. Thus, there remains a factual issue whether Friedman and Edwards had knowledge of inculpating information against Hopkins which was not introduced at the hearing, and if so, whether that information played any part in the trial board’s determination. Plaintiff may find it unnecessary to prove those facts at trial in light of the Court’s holding in the following discussion concerning the trial board's role in the decision making process. Nevertheless, the existence of a factual question necessitates denial of summary judgment on that issue.

Plaintiff’s claim against the bias of the appeal panel stands on a somewhat different footing. Irrespective of his earlier investigative role in the Hopkins’ matter, Chief Regan testified he believed the trial board found Hopkins guilty of both participating in the sale of drugs and possession of drugs. Since his belief as to the former offense could not have come from the hearing itself, plaintiff argues that Regan impermissibly based his decision on facts outside the hearing record or inalterably determined the outcome of Hopkins’ appeal before the facts were presented. Plaintiff additionally contends that Regan’s “bias” infected the appeal panel as a whole, rendering its decision a nullity.

Defendants do not contest that Regan participated in the appeal process laboring under a basic misapprehension. Instead, defendants urge the Court to ignore the decision of the appeal panel for purposes of this motion, and to bypass the question of Chief Regan’s bias. Defendants argue that the Court need only consider whether the trial board hearing satisfied the minimum required by the Due Process Clause. If so, the Department can be guilty of no constitutional violation if it elects to provide more than the minimum procedure, but administers it unfairly.

Defendants’ position accurately represents the law in this district:

A ... statute may afford greater procedural protections than the due process clause requires. While ... officials may deviate from that statutory procedure, once a federal court determines that the procedure actually utilized to deprive an individual of a liberty or property interest comports with minimum requirements of due process, the constitutional analysis ceases____ The failure ... to abide by [the] enhanced procedural protection does not rise to a constitutional level. ‘[I]t is only when the agency’s disregard of its rules results in a procedure which in itself impinges upon due process rights that a federal Court should intervene in the decisional processes of state [or local] institutions.’

Brandywine Affiliate, NCCEA/DSEA v. Board of Education, 555 F.Supp. 852, 863 (D.Del.1983) (quoting Bates v. Sponberg, 547 F.2d 325, 392-30 (6th Cir.1976)). See also Olim v. Wakinekona, 461 U.S. 238, 250, 103 S.Ct. 1741, 1748, 75 L.Ed.2d 813 (1983). Nonetheless, I reject defendants’ contention that the trial board hearing was in itself sufficient to satisfy the constitutional minimum. In Hawkins v. Board of Public Education, 468 F.Supp. 201 (D.Del.1979), Judge Stapleton emphasized that the plaintiff must have an opportunity to present his ease “in a manner which will permit the decision maker to weigh both sides.” Id. at 209 (quoting Anapol v. University of Delaware, 412 F.Supp. 675 (D.Del.1976) (emphasis by the Hawkins court)). The “decision maker,” in the context of a termination hearing, is the individual with the authority to terminate the employees. Hawkins, 468 F.Supp. at 209. Under police department practices, the trial board members lacked the authority to finally determine Hopkins’ fate in the Department.

The Rules and Regulations of the Bureau of Police empower the trial board only to “recommend to the Inspector of Staff Inspections one of the following actions:

1. The case be remanded for future investigation with specific recommendations.
2. Dismissal of the charge.
3. Finding a charge not sustained.
4. Finding a charge sustained and resulting in one or more of the following actions....
....

e. dismissal from the Department.” Rule 304.9 (emphasis added). The results of the trial board must, in all cases be forwarded “to the Chief of Police for appropriate action.” Rule 304.5 (emphasis added). Nowhere do the rules indicate that the hearing board may, on its own accord, impose any penalty on an employee, other than a twelve-month disciplinary probation as provided in Rule 304.10. Indeed, the rules speak only of the Chief or the appeal board as making such final determinations.

The collective bargaining agreement, read in harmony with the department rules, sheds further light on the trial board’s authority. According to the agreement, the board “shall dictate ... the panel's recommendation to the Chief, separately, as to each count charged, the penalty, if there is one, and the reasoning behind the decision.” Collective Bargaining Agreement, art. XI, § 5 (emphasis added). The board’s recommendation must then be forwarded to the employee, who has five days to appeal. Id. § 7. See also Rule 305.2. In addition, the Chief of Police has ten days after receipt of the board’s recommendation to either “approve the recommendation or convene the Appeal Panel.” Collective Bargaining Agreement, art. XI, § 8. The agreement thus clarifies what is implicit in the rules — that the Chief must serve as decision maker in the disciplinary process, either alone in reviewing and affirming the trial board’s recommendation, or in his position as chair of the appeal panel. Consequently, since only Chief Regan and/or the board on which he sat had the authority to terminate Hopkins, it is inescapable that, on the facts of this case, the appeal board must be considered the decision maker. In the final analysis, any process which was due Hopkins must have been provided by the appeal board.

That is not to say that the Chief of Police could not delegate the responsibility of holding a hearing, analyzing the evidence, and making recommendations. There must, however, be “some assurance that the information tendered was before the decision-maker in some form prior to the decision.” Hawkins, 468 F.Supp. at 210 (citations omitted). Moreover the delegation of one’s duty to “hear” the evidence does not alter the principle that the actual decision maker must remain impartial. Accordingly, the question of Chief Regan’s ability to render a fair decision must be carefully scrutinized.

Upon review of Regan’s deposition, it is clear that the Chief not only misunderstood the findings of the trial board, but penalized Hopkins for conduct that had neither been included in the charge nor dealt with at the hearing. The inherent unfairness in such process is obvious. Regan’s error creates a situation that is tantamount to the deprivation of a constitutional right without an opportunity to rebut the charges. Unquestionably the constitution prohibits such action. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).

The fact that Regan’s vote was not essential to a majority is immaterial, for the parties agree that the principle of Berkshire Employees Association v. NLRB, 121 F.2d 235 (3d Cir.1941), would control. “Litigants are entitled to an impartial tribunal whether it consists of one man or twenty and there is no way which we know of whereby the influence of one upon the others can be quantitatively measured.” Id. at 239. The rule of Berkshire is particularly compelling where, as here, one of the two remaining decision makers was the subordinate of the potentially biased panel member. I am satisfied Regan’s error necessitates invalidation of the decision of the appeal board as a whole.

III. VAGUENESS

Plaintiff has made the additional argument that, irrespective of his right to procedural due process, the Department could not, as a substantive matter, apply the police conduct provision to his behavior because of the vagueness of its terms. It is well established that a statute or regulation must be sufficiently specific in its proscriptions to comport with principles of due process. To survive a “void for vagueness” attack, the provision must “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly” and “must provide explicit standards” so as to avoid its arbitrary and discriminatory enforcement. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972). As is common in the realm of due process law, these standards must be applied with some flexibility: “The degree of vagueness that the Constitution tolerates — as well as the relative importance of fair notice and fair enforcement— depends in part on the nature of the enactment.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). Thus, provisions which impose civil rather than criminal penalties or which do not affect constitutionally protected rights are rather leniently scrutinized. Id. at 498-99, 102 S.Ct. at 1193-94.

It is under this relaxed standard that the Court must judge the validity of the police conduct regulation. Assuming arguendo that plaintiff has standing to attack the rule on vagueness grounds, he has failed to satisfy the Court of its facial invalidity. The conduct provision must be considered in light of the context in which it was intended to operate. Such generally phrased rules are common in the field of public employment. See, e.g., Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (Lloyd-La Follette Act authorized removal of federal civil servants “for such causes as will promote the efficiency of the service”); Aiello v. City of Wilmington, 623 F.2d 845 (3d Cir.1980) (fire department rule proscribed conduct “unbecoming a fireman and a gentleman whether on or off duty,” and required employees to “conduct themselves in a manner that will not bring discredit to themselves or to the Department”); Davis v. Williams, 617 F.2d 1100 (5th Cir.1980) (fire department rule prohibited “conduct prejudicial to good order”), cert. denied, 449 U.S. 937, 101 S.Ct. 336, 66 L.Ed.2d 160 (1980); Herzbrun v. Milwaukee County, 504 F.2d 1189 (7th Cir.1974) (welfare department provision permitted suspension or discharge for “acts or omissions unbecoming an incumbent of the particular office or position held”). While perhaps not achieving semantic precision, these rules provide, at the very least, a basic indication of the type of conduct that is prohibited. In this context, the Constitution requires no more. Indeed, the provision may only fail for vagueness if it is void in all of its applications. Village of Hoffman Estates v. Flipside, 455 U.S. at 497, 102 S.Ct. at 1192. As the Supreme Court has stated, where “ ‘ “the general class of offense to which ... [the provision is] directed is plainly within [its] terms ..., [it] will not be struck down as vague, even though marginal cases could be put where doubts might arise.” United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954).’ ” Arnett v. Kennedy, 416 U.S. at 159, 94 S.Ct. at 1647 (quoting United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 578-79, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796 (1973)). Clearly a police officer who places himself in circumstances that may lead to his being found in constructive possession of marijuana should appreciate that his conduct is “prejudicial to the good order, discipline, or efficiency of the Department of Police.”

Plaintiff makes the additional argument that the conduct provision is void as applied since he was found only in “constructive” rather than “actual” possession of marijuana. He asserts that without any knowledge of the presence of contraband, he could not conform his conduct to comply with the Department regulations. Disregarding the questionable validity of plaintiff’s factual premise, the argument must fail on the weakness of its legal thesis. The Court understands plaintiff to imply that the conduct regulation must be read to prohibit only knowing or intentional conduct and that plaintiff had no warning that negligent or reckless actions could be disciplined. While it is true that an explicit scienter requirement would mitigate the problem of notice, Keeffe v. Library of Congress, 588 F.Supp. 778, 779 (D.D.C.1984), the Court is not persuaded that plaintiff could not be disciplined under the rule for circumstances which he should have known to exist. Accordingly, plaintiff’s motion for summary judgment on the vagueness issue will be denied and defendants’ corresponding motion will be granted.

IV. EQUAL PROTECTION AND SUBSTANTIVE DUE PROCESS

The existence of a violation of plaintiffs right to procedural due process obviates the need to consider plaintiffs claim that the Department's decision was not grounded on substantial evidence. It remains for the parties to establish at trial what the appeal board would otherwise have found if proper procedures were adhered to. See Hawkins v. Board of Public Education, 468 F.Supp. at 212-13.

Similarly, plaintiff’s equal protection claim need not be addressed at this time. That issue must await a decision by the Court, based on the evidence presented at trial, as to whether termination remains in order.

V. OFFICIAL IMMUNITY

The individual defendants have raised an affirmative defense of official immunity. Under the rule of Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the grant of immunity for official action is dependent upon the “objective reasonableness of an official’s conduct as measured by reference to clearly established law.” Id. at 818, 102 S.Ct. at 2739. The Harlow standard raises questions of law and fact which have not adequately been addressed by the parties. Consequently, the Court must decline to rule on that issue on summary judgment.

VI. CONCLUSION

Plaintiff has succeeded in obtaining summary judgment on two elements of his procedural due process claim — first, the denial of pre-suspension process, and second, the failure to provide a hearing before an impartial decision maker. Summary judgment will be granted in favor of defendants on the claim that the police conduct provision was unconstitutionally vague. The motions will be denied as to both parties with respect to the procedural claim against the members of the administrative trial board.

The burden now shifts to defendants at trial to prove that the Department would have arrived at the same conclusions had it employed the proper procedural safeguards. See, e.g., Alexander v. Polk, 750 F.2d 250, 263-64 (3d Cir.1984). The Court will also consider the remedy necessary to vindicate plaintiff’s constitutional rights and will determine whether immunity should be granted to any of the individual defendants. An order will be entered granting summary judgment as outlined above and denying the parties’ cross-motions on all other issues.

      . The amended complaint named as defendants Captain George Lamborn, who scheduled the trial board hearing; Inspector John Johnson, Jr., who suspended Hopkins; Albert Carter, an employee of the City, and Chief Dennis Regan, both of whom sat on the appeal board; and Captain Simon Edwards, Sr., Captain Joseph Pennell and Inspector Stanley Friedman, all members of the complaint hearing board. Docket Item 23.

      . Williams Deposition at 4.

      . Landon Deposition at 3-10; Lamborn Deposition at 4.

      . Pratcher Deposition at 5-7.

      . Police seized a plastic bag containing about a half ounce of marijuana, a vase holding 261 burnt marijuana cigarettes and some white powder later determined to have come from Ms. Carter’s diet pills. A scale, rolling papers and other related items were also seized. Appendix to Defendants’ Opening Brief ("Defendants’ Appendix”) at A-4.

      . Carter was also charged with a weapons offense. Appendix to Plaintiff's Opening Brief ("Plaintiff’s Appendix”) at A-21.

      . Huston Deposition at 12-13.

      . Although the letter is dated April 12, 1982, Hopkins denies receiving it before April 20, 1982. Plaintiffs Appendix at A-30; Plaintiffs Opening Brief at 13. The parties do not contest that this letter was sent with notification of the department charges, dated April 19, 1982, and allegedly received on April 20, 1982.

      . The conduct rule provides: "No member of the Department of Police shall engage in any conduct specifically prohibited in these rules, or contrary to any lawful written or verbal orders or memorandums, or which is prejudicial to the good order, discipline, or efficiency of the Department of Police." Police Department General Conduct Rule, Chapter 11, Rule 201.

      . Plaintiffs Appendix at A-31 to A-33. The charge specified that Hopkins’ conduct was "prejudicial to the good order and best interests of the Department of Police" and was "in violation of Title 15 Sections 4754 of the Delaware Criminal Code." Id. at A-31 to A-32.

      . Plaintiff alleges that this last postponement resulted from his counsel’s request that two of the three individuals assigned to the Trial Board be disqualified for conflict of interests. Plaintiff’s Opening Brief at 10. Defendants assert that the conflict issue was resolved without any ensuing continuance, Defendants’ Reply Brief at 7, but cannot explain why the hearing was postponed from May 13 to May 25.

      . The Board found the charge of possession of amphetamines to be unsubstantiated because tests showed the white powder found in Carter’s bedroom was the equivalent of less than one capsule of a diet drug. Defendants’ Appendix at A-8.

      . Regan Deposition at 6-7, quoted infra note 23.

      . Id. at 6.

      . Among the alleged procedural violations, the Amended Complaint charged that the members of the trial board refused to order production of an informant. Docket Item 23. This charge was dropped after oral argument on the motions for summary judgment. See Letter from Sheldon Sandler, attorney for plaintiff (June 27, 1984).

      . Although plaintiff has never formally dismissed the claim of overbreadth, he has not briefed the issue in response to defendants’ motion for summary judgment. The Court considers the argument abandoned and will grant defendants' motion for summary judgment on this issue.

      . Like the claim of overbreadth, the privacy claim was not briefed and is considered abandoned.

      . Hopkins’ suspension came immediately after the lodging of criminal charges of possession with intent to sell marijuana and amphetamines. He may have assumed that these charges precipitated his suspension. In fact, however, the Department ultimately grounded his suspension only on an alleged violation of the conduct code by virtue of his possession of marijuana. Whether that charge alone would have resulted in immediate suspension has never been determined by the Department.

      . The defendants have argued that immediate suspension was necessary to prevent Hopkins from using his position to ascertain the source of the charges against him. This argument supports postponement of the required evidentiary hearing until after suspension was effectuated. It does not, however, explain why no notice or informal opportunity to be heard accompanied Hopkins’ suspension.

      . The Court need not determine responsibility for the final postponement of the hearing. Even if the hearing were held four weeks after the suspension on its originally scheduled date, the failure to provide some earlier mechanism to reduce the risk of erroneous action would not be eliminated.

      . Inspector Friedman’s deposition includes the following colloquy:
      Q. How was Sergeant Hopkins' conduct prejudicial to the good order and best interests of the Department of Police?
      A. Well, as a police officer we have certain standards that we have to live by, because we go out and enforce the law. We have to maintain a degree higher than getting involved with anyone that would deal in drugs or the use of drugs. And in that direction, he — this would be a violation.
      Q. Anything else?
      A. Well, if he was using drugs possibly selling drugs, as a police officer you can’t have that.
      ....
      Q. Wasn’t the conclusion of the trial board that he was in a bedroom where there were drugs?
      A. Yes.
      Q. And that as a result of that, he was basically in constructive possession of those drugs?
      A. Yes.
      Friedman Deposition at 19-20 (emphasis added).
      Captain Edwards was questioned on the meaning of the specific language used in the board’s finding. The Captain stated in reply: ”[M]y recollection on that is that we were satisfied that Sergeant Hopkins was in possession of it; and the testimony and evidence at hand, that we were abo satisfied that he probably was using it, that being the marijuana now.” Edwards Deposition at 13 (emphasis added).

      . Inspector Friedman was aware that Hopkins had been criminally charged with possession with intent to deliver drugs. Friedman Deposition at 16. He has not stated, however, that he knew of any rumors in the Department concerning Hopkins’ involvement with drugs. Captain Edwards has not expressed any prior knowledge of the circumstances of Hopkins’ case. Since this issue arises on summary judgment, the Court will assume that the rumors did, in fact, reach the officers. Inspector Friedman has, however, affirmatively acknowledged his disavowal of office gossip, Friedman Deposition at 21, and Captain Edwards has expressed his practice of avoiding any conversation connected with the subject of a complaint board hearing. Edwards Deposition at 15.

      . At Regan’s deposition, in the context of showing Regan the trial board’s decision, the following dialogue occurred:
      Q. What was your understanding of the finding against Sergeant Hopkins? What was it that he had done?
      A. He had taken part in the drug transactions at a home on the northeast section of Wilmington; that he was in possession of certain items restricted by law. And of course this was all under the umbrella of being a law enforcement officer.
      Q. Tell me more about the first part that you stated, if you know anything more, the drug transaction part.
      A. Of course, I only know what I hear, now.
      Q. And what did you hear?
      A. What I heard was that the Police Department had received information that a law enforcement officer Sergeant Hopkins was involved with drugs and an investigation was started at that time by the vice squad and the Internal Affairs section which led to a drug transaction, drug buys at that address. A search warrant was drawn up. The house was — I believe there was a search warrant and an arrest warrant. The warrant was executed and certain things were found in the immediate area by Sergeant Hopkins.
      Q. So the basis of your decision upholding the trial board was twofold: one, that he was involved in drug transactions and, two, that he was in a room where there were drugs?
      A. Right. Of course, we’re talking violations of the rules and regulations of the Police Department. This is the direction we’re coming from.

      . The rules provide: "The Chief of Police, or his designee, may impose suspension upon any member for a justifiable cause or in the best interest of the Department.” Rule 304.13. Additionally, the resignation or retirement of a member of the Department does not become effective until approved by the Chief. Rule 304.14. It would be unlikely that the Department intended to rest the authority to effectuate a member’s resignation or retirement only in the Chief, while endowing those of a lesser rank with authority to terminate an employee. Finally, the rules provide that "the findings of the appeal board will be the final authority within the Department relative to disciplinary action." Rule 305.4.

      . The Chief may alternatively delegate his duties as a member of the appeal counsel. See Rule 305.1(1). Chief Regan did not, however, avail himself of this option in Hopkins’ case.

      . Because I find the appeal board’s decision invalid as a result of Chief Regan’s misapprehensions, I do not pass judgment on whether it was necessary for the appeal board as decision maker to independently review the evidence presented at the administrative trial. If the appeal board relied solely on the arguments of counsel to familiarize themselves with the evidence, I would have grave doubts that the practice could be reconciled with the teaching of Hawkins. I note, however, that the deposition of Albert Carter, who also sat on the appeal board, suggests that the panel considered evidence of the articles seized at the time of Hopkins' arrest, and their proximity to Hopkins bedside. See Carter Deposition at 6. I also note that Hopkins declined the opportunity to present evidence to the appeal panel, perhaps because he and his attorney proceeded under the assumption that the panel would review pertinent passages of the trial board transcript.

      . See Regan Deposition at 6-7, reprinted supra note 23.

      . See supra note 9 for the text of the conduct regulation.

      . "One to whose conduct a statute clearly applies may not successfully challenge it for vagueness." Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439 (1974); accord Aiello v. City of Wilmington, 623 F.2d 845 (3d Cir.1980).

      . The Fifth Circuit has suggested that these general provisions are essential to the civil service:
      [I]n private employment, one can be disciplined for almost any reason or for no reason; that this arrangement obtains is generally known. In civil-service employment, by contrast, discharge or discipline must rest on "cause.” Fair notice consequently requires some attempt at specifying what actions constitute cause, but it may well be impossible for the mind to imagine or the hand tó transcribe every sort of human misconduct that might fairly call for discipline. And if that were possible, the product would doubtless fill volumes of particulars and therefore go unread — except perhaps by superiors searching out ad hoc grounds for disciplinary action already determined on [sic].

        Davis v. Williams, 617 F.2d 1100, 1103 (5th Cir.1980).

      . See infra note 33.

      . Plaintiffs Reply Brief at 18.

      . The notice to plaintiff specified he was charged with conduct which was both "prejudicial to the good order and best interests of the Department of Police” and was "in violation of Title 16 Section 4754 of the Delaware Criminal Code.” Plaintiffs Appendix at A-31 to A-32. Section 4754(b) provides: "It is unlawful for any person knowingly or intentionally to possess, use or consume [marijuana] except as authorized by this chapter.” (emphasis added). Although plaintiff denied the charges, the hearing board found them to be substantiated. It thus appears that regardless of plaintiffs protestations to the contrary, the board found he indeed knowingly or intentionally possessed the drug.

      . By letter dated December 19, 1984, defendants have advised the Court of recent developments in Hopkins’ claim for state unemployment benefits. Hopkins’ claim was denied at the administrative level because he was found to have been terminated by the Police Department for good cause. Defendants state the Unemployment Insurance Appeal Board concluded as a factual matter that Hopkins had been in knowing possession of marijuana. The Superior Court of the State of Delaware affirmed the Unemployment Board’s decision. Hopkins v. Unemployment Insurance Appeal Board, No. 83A-OC-13 (Del.Super.1984). The defendants urge that decision should have preclusive effect on the substantive due process and equal protection issues in the district court and on the question whether the Police Department’s decision was against the weight of the evidence. The preclusive effect of the Superior Court’s decision has not been subject to the adversarial process. Given that this Court must determine at trial both what the Department would have found and concomitant punishment, there seems to be no reason for determining the preclusive effect of the Superior Court affirmance of the Unemployment Insurance Board prior to trial.


author: FILIPPINE, District Judge.

text:
    Scott E. WILSON, Plaintiff, v. Lt. General Emmett H. WALKER, Jr., et al., Defendants.
    No. 83-1746C(2).
    United States District Court, E.D. Missouri, E.D.
    Dec. 26, 1984.

      Bernard J. Coogan, St. Louis, Mo., for plaintiff.
    Bruce White, Asst. U.S. Atty., St. Louis, Mo., for defendants.
   MEMORANDUM

FILIPPINE, District Judge.

This matter is before the Court on defendants’ motion to dismiss or in the alternative for summary judgment and memorandum in support thereof. Plaintiff has filed a memorandum in opposition to the motion and defendants have filed a reply thereto. Argument was had on the motion on May 11, 1984.

The basis of defendants’ motion to dismiss is the alleged failure of plaintiffs to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). In the alternative defendants move for summary judgment. Because the Court finds it necessary to refer to matters outside the pleadings, this motion will be treated as one for summary judgment. When evaluating a motion for summary judgment, the Court must, of course, view the facts in the light most favorable to the party opposing the motion, giving such party benefit of all reasonable inferences to be drawn from facts. Portis v. Folk Construction Company, Inc., 694 F.2d 520, 522 (8th Cir.1982). “Summary judgment is an extreme remedy, and a motion for summary judgment should not be granted unless it is clear beyond controversy that the moving party is entitled to judgment as a matter of law.” U.S. v. Porter, 581 F.2d 698, 703 (8th Cir.1978). See also Bellflower v. Pennise, 548 F.2d 776, 777 (8th Cir.1977).

This case arises out of plaintiff’s reassignment from a flying to non-flying position while a member of the Air National Guard (ANG) assigned to serve in the Missouri Air National Guard (MANG). Plaintiff alleges that he enlisted in the ANG on September 2, 1971, was commissioned an officer in the reserve of the Air Force on April 14, 1972, and earned career flying status on June 5, 1973. Effective May 30, 1978, plaintiff was assigned to serve in the MANG. During his period of assignment in the MANG plaintiff served in several jobs in the 110th Tactical Fighter Squadron: as a tactical fighter pilot, as a standardization and evaluation flight examiner, as a flight examiner and as operations training officer, each of which were consistent with his military aeronautical rating during that period.

Plaintiff alleges that his difficulties began with his resignation from full time Civil Service as an instructor pilot with the MANG in October, 1981. Plaintiff remained a commissioned officer in the Air Force Reserve and in a federally recognized status as a member of the MANG. Certain actions taken by plaintiff prompted defendant Lt. Col. James H. Renschen to request plaintiff’s resignation. Effective October 26, 1982, upon his refusal to resign, plaintiff was reassigned to a position not involving flying. In December of 1982 an investigation into the matter was requested by plaintiff and was conducted by Ehrhardt H. Lange, Colonel in the MANG and Deputy Chief of Staff. Lange concluded that removal from flying assignments was “probably justified” and that Wilson’s “problem is one of attitude and particularly in his defiance of command.” Exhibit 1 to Defendants’ Motion to Dismiss, tab 13.

The relief plaintiff seeks was stated succinctly by plaintiff’s attorney at oral argument: “[w]e can’t ask this Court to undertake the decisions of the Air Force in determining whether Captain Wilson is, in fact, a proper pilot, but merely ask them to follow their own procedures in having taken him off flying status.” Transcript at 35-36. The procedures plaintiff refers to are contained in Air Force Regulation 35-13 (AFR 35-13), which sets forth with specificity procedures for actions affecting flying status. Plaintiff claims that, rather than providing him with AFR 35-13 procedures, his superiors merely reassigned him to a non-flying job with full knowledge that after five years of not flying plaintiff would lose his aeronautical rating, Id. at 38. Thus, he contends that they circumvented the appropriate procedures to achieve their result. Id. at 25. He contends that this failure to follow AFR 35-13 constitutes a violation of plaintiff’s due process rights. Id. at 27-28. However, plaintiff admitted in oral argument that where one is transferred to a non-flying position without taking away his flying status, AFR 35-13 procedures are unnecessary. In fact, plaintiff stated that such procedures under those circumstances would be a “misuse”. Transcript at 39-41. Viewing all of these allegations as a whole, the Court is of the opinion that the gravaman of plaintiff’s complaint is that he has been deprived of a property interest in his flying status without due process of law.

Initially it must be noted that to the extent plaintiff is requesting damages from his superior officers for alleged deprivations of his constitutional rights said action must be dismissed. “[Ejnlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations.” Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) (footnote omitted). Plaintiff, however, also asks this Court to order his superiors to follow AFR 35-13 procedures, or some other procedures which would comport with the requirements in his case. Thus the Court must address the merits of his due process claim.

Essential to a claim that one has been deprived of a property interest under the Due Process Clause of the Fourteenth Amendment to the United States Constitution is establishing that which one has been deprived of is a protected property interest. Here plaintiff contends that he has been deprived of his flying status by virtue of the fact that if he remains in non-flying jobs for five years he will lose his flying status. Transcript at 38. Thus the issue which this Court must address is whether or not plaintiff has a property interest in his flying status.

“A property right involves more than a hope, or unilateral expectation of continued service.” Ampleman v. Schlesinger, 534 F.2d 825, 826 (8th Cir.1976). “To have a property interest in a benefit a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it.” Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Thus, it is not enough that plaintiff wanted to remain in a flying job or that he expected to stay in a flying job. There must be a showing of “interests that are secured by ‘existing rules or understandings.' ... A person’s interest in a benefit is a ‘property’ interest for due process purposes if there are such rules or mutually explicit understandings that support his claim for entitlement to the benefit and that he may invoke at a hearing.” Perry v. Sinderman, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). See also Ampleman, supra. The record is devoid of any such rules or understandings. There is no evidence that the parties entered into a contract, either express or implied, that would allow plaintiff to remain in a flying job unless transferred to a non-flying job following AFR 35-13 procedures. There is no evidence of any statute providing for said procedures; nor does AFR 35-13 create any such entitlement. In fact, AFR 35-13, subsection 3-16 clearly anticipates that persons with flying status will at times be transferred to nonflying jobs. Nowhere in AFR 35-13 can it be said that a property interest was created. Accordingly, because there is no property interest of which plaintiff can be said to have been deprived, there is no genuine issue as to any material fact and defendants are entitled to judgment as a matter of law pursuant to Fed.R.Civ.P. 56.

      . The Air National Guard has a complicated state and federal character. For a brief discussion of this character see Johnson v. Powell, 414 F.2d 1060 (5th Cir. 1969).

      . According to the report of Ehrhardt H. Lange, Colonel in MANG and Deputy Chief of Staff, there were two incidents which precipitated Colonel Renschen’s actions. In the first plaintiff decided to remain overnight rather than to return to St. Louis in accordance with the flight plan and his orders. In the second plaintiff followed an unauthorized flight schedule when returning from England to St. Louis. The report indicates that in addition to these incidents, "there were many other instances where Captain Wilson defied authority. In fact his defiance of authority I would consider to be the primary cause of the actions taken.” Exhibit 1 to Defendant’s Motion to Dismiss, Tab 13 at p. 2.

      . The Court was uncertain what plaintiff was complaining of in his complaint and what relief he was seeking. At oral argument plaintiff attempted to clarify this for the Court.

      . AFR 35-13, subsection 3-16, reads as follows: 3-16. Reserve Officers Assigned to Non-rated Duties. If a Reserve officer who occupies a flying position is temporarily reassigned to nonrated duties, but is still considered as a rated asset, the officer’s aeronautical orders remain valid for a period not to exceed 5 years from the date of reassignment. EXCEPTION: This does not apply to flight surgeons. See paragraph 2-7c.