author: CALDWELL, District Judge.

text:
    MANUFACTURERS ASSOCIATION OF TRI-COUNTY, et al., Plaintiffs v. James W. KNEPPER, Jr., et al., Defendants and Pennsylvania American Federation of Labor—Congress of Industrial Organizations, et al., Intervenors PENNSYLVANIA FOUNDRYMEN’S ASSOCIATION, et al., Plaintiffs v. James W. KNEPPER, Jr., et al., Defendants and Pennsylvania American Federation of Labor—Congress of Industrial Organizations, et al., Intervenors
    Civ. A. No. 85-1027.
    United States District Court, M.D. Pennsylvania.
    Dec. 12, 1985.

      Robert W. Thomson, Debra M. Coulson, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., Robert B. Hoffman, Reed, Smith, Shaw & McClay, Donald A. Tortorice, Arthur K. Hoffman, Duane, Morris & Heckscher, Harrisburg, Pa., for plaintiffs.
    Delancey W. Davis, Deputy Atty. Gen., Harrisburg, Pa., for defendants.
    Stephen C. Richman, Markowitz & Rich-man, Philadelphia, Pa., for International Union, UAW.
    Theodore M. Lieberman, Philadelphia, Pa., for intervenor.
   MEMORANDUM

CALDWELL, District Judge.

I. Introduction.

Plaintiffs, defendants and intervenors have filed cross motions for summary judgment. Plaintiffs are certain manufacturers, manufacturing associations and non-manufacturers doing business in Pennsylvania. Defendants are James W. Knepper, Jr., Secretary of the Department of Labor and Industry, Herbert Thieme, Deputy Secretary for Administration of the Department of Labor and Industry, the Pennsylvania Department of Labor and Industry, and the Commonwealth of Pennsylvania. Intervenors are the Pennsylvania American Federation of Labor-Congress of Industrial Organizations (“AFL-CIO”). The International Union (also known as United Auto Workers) has also filed an amicus curiae brief. This consolidated action arises from the enactment of the Pennsylvania Worker and Community Right to ■ Know Act, P.L. 734 No. 159, 35 P.S. § 7301 et seq. (“Right to Know Act”) which establishes a statewide program for communicating information concerning hazardous substance to employees and the general public. Plaintiffs primary contention is that, based upon the recent decision of New Jersey State Chamber of Commerce v. Hughey, 774 F.2d 587 (3d Cir.1985), the Right to Know Act is preempted by § 18 of the Occupational Health and Safety Act (“OSH Act”) (29 U.S.C. § 667), and the Hazard Communication Standard (“The Standard”) (29 C.F.R. § 1910.1200) as it applies, (1) to employers who are included within the Standard Industrial Classification (“SIC”) Codes 20-39 and (2) as it applies to employers outside SIC Codes 20-39. In accordance with Hughey defendants and intervenors acknowledge that certain provisions of the Right to Know Act are preempted, but nevertheless maintain that the remainder of the Right to Know Act should be enforced, and that the preempted sections of the Act can be severed. In addition to their preemption argument plaintiffs also assert that the Right to Know Act imposes an excessive burden on interstate commerce in violation of the Commerce Clause of the Federal Constitution and deprives plaintiffs of their property rights in trade secrets and confidential information without just compensation.

For the reasons set forth.below, we conclude that the Right to Know Act is entirely preempted by federal law to the extent it requires employers in the manufacturing sector to identify and disclose information concerning workplace hazards. The Right to Know Act is not preempted as it applies to employers in the non-manufacturing sector, nor as it requires all employers to disclose information relating to environmental hazards, except for the labeling requirement in the manufacturing sector. We also conclude that the Right to Know Act does not violate the Commerce Clause or constitute a taking without just compensation.

II. Background.

A. The Pennsylvania Worker and Community Right to Know Act.

On October 5, 1984 the Governor of Pennsylvania signed the Right to Know Act into law, to become effective on October 5, 1985. The purpose of the Act inter alia is “to ensure that employees, their families and the general public be given current information concerning the nature of the hazardous substances with which they may come in contact and full information concerning the health hazards of these hazardous substances.” 35 P.S. § 7301 (Preamble to the Act). It establishes a comprehensive statutory scheme for (1) identifying and (2) communicating to employees, emergency response agencies, health care professionals, and the general public information concerning hazardous chemicals employed in the workplace. These objectives are accomplished primarily through the following procedures.

Within 180 days of the effective date of the Right to Know Act (October 5, 1985) the Pennsylvania Department of Labor and Industry is required to compile a list of hazardous substances and designate those substances which are considered to be “special” or “environmental” hazards. 35 P.S. § 7303. Every employer is required to complete a hazardous substance survey form (“HSSF”) for each workplace, listing the designated hazardous substances which were present during the past year. 35 P.S. § 7303(e). This form must be retained on file at the workplace and updated every two years. Id. The employer is also required, upon the written request of any person, to complete an environmental hazard survey (“EHS”) for the workplace which discloses “those [designated] substances emitted, discharged or disposed of from the workplace.” 35 P.S. § 3703(g).

The primary burden of disclosing hazardous substances falls upon manufacturers and suppliers of chemicals. The Right to Know Act provides that “every supplier, as a condition of doing business in this Commonwealth, shall ensure that the container of any chemical which is delivered to a point within this Commonwealth or which is produced within this Commonwealth is clearly labeled in the manner required by section 6.” 35 P.S. § 7304(a)(footnote omitted). Section 6, in turn specifies the information that must be disclosed. 35 P.S. § 7306(a). The Right to Know Act further provides that within two (2) years all containers, used by entities covered by the Act, regardless of whether they contain hazardous substances, must be labeled. 35 P.S. § 7306(a)(4). In addition, employers are required to place labels at or near all pipeline ports. 35 P.S. 7306(c).

Similarly, manufacturers, importers and suppliers must prepare a material safety data sheet (“MSDS”) for each designated “hazardous substance or hazardous mixture they produce or import, and shall ensure that all purchasers of hazardous substances or hazardous mixtures are provided with an appropriate MSDS____” 35 P.S. § 7304(b). The Department of Labor and Industry must also be supplied with a copy of each MSDS. The MSDS must incorporate certain information, including the chemical name, its physical characteristics, and its health hazards. Id.

The Right to Know Act also permits employers, manufacturers, etc., to withhold the identity of a chemical substance as a trade secret. 35 P.S. § 7311. This protection is not absolute and the claimant must satisfy the criteria in § 7311(a). In no case is the claimant permitted to withhold a chemical’s identity from a treating physician or nurse. The claimant may, however, require the physician or nurse to sign a confidentiality agreement. 35 P.S. § 7311(b).

Finally, employers are obligated to disclose the information required by the Right to Know Act to (1) employees and (2) the community. Employers must post in the workplace a listing of all designated hazardous substances present and make available in the work area a MSDS for each hazardous substance to which the employees may be exposed. 35 P.S. § 7307. Employers are also required to provide, at least annually, educational and training programs for employees exposed to hazardous substances. 35 P.S. § 7308. With respect to public disclosure, employers must make available to the community, including local police, fire and emergency response personnel, copies of HSSF’s, EHS’s and MSDS’s upon demand. 35 P.S. § 7305.

B. The Hazard Communication Standard.

In 1970 Congress enacted the Occupational Safety and Health Act (OSH Act), 29 U.S.C. §§ 651 et seq. “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” 29 U.S.C. § 651(b). Pursuant to § 655 of the OSH Act, the Secretary of Labor was given the authority to promulgate standards to implement its purposes, and on November 23, 1983, the Occupational Safety and Health Agency (“OSHA”) published the final Hazard Communication Standard. The stated purpose of the Standard is to “insure that the hazards of all chemicals produced or imported by chemical manufacturers or importers are evaluated, and that information concerning their hazards is transmitted to affected employees within the manufacturing sector.” 29 C.F.R. § 1910.1200(a)(1). By its terms it is applicable to all employers in SIC Codes 20-39.

The Standard is practically duplicative of the Right to Know Act and likewise can be broken down in two parts. First, chemical manufacturers and importers must assess the hazards of chemicals which they produce or import. Second employers must communicate the hazards to their employees by means of a hazardous communication program which “includes at least the mandated container labeling, material safety data sheets (“MSDS”), and an employee training program.” 48 Fed.Reg. 53,336.

The MSDS is the principle instrumentality for transmitting hazard information. 48 Fed.Reg. 53,305. Chemical manufacturers and importers must develop a MSDS for each substance they identify as hazardous which includes the name(s) of the chemical, its physical and chemical characteristics and its health and safety characteristics. 29 C.F.R. § 1910.1200(g). The MSDS’s must also be readily available to employees. In addition, manufacturers, importers, and distributors must ensure that each container of hazardous chemicals leaving the workplace is appropriately labeled and all employers must ensure that containers utilized in the workplace are labeled. 29 C.F.R. § 1910.1200(f). The hazard communication program must also include an employee training program designed tó provide employees with the skills necessary to detect hazardous conditions and to take appropriate protective measures. 29 C.F.R. § 1910.1200(h)(2).

Finally, the Standard provides for trade secret protection. 29 C.F.R. § 1910.-1200(1). The employer may withhold the identity of a chemical substance if it satisfies the requirements contained in 29 C.F.R. § 1910.1200(i)(l). Notwithstanding this provision, employers must reveal the identity of a substance to a treating physician or nurse if they determine that a medical emergency exists. 29 C.F.R. § 1910.-1200(i)(2). Under certain circumstances, the employer may require a written statement of need and confidentiality agreement. Id. .

III. Discussion.

A. Application to Employers covered by the SIC Codes 20-39.

The United States Supreme Court recently set forth the standards for determining preemption of state law in Hillsborough County v. Automated Medical Laboratories, Inc., U.S.-,-, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714, 721 (1985) as follows:

It is a familiar and well-established principle that the Supremacy Clause, US Const, Art VI, cl 2, invalidates state laws that “interfere with, or are contrary to” federal law. Gibbons v Ogden, 9 Wheat 1, 211 [22 U.S. 1], 6 L Ed 23 (1824) (Marshall, C.J.). Under the Supremacy Clause, federal law may supersede state law in several different ways. First, when acting within constitutional limits, Congress is empowered to pre-empt state law by so stating in express terms. Jones v Rath Packing Co., 430 US 519, 525, 51 L Ed 2d 604, 97 S Ct 1305 [1309] (1977). In the absence of express pre-emptive language, Congress’ intent to preempt all state law in a particular area may be inferred where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress “left no room” for supplementary state regulation. Rice v Santa Fe Elevator Corp., 331 US 218, 230, 91 L Ed 1447, 67 S Ct 1146 [1152] (1947)., Pre-emption of a whole field also will be inferred where the field is one in which “the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Ibid.; see Hines v Davidowitz, 312 US 52, 85 L Ed 581, 61 S Ct 399 (1941).
Even where Congress has not completely displaced state regulation in a specific area, state law is nullified to the extent that it actually conflicts with federal law. Such a conflict arises when “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 US 132, 142-143, 10 L Ed 2d 248, 83 S Ct 1210 [1217] (1963), or when state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines v. Davidowitz, supra [312 U.S.], at 67, 85 L Ed 581, 61 S Ct 399 [at 404]. See generally Capital Cities Cable, Inc. v. Crisp, 467 US 691,-, 81 L Ed 2d 580, 104 S Ct 2694 (1984).

In addition, state laws can be preempted by federal regulations as well as by federal statutes. Id. at-, 105 S.Ct. at 2375, 85 L.Ed.2d at 721; Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 104 S.Ct. 2694, 81 L.Ed.2d 580 (1984).

In the present case, Congress has expressly provided for the preemption of state laws in § 18 of the OSH Act which provides in pertinent part:

(a) Assertion of State standards in absence of applicable Federal standards Nothing in this chapter shall prevent any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue with respect to which no standard is in effect under section 655 of this title.

OSHA has also expressed its intent to preempt state law in this area. The OSHA Standard states that it “is intended to address comprehensively the issue of evaluating and communicating chemical hazards to employees in the manufacturing sector, and to preempt any state law pertaining to this subject.” 29 C.F.R. 1910.1200(a)(2) (emphasis added).

In New Jersey State Chamber of Commerce v. Hughey, supra, the Third Circuit recently examined the New Jersey Worker and Community Right to Know Act, N.J. S.A. 34:5A-1, et seq., (“New Jersey Right to Know Act”), a statute whose purpose and framework is substantially identical to the Pennsylvania Right to Know Act. In Hughey the plaintiff contended that the entire statute was expressly preempted by section 18 of the federal OSH Act. The court rejected plaintiff’s contention on the grounds that section 18 was intended to preempt only state laws which sought to regulate employee health and safety. Hughey, at 592-593. Instead, applying the principles of implied preemption, the court reviewed each section of the New Jersey Right to Know Act to determine whether “Congress would have intended to preempt such a provision.” Hughey, at 593. More importantly for our purposes, the court developed the following standards for determining preemption:

A section should be held to be preempted, therefore, only to the extent that: 1) it is expressly preempted because it regulates communication of hazards to employees in the manufacturing sector; 2) it is impossible to comply both with state law and with federal law; or 3) the provision serves as an obstacle to the accomplishment of Congress’ object in the OSH Act to promote safe and healthful working conditions.

Id. at 594.

With these principles in mind, we will examine each disputed section of the Pennsylvania Right to Know Act.

1) The Hazardous Substance Survey Form.

Section 7303(e) requires employers to complete a hazardous substance survey form for each workplace. Both plaintiff and defendant agree that this provision is preempted because Section 7303(e) is substantially identical to section 34:5A-5 of the New Jersey law which the Hughey court found to be preempted in the manufacturing sector. Both statutes contemplate the creation of several hazardous substances lists, including one which identifies only environmental hazards. As the court in Hughey stated:

any hazardous substance listed as a workplace hazard pursuant to section 34:5A-5(a), and not listed as an environmental hazard pursuant to section 34:5A-4(a), is deemed to be one posing a specific threat to workers. It appears therefore that the primary purpose of section 34:5A-7(a) is the promotion of occupational health and safety through hazard communication. The federal Hazard Communication Standard expressly preempts section 34:5A-7(a) in the manufacturing sector.

Hughey, at 595.

The only difference between the two state statutes is that the Pennsylvania Right to Know Act does not provide specifically for a workplace hazardous substance list. Intervenors, however, contend that section 7303(e) is not preempted because the Pennsylvania definition of a hazardous substance is different from the New Jersey definition. Intervenors contend that the New Jersey statute, as demonstrated by its definition of a workplace hazard, was intended to protect primarily the employee while the Pennsylvania Act intended to protect both the employee and the public. This contention is belied by the fact that New Jersey definition of a workplace hazard includes “any environmental hazardous substance” 34:5A-5(a). By including environmental hazards in its definition of a workplace hazard, it appears that the New Jersey Right to Know Act does not have the single minded purpose which intervenors assert. Thus section 7303(e) is preempted in the manufacturing sector. Since 7303(e) is preempted sections 7303(f), (i) and (j), sections 7305(a), (c) and (g), and sections 7307(a) and (b) are also preempted to the extent they pertain to the hazardous substance survey forms.

2) Environmental Hazard Survey.

Section 7303(g) also requires employers to complete environmental hazard surveys for each workplace. In Hughey, the court held that the New Jersey environmental hazard survey, section 34:5A-7(a), was not preempted because the reporting of environmental hazards was not a concern of the OSHA Standards. Hughey, at 595. Plaintiffs, however, assert that the Pennsylvania environmental hazard survey is preempted because section 7303(g) was intended to regulate occupational health and safety. This argument is based on the fact that the environmental aspects of the New Jersey law are administered by the New Jersey Department of Environmental Protection, while the environmental aspects of the Pennsylvania statute are administered by the Department of Labor and Industry. In support of their position, plaintiffs rely upon the following language from Hughey:

Section 34:5A-7(b) is not preempted, since it requires reporting of environmental hazards to agencies concerned with public health and safety, a matter not governed by OSHA Standards.

Hughey, slip op. at 595.

In essence, plaintiffs argue that it is the designation of the state agency which is to administer the law that is controlling. Interpretating this language, we conclude, however, that it is the purpose of the statute which is critical, not the agency selected to implement the law. Clearly section 7303(g) is concerned with the protection of the public and is not an attempt to regulate employee safety.

Plaintiffs further argue that the legislative intent to regulate employee safety is demonstrated by section 7303(h) which provides in pertinent part:

(h) Onsite testing.—Upon the request to the department, and for good cause shown and upon consultation with the interested parties involved, the department may conduct at its expense onsite testing or use such other methods as will provide more exact information concerning the environmental hazards reported in the environmental hazards survey under subsection (g)..... The department shall not conduct onsite testing which has already been conducted by OSHA.

Plaintiffs contend that the last sentence of this section would have no meaning unless the legislature intended that the environmental hazards reported in the survey would be substances regulated and monitored by OSHA. Contrary to plaintiffs’ contention, we find that section 7303(h) only attempts to prevent duplicative onsite testing and does not have the far reaching implication suggested by plaintiffs. Section 7303(g) is therefore not preempted. Likewise section 7303(h) is not preempted.

3) Labeling.

Pursuant to section 7304(a) suppliers of chemicals must ensure that every container is labeled in accordance with section 7306 which, in turn, provides the specific labeling requirements. In Hughey, the court held the New Jersey labeling provision 34:5A-14, which provided for the labeling of both workplace and environmental hazards, was preempted “to the extent they require labeling of workplace hazards in the manufacturing sector.” Hughey, at 595. With respect to environmental hazards, the court remanded this issue to the district court to determine whether section 34:5A-14 was an obstacle to the accomplishment of the purposes of the OSH Act. Id. at 596. In accordance with Hughey, sections 7304(a) and 7306 are apparently preempted in the manufacturing sector as they pertain to the labeling of workplace hazards. Defendants acknowledge that certain portions of sections 7304(a) and 7306 are preempted, but maintain preemption is to be determined by the customer of the employer. For example, if an employer sells to a manufacturer then a label is not required, but if an employer sells to a non-manufacturer, then a label is required. Defendants draw this distinction on the basis that the labeling requirement is only preempted where its purpose is to regulate disclosure of hazard information to manufacturing employers. As defendants point out, sections 7304(a) and 7306 require that hazard information must be transmitted to both the manufacturing sector and the non-manufacturing sector, by the labeling of containers. The court in Hughey held that a section is preempted only “to the extent that it is expressly preempted because it regulates communication of hazards to employees in the manufacturing sector” Hughey, at 594. Applying this rationale, we conclude that sections 7304(a) and 7306 are not preempted to the extent they require the labeling of containers destined for non-manufacturing employers. Our conclusion is not inconsistent with the Hughey decision because the labeling provision of New Jersey statute requirements did not provide for the disclosure of hazard information beyond the manufacturing sector.

The remaining issue is whether the labeling of environmental hazards is also preempted in the manufacturing sector. Plaintiffs, relying upon section 7318, argue that the labeling of environmental hazards is primarily intended to protect the employee. Section 7318 provides:

(d) Employers without employees. —An employer shall not be required to comply with the requirement of sections 3(e), 5(e), 6(a)(1) through (5), 6(b) through (g), 7 and 8 for any period of time during which the employer does not have any present employees, (footnote omitted)

It is clear under this language that employers who do not have any employees are not required to abide by most of the labeling requirements. Since labeling is required only when employees are involved, this exception indicates that the primary purpose of the labeling requirement was to protect employees. Therefore we agree with plaintiffs’ interpretation and conclude that sections 7304(a) and 7306 are preempted in the manufacturing sector to the extent they require manufacturing employers to label containers, and to the extent they require suppliers to label containers to be shipped to manufacturing employers.

4) The Material Safety Data Sheets

In accordance with section 7304(b) manufacturers, importers, and suppliers must ensure that material safety data sheets accompany each initial shipment. The MSDS must also be provided for each container delivered to a point within the state of Pennsylvania. Unlike the previous provisions section 7304(b) has no counterpart in the New Jersey statute. As was the case with labeling, the federal Hazard Communication Standard already provides for the development of MSDS’s. 29 C.F.R. § 1910.1200(g). Therefore, sections 7304(b), (c), (d), (e), (f) and (g) are expressly preempted only to the extent they require manufacturers, importers, and suppliers to provide a MSDS for each container to be delivered to an employer in the manufacturing sector which contains a workplace hazard. As a result sections 7304(b)(3) and (4) are also preempted to the same extent. However, with respect-to environmental hazards, these sections are not preempted. There is no indication that the regulation of environmental hazards by section 7304(b) was intended to promote only employee safety and neither party has argued that requiring MSDS’s for environmental hazards would operate as an obstacle to the accomplishment of federal objectives. Since section 7304(b) is preempted in the manufacturing sector sections 7303(f) and (j), 7305(a), (b), (c), (d), (e) and (g), and 7307(a) and (b) are also preempted to the extent they pertain to MSDS’s in the manufacturing sector.

5) Employer Educational Program.

Section 7308 requires employers to provide, at least annually, an education and training program. Defendants and intervenors concede that this section is preempted. Additionally, noting that Section 7308 is substantially identical to the one provided in the Federal Hazard Communication Standard, we conclude that section 7308 is preempted. See 29 C.F.R. § 1910.-1200(h)(2).

6) Outreach Program.

Section 7310(a) requires the Department of Labor and Industry to develop outreach programs to inform employees and the public about their rights under the Act and about hazardous substances. We find, however, that section 7310(a) is preempted only to the extent it applies to the disclosure of workplace hazards to employees in the manufacturing sector. Similarly, section 7310(d) is preempted as it pertains to employees in the manufacturing sector.

B. Application to employers not within the SIC Codes 20-39.

Because the federal provisions apply only to employers within the SIC Codes 20-39, the Pennsylvania law is not preempted as to other employers. See Hughey, at 595. Plaintiffs argue, however, that in the event that any preemption is adjudicated, the Pennsylvania legislature intended that the entire statute be declared unconstitutional. In support of this position plaintiffs rely on § 19(d) of the Right to Know Act which provides:

(d) Review of preemption.—Should Federal Government preemption be finally adjudicated and result in lessening the burden on any employer to meet the requirements of this act, it is the intent that the General Assembly reexamine this act so that all employers hereunder shall be reexamined as to requirements necessary in meeting the standards of this act so as to treat all employers fairly and equitably.

Section 19(d) states only that the General Assembly intends to re-examine, and not abandon the Right to Know Act, if federal preemption is adjudicated. This view finds support in Section 20 of the Right to Know Act, which specifically contemplates sever-ability under the circumstances presented by this case. We conclude that the Right to Know Act is not preempted as it applies to employers not within the SIC Codes 20-39.

C. Severability.

We must now look to Section 20 and Pennsylvania law to determine whether the preempted provisions may be severed from the Right to Know Act or whether the entire statute must fall. Commonwealth, Department of Education v. First School, 471 Pa. 471, 370 A.2d 702 (1977). The standards for determining severability under Pennsylvania law are set forth in the Statutory Construction Act:

The provisions of every statute shall be severable. If any provision of any statute or the application thereof to any person or circumstance is held invalid, the remainder of the statute, and the application of such provision to other persons or circumstances, shall not be affected thereby, unless the court finds that the valid provisions of the statute are so essentially and inseparably connected with, and so depend upon, the void provision or application, that it cannot be presumed the General Assembly would have enacted the remaining valid provisions without the void one; or unless the court finds that the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.

1 Pa.C.S. § 1925.

Interpreting this section, the Pennsylvania Supreme Court in Saulsbury v. Bethlehem Steel Co., 413 Pa. 316, 320, 196 A.2d 664, 666 (1964) stated:

“[A] statute or ordinance may be partially valid and partially invalid, and ... if the provisions are distinct and not so interwoven as to be inseparable ... courts should sustain the valid portions.” (citations omitted).

There is a strong presumption in favor of severability where a statute contains a severability clause. Commonwealth, Department of Education v. First School, supra.

Applying these principles, we find that the entire statute should not fall because the preempted provisions are not “so essentially and inseparably connected” with the non-preempted provisions. The Right to Know Act, while less comprehensive, still remains an effective means for regulating environmental hazards in the manufacturing sector and for regulating workplace and environmental hazards in the non-manufacturing sector. We also conclude that legislative intent will be advanced by severing the preempted provisions. The Act is a broad statute designed to protect the public and the employee by regulating environmental and workplace hazards. This purpose will not be defeated by the limited preemption which we have adjudicated.

D. Trade Secret Protection.

Plaintiffs argue that the provisions of the Right to Know Act relating to trade secrets result in a taking of plaintiffs property without due process of law because the Act does not provide for an adequate remedy against the Commonwealth of Pennsylvania. This contention can be disposed of without much discussion. The court in Hughey found that the trade secret provisions of the New Jersey Right to Know Act did not constitute a taking. Hughey, at 598. The Pennsylvania and New Jersey trade secret provisions are similar in nature and we conclude the Pennsylvania Right to Know Act does not constitute a taking. Since there has not been a taking of plaintiffs’ property we need not consider plaintiffs’ argument that the Act does not provide an adequate remedy against the Commonwealth.

E. Violation of the Commerce Clause.

Finally, plaintiffs argue that the Right to Know Act violates the Commerce Clause because it imposes an undue burden on interstate commerce. They contend that the Right to Know Act will substantially increase the cost of goods moving in interstate commerce. To the contrary, defendants and intervenors argue that the impact on interstate commerce is merely speculative.

In Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174, 178 (1970) the Supreme Court established the following criteria for determining whether a state statute violates the Commerce Clause:

Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Cement Co. v. Detroit, 362 US 440, 443, 4 L Ed2d 852, 856, 80 S Ct 813, 78 ALR2d 1294.

We should also note that safety regulations are entitled to “a strong presumption of validity,” Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 524, 79 S.Ct. 962, 965, 3 L.Ed.2d 1003, 1007 (1959). Kassel v. Consolidated Freightways Corp., 750 U.S. 662, 101 S.Ct. 1309, 67 L.Ed.2d 580 (1981).

In the instant case, the Right to Know Act operates evenhandedly and thus the relevant inquiry is whether the burden on interstate commerce outweighs the local benefit. Plaintiffs have failed to demonstrate that the Right to Know Act will substantially burden interstate commerce. While we recognize that implementation of the Act may be costly and in that sense may burden interstate commerce, we cannot conclude that the burden outweighs the benefit. As a result we find that the Right to Know Act does not violate the Commerce Clause.

An appropriate order will be issued.

      . Upon motion of the parties, Civil Action No. 85-1028 was consolidated into Civil Action No. 85-1027.

      . The Standard consists of regulations adopted by OSHA pursuant to the OSH Act. SIC Codes 20-39 consist primarily of categories of manufacturers as set forth in the Standard Industrial Classification Manual published by the U.S. Office of Management and Budget. For purposes of this Memorandum we will refer to SIC Codes 20-39 as the manufacturing sector.

      . On August 28, 1985 we stayed the implementation and enforcement of the Act until December 4, 1985. On December 3, 1985 we again stayed enforcement of the Act until this decision is rendered.

      . Subsection (b) provides, however, that:
      Any State which, at any time, desires to assume responsibility for development and enforcement therein of occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated under section 655 of this title shall submit a State plan for the development of such standards and their enforcement.
      29 U.S.C. § 667(b).
      Pennsylvania has not submitted such a plan.

      . The following sections presented no question of preemption:
      7301 Short Title
      7302 Definitions
      7303(a) Hazardous Substance List
      7303(b) Additions to hazardous substance list
      7303(c) Deletions from hazardous substance list

        7303(d) Special hazards and environmental hazards
      7303(i) Authority to modify filing requirements
      7309 Health and Exposure Records
      7311 Trade Secrets
      7312 Risk to public health
      7313 Protection of employees
      7314 Complaints and investigations
      7315 Judicial review and enforcement
      7316 False statements and intentional omissions
      7317 Rules and regulations
      7318 Special applications
      7319 Construction of act
      7320 Severability

      . Intervenors argue that the labeling requirements are not preempted because they are not primarily tied to the concerns of employees in the manufacturing sector. This argument overlooks the fact the OSHA has promulgated standards covering labeling of workplace hazards. We do not believe that our conclusion is changed because the labeling requirement serves other purposes. Additionally, this argument was implictly rejected by the Hughey court when it held that the workplace survey was entirely preempted.

      . A workplace hazard is a substance found on the Hazardous Substance list but not found on the environmental substance list.

      . We recognize an apparent inconsistency in holding that labeling of environmental hazards is preempted in the manufacturing sector, whereas the preparation of MSDSs for environmental hazards is not. This situation results from the fact that Section 7318(d) is limited to labeling. We do not know if this result was intended.

      . 35 P.S. § 7320.


source: Caselaw Access Project

author: WEXLER, District Judge

license: Public Domain

text:
    Beatrice MYERS, etc., Plaintiff, v. LONG ISLAND LIGHTING COMPANY, etc., et al, Defendants.
    No. CV 85-3922.
    United States District Court, E.D. New York.
    Dec. 12, 1985.

      Rubin & Brady by Henry Rubin, Ledge-wood, N.J., for plaintiff.
    Shea & Gould by Richard F. Czaja, New York City, for defendants.
   MEMORANDUM AND ORDER

WEXLER, District Judge

Plaintiff Beatrice Myers, also known as Beatrice Myers-Rubin, brings this action to enforce certain of her rights as a holder of preferred stock in defendant Long Island Lighting Company (LILCO), against LIL-CO and the individually named directors and officers (individual defendants) of LIL-CO. Ms. Myers-Rubin is a citizen of New Jersey and holds 100 shares of $2.47 Series O preferred stock. LILCO is a New York corporation with its principal place of business in New York. The plaintiff alleges that all the individual defendants are citizens of New York. Plaintiff grounds jurisdiction in this Court in diversity of citizenship, 28 U.S.C. § 1332(a)(1).

Plaintiff sought class certification of all current holders of all series of LILCO preferred stock with herself as class representative. Rule 23, Fed.R.Civ.P. The Court denied orally the motion for class certification on two occasions. Class certification was denied because counsel for plaintiff, and the proposed class, is married to the plaintiff. The intimate relationship of husband and wife poses obvious questions of conflict of interest and of counsel’s ability to adequately represent the other members of the class. The Court also doubts that Ms. Myers-Rubin is truly representative of the proposed class and can fairly and adequately represent its interests.

Defendant LILCO now moves for dismissal of the action for lack of subject matter jurisdiction. Rule 12(b)(1), Fed.R.Civ.P. Specifically, defendant contends that the requisite amount in controversy is lacking. 28 U.S.C. § 1332(a).

I.

Analysis of the issue of jurisdictional amount must begin with examination of the complaint and the relief plaintiff seeks. Plaintiff bought her preferred stock in 1975. The first count of the complaint alleges that LILCO and its directors and agents entered into a revolving credit agreement in 1984 that encumbered corporate assets in contravention and violation of the corporate by-laws. In particular, the loan by its terms suspended preferred stock dividends for ten months, and allegedly diminishes the value of the preferred stock. The second count asks for damages for negligent management as against the individual defendants, based on the same acts as alleged in the first count. These two counts demand compensatory damages for the entire proposed class from LILCO and the individual defendants for unpaid dividends and loss of value of the stock. The third count duplicates the first, but asks for a damage award to Ms. Myers-Rubin only, not the proposed class. Likewise, the fourth count duplicates the second. The fifth count seeks enforcement of the corporate by-law provision that requires a special election of directors by the preferred stockholders if they have not received dividends for four quarters.

It is undisputed that dividends on preferred stock have not been paid for at least the past four quarters. The parties do dispute whether LILCO has called the required special elections meeting and whether the notice given is sufficient. Plaintiff initially seeks an order from this Court compelling scheduling of an immediate preferred stockholders meeting for election of new directors. As to the amount in controversy, the complaint merely recites that it exceeds $10,000.00. Section 1332(a) requires that the amount in controversy must exceed $10,000.00 in order to sustain diversity jurisdiction. LILCO contends that plaintiff’s claims do not amount to $10,-000.00.'

II.

The controlling case on the issue of jurisdictional amount is St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938). There the United States Supreme Court declared:

The rule governing dismissal for want of jurisdiction in cases brought in federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.

Id. at 285, 58 S.Ct. at 590. The rule, then, is that the value of the cause of action or the amount in controversy is determined from the plaintiff’s point of view, that is, what she will recover or avoid losing if her suit is successful. 1 Moore’s Federal Practice ¶ 0.91[1] (2d ed. 1985). Defendant points out that the value of the undeclared five quarters of dividends now owing on plaintiff’s preferred stock holdings is $308.75. It appears from oral argument that plaintiff’s 100 shares of preferred stock are worth no more than $2,500.00. Thus the amount at stake for plaintiff in this action is far less than $10,000.00.

Plaintiff argues that this calculation of value is incorrect on several grounds. Plaintiff maintains that since she invokes this Court’s equity jurisdiction, valuation of the monetary worth of her stock and dividends owed is not the proper standard. The rule is, however, that when the Court is called on to order declaratory or equitable relief the jurisdictional minimum is still necessary and the plaintiff’s viewpoint is still the determining test. E.g., Glenwood Light & Water Co. v. Mutual Light, Heat & Power Co., 239 U.S. 121, 125, 36 S.Ct. 30, 32, 60 L.Ed. 174 (1915); Kheel v. Port of New York Authority, 457 F.2d 46 (2d Cir.), cert. denied, 409 U.S. 983, 93 S.Ct. 324, 34 L.Ed.2d 248 (1972); 1 Moore’s Federal Practice ¶ 0.95 (2d ed. 1985). In addition, when an individual stockholder seeks injunctive relief against a corporation the amount in controversy is the value of the plaintiff’s stock, which is the limit of the threatened loss to the plaintiff. Susquehanna Corp. v. General Refractories Co., 250 F.Supp. 797, 800 (E.D. Pa.), aff'd, 356 F.2d 985 (3d Cir.1966); Weeks v. American Dredging Co., 451 F.Supp. 464 (E.D.Pa.1978); Textron, Inc. v. American Woolen Co., 122 F.Supp. 305, 308 (D.Mass.1954).

Nonetheless, plaintiff next insists that the amount in controversy must be assessed from the defendant’s standpoint, that is, LILCO’s total liability to preferred shareholders if plaintiff succeeds. This approach is obviously inconsistent with the prevailing view of valuation just discussed. It is also a backdoor attempt to claim the aggregate value of all preferred shareholders’ potential recovery in contradiction of the Supreme Court’s holding in Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973). In Zahn the Supreme Court held that in a diversity action each plaintiff must individually satisfy the jurisdictional amount, including the plaintiffs in a class action. Id. at 301, 94 S.Ct. at 512. Of course, as the Court has denied class certification there is only one plaintiff in this action and technically there are no claims to aggregate. Nevertheless, taking guidance from the clear rule of Zahn, the Court will not allow aggregation of claims through the device of designating the threatened loss to the defendant from all claims arising from the same events as the amount in controversy. Ms. Myers-Rubin, however, insists that the Court should view the amount in controversy as the total threatened loss to defendant, because if she prevails in her suit it will operate as stare decisis or collateral estoppel in actions by other LILCO preferred stockholders. This contention has been rejected numerous times, by numerous courts, in numerous forms. E.g., Healy v. Ratta, 292 U.S. 263, 267, 54 S.Ct. 700, 702, 78 L.Ed. 1248 (1934); Elliott v. Empire Natural Gas Co., 4 F.2d 493, 500 (8th Cir.1925); 1 Moore’s Federal Practice ¶ 0.91[2] (2d ed. 1985). It is not the proper basis for determining the amount in controversy.

In contrast, if this action were a stockholder derivative action wherein the shareholder plaintiffs were seeking damages as a class, the amount in controversy would be controlled not by the value of their individual claims, but by the measure of the damage suffered by the corporation, the real party in interest. E.g., Roster v. Lumbermans Mutual Casualty Co., 330 U.S. 518, 522, 67 S.Ct. 828, 831, 91 L.Ed. 1067 (1947). In this instance, however, plaintiff sues not to enforce a right of the corporation that management failed to pursue, but to enforce her rights under the by-laws and receive money damages from the corporation. Accordingly, it is the benefit to the individual plaintiff that determines the jurisdictional amount in this case.

III.

Finally, plaintiff seeks to add the value of her common stock in LILCO and her $10,000.00 corporate bond to the amount in controversy. Neither of these holdings is at stake in her pleadings. Amendment of the complaint to include the thirty-three $5.00 par value common shares would not satisfy the jurisdictional amount. Moreover, there is no indication that the rights plaintiff seeks to vindicate in her action apply to common stock. And there is nothing to indicate that the worth or interest rate of plaintiff’s bond is impaired by any of the acts that are the gravamen of her complaint.

IV.

The Court concludes that it appears to a legal certainty that the amount in controversy is less than the amount required to sustain subject matter jurisdiction under 28 U.S.C. § 1332(a). By the Court’s most generous calculation, plaintiff’s claim is worth no more than several thousand dollars. This is far short of the jurisdictional amount. The district courts are courts of limited jurisdiction and must strictly construe their grant of subject matter jurisdiction. Kresberg v. International Paper Co., 149 F.2d 911, 913 (2d Cir.), cert. denied, 326 U.S. 764, 66 S.Ct. 146, 90 L.Ed. 460 (1945). In this case, subject matter jurisdiction is lacking and the action must be dismissed. Rule 12(b)(1) and (h)(3), Fed.R.Civ.P. Where the Court does not have subject matter jurisdiction, it should refrain from any further exercise of power. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-18, 71 S.Ct. 534, 542, 95 L.Ed. 702 (1951). Therefore, the Court declines to address defendant’s motion to dismiss the fifth count of the complaint for failure to state a claim.

The Court notes that plaintiff is not without recourse. The New York state courts are courts of general jurisdiction, well able to enforce a shareholder’s rights under state law and the corporate by-laws.

V.

As the amount in controversy clearly is less than $10,000.00, the Court lacks subject matter jurisdiction in this case. 28 U.S.C. § 1332(a). Accordingly, LILCO’s motion to dismiss is granted. The Clerk of the Court is hereby directed to enter judgment for the defendants, dismissing plaintiff’s action without prejudice.

SO ORDERED.

      . In fact, plaintiff alleges only the parties' residences. To maintain jurisdiction under 28 U.S.C. § 1332 the complaint must make a positive averment of state citizenship. John Birch Society v. National Broadcasting Corp., 377 F.2d 194, 197 (2d Cir.1967). Although domicile is often construed as the equivalent of citizenship, mere residency is not. Cowell v. Ducas, 2 F.Supp. 1 (S.D.N.Y.1932). However that may be, for the purposes of this motion the Court presumes that plaintiff means “citizen" when using the term “resident.”

      . The individual defendants have not entered a separate appearance or motion.


author: LEISURE, District Judge:

text:
    K.C.P. FOOD CO., INC., Plaintiff, v. Charles C. SAVA, District Director, Immigration & Naturalization Service, Defendant.
    No. 84 Civ. 8405.
    United States District Court, S.D. New York.
    Dec. 12, 1985.

      Nicholas Paul Altomerianos, New York City, for plaintiff.
    Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City (Jorge Guttlein, Sp. Asst., U.S. Atty., of counsel), for defendant.
   OPINION

LEISURE, District Judge:

This matter is before the Court on plaintiff's motion for summary judgment pursuant to Fed,R.Civ.P. 56 and defendant’s motion for judgment on the pleadings pursuant to Fed.R.Civ.P, 12(c). Plaintiff seeks district court review of a final decision by the Associate Commissioner for Examinations of the Immigration and Naturalization Service (“INS” or the “Service”), which denied plaintiff’s petition to grant the beneficiary, Christoforos Bollas (“Bollas"), preference status for the issuance of a non-immigrant visa on the basis of his profession or occupation. 8 U.S.C. § 1153(a)(6).

The appeal herein is properly reviewable by the Court pursuant to the Administrative Procedure Act. 5 U.S.C. §§ 701, et. seq. Plaintiff asserts two claims on this appeal. First, that the denial by the defendant of the sixth preference visa petition is contrary to applicable laws and regulations and is unsupported by substantial evidence. Plaintiff claims that the administrative agency decision should be set aside as an abuse of discretion pursuant to 5 U.S.C. § 706(2)(A) & (E). Second, plaintiff asserts that the denial by defendant discriminates against the plaintiff as a small business in violation of the Fifth Amendment Due Process Clause.

For the following reasons, plaintiff’s request for summary judgment is denied and defendant’s cross-motion is granted.

FACTUAL BACKGROUND

K.C.P. Food Co., Inc. (“K.C.P.”) is a New York corporation that operates a coffee shop and restaurant under the name of Twin Donut Shop in New York City. On April 13, 1983, K.C.P. filed an alien employment certification with the United States Department of Labor (“DOL”). This application constitutes evidence of an offer of employment pursuant to 20 C.F.R. § 656.-20(c). The application, submitted for Bollas’ benefit, stated that plaintiff would employ Bollas as a Greek Specialty Cook at a salary of $260 per week.

On June 9, 1983, the DOL certified and approved the application pursuant to 8 U.S.C. § 1182(a)(14). The approval process includes a certification by the DOL that there are insufficient United States workers to fill the position offered and that the employment of the alien by plaintiff will not adversely affect the wages and working conditions of workers in the United States who are similarly employed. 8 U.S.C. § 1182(a)(14).

On July 21, 1983, plaintiff petitioned the Service on behalf of Bollas to classify his status as eligible for a sixth preference visa pursuant to Section 203(a)(6) of the Immigration and Nationality Act (the “Act”), 8 U.S.C. § 1153(a)(6). This section provides that the sixth preference status is

available ... to qualified immigrants who are capable of performing specified skilled or unskilled labor, not of a temporary or seasonal nature, for which a shortage of employable and willing persons exists in the United States.

Plaintiff submitted the DOL certification along with various affidavits documenting the beneficiary’s pertinent work experience and asserted that it earned an income of $120,000 per year. Certified Administrative Record (“Record”) at 14.

On December 12, 1983, the INS returned the petition and requested that further documentary evidence be submitted which showed plaintiff’s ability to pay the proffered wage. See Defendant’s Memorandum of Law at 17 n. *. Plaintiff filed its most recent corporate tax return on May 2, 1984, nearly five months after the INS request. The INS District Director denied the petition on May 25, 1984, based on plaintiff’s failure to establish the requisite financial ability to meet the proffered wage. Record at 8-9. In reaching that decision, he considered evidence submitted by plaintiff which indicated that although the beneficiary was offered a yearly wage of $13,520, the net income of the Twin Donut Shop at the end of the fiscal year for September 1983 was $8,541.75. Record at 9.

Plaintiff filed an appeal of the District Director’s decision to the Associate Commissioner on May 31, 1984, pursuant to 8 C.F.R. § 103.3. Plaintiff asserted that the corporate tax return, submitted as evidence of financial ability to pay Bollas the proffered wage, did not reflect the corporation’s “true” ability to pay. Record at 6-7. The Associate Commissioner affirmed the District Director’s denial of the petition and dismissed the appeal on July 17, 1984. The Associate Commissioner found that the corporate tax return showed an 88% drop in inventory from the beginning to the end of the fiscal year. He also found it unlikely that plaintiff would triple its income in order to meet the additional payroll burden of the proffered wage to the beneficiary. Record 1-2. Plaintiff commenced the present action on November 21, 1984.

DISCUSSION

Review by the Court of denials of preference visas is limited to a determination of whether the denial was an abuse of discretion. Song Jook Suh v. Rosenberg, 437 F.2d 1098, 1102 (9th Cir.1971). The Court’s determination must be made on the administrative record that was before the Service. Tongatapu Woodcraft Hawaii, Ltd. v. Feldman, 736 F.2d 1305, 1308 (9th Cir.1984). Abuse of discretion may be found only if there is no evidence to support the decision. Id., quoting Song Jook Suh, 437 F.2d at 1102. In general, the Court must give deference to the construction accorded to a statute by the agency charged with its administration. De Los Santos v. INS, 690 F.2d 56, 59 & 60 (2d Cir.1982); see also North Haven Bd. of Ed. v. Bell, 456 U.S. 512, 522 n. 12, 102 S.Ct. 1912, 1918 n. 12, 72 L.Ed.2d 299 (1982); Bertrand v. Sava, 684 F.2d 204, 217 (2d Cir.1982).

It is not the province of the Court to insist that the Service’s interpretations of the Act result in a perfect immigration scheme, or even that they be the best interpretations possible. De Los Santos, 690 F.2d at 60. If the Service’s interpretation is consistent with the language of the Act and is reasonably calculated to serve the Act’s purposes, it is entitled to deference, and the Court will not invalidate that interpretation. Id. Even as to purely legal questions, the Service is entitled to a review tempered by respect for the Service’s expertise in interpreting and administering the Act. Nazareno v. Attorney General, 512 F.2d 936, 939-40 (D.C.Cir.1975); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). This Court, then, must review this matter with deference to the Service’s interpretation of the applicable statutes and regulations.

In visa petition proceedings, the burden of proof to establish eligibility for the benefit conferred by the immigration laws rests with the petitioner. In re Brantigan, 11 I. & N. Dec. 493, 495 (B.I.A.1966). Although plaintiff claims that the specific facts herein create a case of first impression, there are analogous cases which support defendant’s motion for judgment on the pleadings.

It is undisputed that plaintiff must demonstrate financial ability to meet the wage requirements of the certified job offer. In sixth preference visa petition proceedings, the Service must consider the merits of plaintiff’s job offer so that a determination can be made whether the offer is realistic and whether it can be met, and determine whether the alien meets the minimum requirements to perform the offered job satisfactorily. In re Great Wall, 16 I. & N. Dec. 142, 145 (A.R.C.1977). The question of Bollas’ qualifications for the position is not presently before the Court. The issue presented, rather, is plaintiff’s financial ability and whether the interpretation by the Associate Commissioner of plaintiff’s corporate tax return was reasonable or an abuse of discretion.

The facts of In re Great Wall, supra, are analogous to those of the present case. The Great Wall petitioner offered the beneficiary a wage of $850 per month, and simultaneously submitted an uncertified income statement which revealed a net loss of $2,110.37. 16 I. & N. Dec. at 142-43. The Commissioner upheld the District Directors’s denial of the petition on the basis that the income statement did not establish that petitioner could pay the salary stated in the job offer. Id.

Plaintiff cites In re Sonegawa, 12 I. & N. Dec. 612 (R.C.1967) to support the argument that a corporate tax return is not substantial evidence upon which to base a decision of financial capability and that additional evidence should be reviewed on the present motion. Paradoxically, in this regard plaintiff asks the Court to consider pages 3 and 4 of the corporate income tax return which are not part of the certified administrative record in this case, but which have been attached as exhibits to K.C.P.’s memorandum of law. Plaintiff’s request fails to comply with the evidence requirements set forth in 8 C.F.R. § 103.-2(b)(1); there is no indication that plaintiff made any effort, pursuant to 8 C.F.R. § 103.2(b)(2), to inspect the evidence used by the Service in reaching its decision; and plaintiff has made no effort to reopen the administrative proceedings for reconsideration by reason of an allegedly inadvertant incomplete submission. 8 C.F.R. § 103.5. Even if these efforts were made, plaintiff’s request is improper since this Court’s review is limited to the administrative record that was before the Service. This is not the forum for new evidence to be presented. See Tongatapu Woodcraft Hawaii, Ltd., supra, 736 F.2d at 1308. In any event, Sonegawa is distinguishable since all the additional evidence in that case was presented to the Service while the case was on appeal at the administrative level.

Sonegawa is also distinguishable on its facts. The District Director in Sonegawa denied a petition for sixth preference classification based upon an offer to the beneficiary of a yearly wage totaling $6,240 and a $280 net profit revealed in a corporate tax return. On appeal at the administrative level, however, petitioner proffered additional evidence that during the representative fiscal year, her business had relocated to a better location and for a five month-period had to pay double rent. 12 I. & N. at Dec. 614. The move not only prevented her from doing business for a period of time but also caused her to incur substantial costs. Id. Unlike the two-year period in which K.C.P. had been in business at the time of the visa preference application, petitioner had been in business for eleven years and had shown substantial potential for growth. Id. The petitioner in Sonegawa submitted articles on her dress design business from Time and Look magazines. Id. at 615. This evidence persuaded the Regional Commissioner that petitioner’s expectations of increasing business and profits were reasonable and that she would have the ability to pay the stipulated wage. Id.

K.C.P. is not in a position similar to that of the petitioner in Sonegawa. It has shown none of the potential for growth that would make its position similar to that of the petitioner in Sonegawa. Plaintiff claims that the decisions of both the District Director and the Associate Commissioner were not based on substantial evidence, yet K.C.P. did not proffer additional evidence at the administrative level which would permit the Service, or this Court, to reverse the denial of the petition. Plaintiff asserts that the Service did not suggest it could submit further evidence. It is true that no such request was made at the time of the District Director’s decision. However, on December 12, 1983, the INS requested in clear terms that K.C.P. submit further documentary evidence to show ability to pay the proffered wage. Record at 12.

This evidence can be in the form of balance sheets or a financial statement that indicates that your gross income less expenses (enumerated) leaves a net profit that will at least pay the proffered wage. Such evidence should cover the year of the filing of the petition.

Id. The net income after taxes was the figure to be used in determining financial ability. Plaintiff subsequently submitted the corporate tax return in question in May 1984. The Service’s request put petitioner on notice that any financial information offered into evidence must reflect an ability to pay.

If the interpretation of a document can lead to such varied results, the petitioner should have been on notice that the submission of less ambiguous documents, which would have indicated a figure amounting to that requested by the INS, was necessary. Despite the fact that petitioner has averred that these documents were not indicative of its financial ability, no further evidence which would support this contention was offered by plaintiff after the District Director denied the petition and before this matter came before the Associate Commissioner on appeal.

Petitioner claims that the decisions in this case by both the District Director and the Associate Commissioner misinterpret the tax return. First, K.C.P. asserts that the purpose of the corporate tax return is solely to establish evidence of the existence of the corporation. Second, K.C.P. claims that the decision should have been based on the $65,000 figure representing the money made before expenses were paid. Plaintiff, however, was on notice that its net income had to reflect its ability to pay the offered wage. Ubeda v. Palmer, 539 F.Supp. 647 (N.D.Ill.1982), aff'd mem., 703 F.2d 571 (7th Cir.1983), is relevant to this issue. Petitioner in Ubeda sought sixth preference immigration classification status based on the beneficiary’s ability to work as a governess. The proffered wage was $6,000 per year. The gross annual income revealed by petitioner’s tax returns was slightly more than $20,000. His net taxable income was approximately $13,000. From this income the petitioner supported a wife and five children. Although petitioner obtained a labor certificate pursuant to 8 U.S.C. § 1182(a)(14), the District Director, upheld by the district court, denied the petition on the basis that petitioner had failed to sustain his burden of proving the ability to pay the wage offered. Id. at 650.

The results in Ubeda indicate that it was reasonable for the Service to rely upon K.C.P.’s corporate income tax return in denying the application for a sixth preference status. Plaintiff failed to sustain its burden of proving that it is capable of paying Bollas the wage offered. Accordingly, the decision denying plaintiff’s application was not an abuse of discretion.

Plaintiff further contends that the Service used an improper time frame in determining K.C.P.’s ability to pay the wage certified by the DOL. The consideration by the Service of the merits of a petition “would necessarily be focused on the circumstances at the time of the petition.” In re Great Wall, 16 I. & N. Dec. at 145. The Associate Commissioner properly focused his inquiry to determine whether plaintiff could meet the wage offer at or around July 21, 1983, the time the petition was filed. On December 12, 1983, a request was made that plaintiff submit further evidence to prove whether it had the ability to pay the offered wage. Such evidence in the form of the corporate income tax return for the year ending, September 30, 1983 was not submitted until May 2, 1985. This document, which approximates the time when the petition was filed, constitutes the only evidence in the record that addresses the issue of financial ability. Reliance by the Service on such material does not amount to an abuse of discretion.

Finally, plaintiff argues, without reference to any supporting authority, that somehow its rights to due process were violated. This claim is meritless for the reason that plaintiff cannot demonstrate that it has a property interest “already acquired” that is entitled to protection. Board of Regents v. Roth, 408 U.S. 564, 576, 92 S.Ct. 2701, 2708, 33 L.Ed.2d 548 (1972). Since the granting of the petition and the issuance of a visa are within the discretion and authority of the Service, due process is served so long as discretion is exercised, as it was in this case, after a fair investigation, with notice and an opportunity to be heard. Id. at 576 n. 15, 92 S.Ct. at 2708 n. 15.

CONCLUSION

For the reasons presented, plaintiffs motion is denied and defendant’s motion is granted. The complaint is hereby dismissed.

SO ORDERED.


author: WILLIAM T. HART, District Judge.

text:
    Gary ADROW, Plaintiff, v. Willie J. JOHNSON and Investigator Geanes, Defendants.
    No. 84 C 10078.
    United States District Court, N.D. Illinois, E.D.
    Dec. 12, 1985.

      Kenneth N. Flaxman, Elizabeth Dale, Chicago, 111., for plaintiff.
    Iris E. Sholder, Randolph T. Kemmer, State’s Atty.’s Office, Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

WILLIAM T. HART, District Judge.

The plaintiff, Gary Adrow, is a corrections officer at the Cook County Department of Corrections. Adrow brought this action against Lieutenant Willie J. Johnson and Inspector Geanes, also employees of the Department of Corrections, pursuant to 42 U.S.C. § 1983. The defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

FACTS

Plaintiff worked a three p.m. to eleven p.m. shift at Cook County Jail on October 29, 1984. After plaintiff left the jail for a lunch break, Geanes received a telephone call from a person who refused to give his name. The caller told Geanes that a corrections officer who was then at lunch would be carrying narcotics into the jail when he returned. Geanes told Johnson about the call and they determined that plaintiff was the only officer who was then at lunch and would be returning to the jail.

When plaintiff returned, he was stopped by Geanes and Johnson and taken into a room, where he was searched. Plaintiff was told to empty his pockets and Geanes inspected the contents. Plaintiff was then told to remove his shirt, undershirt, shoes, socks and belt and was told to roll his pants down several inches from the top. In addition, plaintiffs handcuff case and lunch were searched.

Plaintiff contends that this search, based solely on an anonymous tip, violated his fourth amendment right to be free from unreasonable searches and that he is therefore entitled to damages under 42 U.S.C. § 1983.

Defendants make essentially two arguments in support of their motion for summary judgment. First, they argue that the search of plaintiff was “reasonable” within the meaning of the fourth amendment and that plaintiffs constitutional rights were not violated. Second, they argue that even if the search violated the fourth amendment, defendants acted within their qualified immunity and are therefore not liable for damages under § 1983.

A. Reasonableness of the Search

The fourth amendment prohibits only unreasonable searchs and seizures. Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct. 280, 283, 69 L.Ed. 543 (1925). Determining whether a particular search was reasonable “requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). This balancing requires a consideration of “the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is so conducted.” Id.

Courts have recognized that prisons are “unique places ‘fraught with serious security dangers.’ ” Security & Law Enforcement Employees, Dist. Council 82 v. Carey, 737 F.2d 187, 201 (2d Cir.1984) (quoting Bell, 441 U.S. at 559, 99 S.Ct. at 1884). It is because of these special security dangers and the attendant need for special security precautions that the ordinary constitutional requirement of a warrant based on probable cause is not required to satisfy the fourth amendment in some cases where searches have been conducted in prisons. See, e.g., Carey, 737 F.2d at 203. However, courts have also recognized that individuals do not lose all of their constitutional rights when they enter a prison, whether they be prisoners, visitors, or guards. See, Bell, 441 U.S. at 558-59, 99 S.Ct. at 1884-85 (prisoners); Hunter v. Auger, 672 F.2d 668, 674 (8th Cir.1982) (visitors); Carey, 737 F.2d at 201 (guards).

The question is whether this particular search was reasonable in the absence of a warrant. “In making this determination the reasonableness test ‘requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against “an object standard,” whether this be probable cause or a less stringent test.’ ” Carey, 737 F.2d at 204 (quoting Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979)). The question then becomes what test or standard should be required.

Defendants argue that the search of plaintiff was a “frisk,” that a frisk involves a relatively small intrusion on the plaintiff, and that frisks are a routine part of prison procedures so that plaintiff’s expectation of privacy is reduced. Defendants argue that there should therefore be a very low standard, or no standard at all.

Plaintiff, on the other hand, characterizes this search as a “strip search” and argues that a standard of “reasonable suspicion” should be applied. At least two courts have held that “reasonable suspicion” is the proper standard for determining whether a strip search of prison employees is constitutional. See, Carey, supra, 737 F.2d at 204; McDonell v. Hunter, 612 F.Supp. 1122, 1129 (S.D.Iowa 1985); cf. Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983) (requiring reasonable suspicion to strip search minor offender detainees).

However this search is characterized, it does not appear to fall within the description of a “frisk.” The Court of Appeals for the Seventh Circuit has identified “the standard frisk search” as “an outside-the-clothes check for concealed weapons.” Madyun v. Franzen, 704 F.2d 954, 956 (7th Cir.), cert. denied, 464 U.S. 996, 104 S.Ct. 493, 78 L.Ed.2d 687 (1983). This emphasis on being “outside-the-clothes” is consistent with the use of the term in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the famous case that made “frisk” a standard term of fourth amendment jurisprudence. The court in Terry emphasized the minimal scope of the search at issue in that case:

Officer McFadden patted down the outer clothing of petitioner____ He did not place his hands in their pockets or under the other surface of their garments until he had felt weapons____

Terry, 392 U.S. at 29-30, 88 S.Ct. at 1884. In the present case plaintiff claims that he was required to remove most of his clothing, a requirement totally inconsistent with the term “frisk.”

It is more difficult to decide whether the search of plaintiff was a “strip search.” The cases cited by plaintiff that were found to be “strip searches” involved either the removal of all of a person’s clothing, leaving them entirely naked, or the baring of the genital area. See, e.g., Carey, supra; United States v. Afanador, 567 F.2d 1325, 1328 (5th Cir.1978). Meanwhile cases in which searches were found not to be strip searches have involved relatively small matters like the removal of a shoe or the lifting of one’s skirt to the knees. See, e.g., United States v. Brown, 499 F.2d 829, 833-34 (7th Cir.), cert. denied, 419 U.S. 1047, 95 S.Ct. 619, 42 L.Ed.2d 640 (1974); United States v. Nieves, 609 F.2d 642 (2d Cir.1979), cert. denied, 444 U.S. 1085, 100 S.Ct. 1044, 62 L.Ed.2d 771 (1980).

Obviously there are searches that do not qualify as either “frisks” or “strip searches.” The Seventh Circuit has stated “not every request to remove an article of clothing or to remove something from pockets will transform a search into a strip search.” United States v. Dorsey, 641 F.2d 1213 (7th Cir.1981). However, it emphasized that the key factor in such a decision is “the level of embarrassment and intrusion” that the person searched feels. Id. at 1217. Unlike the individuals searched in Brown, supra, and Nieves, supra, plaintiff was asked to remove most of his clothing. While removing one piece of clothing may not qualify as a strip search, leaving one piece of clothing on an individual will not save that search from being classified as a “strip search.” Plaintiff’s claimed level of embarrassment at being asked to remove all of his clothing but his underpants (the difference between rolling his pants down and taking them off is negligible) is insufficient to pose an issue of fact for trial.

It then must be determined if the reasonable suspicion standard was met in this case. In order to justify the search of a correction officer under this standard, prison administrators “must point to specific and objective facts and rational inferences that they are entitled to draw from those facts in light of their experience.” Hunter v. Auger, 672 F.2d 668 (8th Cir. 1982). Inchoate unspecified suspicions do not suffice. Id. “Factors that may be taken into account in determining reasonable suspicion are: (1) the nature of tip or information; (2) the reliability of the informant; (3) the degree of corroboration; and (4) other facts contributing to suspicion or lack thereof.” Carey, 737 F.2d 187, 205 (2d Cir.1984) (citing United States v. Afanador, 567 F.2d 1325, 1329 n. 4 (5th Cir. 1978)).

Applying these factors to the present case, it is clear that the defendants did not have “reasonable suspicion” when they searched plaintiff. Suspicion was based only on an anonymous tip. This could have been made by anyone for any purpose. Defendants knew nothing about the reliability of the informant. There was nothing to corroborate the tip and nothing else to contribute to defendants’ suspicion.

B. Qualified Immunity

Defendants also argue that even if this search violated the fourth amendment, they are protected by the qualified immunity accorded to certain government officials and are therefore not liable for damages under 42 U.S.C. § 1983.

“Prison officials receive qualified, not absolute, immunity from liability in a section 1983 damages suit. Procunier v. Navarette, 434 U.S. 555, 561 [98 S.Ct. 855, 859, 55 L.Ed.2d 24], ... (1978).” Lock v. Jenkins, 641 F.3d 488, 498 (7th Cir.1981). Such officials “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.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The issue of whether the law was clearly established is a question of law for the court. Bass v. Wallenstein, 769 F.2d 1173, 1186 (7th Cir.1985); Llaguno v. Mingey, 763 F.2d 1560, 1569 (7th Cir.1985). Therefore the question becomes whether the constitutional right at issue—the right of a prison employee to be free from an intrusive search based only on an anonymous tip—was clearly established in October of 1984 when the search of plaintiff took place.

Very few opinions have addressed the issue of what standard applies to intrusive searches of prison employees. The Seventh Circuit has not considered the question. Of the cases cited by plaintiff, only Security & Law Enforcement Employees, Disk Council 82 v. Carey, 737 F.2d 187 (2d Cir.1984), and Armstrong v. New York State Commissioner of Corrections, 545 F.Supp. 728 (N.D.N.Y.1982), address that specific issue.

In Carey, a divided panel of the Second Circuit held that a “reasonable suspicion” standard would apply to “strip searches” of prison employees and applied that standard to a series of actual searches that had taken place in New York prisons. However, there are several reasons why Carey does not “clearly establish” the law.

First, it is not an opinion of this Circuit. See Joseph v. Brierton, 739 F.2d 1244, 1250 (7th Cir.1984). (“One of the cases [establishing the applicable standard] was a case from this circuit. As the law was, therefore, established, the defendants were not entitled to immunity.” Id. (emphasis added)).

Moreover, the standard in Carey is not the only standard that has been applied to such searches. While this Court believes it should be guided by the majority opinion in Carey, the dissent in Carey would “place no greater limitation on strip searches [of prison guards] than that they not be conducted arbitrarily, capriciously, or in bad faith.” Carey, 737 F.2d at 213 (Van Graafeiland, J., dissenting). This lower standard would be met in the present case. See also Gettleman v. Werner, 377 F.Supp. 445, 451 (W.D.Pa.1974) (finding the strip search of a prison employee to be constitutional and recognizing that “a wide latitude for judgment and discretion must be extended to state officials”); United States v. Kelley, 393 F.Supp. 755, 756-57 (W.D.Okla.1975) (finding the strip search of a reformatory guard to be constitutional and that the guard “could have no reasonable expectation of privacy while on prison ... grounds”).

Also, it must be noted that Carey was decided only three months before the search of plaintiff took place. Law enforcement personnel must be held to a reasonable objective standard of behavior. It must be a standard which speaks to what a reasonable officer should or should not know about the law he is enforcing. Saldana v. Garza, 684 F.2d 1159, 1165 (5th Cir.1982), cert. denied, 460 U.S. 1012, 103 S.Ct. 1253, 75 L.Ed.2d 481 (1983). It is not reasonable to require prison officials to be familiar with such a recent decision of another Circuit.

Finally, the court recognizes that while plaintiffs search has been characterized as more than a “frisk search,” doing so affects the interpretation of its regulations.

Therefore, because it was not “clearly established” that: (1) reasonable suspicion was required for intrusive searches of prison guards or (2) that the search of plaintiff was an intrusive search in violation of its “limited” “frisk search” regulations, defendants c<!>uld reasonably have believed that their search of plaintiff did not violate plaintiffs fourth amendment rights. Defendants therefore acted within the scope of their qualified immunity.

IT IS THEREFORE ORDERED that defendants’ motion for summary judgment is granted and judgment is entered in favor of the defendants.

      . Although the defendants dispute the extent of the search, they must accept the plaintiffs version of the search for purposes of this motion.

        . 42 U.S.C. § 1983 provides:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof 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 at law, suit in equity, or other proper proceeding for redress.
      The fourth amendment to our constitution provides:
      The right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      . The Department of Corrections General Orders provide:
      In order to secure the safety and security of the Department, searches shall be conducted at the shift change of all officers and civilians entering a security area of the Department____ Searches of employees shall be limited to a frisk search, use of metal detectors and examinations of purses, bags or other articles brought into the Department.
      If, in the opinion of the security staff, an individual employee or officer should be the subject of a more extensive search, the Superintendent or his/her designee of that Division shall immediately notify the Executive Director or Assistant Director in charge of Security to obtain authorization.
      General Order No. 9.8. (Defendants do not contend that paragraph 2 of this regulation was complied with.)

      . While defendants characterize the search as a “frisk” and rely on the department regulation (see note 2), they provide no support for this characterization.

      . If this search did not qualify as a "strip search,” it is possible that it could violate the fourth amendment under the more general balancing test applied by the Seventh Circuit in border search cases. See, United States v. Dorsey, 641 F.2d 1213, 1218-19 (7th Cir.1981). Rather than select a discrete standard in that case, the court preferred to balance "the level of suspicion of the agent against the level of indignity perpetrated upon the traveler.” Id. at 1219 (quoting United States v. Brown, 499 F.2d 829, 833 (7th Cir.1974)). Here the level of indignity of this intrusive search outweighs the "level of suspicion.” (The similarity between prison searches and border searches has been noted. See Carey, supra, at 204; Note, Constitutional Limitations on Body Searches in Prisons, 82 Colum.L.Rev. 1033 (1982)).

      . Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and United States v. Afanador, 567 F.2d 1325 (5th Cir.1978), do not deal with searches within prisons, a context carrying its own special considerations. See, Bell v. Woflish, 441 U.S. 520, 558-60, 99 S.Ct. 1861, 1884-85, 60 L.Ed.2d 447 (1978). Hunter v. Auger, 672 F.2d 668 (8th Cir.1982), deals with strip searches of visitors to prisons, a situation related to, but distinguishable from, the present case.