author: GESELL, District Judge.

text:
    ALASKA EXCURSION CRUISES, INC., Plaintiff, v. UNITED STATES of America, et al., Defendants; Westours, Inc., Intervening Defendant.
    Civ. A. Nos. 83-2366, 84-0889.
    United States District Court, District of Columbia.
    April 17, 1984.
   MEMORANDUM

GESELL, District Judge.

Plaintiff seeks preliminary injunctive relief preventing the United States from allowing defendant-intervenor Westours, Inc. to conduct boat tours during the coming summer within the harbor of Skagway, Alaska, pursuant to Charter Orders issued by the Maritime Administration (Marad) in 1977 and 1981. Plaintiff’s principal contentions are that Marad’s actions in granting the Charter Orders violated the Shipping Act of 1916, 46 U.S.C. § 802(a), were in conflict with a 1975 Marad General Policy Notice, and wére arbitrary and capricious. After considering the briefs of the parties and hearing full argument, the Court has determined that plaintiff’s motions for preliminary injunction should be denied.

The factors to be considered in passing on a motion for preliminary injunction are well established. They include (1) plaintiff’s likelihood of success on the merits; (2) whether irreparable harm will occur in the absence of an injunction; (3) whether other parties will be injured if an injunction is issued; and (4) where lies the public interest. Washington Metropolitan Area Transit Commission v. Holiday Tours, 559 F.2d 841, 843 (D.C.Cir.1977).

Plaintiff has demonstrated little or no likelihood of success on the merits. Its primary argument, that 46 U.S.C. § 802(a) prohibits a non-United States citizen from operating a vessel in coastwise trade, finds little support in the language of that provision read in light of the statutory scheme for regulation of coastwise trade. Section 802(a) states:

§ 802. Corporation, partnership, or association as citizen
(a) Within the meaning of this chapter no corporation, partnership, or association shall be deemed a citizen of the United States unless the controlling interest therein is owned by citizens of the United States, and, in the case of a corporation, unless its president or other chief executive officer and the chairman of its board of directors are citizens of the United States and unless no more of its directors than a minority of the number necessary to constitute a quorum are non-citizens and the corporation itself is organized under the laws of the United States or of a State, Territory, District, or possession thereof, but in the case of a corporation, association, or partnership operating any vessel in the coastwise trade the amount of interest required to be owned by citizens of the United States shall be 75 per centum.

Plaintiff contends that the last phrase of § 802(a) prohibits operation of a vessel in coastwise trade by any corporation not 75 percent United States-owned. The Court reads the statute quite differently.

Section 802(a) delineates which business entities are considered United States citizens “within the meaning of this chapter.” Among other requirements, a “controlling interest” in the entity must be owned by United States citizens. For those vessels “in the coastwise trade,” however, a greater degree of United States ownership is required; the entity which operates them must be 75 percent United States-owned in order to “be deemed a citizen of the United States” “within the meaning of this chapter.” Section 802(a) is thus definitional in character. It does not grant any privileges or impose any restrictions, but merely groups corporations, partnerships, and associations into those deemed United States citizens and those deemed non-citizens. Any privileges or restrictions which follow from this distinction must be found elsewhere in the Act.

With respect to coastwise trade two other complementary provisions serve to impose substantive restrictions on those not deemed United States citizens under § 802. Pursuant to 46 U.S.C. § 289 a vessel must be United States-owned in order to engage in coastwise trade. Moreover, approval must be obtained from the Secretary of Commerce before any United States-owned vessel can be leased to “any person not a citizen of the United States.” 46 U.S.C. § 808. Sections 289, 802 and 808, therefore, provide the statutory mechanism for ensuring American ownership and ultimate control of the coastwise merchant marine fleet. Operation of United States-flag vessels in coastwise trade by noncitizens is not, as plaintiff argues, absolutely barred by § 802(a), but is rather left to the discretion of the Secretary of Transportation under § 808.

No contention is made that West-ours is a United States citizen within the meaning of § 802(a). It therefore must obtain approval under § 808 to engage in coastwise trade, and it has done so. The vessels it operates are United States owned. Westours’ operation of its boat tours in the Skagway harbor thus appears to be in accord with the statutory requirements set down by Congress, and plaintiff’s argument that § 802(a) has been violated shows little merit.

Plaintiff also argues that the grant of Charter Orders to Westours by Marad conflicts with a 1975 General Policy Notice which stated that Marad “will no longer grant its approval pursuant to the provisions of 808 and 835 of Title 46, U.S.C., for the demise or bareboat charter of vessels in the coastwise trade to persons who do not meet the standards of 802(a) of Title 46, U.S.C.” 40 Fed.Reg. 28,832 (July 9, 1975).

It is clear, and the government does not contest, that Marad’s actions in approving Westours’ charters are inconsistent with the 1975 Notice. The issue is whether Mar-ad is bound by that statement. Because the General Policy Notice was simply a notification to the public of the course of conduct Marad intended to take, and was not issued as a rule or regulation pursuant to the Administrative Procedure Act, 5 U.S.C. § 552 et seq., the Court does not believe the Notice is likely to be held to have the binding effect of law.

The distinction between a substantive, binding rule and a mere statement of policy was explained by the D.C. Circuit in Pacific Gas & Electric Co. v. Federal Power Commission, 506 F.2d 33 (D.C.Cir.1974).

An administrative agency has available two methods for formulating policy that will have the force of law. An agency may establish binding policy through rulemaking procedures by which it promulgates substantive rules, or through adjudications which constitute binding precedents. A general statement of policy is the outcome of neither a rulemaking nor an adjudication; it is neither a rule nor a precedent but is merely an announcement to the public of the policy which the agency hopes to implement in future rulemakings or adjudications ____
The critical distinction between a substantive rule and a general statement of policy is the different practical effect that these two types of pronouncements have in subsequent administrative proceedings____ A properly adopted substantive rule establishes a standard of conduct which has the force of law____
A general statement of policy, on the other hand, does not establish a “binding norm.”

506 F.2d at 38 [footnotes omitted]. The 1975 General Policy Notice therefore could not have prevented Westours from seeking an exception to this expressed general policy nor prevented the agency from making an exception, at least under the special factual circumstances presented here.

Plaintiff’s claim that Marad’s approval of Charter Orders for Westours’ operations was arbitrary and capricious also appears to have little or no merit. The agency’s Charter Order in 1978 was based on the conclusion that (1) no United States flag vessel was providing the planned service; (2) the vessel to be used was United States built, owned, documented, and manned; (3) Congress had recognized that “lack of adequate water transportation in southeastern Alaska requires unique solutions and prohibitions”; and (4) the charter would increase tourism and hence aid the local economy. The 1981 Charter Order was based on substantially similar considerations. These conclusions are amply supported in the Administrative Record and are fully consistent with the agency’s responsibility to regulate coastwise trade in accord with the concerns expressed by Congress in the governing maritime statutes. Moreover, the agency’s deviance from its 1975 General Policy Notice is fully justified by the unique circumstances in southeastern Alaska, circumstances which Congress has explicitly recognized. See note 5, supra.

Plaintiff has thus shown little or no likelihood of success on its legal contentions. Turning to the other considerations enunciated in Holiday Tours, plaintiff has come forth with a significant showing of possible irreparable harm. Plaintiff’s financial condition is precarious, and if forced to compete with Westours in the coming tourist season it may face bankruptcy. Offset somewhat by this showing, however, is the fact that an injunction would also place significant economic burdens on Westours. In addition to the certain losses from a prohibition on continuation of its established harbor tour business, Westours would also face additional possible losses from the effect of such a prohibition on its other integrated tourist programs.

Finally, the public interest favors denying the preliminary relief sought by plaintiff. Evidence was presented that an injunction would decrease service availability to the detriment of the economy of southeastern Alaska. Conversely, plaintiff has made no showing that continuation of Westours’ harbor tours will operate to the detriment of the national interest in a strong merchant marine, given the still-significant United States interest in Westours’ vessels and the unique. circumstances in southeastern Alaska.

Particularly where, as here, issuance of a preliminary injunction would alter the status quo rather than preserve it, the Court must be reluctant to simply shift economic burdens from one party to another. A showing that “the facts and law clearly support the moving party” is necessary to justify such intrusive relief. Doe v. New York University, 666 F.2d 761, 773 (2d Cir.1981), quoted in National Association of Rehabilitation Facilities, Inc. v. Schweiker, 550 F.Supp. 357, 365 (D.D.C. 1982). No such showing has been made here. Taking into account plaintiff’s failure to demonstrate a significant likelihood of success on the merits, considerations of the public interest, and the balance of the equities between the parties, the Court must therefore conclude that preliminary injunctive relief is inappropriate and plaintiff’s motions for preliminary injunction must be denied. Appropriate Orders denying the motions in C.A. No. 83-2366 and C.A. No. 84-0889 are filed herewith.

      . Plaintiff originally sought relief which would, in essence, have barred Westours from operating vessels on any part of the Lynn canal in southeastern Alaska, of which Skagway Harbor is a part. At oral argument and in its reply brief, however, plaintiff limited the relief it seeks at this stage of the case to an order preventing Westours from conducting sightseeing tours in Skagway Harbor, where plaintiff operates its sightseeing business in competition with Westours.

      . Plaintiff has filed two separate actions, C.A. No. 83-2366 and C.A. No. 84-0889. Each suit involves the same parties. Although the issues raised in each suit are not completely identical, they largely overlap with respect to the motions for preliminary injunction and the cases were consolidated for oral argument. The Court considers here the issues presented by both motions; separate Orders accompany this Memorandum.

      . Westours vigorously contests plaintiff's standing to challenge the actions of Marad with respect to Westours’ Charter Orders. Although the issue is not clear cut, it would appear that plaintiff meets the standing criteria set out in Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), and its progeny. In light of the disposition reached herein, however, the Court need not make a final determination of this question.

      . Section 802(b) defines "controlling interest”; § 802(c) defines "75 per centum” ownership.

      . 46 U.S.C. § 289b (1981) grants an exception, however. That provision states that "passengers may be transported on Canadian vessels between ports in southeastern Alaska ... until the Secretary of Transportation determines that United States-flag service is available to provide such transportation.”

      . Plaintiff has raised the argument that West-ours' charters do not allow for sightseeing tours but only for point-to-point service. Westours specifically requested an interpretation of its charter from Marad with respect to this issue, and Marad concluded that the charter did allow for sightseeing tours in Skagway harbor. Such a conclusion was clearly permissible by the terms of the charter and does not constitute an abuse of discretion.

      . Plaintiff makes the novel argument that since Westours operates the vessels in question under a long-term bareboat charter it should be deemed the "owner” of the vessel, noting that a bareboat charterer is treated as an owner pro hac vice for some purposes under admiralty law. There is no indication, however, that Congress intended such a construction with respect to the statutes at issue. Absent such an indication the plain meaning of these statutes must be followed and the Court concludes that plaintiffs contention in this regard has little likelihood of success.

      . The additional contentions that Marad’s renewal of the Westours' vessels' licenses is unlawful under 46 U.S.C. § 65i, and that the Certificates of Documentation for those vessels are invalid under 46 U.S.C. § 65o, rest in whole on plaintiffs arguments with respect to § 802(a) and need not be discussed separately.

      . See Administrative Record filed in C.A. No. 83-2366, document 9.

      . Id., document 16.

      . See particularly the affidavits of Robert W. Ward, Jr., Director of the Skagway Convention and Visitors Bureau, and Don Dickey, of the Alaska Department of Commerce & Economic Development, Division of Tourism, attached as exhibits to Westours’ memorandum in opposition to plaintiff's motions for preliminary injunction.


source: Caselaw Access Project

author: ROBERT J. McNICHOLS, Chief Judge.

license: Public Domain

text:
    Pete NICACIO, Ramiro Lopez, Arnold Ramirez, Margie Martinez, Julio Martinez, Simon Gaytan, and Marcos Herrera, on behalf of themselves and all others similarly situated, Plaintiffs, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Allen Nelson, individually and in his official capacity as the National Commissioner of the INS; James Turnage, individually, and in his official capacity as District Director of the INS for the State of Washington; William T. Carty, individually and in his official capacity as Officer in charge of the Spokane substation of the INS; Andrew Hattery, individually and in his official capacity as Officer in charge of the Blaine INS office, Kenneth Langford, individually and in his official capacity as Chief Border Patrol Agent for the Spokane sector; Marshall Metzger, individually and in his official capacity as Chief Border Patrol Agent of the Blaine sector, border patrol agents Roy C. Johnson, Wayne T. Myhre, Johnny L. Minyard, Rodney L. Stenslie, Roy Sutton, Warren Goodwin and Does One through Twenty, individually and in their official capacity; All successors in office to the above named defendants, Defendants.
    No. C-82-1018 RJM.
    United States District Court, E.D. Washington.
    April 18, 1984.
    Supplemental Opinion Aug. 31, 1984.

      Victor H. Lara, Daniel G. Ford, Thomas B. Benjamin, Evergreen Legal Services, Farm Workers Division, Sunnyside, Wash., for plaintiffs.
    John Lamp, U.S. Atty., Carroll Gray, Wm. Beatty, Asst. U.S. Attys., Spokane, Wash., for defendants.
   MEMORANDUM DECISION

ROBERT J. McNICHOLS, Chief Judge.

This case presents yet another challenge to the constitutionality of the methods used by the Immigration and Naturalization Service (INS) in its efforts to enforce this nation’s immigration laws. Plaintiffs, on behalf of their class, contend that the practices and policies of the Border Patrol Agents and criminal investigators of the INS in conducting motor vehicle stops are violative of the Fourth Amendment right to be free from unreasonable searches and seizures. Plaintiffs seek injunctive and declaratory relief to enjoin defendants from unlawfully stopping, detaining, and interrogating members of the plaintiff class, and to declare defendants actions in conducting these stops to be unlawful. In addition, plaintiffs seek compensatory and punitive damages against all defendants other than the defendant INS. In response to plaintiffs’ claims, defendants maintain that the practices of the INS and its agents do not violate the constitutional rights of the plaintiff class, and further contend that the individual defendants are immune from liability under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Background

The challenged conduct by the government agents occurred primarily in the central part of the State of Washington. This area is devoted substantially to agricultural activities which, by their nature, require extensive employment of field labor. The labor force is composed mostly of persons of Hispanic appearance and Mexican heritage. The force is a mixture of United States citizens, legal aliens and illegal aliens.

The evidence indicates that there are approximately 25,000 Hispanic people in the Yakima area, the great majority of which are citizens or documented aliens. The number of illegal aliens apparently fluctuates.

During the periods when the labor requirements are the greatest, substantial numbers of field workers of Hispanic appearance are traveling the roads and highways of central Washington. As one might expect, they are dressed in work clothes and normally drive older and less expensive automobiles.

The INS in its efforts to discharge its lawful duty engages in various efforts to locate and apprehend illegal aliens. During certain hours of the day these efforts include the stopping of automobiles on the highway and interrogating the occupants. It is the lawfulness of these stops which is at issue here.

I. FACTS

The seven individual plaintiffs are United States citizens of Mexican descent, or permanent resident aliens of Mexican origin who reside in the Spokane Sector. Plaintiff class has been defined as:

All persons of Mexican, Latin, or Hispanic appearance who have been, are, or will be traveling by motor vehicle on the highways of the State of Washington.

In addition to the defendant INS, the following persons are named as defendants in their individual and official capacities:

1. Allen Nelson, National Commissioner of the INS;
2. James Turnage, District Director of the INS for the State of Washington;
3. William T. Carty, Officer in charge of the Spokane substation of the INS;
4. Andrew Hattery, Officer in charge of the Blaine INS office;
5. Kenneth Langford, Chief Border Patrol agent for the Spokane Sector;
6. Marshall Metzger, Chief Border Patrol agent for the Blaine Sector; and
7. Border Patrol Agents Roy C. Johnson, Wayne T. Myhre, Johnny L. Min-yard, Rodney L. Stenslie, Roy Sutton, and Warren Goodwin.

The record reflects that at the time this litigation was initiated, INS agents were regularly conducting roving patrol motor vehicle stops, detentions and interrogations in the Yakima Valley area of the Spokane Sector. Many of the stops were based solely on Hispanic appearance, or the agents’ subjective feelings or intuition, or the suspected illegal aliens’ innocuous behavior or appearance traits.

Persons stopped were required in most cases to provide identification or documentation of legal presence in the United States. Defendants keep no record of automobile stops in which no illegal aliens are apprehended.

II. LEGAL STANDARD OF REVIEW

The issue before this Court is whether the stops in question comply with Fourth Amendment mandates. The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated____” The focus in the area of Fourth Amendment law is the “reasonableness” of the governmental intrusion involved. Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979); see also United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). The reasonableness of a particular law enforcement practice is judged by considering all the circumstances, and balancing the intrusion on the individual’s privacy against the promotion of legitimate government interests. Delaware v. Prouse, 440 U.S. at 654, 99 S.Ct. at 1396; Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968). See also United States v. Mendez-Jimenez, 709 F.2d 1300, 1302 (9th Cir.1983).

The threshold inquiry is whether the factual circumstances of the law enforcement activity give rise to the level of a “seizure” under the Fourth Amendment. The Ninth Circuit has held that a person is seized within the meaning of the Fourth Amendment when “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Anderson, 663 F.2d 934, 939 (9th Cir.1981). There is little doubt that the stopping of a vehicle and the detention of its occupants constitutes a “seizure” of those persons. See United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981); Delaware v. Prouse, 440 U.S. at 653, 99 S.Ct. at 1395; United States v. Brignoni-Ponce, 422 U.S. at 878, 95 S.Ct. at 2578.

Having determined that the stops in question constituted “seizures” within the meaning of the Fourth Amendment, this Court must decide whether the conduct which is at issue here violates the plaintiffs’ constitutional rights. Individuals in automobiles travelling on this nation’s highways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of law enforcement officials. Delaware v. Prouse, 440 U.S. at 663, 99 S.Ct. at 1401.

United States v. Brignoni-Ponce provides the governing standard for this case:

... officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.

United States v. Brignoni-Ponce, 422 U.S. at 884, 95 S.Ct. at 2582.

Courts have used various terms to describe the elusive concept of what is sufficient to authorize law enforcement officials to conduct an automobile stop. Terms such as “articulable reasons,” “articulable facts” or “reasonable suspicion” fall short of providing clear guidance dis-positive of the factual situations which may arise. In the area of roving patrol stops, the Fourth Amendment requires more than the broad discretion sought by the INS. See United States v. Brignoni-Ponce, 422 U.S. at 882, 95 S.Ct. at 2580. Rather, the detaining officers must have a particularized and objective basis for suspecting the particular person stopped to be an illegal alien. See, e.g., United States v. Brignoni-Ponce, 422 U.S. at 884-85, 95 S.Ct. at 2581-82. Border Patrol officers may not lawful ly stop motorists for questioning on a roving patrol without reason to believe that a particular vehicle is carrying illegal aliens. The articulable fact standard is “measured against an objective reasonable man standard, not by the subjective impressions of the particular officer.” United States v. Rocha-Lopez, 527 F.2d 476, 477 (9th Cir. 1976).

The Supreme Court in Brignoni-Ponce made clear that a roving patrol may not stop a vehicle in an area near the border and question its occupants when the only ground for stopping the vehicle is that the occupants appear to be of Mexican ancestry. United States v. Brignoni-Ponce, 422 U.S. at 886, 95 S.Ct. at 2582. The Court enumerated other factors however, along with Mexican appearance, which may justify a stop. These factors include: characteristics of the area; information about recent illegal border crossings; the driver’s behavior such as erratic driving and obvious attempts to evade; and characteristics of the vehicle that would indicate the vehicle is transporting concealed aliens. United States v. Brignoni-Ponce, 422 U.S. at 883-84, 95 S.Ct. at 2581-82.

III. DEFENDANTS’ CONDUCT VIOLATED FOURTH AMENDMENT

The plaintiffs’ evidence establishes that many vehicles were stopped on the highways by INS agents under circumstances in which the occupants were of Hispanic appearance, dressed in work clothes and operating older automobiles. In most instances these stops were made during the active labor season at the time of day when the field workers would be going to or from work. In the numerous instances reflected by the evidence, all of the occupants of the vehicles were either U.S. citizens or documented aliens. The witnesses testified that they knew of no reason for being stopped other than perhaps their appearance.

INS was unable to present testimony of any of the agents who made the stops. Since the INS keeps no record of automobile stops which do not result in the apprehension of illegal aliens, this may be understandable. Nevertheless, the Court is left with undisputed testimony which indicates that numerous stops were made solely because of the Hispanic appearance of the occupants, the type of automobile and/or the time of day and year. I carefully observed the witnesses as they testified and am completely satisfied that they were being honest and candid in their testimony and sincerely believed that they were stopped solely because of the factors indicated. In order to give the Government the opportunity to meet this evidence, I permitted the testimony of certain INS officials who had no knowledge of the circumstances of any particular stop. These witnesses indicated their belief that 90% of the automobile stops result in the arrest of illegal aliens. They also speculated as to the reasons for some of the stops to which plaintiffs’ witnesses testified.

The testimony of the officers indicated that appearance and dress factors such as a “lean and hungry look,” an “unclean, unkept appearance,” “old clothes,” and “work clothes,” were taken into account in determining whether to stop a vehicle suspected of containing illegal aliens. Furthermore, vehicles that were “riding high,” “riding low” and “standard model Fords, Plymouths, Chevys 6-8 years old” were considered suspect by the INS agents. Finally, behavioral factors such as “avoiding eye contact, staring straight ahead,” or a “blank look” and similar factors were considered in making a stop.

Based on all of the evidence, I have concluded that the INS, during the period in question at least, followed a practice of stopping vehicles on the highway without adequate articulable facts to form a reasonable suspicion that occupants of the vehicles were illegal aliens. These stops were conducted in a manner violative of the Fourth Amendment.

A vital element of the Brignoni-Ponce test is whether the agents had reason to believe that the vehicle in question had come from the border. United States v. Brignoni-Ponce, 422 U.S. at 885-86, 95 S.Ct. at 2582-83; United States v. Torres-Urena, 513 F.2d 540, 542 (9th Cir.1975). There is no contention that the stops in issue here are border stops. Thus, factors such as “heavily loaded vehicles,” or vehicles with an extraordinary number of passengers,” or “vehicles riding low” should receive little or no consideration in an agents’ decision to stop a vehicle in a non-border area, absent some other articulable facts to support the decision to stop.

Furthermore, subjective behavioral factors such,as “avoiding eye contact,” a “blank look,” and similar factors are not within the meaning of Brignoni-Ponce. The driver’s behavior may be relevant, but only objective articulable factors such as obvious attempts to evade the officers, or independent information concerning a certain vehicle or its occupants, can support a reasonable suspicion. United States v. Brignoni-Ponce, 422 U.S. at 885, 95 S.Ct. at 2582. Failure to make eye contact with law enforcement officers may be the norm rather than the exception. In any case, persons of Mexican appearance are faced with a no win situation; they may be stopped by the INS if they look at the officers or if they do not look at the officers. Indeed, they may be stopped if they have no “look” at all. Absent something more, such factors do not constitute “articulable facts.”

Similarly, appearance and dress characteristics considered by the INS could apply to any United States citizen or lawful permanent resident alien. These factors are not determinative of the question of whether the person stopped is an illegal alien. Rather, these factors are a function of the individuals socioeconomic status, and may not be considered by the INS absent other objective facts supporting the decision to stop a vehicle on the highway and interrogate its occupants.

Thus, if the INS has a reasonable and articulable suspicion that the vehicle contains illegal aliens, based on objective factors such as erratic driving, obvious attempts to evade, or specific information about the vehicle or its occupants, the agents may stop the vehicle. The present subjective factors relied on by the agents of the INS however, constitute an insufficient basis for a reasonable suspicion that the vehicles stopped contain illegal aliens. Persons travelling in automobiles may not be subjected to stops based on such arbitrary and subjective factors.

IV. INJUNCTIVE OR DECLARATORY RELIEF

The plaintiffs contend that only injunctive relief will protect the rights of the plaintiffs and the members of the class. The INS, on the other hand, argues that an injunction would have such a chilling effect upon its agents that the difficult task which they now face in enforcing the laws would become almost impossible.

The problems generated by the massive influx of illegal aliens into this country cannot be minimized. The solution however, cannot be legitimately achieved by diluting the constitutional rights of our citizens to be free of unreasonable searches and seizure. The concurring opinions of the Chief Justice and Mr. Justice White (both joined by Justice Blackmun) in United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975) demonstrate the frustration of the judiciary in dealing with this problem.

Considering the extreme difficulty which the courts encounter in determining the legality or illegality of searches and seizures after the fact, how does one structure a workable injunction to govern law enforcement officers in the field before the fact? I have in mind the injunction issued by this Court in LaDuke v. Nelson, 560 F.Supp. 158 (E.D.Wa.1982). However, it is one thing to delineate the criteria for justifying the search of a home and quite another to do so with respect to automobiles. Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 151, 45 S.Ct. 280, 284, 69 L.Ed. 543 (1925).

It strikes me that the better approach in this case would be for the Court to enter an order clarifying to the extent feasible, the considerations which must prevail before the officers may stop vehicles on the highway and to require the INS to keep appropriate records of each incident, and specifically include in such record the factual basis which gives rise to the reasonable suspicion. I believe that it is appropriate for the Court to conclude that Government officials will abide by such a decree and perform their duties in a lawful manner.

Y. DAMAGES

The named plaintiffs in this action seek damages from supervisory officials as well as Border Patrol officers who conducted the stops. Plaintiffs contend that the supervisors are personally liable for failure to train and supervise their agents regarding the permissible “articulable facts” to consider in making a vehicle stop.

However, government officials performing discretionary functions are shielded from liability for civil damages if their conduct does not violate clearly established constitutional rights. Procunier v. Navarette, 434 U.S. 555, 565, 98 S.Ct. 855, 861, 55 L.Ed.2d 24 (1978). The legal standard for governmental immunity is set forth by the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2739, 73 L.Ed.2d 396 (1982):

If the law at that time was not clearly established an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.

Id. The Court then went on to say:

Where an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action takep ‘with independence and without fear of consequences.’ ”

Id. at 819, 102 S.Ct. at 2739.

In reviewing the cases in this Circuit and others applying the Brignoni-Ponce standard, I find it somewhat difficult to determine precisely where the “reasonable suspicion” or “articulable facts” line has been drawn.

It is necessary therefore to attempt to apply the principles established by Harlow to the circumstances which the INS officers face under the facts of this case. In my judgment, the rights of citizens to travel upon the public highways without unreasonable interference have been clearly established. However, the clarity of the law governing interference with such travel is another matter. The supervisory personnel of the INS did instruct the field officers that highway stops must be based on articulable facts. Although they used some examples which I have concluded were too subjective, I believe it would be unjust to hold them responsible for money damages on the theory that they failed to train or supervise their subordinates in an adequate manner. A contrary ruling would run afoul of the underlying reasoning of Harlow.

With respect to the agents who actually stopped the plaintiffs, none have been identified except for agent Eugene Davis. The only stop attributed to him was not unreasonable. He clearly had the requisite facts to give rise to a reasonable suspicion.

It is therefore my conclusion that neither the agents who made the stops nor the supervisory personnel of the INS should be held individually liable for damages as a result of the unlawful stops heretofore made.

SUMMARY

The court therefore reaches the following conclusions:

1. The actions of the government officers in stopping and interrogating the plaintiffs and the members of the class who may have been similarly stopped were unlawful.

2. The plaintiffs and the members of the class are entitled to a declaratory judgment governing future conduct of the government agents in stopping vehicles upon the public highways.

3. A declaratory judgment is more appropriate under all of the circumstances than an injunction.

4. The individual plaintiffs are not entitled to recover damages against the individual defendants.

Counsel shall confer with respect to further proceedings concerning attorneys fees and costs.

This memorandum decision shall constitute the findings of fact and conclusions of law pursuant to Rule 52(a), Federal Rules of Civil Procedure.

IT IS SO ORDERED.

DECLARATORY JUDGMENT

The Court having heretofore issued its Memorandum Decision, findings of fact and conclusions of law,

1. IT IS HEREBY ORDERED:
It is unlawful for the United States Immigration and Naturalization Service, its agents and employees and Border Patrol agents: To stop, detain, and interrogate persons of Hispanic appearance travel-ling by motor vehicle on the highways of the State of Washington without a valid search or arrest warrant, or unless they have a particularized reasonable suspicion based on specific articulable facts and rational inferences therefrom that the occupant of a vehicle is an alien unlawfully in the United States. Further, these specific articulable facts justifying the motor vehicle stops must be based upon particularized objective factors, and not solely upon the agents’ individual subjective impressions.
2. IT IS FURTHER ORDERED that the United States Immigration and Naturalization Service, its agents and employees and Border Patrol agents: Shall not stop, detain, and interrogate persons of Hispanic appearance travelling by motor vehicle on the roadways of the State of Washington without documenting in writing the specific articulable facts on which defendants base their particularized reasonable suspicion for stopping, detaining and interrogating these persons. Defendants shall maintain this documentation for a period of not less than three years.

Copies of this Judgment shall be posted in the various INS and Border Patrol offices within the region and the supervisory personnel of INS shall proceed forthwith to implement the provisions of this Judgment.

SUPPLEMENTAL OPINION

In view of the recent Supreme Court decision in Immigration and Naturalization Service v. Delgado, — U.S.-, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984), the Memorandum Decision of April 17, 1984, is hereby supplemented as follows.

In Delgado, the Immigration and Naturalization Service (INS) acting pursuant to warrants, conducted a “factory survey” of the work force of Southern California Davis Pleating Company in search of illegal aliens. During the survey, INS agents were positioned near the factory exits, while other agents moved about the factory questioning most employees about their citizenship. If the officers were satisfied that the employee being questioned was a United States citizen, the questioning ended, and the agent moved on to another employee. At all times, the employees were free to walk around the factory and continue their work.

The Supreme Court held that these factory searches did not result in the seizure of the entire work force, despite the fact that the INS placed agents near the exits of the factory. 104 S.Ct. at 1763. The Court noted that while the surveys may have caused some disruption, the workers were free to move about the factory and continue their business. Id. Thus, the Court reasoned that “since most workers could have had no reasonable fear that they would be detained upon leaving, we conclude that the work forces as a whole were not seized.” 104 S.Ct. at 1764.

The Supreme Court’s ruling in Delgado is distinguishable from the facts of the instant case. Here, the INS was stopping automobiles on the highway, and detaining and interrogating the occupants. No warrants were sought or obtained. The INS officers were in uniform; the vehicles were marked, and in most instances, flashing blue strobe lights were activated to alert the driver of the vehicle to stop. There is little doubt that the stopping of a vehicle and the detention of its occupants constitutes a “seizure” of those persons within the meaning of the Fourth Amendment. See United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981); Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395, 59 L.Ed.2d 660 (1979); United States v. Brognoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975).

Unlike the persons questioned in Delgado, the occupants of the vehicles in this case not only felt that they were not free to leave, but in fact were not free to leave until so advised by the officers. They were seized within the meaning of the Fourth Amendment.

IT IS SO ORDERED.

      . The apprehension efforts of the INS are more concentrated during the seasons when the need for labor is the greatest since it is during those periods that the number of illegal aliens in the area increases.

      . The Spokane Sector is comprised of the Eastern District of Washington, a portion of Northern Idaho, and a portion of Western Montana.

      . Except for one stop which occurred in the Blaine Sector in Northwestern Washington.

      . The concurring opinions applied equally in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).

      . The Court stated that a person is not "seized” within the meaning of the Fourth Amendment “[u]nless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded .... ” 104 S.Ct. 1763.


author: GETZENDANNER, District Judge:

text:
    Carol DANIELSON, et al., Plaintiffs, v. DuPAGE AREA VOCATIONAL EDUCATION AUTHORITY, Defendant.
    No. 83 C 7047.
    United States District Court, N.D. Illinois, E.D.
    April 19, 1984.

      Lawrence Jay Weiner, Weiner, Neuman & Spak, Chicago, 111., for plaintiffs.
    S. Bennet Rodick, Stanley Eisenhammer, Robert Kohn, Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

This civil rights action is before the court on the motion to dismiss of defendant Du-Page Area Vocational Education Authority (“DAVEA”). Plaintiffs are seven women now employed by DAVEA, suing on their own behalf and not as class representatives. The four-count complaint contains claims based on both federal and state law. Count I alleges that DAVEA discriminated against plaintiffs on account of their sex by giving them “less compensation and other terms and conditions of employment than males performing equal, comparable, or equivalent duties or functions.” (Complaint ¶ 5.) This discrimination occurred “[f]rom the time of the initial placement and during the course of all subsequent employment by DAVEA____ (Id.) Relief in Count I is based on alleged violations of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), and the Civil Rights Act of 1871, 42 U.S.C. § 1983. Count II is based on the same underlying facts but bases its claim for relief on a violation of the Fair Labor Standards Act, 29 U.S.C. § 206(d)(1) (“Equal Pay Act”). Counts III and IV are the pendent state claims which reincorpórate the same factual allegations of the federal claims. Count III alleges a violation of The School Code, Ill.Rev.Stat., ch. 122, ¶ 24-7, and count IV alleges a violation of the Illinois Constitution. DAVEA has moved to dismiss all claims for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. Fed.R. Civ.P. 12(b)(1) and (6). In addition, DA-VEA moves to strike plaintiffs’ claims for punitive damages.

Counts I and II

DAVEA first argues that the court lacks subject matter jurisdiction over the Title VII and Equal Pay Act claims. DAVEA asserts that plaintiffs have not sufficiently alleged the exhaustion of administrative remedies, nor have they alleged that they filed their charge before the EEOC within 180 days after the last discriminatory act. The allegations relating to exhaustion on the Title VII charge areas follows:

Each plaintiff has filed a Charge of Discrimination before the Equal Employment Opportunity Commission, has received a Right to Sue letter therefrom, and has instituted this action within 90 days from the date of said Right to Sue letter, thereby exhausting all statutory and administrative procedures prerequisite to instituting this action.

(Complaint Ct. I, ¶ 7.) The exhaustion allegations to the Equal Pay Act claim are substantially the same as the above, with the addition that “[e]ach of the plaintiffs has given her consent in writing to become a party to this action. Said consents are attached to the Complaint.” (Complaint Ct. II, ¶ 7.) The right to sue letters are issued by the Attorney General’s office, 42 U.S.C. § 2000e-5(f)(1) and are dated July 12, 1983, eighty-seven days before the suit was filed on October 7, 1983.

Jurisdiction over the subject matter of the complaint must be shown affirmatively on its face; absent proper jurisdictional averments, the complaint may be dismissed. Haley v. Childers, 314 F.2d 610 (8th Cir.1963). A suit for employment discrimination should not be dismissed when general allegations of compliance with administrative conditions precedent are made. E.E.O.C. v. Airguide Corp., 395 F.Supp. 600 (S.D.Fla.1975), rev’d on other grounds, 539 F.2d 1038 (5th Cir.1976). For example, the jurisdictional averments held adequate in E.E.O.C. v. Wah Change Albany Corporation, 499 F.2d 187 (9th Cir.1974), included a general claim that “(a) conditions precedent to the commencement of this action have been fulfilled.” Id. at 188 n. 1. Here, plaintiffs have alleged that they have exhausted their administrative remedies. They have explained that they received their right to sue letters and commenced their suit within ninety days of its receipt.

DAVEA counters that plaintiffs do not allege that any discrimination occurred within 180 days before the filing of their charge before the EEOC. Even if such a specific allegation of compliance with administrative remedies were required in the pleadings, plaintiffs have fulfilled this standard. In their fifth allegation, they state that the discrimination in compensation and other terms and conditions of employment continued “during the course of all subsequent employment by DAVEA ____” As plaintiffs are still employed thereby, (Complaint ¶ 4), the clear implication is that the discrimination has continued. This implication is supported by plaintiffs’ memorandum in opposition to the motion to dismiss, in which they explain that the discrimination continues to the present. (Plaintiffs’ Memorandum in Opposition p. 7.)

Defendant continues that plaintiffs’ theory of timely filing is one of “continuing violation.” As such, their allegations do not fit within the doctrine as it is explained in Stuart v. C.P.C. International, 679 F.2d 117 (7th Cir.1983). The court notes that at least on the discriminatory compensation claims, which are explained to continue to the present, plaintiffs have clearly alleged a discriminatory act occurring within 180 days of the filing of the charge. One court explains:

Under Title VII, discrimination as to salary is held to be a continuing violation of the law. A charge attacking a continuing violation such as salary discrimination is timely if it is filed within 180 days of the last act of alleged discrimination. (Citations omitted.)
4s * * * * *
Here ... plaintiff claims that defendant discriminated against her in pay during her two years of teaching, a violation that was continuing when she filed her EEOC charge____ Plaintiff did, therefore, comply with the 180 day rule, and neither of her claims for salary discrimination are time-barred under Title VII.

Fisher v. Dillard University, 499 F.Supp. 525, 528-529 (E.D.La.1980); e.g., Boyd v. Madison County Mutual Insurance Co., 653 F.2d 1173, 1176 (7th Cir.1981), cert. denied, 454 U.S. 1146, 102 S.Ct. 1008, 71 L.Ed.2d 299 (1982). Hence, the salary discrimination claims are not barred. The court can make no holding on whether any of the other “terms and conditions” have been timely brought before the EEOC, either as acts of discrimination occurring within the 180-day period or as continuing violations. These other types of discrimination are not explained in the complaint. As to them, therefore, the court accepts plaintiffs’ general allegation that administrative remedies have been properly exhausted.

One aspect of administrative exhaustion concerns the court. Plaintiffs are required, under 42 U.S.C. § 2000e-5(c) and (e), to file a complaint with the Illinois Human Rights Commission before filing with the EEOC. The court’s concern is based on plaintiffs’ insistence in its discussion of the state counts that they need not exhaust their remedies before the Illinois commission. This suggests that they may not have thought it necessary to file their complaint with the Illinois Commission. It is possible, however, for plaintiffs to have failed to exhaust their state administrative remedies for purposes of bringing a state claim, while still satisfying the much more limited exhaustion required under federal law. The court simply notes this point, and accepts plaintiffs’ allegations that exhaustion under federal law was properly accomplished.

DAVEA next claims that Title VII does not protect against discrimination based on the theory of “comparable worth.” It devotes six pages of its memorandum to examining the leading cases on this difficult concept, County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981), and AFSCME v. State of Washington, 578 F.Supp. 846 (W.D.Wash.1983). The court deems a dis cussion of this issue is premature at this stage. Plaintiffs’ complaint alleges that they were discriminated against by receiving less favorable terms and conditions of employment than “males performing equal, comparable, or equivalent duties and functions.” (Complaint 115.) There is no indication in the complaint or in plaintiffs’ memorandum, of what they mean by the word “comparable.” Even if the court were to deem the word a term of art, meaning the theory of “comparable worth” (that is, for example, comparing the terms and conditions of employment of male truck drivers and female lab technicians), there is no indication from the general allegations of the complaint that plaintiffs are proposing such a theory. That they are not is supported by their grouping of the term with the words “equal” and “equivalent.” Moreover, their use of the word on page four of the memorandum indicates that they do not understand the word to be a proxy for the “comparable worth” theory. The complaint, in sum, does not allow the court to ascertain whether plaintiffs are proposing that Title VII protects against discrimination between jobs with comparable worth. On the other hand, the complaint makes clear that it is comparing at least some jobs that are equal or equivalent. Based on these observations, the court will not reach the “comparable worth” issue. DAVEA is not injured by the court’s deeming this issue premature, as even were the court to strike “comparable” from the complaint, allegations of discrimination against plaintiffs holding jobs “equal” or “equivalent” to those of men would prevent the court from dismissing the complaint.

Defendant’s next claim is that plaintiffs have not alleged facts sufficient to state a claim under Title VII, § 1983, and the Equal Pay Act. While plaintiffs’ allegations are not as specific as they could be, plaintiffs have alleged enough facts to state a claim. They allege that they are women, working as school teachers for DAVEA. They assert that they were discriminated against in their terms and conditions of employment on the basis of their sex. They claim that men in equal, equivalent, or comparable positions received more favorable terms and conditions of employment. Plaintiffs have properly stated claims under these statutes.

DAVEA’s final argument addressed to the federal claims concerns punitive damages under § 1983. (Plaintiffs do not deny that Title VII and the Equal Pay Act prohibit punitive damages.) The court finds that plaintiffs have not alleged facts that would allow them to recover punitive damages. Hence, the claims for punitive damages are stricken.

The Supreme Court in City of Newport v. Fact Concerns, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), recently reaffirmed the general rule that municipalities are not liable for punitive damages. In its historical discussion of actions against municipalities and of the enactment of § 1983, the Court made clear that punitive damages have not been awarded or thought appropriate even when municipalities have been found to have acted intentionally and maliciously. The Court concluded that punitive damages as a “punishment” cannot be asserted against the governmental entity itself. Even given the deterrence object of § 1983, such damages against a municipality are not justified. Id. at 267-268. During this discussion, the Court mentioned in a footnote that “It is perhaps possible to imagine an extreme situation where taxpayers are directly responsible for perpetrating an outrageous abuse of constitutional rights____ [S]uch an occurrence is sufficiently unlikely that we need not anticipate it here.” Id. at 267 n. 29. Plaintiffs have admitted that none of the cases examining complaints under this standard have found municipalities liable for punitive damages. The court is persuaded that the allegations before it do not set forth a case of direct taxpayer responsibility for “outrageous abuse of ... rights.” Plaintiffs’ general allegations simply set forth that DAVEA knew or should have known that its conduct was in violation of plaintiffs’ rights. (Complaint 116.) There is no allegation of taxpayer responsibility for DAVEA’s conduct. The prayers for punitive and exemplary damages are stricken from Counts I and II.

DAVEA’s motion to dismiss Counts I and II is denied. Its motion to strike the prayers for punitive and exemplary damages in these counts is granted.

Counts III and IV

As the court has not dismissed the federal claims, it must examine whether it has pendent jurisdiction over the state claims. In this case, it is clear that the court may exercise pendent jurisdiction over Counts III and IV, as they rest on the same factual allegations found in the federal claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). The court must therefore address DAVEA’s assertion that these two counts should be dismissed under Rule 12(b)(1) and (6).

DAVEA contends that plaintiffs must exhaust state administrative remedies available under the “Illinois Human Rights Act,” Ill.Rev.Stat, ch. 68 ¶ 1-101 et seq., before filing a private action under ¶ 24-7. They also argue that in any case, a private claim cannot be implied under 1124-7. It is clear that private claims have been brought under other sections of The School Code. E.g., Winks v. Board of Education of Normal Community Unit School District No. 5, 78 ILL.2d 128, 398 N.E.2d 823, 34 Ill.Dec. 832 (1979) (private claim under ¶ 24-6’s sick leave provisions). However, the court has been unable to find eases involving unlawful discrimination that have been brought directly under The School Code. For example, in Legg v. Illinois Fair Employment Practices Commission, 28 Ill.App.3d 932, 329 N.E.2d 486 (1978), a teacher brought his charge of race discrimination under § 3 of the Fair Employment Practices Act, 111. Rev.Stat., ch. 48, ¶¶ 851, 853 (1973). Among his claims were that ¶ 24-4 of The School Code, prohibiting employment discrimination, was violated in his case. Cf. Schoneberg v. Grundy County Special Education Cooperative & Board of Education District No. 54, 67 Ill.App.3d 899, 385 N.E.2d 351, 24 Ill.Dec. 439 (1979) (a teacher charging discrimination in compensation based on sex brought her claim under the Fair Employment Practices Act, Ill.Rev.Stat. ch. 48 ¶ 856.06). The court doubts such a direct private claim is available. However, assuming a direct claim may be brought under ¶ 24-7, must the Act’s administrative procedures be followed?

The Illinois Human Rights Act (the “Act”) was enacted on December 6, 1979, to become effective on July 1, 1980. As such, it is clearly a more recent legislative pronouncement than The School Code, which was enacted in 1961, to become effective on July 1, 1961. The Act’s Declaration of Policy states that the public policy of the state includes freedom from unlawful discrimination and implementation of constitutional guarantees. Ill.Rev.Stat., ch. 68 ¶ 1-102(A), (C). Included is also a public policy against “Unfounded Charges of Discrimination.” Id. at (E). To effectuate these policies, the Act provides an elaborate system of administrative procedures and regulations. See id. at ¶¶ 7-101 to 111 and 8-101 to 112. As the Illinois Appellate Court has explained recently, “[s]everal other provisions of the Illinois Human Rights Act reveal a legislative intent to promote the settlement of discrimination charges prior to formal proceedings before the Commission.” Board of Education of Hawthorne School District No. 17 v. Eckmann, 103 Ill.App.3d 1127, 432 N.E.2d 298, 59 Ill.Dec. 714 (1982) (proceeding relating to school teacher’s charge of sex discrimination brought under the provisions of the Act). The provisions dealing with settlement demonstrate an intention to promote settlement generally. See id. ¶ 7-103(D). Finally, the Act provides that “[ejxcept as otherwise provided by law, no court of this state shall have jurisdiction over the subject of an alleged civil rights violation other than as set forth in this Act.” Id. at 11 8-111(D). The Act’s role as a preemptive vehicle for resolution of employment discrimination cases in Illinois, Thakkar v. Wilson Enterprises, Inc., 120 Ill.App.3d 878, 458 N.E.2d 985, 987, 76 Ill.Dec. 331, 333 (1983), pet. for leave to appeal granted, No. 59683 (January 27, 1984), is demonstrated in two recent Illinois Appellate Court decisions. In Thakkar, the Act was held to provide the exclusive remedy for violations of Illinois Constitution, article I, section 17. Id. 458 N.E.2d at 989, 76 Ill. Dec. at 335. And, in Hutchcraft Van Service, Inc. v. City of Urbana Human Relations Commission, 104 Ill.App.3d 817, 433 N.E.2d 329, 60 Ill.Dec. 532 (1982), the Court examined how the anti-discrimination ordinance of Urbana, Illinois, a home rule unit, interacted with the Act. The Court concluded that in enacting the Act, the state legislature “preempted the subject of the freedom from unlawful discrimination and that insofar as the Urbana ordinance attempts a broader scope than that set forth in [the Act], it is not permissible.” 433 N.E.2d at 334, 60 Ill.Dec. at 537.

Hence, it is clear that Illinois courts have broadly interpreted the applicability of the Act and the reach of its administra-

tive procedures. In view of this approach, the court must determine whether a charge of unlawful discrimination in the employment of school teachers must be brought under the Act, or may be brought under The School Code, without any resort to the Act’s comprehensive administrative and settlement devices. The court finds that the Act’s procedures must be followed. First, the Act contains public policy objectives that are not expressed in the School Code and that are applicable to all cases of employment discrimination. These are the policies in favor of nonjudicial dispute resolution and against the filing of unfounded claims. There is no indication in the Act that claims concerning school-related employment should not be subject to procedures designed to implement these objectives. The language of ¶ 8-111(D), “[ejxcept as otherwise provided by law,” indicates that unless a clear intent to bypass the Act’s provisions is expressed, a statute proscribing civil rights violations is subject to the Act’s nonjudieial dispute resolution mechanisms. Obviously, The School Code, enacted before the Act, could not have included language demonstrating such intent in its provisions. And, ¶ 24-7 does not appear to have been amended after the enactment of the Act. However, the language of 1124-7 does not persuade the court that it was meant to provide a civil claim independent of any comprehensive anti-discrimination scheme that might eventually be enacted. It is not even clear that it provides a basis for a claim at all. A similar anti-discrimination provision, ¶ 24-4, provides only that violators are subject to monetary penalties and shall be deemed guilty of a Class B misdemeanor. Finally, the lack of any cases brought as direct claims under either ¶ 24-4 or ¶ 24-7 supports the court’s conclusion. Hence, Count III is dismissed.

The court also dismisses Count IV for lack of subject matter jurisdiction. Count IV purports to be a direct action under §§ 17, 18 of article 1 of the Illinois Constitution. The Illinois Appellate Court has already held in Thakkar that claims under § 17 are subject to the Act’s administrative procedures. The Thakkar court’s reasoning is persuasive and the court chooses to follow it. This action, claiming employment discrimination based on sex, is clearly covered by the Act’s provisions. The court is also persuaded that the logic of Thakkar requires the action, to the extent it is brought under § 18, to be subject to the Act’s administrative procedures. The court does not determine whether a claim could be maintained directly under § 18 or, if so, whether a claim alleging some other type of discrimination based on sex would be subject to the act’s procedures. The court simply finds that if a claim for employment discrimination could be brought under § 18, it is subject to the Act’s nonjudicial procedures.

The motion to dismiss Counts I and II is denied. The prayers for relief for punitive and exemplary damages are stricken. Counts III and IV are dismissed for lack of subject matter jurisdiction.

It is so ordered.

      . The Illinois Human Rights Act replaced the Fair Employment Practices Act effective July 1, 1980.

      . Section 17 provides:
      All persons shall have the right to be free from discrimination on the basis of race, col- or, creed, national ancestry and sex in the
      hiring and promotion practices of any employer or in the sale or rental of property.
      These rights are enforceable without action by the General Assembly, but the General Assembly by law may establish reasonable exemptions relating to these rights and provide additional remedies for their violation.

      . Another court in this district dismissed a claim brought under § 17, explaining it was inappropriate for a federal court to exercise pendent jurisdiction over a claim involving undecided, complicated, and important state law issues. It went on to note that were it to exercise jurisdiction over the claim, it doubted that a direct claim could be brought given the comprehensive Illinois Human Rights Act designed to remedy the same types of violations. Curtis v. Continental Illinois National Bank, 568 F.Supp. 740 (N.D.Ill.1983) (Bua, J.).

      . Section 18 provides:
      The equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts.


text:
    Vonthia I. FRIDY, Plaintiff, v. H. Carl MOULTRIE, et al., Defendants.
    Civ. A. No. 83-3475.
    United States District Court, District of Columbia.
    May 7, 1984.
    Selma W. Samols, Silver Spring, Md., for plaintiff.
    Jane E. Petkofsky, Asst. Corp. Counsel, Washington, D.C., for defendants.
   MEMORANDUM

GESELL, District Judge.

Defendants have moved to dismiss or for summary judgment on plaintiff’s complaint alleging violations of Title VII, 42 U.S.C. § 2000e-3, and 42 U.S.C. §§ 1981, 1983, as well as of the Fourteenth Amendment to the Constitution. Plaintiff’s claims of race and sex discrimination stem from her failure to obtain a promotion in 1972 while an employee of the District of Columbia Superior Court. After considering defendants’ motion, this Court concludes that plaintiff’s claim under Title VII is barred by the equitable doctrine of laches and plaintiff’s remaining claims are barred by the statute of limitations. Accordingly, summary judgment must be granted to defendants and the complaint dismissed.

Under the principles established in Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), where, as here, no federal statute of limitations governs the cause of action brought under federal law, the Court must look to the most analogous state statute of limitations. 421 U.S. at 462, 95 S.Ct. at 1721. While recent case law leaves some doubt as to whether claims brought in the District of Columbia under 42 U.S.C. §§ 1981, 1983, and the Fourteenth Amendment are subject to a one-year statute of limitations or a three-year period, in either event it is clear that plaintiff has failed to bring these claims in a timely manner. Plaintiff’s cause of action arose over eleven years ago; the time for filing suit under the provisions cited has long since passed, and those claims must therefore be dismissed.

Plaintiff’s Title VII claim is also barred by the doctrine of laches. In this regard, the unusual procedural background of this case, which is not in material dispute, must be set forth.

Following denial of a competitive promotion plaintiff filed a discrimination complaint with the Equal Employment Opportunity Commission (EEOC) on June 29, 1972. Plaintiff did not, however, notify the Superior Court of her claim and the EEOC did not give notice of the claim until March, 1983. The employer was thus unaware of the claims being made for over a decade.

For nearly three years after filing her administrative complaint plaintiff apparently did not pursue the matter further. On April 15, 1975, she was notified by the EEOC that it did not have jurisdiction over her Title VII claim, but that her claim might come within the jurisdiction of the Civil Service Commission. Plaintiff was also told that she could request a right-to-sue letter at that time. Plaintiff did request a right-to-sue letter, and received in response an inquiry from the EEOC, which had apparently lost her file, asking who she had charged so her request for a right-to-sue letter could be processed. Plaintiff never responded to this inquiry.

Instead, plaintiff’s attorney by letter dated June 17, 1975, asked the Civil Service Commission what administrative procedure should be followed. On July 9, 1975, the Commission denied it had jurisdiction over plaintiff’s case and returned her claim to the EEOC. Plaintiff’s subsequent correspondence with both the EEOC and the Commission failed to resolve the question of which agency should hear her administrative claim. Rather than pursue her substantive claims in court plaintiff, after further delay, brought suit in this Court to determine which agency had jurisdiction over her administrative claim. Fridy v. Bell, et al., C.A. No. 78-1804 (D.D.C. filed Sept. 26, 1978) (Hart, J.). In April of 1979 the case was settled when the EEOC agreed to accept jurisdiction of plaintiff’s case.

In September, 1980, plaintiff inquired of EEOC concerning the status of her case. She received no response. Plaintiff renewed her inquiry some 17 months later in February, 1982. The EEOC’s response indicated that it knew nothing of plaintiff’s ease. After some further communication, plaintiff was advised in January, 1983, that the matter was now under investigation by the EEOC. Finally, as a result of a request by plaintiff’s attorney, the EEOC issued a right-to-sue letter on September 8, 1983, and the present suit was filed on November 18, 1983.

The doctrine of laches provides a defense where the evidence shows “both that the delay [in bringing suit] was unreasonable and that it prejudiced the defendant.” Powell v. Zuckert, 366 F.2d 634, 636 (D.C. Cir.1966). In the case now before the Court both the necessary elements are present.

Plaintiff does not dispute defendants’ assertion that at the time of the events complained of she held a competitive service position and sought promotion to another competitive position. Under 42 U.S.C. § 2000e-16(c), therefore, plaintiff was entitled to bring an action in this Court after 180 days had elapsed from the date her complaint was filed with the EEOC. The sorry performance by the EEOC with respect to plaintiff’s administrative claim does not alter this fact. The agency’s inadequate and confused responses to plaintiff’s repeated, albeit widely-spaced, inquiries concerning the status of her claim must have alerted plaintiff, who has been aided by counsel since at least mid-1975, that she should seek her remedy in court. Plaintiff has clearly slept on her oars.

The District of Columbia has been seriously prejudiced by plaintiff’s delay. Not until September, 1978, at the earliest, when plaintiff filed suit against the EEOC and the Civil Service Commission, did the District have any awareness whatsoever of some kind of claim. More realistically, it was not until contacted by the EEOC in March, 1983, that her employer had actual notice of the specific incident complained of. Plaintiff has never availed herself of any grievance procedures within the Superior Court or otherwise previously served the Court with specific notice of her claims.

All official records relating to the promotion at issue have long since been discarded. Key personnel have retired, and the memories of all concerned have undoubtedly faded. Any attempt to reconstruct the promotion decisionmaking process as it existed over a decade ago would be virtually impossible today. The District is thus at a severe disadvantage in preparing its defense due to the extended lapse of time since the events complained of occurred. Where, as here, plaintiff had not even provided the District government with notice of her claims during this period, such prejudice to its ability to mount a defense is fatal to plaintiff’s much belated claims under Title VII. EEOC v. Dresser Industries, Inc., 668 F.2d 1199, 1203 (11th Cir. 1982).

While plaintiff cannot in any way be charged with the EEOC’s failure to carry out its mandated responsibilities, plaintiff has also slept on her rights to the detriment of defendants and must take responsibility for the long delay in bringing the present court action. Summary judgment is therefore granted to defendants. An appropriate Order is filed herewith.

      . Compare Parker v. Baltimore & Ohio Railroad Co., 555 F.Supp. 1182 (D.D.G.1983), with Hughes v. C & P Telephone Co., 583 F.Supp. 66, 33 F.E.P. 1648 (D.D.C.1983).

      . The filing of an administrative Title VII claim does not, of course, toll the statute with respect to plaintiffs other independent claims. Railway Express Agency, 421 U.S. at 466, 95 S.Ct. at 1723. It is also clear that plaintiff has failed to state a claim under these provisions as to defendants Moultrie and Wright; the complaint only alleges that defendant Schumann was involved in the decision not to promote plaintiff. Complaint ¶ 6. See Eskridge v. Jackson, 401 A.2d 986, 989 n. 7 (D.C.1979). Nor could the allegations of misconduct by Mr. Schumann constitute a claim against the District of Columbia. Monell v. New York Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Finally, it also appears that no claim can be stated under § 1983 or the Fourteenth Amendment for actions occurring in 1972. District of Columbia v. Carter, 409 U.S. 418, 424, 432, 93 S.Ct. 602, 606, 610, 34 L.Ed.2d 613 (1973).

      . Even if it were assumed that plaintiff was first required to obtain a right-to-sue letter under 42 U.S.C. § 2000e-5(f)(1), which plaintiff would have been entitled to 180 days after her initial complaint was filed, it is clear from the undisputed facts that plaintiff has not exercised reasonable diligence in seeking such a letter. At least as early as 1975 it was clear that EEOC was willing to issue such a letter and plaintiff was so advised. See exhibits 4 and 6 to defendants' motion for summary judgment.

      . Plaintiffs Title VII action is, of course, in essence an action against the government of the District of Columbia.

      . The present case thus stands in marked contrast to the situation before the Court in Rozen v. District of Columbia, 702 F.2d 1202 (D.C.Cir. 1983). Unlike the plaintiff in Rozen, plaintiff here has had the benefit of counsel for at least the past eight or nine years. Here also plaintiff ignored a 1975 request from the EEOC for information so her request for a right-to-sue letter could be acted on. See Boone v. Mechanical Specialties, Inc., 609 F.2d 956, 959 (9th Cir. 1979). And, of particular significance, the loss of crucial evidence cannot be attributed to defendants in the present case because of plaintiff's failure to put her employer on notice of her claims. Finally, the Court notes that the delay between the events complained of and the filing of suit in District Court totals over eleven years, as contrasted with a period of slightly under four years in Rozen.


author: ALLEN, Chief Judge.

text:
    Carol S. DEAN, on Behalf of Laura L. DEAN, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. No. C 83-0638 L(A).
    United States District Court, W.D. Kentucky, Louisville Division.
    June 6, 1984.

      Alvin D. Wax, Taustine, Post, Berman, Fineman & Kohn, Louisville, Ky., for plaintiff.
    Ronald Meredith, U.S. Atty., Louisville, Ky., for defendant.
   MEMORANDUM OPINION

ALLEN, Chief Judge.

This case is before the Court on the parties’ cross-motions for summary judgment. Federal Rule of Civil Procedure 56. Plaintiff Carol S. Dean, on behalf of her daughter, Laura L. Dean, seeks judicial review pursuant to 42 U.S.C. §§ 1383(c)(3) and 405(g) of the Secretary’s final decision terminating her entitlement to child disability benefits under Supplemental Security Income (SSI) of the Social Security Act, as amended.

The Court initially referred the matter to the Honorable George J. Long, Chief United States Magistrate, for his findings of fact, conclusions of law, and recommendations. 28 U.S.C. § 636(b)(1)(B). The Magistrate issued his report and recommended that the Court sustain the Secretary’s decision to terminate benefits. The plaintiff subsequently filed timely objections to the Magistrate’s findings and recommendation.

After carefully reviewing the entire record, and for the reasons discussed in this opinion, this Court finds the Secretary’s final decision terminating disability benefits for Laura L. Dean is not supported by substantial evidence in the record taken as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Allen v. Califano, 613 F.2d 139 (6th Cir.1980).

HISTORY OF ADMINISTRATIVE PROCEEDINGS

The plaintiff first applied for SSI disability benefits for her daughter, Laura L. Dean, then age 7, on January 21, 1977 (Tr. 59-66). In its disability determination notice, dated March 7, 1977, the Social Security Administration (SSA) granted the plaintiff’s claim. The disability examiner and reviewing physician both signed the above notice, which included a diagnosis of the daughter’s disability: “Emotional problems characterized by anxiety; Borderline to low average intellectual abilities; Severe learning disability” (Tr. 68).

Approximately three years later in March 1980, SSA/SSI notified the plaintiff that her daughter’s disability benefits would cease effective April 30, 1980. In the SSA/SSI notice of this planned action, the plaintiff was advised that her daughter:

... first received disability because of a mental impairment and anxiety. Currently, she has received individual therapy and her condition has improved greatly. She still has some trouble with her school work; however, her illness is not severe enough at this time to be considered disabling (Tr. 71).

SSA records indicate that the new disability examiner and reviewing physician determined that the “emotional disorder” of Laura L. Dean, then age 10, was “in remission” (Tr. 69). Reports to the SSA by an otolaryngologist, Dr. Burton J. Cohen, and by a learning disability teacher, Mrs. Francis Todd, as well as a consultative evaluation by a psychologist, Dr. William Ball, apparently formed the basis of this first SSA termination decision (Tr. 101-108).

The plaintiff, however, requested a hearing on the decision to terminate. Administrative Law Judge (AU), James L. Simpson, III, conducted the hearing on May 29, 1980, at which the plaintiff, her claimant daughter, an adult neighbor, and a board certified neurologist/psychiatrist appeared and testified for the claimant. In the AU’s June 27, 1980 report and decision, he found Laura L. Dean continued to be disabled and thus was entitled to continuing SSI disability benefits (Tr. 115-116). Further, he viewed his conclusion so strongly as to state that “recitation of the evidence is unnecessary”; but in his “rationale” for the decision, he did stipulate, inter alia, that the board certified neurologist/psychiatrist had testified that the claimant “met the impairments listed in Sections 111.03 and 112.04 of Appendix 1, Social Security Regulations No. 16, Subpart I” (Tr. 116).

In May 1981, less than eleven months after the above favorable decision, SSA again notified the plaintiff of its decision to investigate whether her daughter, now age 11, remained disabled (Tr. 119-122). Approximately three and one-half months later, in an SSA/SSI notice to the plaintiff dated September 11, 1981, plaintiff was advised of the following:

Based on the evidence in this case, and including review by a physician of an agency of the State in which the child lives, it has been found that the child was not disabled effective 7/81____ Your child has had emotional problems and learning difficulties and staring spells which interfered with normal activities for a child her age. The evidence shows that at the present time her condition is much improved (Tr. 125).

SSA records once again reflect that a new disability examiner and reviewing physician viewed Laura L. Dean’s “emotional disorder” as “in remission” (Tr. 123). Outpatient records from Norton Childrens Hospital covering a period from February 5, 1981 through May 20, 1981, as well as a consultative evaluation and report dated July 30, 1981 by a psychiatrist, Dr. Karen Fisher, apparently formed the basis of this termination decision (Tr. 124; 131-138).

The plaintiff, however, again requested a hearing (Tr. 127), which occurred approximately five months later on January 26, 1982 before Administrative Law Judge Lehman Sadler (Tr. 32). At this hearing, only the plaintiff testified, although her daughter, now age 12, was present (Tr. 32). At the conclusion of the hearing, the AU permitted the record to remain open in order for plaintiff’s counsel to submit additional documentary evidence (Tr. 56). On June 14, 1982, three more documents were entered into evidence, and the record then was closed (Tr. 57).

In the ALJ’s February 4, 1983 report and decision, he found the plaintiff’s daughter, now age 13, no longer disabled as of September 30, 1981; and he, therefore, denied the plaintiff’s claim for continuation of SSI disability benefits (Tr. 9; 13). In his findings he stated that the “evidence fails to substantiate any impairment or impairments that meet or equal the criteria of any impairment listed in Appendix 1 of Subpart B of Social Security Regulations No. 4” (Tr. 12). Further, in discussing the issues of this claim, he stated:

It is not necessary for the claimant’s impairments) to have improved for disability to be [sic] ceased. Rather, the question to be resolved is whether the claimant’s impairment(s) precluded substantial gainful activity at the time disability was found to have ceased (Tr. 9-10) (emphasis added).

Following this adverse decision by the AU, the plaintiff requested a review by the Hearings and Appeals Council (Tr. 3-7). On May 23, 1983, the Council denied the plaintiff’s request for review, and the AU’s decision became the final decision of the Secretary (Tr. 2). The plaintiff then timely appealed to this Court for review of this final administrative decision.

STANDARD OF REVIEW

This Court has jurisdiction to review the Secretary’s decision pursuant to 42 U.S.C. § 1383(c)(3), which provides that such review shall be the same as that provided in 42 U.S.C. § 405(g). Therefore, the sole question before this Court is whether the Secretary’s decision is supported by substantial evidence in the record taken as a whole. Allen v. Califano, 613 F.2d 139, 145 (6th Cir.1980), citing Futernick v. Richardson, 484 F.2d 647 (6th Cir.1973).

The Supreme Court has defined the statutory substantial evidence standard as evidence which is “more than a mere scintilla ... [and which is] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), citing Consolidated Edison v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938); Lashley v. Secretary of Health and Human Services, 708 F.2d 1048, 1053 (6th Cir.1983).

In exercising this limited review function, the Court must review the entire record, Stamper v. Harris, 650 F.2d 108 (6th Cir.1981), considering evidence which both supports and detracts from the AU’s and Secretary’s final decision. Beavers v. Secretary, HHS, 577 F.2d 383 (6th Cir. 1978). However, resolution of conflicting evidence and questions of credibility are solely within the purview of the Secretary. Wokojance v. Weinberger, 513 F.2d 210 (6th Cir.1975).

Although the Secretary’s fact findings are conclusive when supported by substantial evidence, Faison v. Secretary, HHS, 679 F.2d 598 (6th Cir.1982) (per curiam), they will not be insulated by the substantial evidence test if the fact finder failed to apply proper legal standards in making his or her determination. Branham v. Gardner, 383 F.2d 614 (6th Cir. 1967). Accord, Boyd v. Heckler, 704 F.2d 1207 (11th Cir.1983).

Finally, it must be noted that the standard in termination cases, just as in all Social Security cases, is whether the Secretary’s decision is supported by substantial evidence. Mullins v. Secretary, HHS, 680 F.2d 472 (6th Cir.1982), citing Myers v. Richardson, 471 F.2d 1265 (6th Cir.1972). Likewise, the ultimate burden of proof (risk of nonpersuasion) in termination cases remains with the claimant. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 336, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976); Myers v. Richardson, supra.

PLAINTIFF’S OBJECTIONS TO THE MAGISTRATE’S FINDINGS AND RECOMMENDATION

Counsel for the plaintiff argues in both his objections and his summary judgment memorandum that the Secretary’s decision terminating the claimant’s child disability benefits is not supported by substantial evidence in the record. Citing to recent decisions by the Fourth, Seventh, Ninth, and Eleventh Circuits, Dotson v. Schweiker, 719 F.2d 80 (4th Cir.1983); Cassiday v. Schweiker, 663 F.2d 745 (7th Cir.1981); Patti v. Schweiker, 669 F.2d 582 (9th Cir. 1982), see also Heckler v. Lopez, 463 U.S. 1328, 104 S.Ct. 10, 11-12, 77 L.Ed.2d 1431 (Rehnquist, Circuit Justice, 1983); Iida v. Heckler, 705 F.2d 363 (9th Cir.1983); and Simpson v. Schweiker, 691 F.2d 966 (11th Cir.1982), counsel for the plaintiff maintains that the Secretary cannot terminate benefits without producing evidence that the recipient’s medical condition has improved since he or she previously was declared disabled. Significantly, the Sixth Circuit recently has ruled as in the above cited cases. Haynes v. Secretary, HHS, 734 F.2d 284 (6th Cir.1984). The Secretary, however, denies such a requirement.

Plaintiff’s counsel cites Patti v. Schweiker, supra, a case also involving termination of disability benefits after a prior ruling of disability by an AU, for the legal standard governing such cases. The Ninth Circuit held that the applicable standard involved the “familiar principle that a condition, once proved to exist, is presumed to continue to exist” absent proof to the contrary. Patti, supra at 586-587. Accord, Haynes v. Secretary, HHS, supra at 288.

According to these various circuits and lower federal court opinions, although the claimant retains the ultimate burden of persuasion in a termination case, a prior ruling of disability after a hearing and decision by an AU gives rise to a presumption that the disability continues to exist. The Secretary, therefore, is required to come forward with evidence showing that the claimant’s condition has improved in the interim. Once the Secretary comes forward with such evidence, then whether that evidence has met the Secretary’s burden of production is a judgment to be made initially by the Secretary; and on appeal, such a judgment can be overturned only if it fails to meet the substantial evidence standard. Patti, supra at 587; Haynes, supra at 287-288.

Significantly, the administrative factual setting of Patti is quite similar to the instant case. As noted earlier in this opinion, the plaintiffs daughter initially received SSI disability benefits in 1977; but three years later, SSA notified the plaintiff that her daughter’s payments would cease. A subsequent hearing and decision by an AU, however, overturned the Secretary’s termination decision. Less than eleven months after the favorable AU decision, SSA again notified the plaintiff that her daughter’s disability was under investigation; and four months later the benefits were terminated. This time a different AU upheld the Secretary’s termination decision. The procedural history of Patti is almost identical to the above chain of events.

In using the evidentiary principle embodied in Federal Rule of Evidence 301, the Patti Court emphasized that placing a production burden on the Secretary to “meet or rebut” the presumption of a continuing disability is consistent with the Secretary’s own regulations at C.F.R. § 146.1455 (1981). Patti, supra at 586-587. These regulations provide that a disability decision by an AU is “binding on all parties to the hearing” unless one or both of the parties seek one of the specified routes of appeal. In Patti and in Haynes, as in the case before this Court, neither the Secretary nor the claimant sought to disturb the prior AU’s determination of disability. Hence, the presumption of disability exists at a subsequent AU hearing.

Counsel for the plaintiff urges this Court to exercise our review function in light of the evidentiary principle and reasoning enunciated above. After carefully reviewing these decisions, this Court believes their application to the instant case is both proper and appropriate.

A. EVIDENCE IN THE RECORD

In examining the record, neither the AU nor the Magistrate applied the evidentiary principle outlined above in evaluating or in reviewing the evidence. Both did state, however, that the plaintiff’s daughter was no longer disabled because of her failure to establish that she meets some impairment or impairments listed in Appendix 1, Sub-part B, Social Security Regulations (Tr. 12; Magistrate’s Report, Conclusions of Law, Para. 7).

Counsel for the plaintiff argues that the plaintiff’s daughter continues to be disabled under either § 111.03 (Minor Motor Seizure Disorder) and/or § 112.04 (Functional Nonpsychotic Disorder). He bases this argument on the AU decision in 1980, wherein the AU determined that the claimant had a continuing disability under both of these regulatory sections. In reviewing the record, it is clear that this AU based his decision on the testimony at the hearing of a medical advisor, a board certified neurologist/psychiatrist whom the government had selected to evaluate the claimant. At the 1980 hearing, this medical advisor testified that the plaintiff’s daughter met the requirements of both of the above-cited impairments. Counsel for the plaintiff thus argues that at the instant case hearing in 1982 a presumption of the claimant’s disability existed, and the Secretary failed to overcome that presumption by substantial evidence.

The record contains voluminous medical documentation dating back to 1976 and continuing up to the last AU decision denying continuation of benefits. Plaintiff’s daughter was first evaluated in March 1976 at the age of 6 years old by the University of Louisville School of Medicine, Department of Pediatrics, Child Evaluation Center. This evaluation disclosed that despite a full scale I.Q. of 93, the plaintiff’s daughter had perceptual motor problems and “emotional and behavioral reactions characterized by interpersonal withdrawal, anxiety and feelings of insecurity; learning problems of [the central nervous system] and/or emotional etiology” (Tr. 87-95). The physicians at the Child Evaluation Center “strongly” recommended “a highly structured academic setting” and some form of counseling/therapy (Tr. 96). Subsequent medical and psychological reports in the record reveal that these recommendations were followed. Further, also noted earlier in this opinion, in March 1977 the plaintiffs daughter was granted SSI disability benefits due to her “[ejmotional problems characterized by anxiety; [borderline to low average intellectual abilities; and [sjevere learning disability” (Tr. 68).

While still participating in full-time learning disability classes as well as individual therapy, SSA terminated the claimant’s benefits in 1980; but as also previously noted, after a hearing and testimony by a government selected neurologist/psychiatrist, the AU ruled that the plaintiff’s daughter continued to be disabled under the regulations. Finally, eleven months after that favorable ruling, SSA again notified the plaintiff of its intent to terminate. This second termination ended with the instant case ruling by a new AU that the claimant did not meet the disability requirements of § 111.03 or § 112.04.

In examining the evidence presented at the second AU hearing (as well as subsequent to that hearing), the following should be noted. First, an EEG performed in April 1981 at Nortons Childrens Hospital disclosed a normal waking and sleeping mode; but the clinical impression was described as “absences — petit mal type?” (Tr. 133) and the medication Tridione was to be continued. The AU noted in his findings that with this medication “good seizure control” existed. However, in May 1981, the medication was withdrawn because the claimant was sleeping in class (Tr. 10). The claimant was then placed on Depakene, but for unknown reasons this medication was withdrawn after one month (Tr. 10-11). At the time of the hearing, the claimant was not taking prescribed medication for her “absences” (Tr. 11).

In terms of the claimant’s education, at the time of the hearing she continued to be enrolled in disability learning classes. Her grades for the 1981-1982 year reflect that she failed all of her subjects except one, math; and she received only a D in that course. (Tr. 11; 140). Interestingly, the AU characterized the claimant’s academic performance as revealing “some learning difficulties” (Tr. 11).

The Child Evaluation Center re-examined the claimant in November 1981. The results of this examination were submitted to the AU in June 1982 after the hearing. According to this report, the claimant’s full scale I.Q. was 81, again reflecting “borderline to low average range of ability” (Tr. 143-144). The evaluation also indicated continuing problems with “anxiety, insecurity and difficulty handling anger and aggression” (Tr. 144). Among the Center’s recommendations were continued disability learning classes and therapy (Tr. 144). In discussing this evaluation, the AU stressed one of the examiner’s comments that the claimant was friendly and outgoing, but he failed to mention the ultimate diagnosis and recommendations (Tr. 12).

In terms of a medical consultation, Dr. Karen F. Fisher, a child psychiatrist, examined the claimant in July 1981 at the request of the government. Dr. Fisher candidly admitted that despite all of her efforts, she was unable to engage the claimant, then age 11, in any conversation. Nonetheless, following her three page report, Dr. Fisher concluded that the claimant possesses “some type of learning disability” and “seizure disorder, probably mal” (Tr. 137). In terms of a prognosis, Dr. Fisher stated:

[It] will depend upon the degree of disability that she has. Her ability to relate is greatly impaired as is evidenced in our interview, and this will be a further handicap to her. I do not think she can manage her own benefits (Tr. 137).

In discussing this consultative examination, the ALJ characterized it as “not very enlightening”: (Tr. 11). Further, he noted that Dr. Fisher had mentioned that the claimant’s withdrawn and flat affect during the interview might have been due to seizure medication; and for this reason, he further implied that the consultation was not useful. Significantly, the Magistrate also found Dr. Fisher’s report of “limited usefulness as she was unable to get the child to talk” (Magistrate’s Report, Findings of Fact, Para. 6).

In reaching his decision denying continued benefits, the AU stated at the end of his evaluation of the evidence that “a physician designated by the Secretary has determined that the claimant’s impairments do not meet or equal the criteria of any listed impairment, and the undersigned [AU] agrees with this conclusion” (Tr. 12). Significantly, it must be noted that according to the Magistrate’s Report, the AU’s reliance on this unnamed physician refers to page 124 of the Transcript. A review of page 124 reveals only that on September 10, 1981, a doctor initialed the box designated “Review Physician DDS,” wrote the above cited statement, and cited to two pieces of evidence, namely Dr. Fisher’s consultative examination and Nortons Childrens Hospital Outpatient Records of February through May 1981. Further, the record completely fails to disclose this physician’s qualifications.

B. CONCLUSION

The record reveals that the plaintiff’s daughter has received extensive treatment for both her nonpsychotic disorder and mild retardation. Clinical testing by the Child Evaluation Center also reveals basically the same results between the 1976 testing and the 1981 testing, namely, emotional reactions characterized by withdrawal, anxiety, and insecurity feelings. Dr. Fisher’s encounter with the claimant confirmed the withdrawal aspect, but both the AU and the Magistrate discounted her findings.

Counsel for the plaintiff argues that even if the claimant no longer meets § 111.03 Minor Motor Seizure, the Secretary presented no evidence to show improvement in the claimant’s nonpsychotic disorder. This aspect of the claimant’s disability was found to exist by the ALJ in 1980, who relied on the testimony at the hearing of a board certified neurologist/psychiatrist medical advisor. During the instant case’s second hearing, however, a medical advisor did not appear. Indeed, as noted above, the only reference to a medical advisor in this case is the initialed form by a review physician whose qualifications are unknown and who could not have reviewed all of the evidence since he or she made their “review” prior to the evidence submitted after the hearing. Counsel argues, therefore, that the second AU erred in giving this form such weight.

After thoroughly reviewing all of the evidence in this case, this Court finds that the Secretary failed to show by substantial evidence in the record that the claimant’s disability had improved since the prior AU decision continuing disability payment. Therefore, a judgment in accordance with this opinion will be entered this day.