author: JAMES McGIRR KELLY, District Judge.

text:
    STUDENT COALITION FOR PEACE v. LOWER MERION SCHOOL DISTRICT, et al.
    Civ. A. No. 84-1017.
    United States District Court, E.D. Pennsylvania.
    Sept. 28, 1984.

      Stephen F. Gold, Philadelphia, Pa., for plaintiff.
    Thomas Masterson, Philadelphia, Pa., for defendants.
   MEMORANDUM AND ORDER

JAMES McGIRR KELLY, District Judge.

Presently before this court is plaintiff Student Coalition for Peace’s (SCP) request for a permanent injunction. Plaintiff seeks to permanently enjoin the defendants, Lower Merion School District and Board of School Directors from prohibiting plaintiff from using various school facilities for the express purpose of conducting a public anti-nuclear/peace exposition.

The facts of this case are rather clear and uncontested. SCP is a group of students enrolled in Lower Merion High School (LMHS). SCP is active in the school by holding meetings in school classrooms and handing out leaflets, as well as other means of expressing itself within the school.

LMHS, a public school, has certain school sponsored organizations, e.g., athletics, dramatics, etc, which are funded and/or supervised by school officials. Conversely, the school has other nonsponsored organizations which are organized by students, but which receive no funds or supervision from the school. SCP receives no funds nor is it given supervision from the school although it does have a faculty advisor. Therefore, SCP falls into the “non-sponsored” organization category. There has been no evidence brought forth by the parties in this action which shows that SCP’s “in school” activities have been hindered in any way.

In December of 1983, SCP requested permission from the LMHS’s principal to use Arnold Field for a peace exposition. This exposition was to include various outside speakers who were expected to discuss the various political position on disarmament. The public at large would be encouraged to attend and participate. The request was denied. Subsequently, SCP appealed the denial of the use of Arnold Field to the school superintendent, and requested in the alternative the use of Pennypacker Field or the LMHS’s Boys’ Gym. The appeal and alternate forums were denied. SCP, appearing at the School Board of Directors’ Meeting on February 13, 1984, appealed the denial of the use of any of the three sites. SCP additionally requested a fourth alternative, the School Courtyard surrounding the flagpole. Subsequently, on February 27, 1984, this last appeal and alternative were denied by the School Board. However, in the spirit of compromise the School Board offered the use of LMHS’s Auditorium. SCP rejected the counter proposal because it believed that it would not permit the required interaction of the people attending the exposition.

The event required several weeks of planning and publicity and had been scheduled for Saturday, April 28th. Since time was critical, SCP sought a preliminary injunction enjoining the School District from denying it use of one of the forums. SCP asserts that its first amendment right of free speech applicable to the states through the fourteenth amendment had been curtailed as a result of the School Board’s denial. A hearing was held on March 20-22,1984. In this Court’s overabundance of caution it granted a preliminary injunction on March 22, 1984, enjoining defendants from denying plaintiff’s request to use one of the desired locations for its exposition. The defendants permitted the event to take place at the LMHS Boys’ Gym. The event was attended by approximately 100 people. The speakers’ topics ranged from nuclear disarmament to criticism of the present foreign policy of the United States Government.

Except for the Boys’ Gym, which is an indoor facility, the other locations which are out of doors cannot be effectively and reasonably kept under lock and key. Hence, plaintiff’s argument that because on occasion the public uses the parcels in question for unorganized/leisure activities, the defendants have surrendered their right to exclude organized activities, must fail. The plaintiff argues that the School District has permitted two of the facilities in question (Boys’ Gym; Arnold Field) to be used on a case-by-case basis for an extremely limited purposes. Therefore they argue, it must follow that any activity must be permitted.

The United States Supreme Court in Perry Ed. Assn. v. Perry Local Education Assn., 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983) stated: “[Njowhere [have we] suggested that students, teachers, or anyone else has an absolute constitutional right to use all parts of a school building or its immediate environs for ... unlimited expressive purpose. [citing] Grayned v. City of Rockford, 408 U.S. 104, 117-118, 92 S.Ct. 2294, 2304, 33 L.Ed.2d 222 (1972).” Cf. Greer, et al. v. Spock, et al., 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976) (no right to make political speeches at military base). International Society for Krishna Consciousness, Inc. v. N.J. Sports & Exposition Authority, 691 F.2d 155 (3d Cir.1982) (Religious group prohibited from soliciting funds outside publicly owned race track). Seyfried v. Walton, 668 F.2d 214 (3d Cir.1981) (no right for students to produce musical play of their choice). The differences between the parties center on how the property is classified for first amendment purposes. The United States Supreme Court has held a number of times that: “[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated”, [citing] Adderley v. Florida, 385 U.S. 39, 48, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966); Greer, et al. v. Spock, et al., 424 U.S. 828, 836, 96 S.Ct. 1211, 1216, 47 L.Ed.2d 505 (1976); United States Postal Service v. Council of Greenburgh Civil Assoc., 453 U.S. 114, 129, 101 S.Ct. 2676, 2685, 69 L.Ed.2d 517 (1981).

In Perry, supra, the United States Supreme Court catagorized public property-depending upon how the government permitted its use in the past. Indeed, the manner in which the property is catagorized determines the restraints permitted on speech.

In places which by long tradition or by government fiat have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks which ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’ Hague v. C.I.O., 307 U.S. 496, 515 [59 S.Ct. 954, 964, 83 L.Ed. 1423] (1939). In these quintessential public forums, the government may not prohibit all communicative activity. For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Carey v. Brown, 447 U.S. 455, 461 [100 S.Ct. 2286, 2290, 65 L.Ed.2d 263] (1980)....
A second category consists of public property which the State has opened for use by the public as a place for expressive activity. The Constitution forbids a State to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place. Widmar v. Vincent, 454 U.S. 263 [102 S.Ct. 269, 70 L.Ed.2d 440] (1981) (university meeting facilities); City of Madison Joint School District v. Wisconsin Public Employment Relations Comm’m, 429 U.S. 167 [97 S.Ct. 421, 50 L.Ed.2d 376] (1976) (school board meeting); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 [95 S.Ct. 1239, 43 L.Ed.2d 448] (1975) (municipal theater). Although a State is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum. Reasonable time, place, and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest. Widmar v. Vincent, supra [454 U.S.] at 269-270 [102 S.Ct. at 274],
[Third Category]
Public property which is not by tradition or designation a forum for public communication is governed by different standards. We have recognized that the ‘First Amendment does not guarantee access to property simply because it is owned or controlled by the government.’ United States Postal Service v. Council of Greenburgh Civil Assns., supra [453 U.S.] at 129 [101 S.Ct. at 2685], In addition to time, place, and manner regulations, the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.

Perry Ed. Assn. v. Perry Local Educators’ Assn, 460 U.S. at 45-46, 103 S.Ct. at 954-955.

Consistent with Perry, it is paramount that the various uses and activities performed in the past at the location requested be fully understood. Therefore, the Court’s analysis must lead to scrutinizing the facts as applied to the locations individually. The plaintiff sought the use of the following locations:

1. LMHS’s courtyard which surrounds the flagpole — The use of this courtyard has never been requested by any other organization, nor has any organized activity been held there. The courtyard is unguarded and unenclosed. At the hearing plaintiffs admitted they produced no evidence that this facility was ever used by any nonsponsored school activity.

2. Arnold Field — It is used by the school in the capacity of providing an area for organized and supervised athletic activities. In a few instances the school has permitted certain limited community activities to be held at the field. Special permission was granted to the Main Line Jaycees to hold a Special Olympics. The Special Olympics are a series of track and field events for handicapped children. Some LMHS students participated in various capacities. No solicitation of funds or distribution of literature occurs at the Olympics. Annually, Memorial Day ceremonies are permitted at the field. Indeed, it is an activity which memorializes those who have given their lives in war time. A “Bike Hike” for mentally handicapped citizens in which participants get sponsors who then donate sums of money to the Montgomery County Associates for Retarded Citizens depending on the mileage and American Cancer Society’s “Jog-A-Thon” have been permitted to take place at the field. The “Jog-A-Thon”, which is similar to the “Bike Hike” helps raise funds for the American Cancer Society. However, permission has not been freely granted. SCP’s request óf one year ago was denied. A parochial school’s request to use the field for its school activities has been rejected, and a request to use the field for a day camp similarly has been rejected among others. See Transcript March 22, 1984, 174-75 (Pugh).

3. Pennypacker Field —It has not been used for any non-school sponsored activity. Indeed at the hearing for a permanent injunction, plaintiff admitted there was no evidence showing its use for non-school sponsored activities.

4. LMHS’s Boys Gym — A Volleyball Marathon has been held annually since 1969. The marathon is organized by students; the general public is invited. Each year the organizers have sought permission from the School District. The marathon is a charitable event in which participants solicit pledges from the community for each hour of volleyball played. Proceeds are donated to various national/international organizations which feed hungry children throughout the world. No solicitation of funds or distribution of literature occurs at the marathon.

The parties do not dispute that the parcels in question do not fall within the first category (traditional forums) of public property, that is, public property which is generally characterized by public streets, parks and sidewalks. See Plaintiff’s Memorandum of Law in support of a permanent injunction at 4-6.

Therefore, the issues that this Court must address are: whether or not the defendants have created a limited public forum at each of the locations. If a limited forum is found then the proper test is whether the proposed activity falls within the area protected; and if so, whether the state has a compelling interest, closely tailored to effectuate its purpose to overcome plaintiff’s first amendment right to free speech. If a limited public forum is not found (therefore, it is a non-public forum) or if the activity falls outside a limited forum’s parameter, the issue is merely whether the restrictions by the School Board have a rational basis and are not the product of censoring because of plaintiff’s views. Perry, supra. See Members of the City Council of Los Angeles v. Taxpayers for Vincent, — U.S.-, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984).

We must first review the activities at each location to determine whether it is a limited public forum or non-public forum because such determination rests primarily upon the facts. For the purpose of clarity the Court will first categorize Pennypacker Field and the LMHS’s Courtyard. Neither of these locations have ever been used for any organized activity. Certainly plaintiffs argument that there is limited access must fail on these clear facts. The fact that individuals have visited these locations from time to time, for their recreation, does not mean that the defendants have surrendered their control over the property, nor does it mean that the grounds become a public or limited public forum. Greer, 424 U.S. 828, 96 S.Ct. 1211, 47 L.Ed.2d 505; Perry, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794.

The Supreme Court has held that the restraints on speech in non-public forums is more relaxed than in public forums. The standard is not a compelling state interest, which the state must show to effectuate a prior restraint. Rather the standard to apply is a reasonable regulation as long as it is not used to suppress the speaker’s viewpoint. Perry, 460 U.S. at 46, 103 S.Ct. at 955. In the present case, the School District simply desires to keep the “podium of politics off school grounds.” Indeed, the Third Circuit has recently stated:

Since elementary, and secondary schools, unlike universities, are not the academic battleground for clashes among contending lines of thought, particularly since the level of student maturity rarely reaches the more advanced level of those attending college, it is unlikely that school authorities would seek to create a truly open forum in a high school environment for unregulated dialogue and inquiry. Because of the inherent nature of a secondary school, any forum created has purposes which are narrower, and uses more exclusive than a forum such as in Widmar or one open generally to all forms of communication by the public.

Bender, et al. v. Williamsport Area School District, 741 F.2d 538 at 548 (3d Cir.1984). Further, because school systems are part of the government with the expressed purpose to educate, it is logical that the School Board would not desire its facilities to be a podium for every political group wishing to express its point of view. Accordingly, this Court finds the regulation prohibiting political speech at these two facilities to be reasonable.

Next the LMHS Boys’ Gym must be categorized for purposes of determining the proper standard to evaluate prior restraint on first amendment rights. Plaintiff argues vigorously that this forum is a limited public forum in the sense that the government was not compelled to open the forum as a public forum. However, once it did, the School Board would be powerless to deny it as a platform for first amendment speech, short of denying all parties access. Perry, supra. Notwithstanding, plaintiff’s contention must fail since the gym’s use is tightly controlled by the School District, with access after school hours only by key and permission strictly regulated by the School Board. The only non-sponsored school events which have been granted permission have been those which are primarily athletic and for the purpose of raising funds for a public charity. Although the plaintiff argues that because the School District opened the doors for a limited purpose, that is, athletic events for charitable purposes, it must therefore open it for all purposes; this Court does not find the Boys’ Gym a limited forum. Because of the close reins on the control of the facility by the School District, this Court finds that the gym falls within the third category of public property. As discussed above, where a public forum is not found, the government can regulate speech when there is a rational basis for the regulation, and it is not done to censor a particular point of view. Perry, supra. Here, the desire not to become the battleground of political ideas for the community, as well as understanding the purpose of our secondary schools, provides a rational basis for the regulation of forbidding a political exposition/peaee fair at the LMHS Boys’ Gym. The plaintiff has not brought forth any evidence showing that the defendants sought to censor plaintiff because of its point of view. Therefore, this Court finds the denial of use of the Boys’ Gym constitutionally valid.

Last, the Court must examine whether the defendants have created a limited public forum at Arnold Field. Arnold Field is used primarily by the School District for athletic purposes. Indeed, it is an athletic field. Organized use of this field by non-school sponsored events is clearly scrutinized. Athletic events for the purpose of fund raising for public charities are the only activities which have been permitted on the field; excepting the annual Memorial Day ceremonies which have been held with the permission of the School District. Certainly the athletic events for charity do not include a discussion of current event topics which are at the nexus of the battle between the various political thought within this nation, as is an anti-nuclear/peace exposition. The charitable athletic events where no solicitation or leaflet distribution takes place do not constitute political activity-

Turning now to the Memorial Day ceremony, permission for use of the field is requested each year. Further, because any Memorial Day ceremony is only tangentially related to politics, no limited political forum is created for political speech.

The plaintiff did not produce any evidence that shows defendant sought to censor its point of view. Since Arnold Field is not a public forum (which plaintiff concedes) or limited public forum, the only additional criteria required of the School Board is that its regulation have a rational basis. As stated above, the School Board desires not to become the battleground for political ideas in the community. Its primary function is to educate the students and not to become the never ending forum for political debate. See Bender, et al. v. Williamsport Area School District, et al., 741 F.2d 538, 548 (3d Cir.1984).

Because this case deals with the academic forum, the Court was extremely sensitive in evaluating the delicate issues presented. See Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972). Indeed, in an overabundance of caution, this Court granted the preliminary injunction. However, after reconsidering this matter, the permanent injunction must be denied.

      . Permission to use school facilities is required when the activity is not school sponsored and the activity is not during school hours.

      . On April 30, 1983, SCP held a Peace Fair rally at a private school approximately five miles from LMHS, because they had been denied permission to use Arnold Field. This affair was held in an orderly fashion and was attended by approximately 500 people (both students and outsiders). The various topics presented pertained to unilateral disarmament, other approaches to disarmament, and criticism of the President of the United States handling of foreign affairs. See Transcript March 20, 1984, 48-49 (Thurschwell).

      . See Student Coalition for Peace v. Lower Merion School District, et al., No. 84-1017 (E.D.Pa., March 22, 1984) (Bench Opinion granting preliminary injunction).

      . Per the LMHS’s regulation on community use of school facilities, permission to use school facilities is required where the activity is not

       A public forum may be created for a limited purpose such as use by certain groups, e.g., Widmar v. Vincent (student groups), or for the discussion of certain subjects, e.g., City of Madison Joint School District v. Wisconsin Public Employment Relations Comm’n (school board business). school sponsored and the activity is not during school hours.

      . A Valentine Day's dance was held for students at the Gym. However, it is fully a school sponsored activity and thus falls within the discretion of the School Board as a curriculum decision. Accord Seyfried v. Walton, 668 F.2d 214 (3d Cir.1981) (School District has power to allocate its resources).

      . If this gym were to be found to be a limited public forum, it would be limited to those areas of athletic events used to raise funds for a public charity. See Perry, 460 U.S. at 46 n. 7, 103 S.Ct. at 955 n. 7; Bender, et al. v. Williamsport Area School District, et al., 741 F.2d 538 at 544 (3d Cir.1984). However, since this is not before this Court, it need not be addressed.


source: Caselaw Access Project

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

license: Public Domain

text:
    Craig B. JOHNSON and Shelly M. Norwest, Plaintiffs, v. UNIVERSITY OF NEVADA, et al., Defendants.
    No. CV-R-84-166-ECR.
    United States District Court, D. Nevada.
    Oct. 1, 1984.

      David Dean, Reno, Nev., for plaintiffs. Robert A. McQuaid, Jr., Reno, Nev., for defendants.
   ORDER

EDWARD C. REED, Jr., District Judge.

Plaintiffs, Craig Johnson and Shelly Nor-west, seek civil damages pursuant to 42 U.S.C. §§ 1981, 1983, 1985, 1986 and 1988, from among others, the University of Nevada-Reno (UNR), the Board of Regents (Board), and Lawlor Events Center (Lawlor). These defendants have moved to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.

UNR, Board and Lawlor base their motion to dismiss on an argument that they are immune from a suit for monetary damages because of the Eleventh Amendment. Johnson and Norwest counter with an allegation that UNR is an independent political entity able to be sued. For the reasons stated herein, defendant’s motion to dismiss as against UNR and the Board should be granted. As against Lawlor, additional competent information must be submitted.

Absent a state waiver, the Eleventh Amendment protects states from suit in federal court. See Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 1143, 59 L.Ed.2d 358 (1979).

The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

The Amendment is also applicable to suits brought by citizens against their own state. Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1973); Hans v. Louisiana, 134 U.S. 1, 10, 10 S.Ct. 504, 505, 33 L.Ed. 842 (1890).

Although a state may waive its Eleventh Amendment immunity by explicitly consenting to the suit, Nevada has not waived its immunity. See NRS 41.031(3); See O’Connor v. Nevada, 686 F.2d 749, 750 (9th Cir.), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982). NRS 41-031(3) provides:

The State of Nevada does not waive its immunity from suit conferred by Amendment XI of the Constitution of the United States.

Therefore, Nevada is protected from money judgments by the Eleventh Amendment. See Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945).

The Amendment has also been held to protect state instrumentalities and agencies from suit. Edelman v. Jordan, 415 U.S. at 663, 94 S.Ct. at 1355. Thus, the question presented to this Court is whether the University of Nevada-Reno, the Board of Regents, and Lawlor Events Center are state instrumentalities or agencies.

The Ninth Circuit has used a number of factors to determine whether a governmental entity is an arm of the state. The most “crucial question ... is whether the named defendant has such independent status that a judgment against the defendant would not impact the state treasury.” Ronwin v. Shapiro, 657 F.2d 1071, 1073 (9th Cir.1981) citing Edelman v. Jordan, 415 U.S. 651, 664, 94 S.Ct. 1347, 1356, 39 L.Ed.2d 662 (1974). The Edelman court held that the Eleventh Amendment bars a suit “by private parties seeking to impose a liability which must be paid from public funds in the state treasury.” 415 U.S. at 663, 94 S.Ct. at 1355. Relying on Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389, the Edelman court further reasoned that if the damage award is to be paid by the State, the State is the real party in interest even though individual officials might be named as nominal defendants. Edelman 415 U.S. 663, 94 S.Ct. at 1355. In this case, the Nevada Constitution provides that University funding is to come from the general fund. Nev. Const. Art. 11 § 6. Thus, any damages against UNR or the Board would be chargeable to the State and would therefore be an award against the State. If the plaintiffs’ suit would result in a damage award payable by UNR or the Board, it is barred by the Eleventh Amendment.

In order to determine whether UNR, the Board or Lawlor are functioning as instrumentalities, it may be helpful to look at any applicable Nevada law. See Brennan v. University of Kansas, 451 F.2d 1287 (10th Cir.1971).

There is not a Nevada case directly on point holding that UNR, the Board or Lawlor are arms of the state. One Nevada case states as an assertion of fact that the University of Nevada-Las Vegas is a public institution of higher learning financed by the State of Nevada. University of Nevada v. Tarkanian, 95 Nev. 389, 391, 594 P.2d 1159 (1979). However, this does not answer the question presented in this case. An examination of the Nevada Constitution and statutes may provide some guidance. UNR was established in 1880 by the Nevada Constitution, Art. 11 § 4. This section also provides that control of the University System is by a Board of Regents. Id. The Constitution provides that the support and maintenance of the university is by direct legislative appropriation from the general fund. Nev. Const. Art. 11 § 6.

In analyzing the nature of the Board, it is important to note that the Board was created by the Nevada constitution to perform state functions. Nev. Const. Art. 11 §§ 4, 7. It is arguably a state instrumentality by virtue of its constitutional mandate to supervise the University and to manage its funds. Id. The members of the board are publicly elected officials. Id. § 7. Therefore, not only is the Board constitutionally formed, but it is also fiscally tied to the state.

Further, the Nevada Legislature provides a fairly comprehensive program of controls and mandates for the University of Nevada System. See NRS Chapter 396. Included in this system are UNR and the Board. Of particular note is NRS 396.330 through NRS 396.400 which are the applicable statutes dealing with the finances of the University System. The Board disburses all appropriations made for the support of the state colleges. NRS 396.340(2), 396.-380. The Board is required to make an annual report to the governor for all money received and disbursed. NRS 396.340(3). Support and maintenance of the university system comes from the direct legislative appropriation from the general fund and land grants originally given to the State of Nevada in 1862 by the Federal government. NRS 396.370. Before payment, all claims of every kind must be approved by the state board of examiners. NRS 396.390. An account of all receipts and expenditures must be kept open to public inspection. NRS 396.400.

On the foregoing analysis, we must therefore conclude that because the University system operates as a branch of the Nevada State government and because the state is obligated to provide sufficient funds for its operation, UNR and the Board are state instrumentalities within the meaning of the Eleventh Amendment. In accord Cannon v. Univ. of Health Sciences/The Chic. Med, 710 F.2d 351, 356-357 (7th Cir.1983); Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir.1982); Ronwin v. Shapiro, 657 F.2d 1071, 1073 (9th Cir.1981); Brennan v. Univ. of Kansas, 451 F.2d 1287, 1290 (10th Cir.1971); Ewing v. Board of Regents of Univ. of Michigan, 552 F.Supp. 881, 883-884 (E.D. Mich.1982) (These cases also hold that state universities and their Boards of Regents are arms of the state and are immune from suit in federal court.)

On the other hand, a review of the pleadings does not provide sufficient facts to determine whether Lawlor is a state instrumentality or agency. Research reveals that the only statutory provisions as to Lawlor are 1983 Nev.Stat.Ch. 511 at 1367, 1981 Nev.Stat.Ch. 585 at 1251, and 1979 Nev.Stat. § 5 Ch. 679 at 1741. However, these statutes do not deal with whether Lawlor is a state agency. Therefore, additional information will have to be obtained in order to rule on defendant’s motion to dismiss Lawlor.

CONCLUSION

UNR and the Board should be dismissed as defendants in this case. This Court lacks jurisdiction because of the Eleventh Amendment.

IT IS, THEREFORE, HEREBY ORDERED that the motion to dismiss UNR and the Board is GRANTED.

IT IS FURTHER ORDERED that defendants shall have 20 days from this date within which to file affidavits or other competent and duly authenticated evidence and/or supplementary points and authorities in support of their motion to dismiss Lawlor Events Center on the basis that it is a state agency. Thereafter, plaintiffs shall have 20 days within which to file affidavits or other competent and duly authenticated evidence and/or supplementary points and authorities in opposition. Defendants shall have 15 days to file responsive materials.


author: OWEN, District Judge.

text:
    Gilbert A. SPROTT, Plaintiff, v. AVON PRODUCTS, INC., Defendant.
    No. 81 Civ. 2589 (RO).
    United States District Court, S.D. New York.
    Oct. 1, 1984.

      Ted M. Rosen, Great Neck, N.Y., for plaintiff.
    Breed, Abbott & Morgan, New York City, for defendant; Eric M. Nelson, Noah Nunberg, New York City, of counsel.
   OPINION AND ORDER

OWEN, District Judge.

Plaintiff, a former managerial employee of defendant, alleges violations of the Age Discrimination in Employment Act, the New York State Human Rights Law, tortious, wrongful and abusive discharge and breach of contract. Defendant has, by summary judgment and otherwise, moved for dismissal of all claims.

Plaintiff Gilbert Sprott was hired as Chief Control Chemist by defendant Avon Products, Inc. in 1960. Sprott left his prior employment to obtain a manufacturing management position which he perceived offered greater advancement possibilities. Furthermore, he was attracted to the advertised “family attitude” heavily stressed as an attractive aspect of employment at Avon and was confident he could there build a secure future. Avon clearly encourages longevity in employment which was expressed to Sprott by various officers many times and its employment manual reads:

RECOGNITION OF SERVICE:
The company recognizes and appreciates long and faithful service by its associates, and realizes the value of skill, knowledge and judgment gained through years of experience. Long service contributes to an associate’s standing in the company and is appropriately recognized.

Over the years, Sprott advanced in the company to the point where, in 1978, Sprott was promoted from a position in Research and Development in New York to general manager of Avon’s new manufacturing facility in Mansfield, Massachusetts. Needless to say, this was expected to be long term and Sprott was advised to sell his house in New Jersey and move his family. However, in less than a year, on April 30, 1979, Sprott was summoned to New York and informed that he was being removed from his managerial position. Sprott states that this came as a shock to him, and that he had no warning that his work was being viewed with concern. Contemporaneous memoranda by Sprott’s supervisors, on the other hand, paint a picture of major problems created by Sprott’s indecisiveness as a manager — a picture which, if true, was clearly foreshadowed by a number of Sprott’s earlier annual written management appraisals. In any event, after fruitless consideration of other possible placements in Avon, it was suggested that he take early retirement, which could be done at 55. At the time of these events, Sprott was 54. The following month, May, 1979, Sprott spoke with an Equal Employment Opportunity Commission attorney in Washington to obtain basic information about age discrimination laws and began reading articles in newspapers and scientific and business journals on that topic. Sprott contacted a New York attorney for advice in litigation options. The lawyer continued to advise Sprott on his litigation strategy until Sprott hired local counsel to pursue his claim in court.

In any event, in June 1979, two months after his removal as a manager, Howard Johnson, an Avon vice president wrote Sprott, describing Avon’s intention to create a sinecure for him in New York which, having no responsibilities or duties, would give Sprott full time to search for employment elsewhere. After conferring with his attorney, Sprott accepted this and agreed with some reservations and dissatisfactions to receive retirement benefits commencing May 31, 1980.

In response to Sprott’s reservations and dissatisfactions, in October and November 1979, Johnson sent Sprott further letters reformulating some provisions of the June letter retaining, however, the provision of employment in name only followed by early retirement. Sprott forwarded these letters to his lawyer, along with a note, dated October 19, 1979, reading:

We are close to the 180 days limit to bring private suit (about Nov. 1). Can an extension of that period be obtained? If yes, could you do so? Should I bring suit now or wait further?”

Subsequently, Sprott and his lawyer conversed by telephone. Sprott says he was informed by his lawyer that the limitations period in which a charge had to be filed would be measured from Sprott’s last day of employment, May 31, 1980. His lawyer also wrote him contemporaneously

I would reiterate the fact that you have not been terminated nor have you left Avon, and your termination or your final date will be, if necessary, May 31, 1980. That is, of course, to protect yourself against the statute of limitation problem we discussed.

Sprott retired from Avon on May 31, 1980. Some time afterward he retained litigation counsel and filed a complaint of age discrimination with the EEOC and the New York State Dept. of Human Rights on August 13, 1980.

Sprott’s principal claim is pursuant to the Age Discrimination in Employment Act. 29 U.S.C. § 621 et seq. Avon argues that this claim is time-barred because Sprott failed to file his complaint with the EEOC within 300 days of the alleged unlawful discrimination, as required by 29 U.S.C. § 626(d)(2).

The parties agree, and it is now pronounced in Supreme Court rulings in Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) and Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981), that the limitation period of 300 days begins to run when the employee is notified of the allegedly discriminatory employment decision. Under this rule, Sprott’s claim is time-barred, for he knew in May 1979 that he would be terminated a year later and he immediately suspected age discrimination, as evidenced by his research and correspondence with an EEOC attorney and his own attorney. Sprott, however, urges two theories to avoid his claim being barred.. First, he contends that because he filed his complaint prior to the said Supreme Court rulings in Delaware State College and Char-don these rulings should not be applied “retroactively” as to him. Alternatively, he contends that equitable tolling of the limitations period is appropriate here.

As to retroactive application of a Supreme Court pronouncement, the Court in Chevron Oil v. Huson, 404 U.S. 97, 106-7, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971) stated:

In our cases dealing with the nonretroactivity question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.” (Citations omitted.)

Sprott urges that an analysis of the facts under the Chevron factors mandates nonretroactivity of the restrictive rule of Delaware State College. I note that the Court of Appeals in the First Circuit rejected a similar argument in Fernandez v. Chardon, 681 F.2d 42 (1982) on an analysis that I conclude applies here. Thus, to decline to apply a Supreme Court pronouncement to a similar pre-existing fact situation, that ruling must have overruled clear past precedent or must have been an issue of first impression. Neither of these criteria are met here. No uniform clear precedent existed in the Second Circuit. At best the Court of Appeals had two lines of cases turning on the last day services were performed which triggered the commencement of the period of limitation.

Thus, Egelston v. State University College at Geneseo, 535 F.2d 752, 755 (2d Cir.1976) and Noble v. University of Rochester, 535 F.2d 756 (2d Cir.1976), decided together, had, as stated in Egelston, the following rationale:

Appellant’s discharge was consummated only when she left [her employer, and] ... [she] alleges that the discrimination against her was not an isolated act, but rather constituted a part of her [employer’s] continuing policy to deny women access to its upper echelons.

535 F.2d at 755.

On the other hand, Davis v. R.J.R. Foods, Inc., 420 F.Supp. 930 (S.D.N.Y. 1976), affirmed without published opinion, 556 F.2d 555 (2nd Cir.1977), and decided after Egelston and Noble, held that the period of limitation began with the last day of service following the notification of termination, even though salary and other benefits might continue to be paid for some time thereafter. The District Court’s statement, thereafter affirmed, was:

By his own admission [plaintiff’s] services for [defendant] ceased on June 6, 1972. Although he continued to receive his salary and other benefits until October 6, this in no way prolongs his actual employment____ A logical extension of Davis’ reasoning would equate the receipt of pension benefits by a retired employee with continuous employment. Such a proposition is patently without foundation.

420 F.Supp. at 931, fn. I.

To similar effect at the time of Sprott’s filing was Jackson v. Alcan Sheet and Plate, 462 F.Supp. 82, 85 (N.D.N.Y.1978):

Cases decided under the ADEA have been consistent in holding that the cause of action accrues on the date when the employer violates the employee’s rights by discharging him on the basis of age. The date of discharge is generally determined to be the date upon which the employee ceases to perform services for the employer. Davis v. R.J.R. Foods, Inc., 420 F.Supp. 930, 931 n. 1 (S.D.N.Y. 1976), aff’d w/o op. 556 F.2d 555 (2d Cir.1977) ...

There is no question here that Sprott’s facts equate with those of Davis and Jackson, supra, and thus even under that rule at that time, Sprott’s filing was untimely.

Thus, Sprott having failed to satisfy the first requirement of the Chevron analysis, I may not deny “retroactive” application of Delaware State College.

Sprott’s alternative request is for an equitable tolling of the limitations period. Sprott’s factual support for this is that he was relying on the advice of his counsel, but this fact mandates the opposite conclusion, even assuming he was given and relied on erroneous advice. Downie v. Elec tric Boat Division, 504 F.Supp. 1082, 1086-1087 (D.C.Conn.1980).

Although ADEA is a remedial humanitarian statute and should be construed liberally, Dartt v. Shell Oil, 539 F.2d 1256 (10th Cir.1976) affd 434 U.S. 99, 98 S.Ct. 600, 54 L.Ed.2d 270 (1977), the argument is otherwise without support on the law. Edwards v. Kaiser, 515 F.2d 1195 (5th Cir. 1975); Smith v. American President Lines, Ltd., 571 F.2d 102, 110-111 (2d Cir. 1978).

I further note in Smith that the Second Circuit has indicated that the tolling of time limits in discrimination suits is appropriate only in very strict circumstances. Referring to the Supreme Court’s decision in Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976), the Court of Appeals stated at 109:

The [Supreme] Court implied that tolling might be appropriate only where the defendant has actively misled the plaintiff respecting the cause of action, or where the plaintiff has in some extraordinary way been prevented from asserting his rights, or has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum.

Finally, I observe in connection with the equitable argument here made that Sprott did not file his EEOC charge until — having concluded fourteen months of negotiations — he had obtained some $200,000 in severance and retirement benefits. Given the foregoing, equity is not available to permit tolling. Summary judgment is therefore granted on the ADEA claim for failure to timely comply with the filing requirement of 29 U.S.C. § 626(d)(2).

Sprott’s complaint next asserts that his discharge was a breach of his employment contract entitling him to damages. Avon moves for summary judgment on this claim contending that Sprott was employed at will and thus could be discharged for any reason or no reason. Sprott has set forth facts from which he argues that he had an implied contract with Avon assuring job security and limiting discharge to one for good cause.

This action being before me by reason of diversity of citizenship, I must look to New York law to determine the contract issues. Erie R.R. Co. v. Tomkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). New York law has always been, and Murphy v. American Home Products Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983) 461 N.Y.S.2d at 235, 448 N.E.2d 86 has reaffirmed:

... our long-settled rule [is] that where an employment is for an indefinite term it is presumed to be a hiring at will which may be freely terminated by either party at any time for any reason or even for no reason (see Martin v. New York Life Ins. Co., 148 N.Y. 117, 42 N.E. 416; Parker v. Borock, 5 N.Y.2d 156, 182 N.Y.S.2d 577, 156 N.E.2d 297.

The case of Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d 441 (1982), decided a year earlier, and upon which plaintiff relies, is neither an exception to Murphy nor do Sprott’s facts fit within it. In Weiner, the employer’s “Handbook on Personnel Policies and Procedures” had a statement which the Court deemed to be a part of the employment agreement. It read as follows:

[t]he company will resort to dismissal for just and sufficient cause only, and only after all practical steps toward rehabilitation or salvage of the employee have been taken and failed. However, if the welfare of the company indicates that dismissal is necessary, then that decision is arrived at and is carried out forthrightly-

457 N.Y.S.2d at 194, 443 N.E.2d 441. There is, however, no such contractual provision herb, either expressed or implied.

The fact that Avon continuously encouraged, fostered, placed great importance upon and rewarded long, faithful, even lifetime service to the company does not change the employment contract from one terminable at the will of either party. Subsequent cases in New York’s Appellate Division continue to be in accord with this view. O’Donnell v. Westchester Com. Serv. Council, 96 A.D.2d 885, 466 N.Y.S.2d 41 (App.Div.1983), Gould v. Community Health Plan of Suffolk, Inc., 99 A.D.2d 479, 470 N.Y.S.2d 415 (1984).

Also noting, as I do, that the Court in Murphy, supra, acknowledged a trend in many states to temper the strict rule but declined to join the trend, this Court has no choice but to accept and apply that rule. Summary judgment is accordingly granted to Avon and the contract claim is dismissed.

Avon also moves to dismiss Sprott’s state claim for age discrimination asserted pursuant to New York Executive Law § 296. Its position is well taken for this claim is barred by the election of remedies provision contained in Executive Law § 297 which reads in pertinent part:

9. Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages and such other remedies as may be appropriate, unless such person had filed a complaint hereunder or with any local commission on human rights, or with the superintendent pursuant to the provisions of section two hundred ninety-six-a of this chapter, provided that, where the division has dismissed such complaint on the grounds of administrative convenience, such person shall maintain all rights to bring suit as if no complaint had been filed. No person who has initiated any action in a court of competent jurisdiction or who has an action pending before any administrative agency under any other law of the state based upon an act which would be an unlawful discriminatory practice under this article, may file a complaint with respect to the same grievance under this section or under section two hundred ninety-six-a.
(underscoring supplied)

Thus, one aggrieved must choose between judicial and agency fora for relief. Emil v. Dewey, 49 N.Y.2d 968, 428 N.Y.S.2d 887, 406 N.E.2d 744 (1980). Having chosen to file a complaint with the New York State Division of Human Rights in August, 1982, Sprott may not now assert his state claim.

Sprott alternatively suggests that this court stay the state law claim and allow him to seek dismissal on grounds of administrative convenience. The statute allows only one exception to the election of remedies. If the plaintiff has chosen to proceed before an agency, a Court can adjudicate the state cause of action only if “the division has dismissed the complaint on the grounds of administrative convenience.” See Executive Law, supra. This exception, which courts have determined to be exclusive, is not present here. Emil v. Dewey, supra. Therefore summary judgment is granted and the cause of action dismissed.

Sprott next alleges a cause of action for tortious discharge. Aware that New York does not recognize such a claim, see Murphy v. American Home Products Corp., supra, Sprott contends that either New Jersey or Massachusetts law governs and that those jurisdictions do permit such a claim.

In a diversity action, the choice of law is determined by the law of the forum state. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). New York applies the “center of gravity” approach, Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963) or the “interest analysis” approach, Auten v. Auten, 308 N.Y. 155, 124 N.E.2d 99 (1954) to determine which state has the greatest interest in the litigation. Under these, New York’s interest overwhelmingly prevails. Sprott’s New Jersey residence is the sole basis for New Jersey’s interests. Sprott’s final job with Avon for ten months in Mansfield is the basis for Massachusett’s interest. Neither, however, equals New York’s interest and thus fail to meet the “center of gravity” analysis.

Plaintiff spent most of his Avon career at its home office in New York, which is the state of its incorporation. When trouble began, plaintiff sought protection under New York law and availed himself of New York unemployment benefits. Sprott was discharged from New York, and Sprott sought meetings and review of the decision in the New York Office. He chose to file his complaint against Avon with the New York State Division of Human Rights.

Given the foregoing, New York law as enumerated in Murphy v. American Home Products Corp., supra, governs and summary judgment is granted dismissing this cause of action.

In sum, the complaint is dismissed in its entirety with costs and disbursements to the defendant. Submit judgment accordingly on notice.

The foregoing is so ordered.

      . What this terminology meant to Sprott, or what his lawyer was told as the basis of this advice is unclear.

      . Section 626(d) states in part:
      No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Commission. Such a charge shall be filed—
      (1) within 180 days after the alleged unlawful practice occurred; or
      (2) in a case to which section 633(b) of this title applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.
      Section 633(b) applies to cases that occur in states that prohibit age discrimination in employment. New York is a § 633(b) state. Reich v. Dow Badische Co., 575 F.2d 363, 370 (2d Cir.), cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683 (1978).

      . Although neither Delaware State College nor Chardon was an action under ADEA (the former was an action under Title VII and 42 U.S.C. § 1981, the latter under 42 U.S.C. § 1983), it appears settled that the same rule applies to ADEA claims. Price v. Litton Business Systems, Inc., 694 F.2d 963, 965 (4th Cir. 1982); Leite v. Kennecott Copper Corp., 558 F.Supp. 1170 (D.Mass.1983), Pfister v. Allied Corp., 539 F.Supp. 224, 226 (S.D.N.Y.1982).

      . Sprott filed with the EEOC on August 13, 1980. Delaware State College, came down on December 15, 1980, Chardon on November 2, 1981.

      . Thus, in Fernandez v. Chardon, 681 F.2d 42, 52 (1st Cir.1982), the Court of Appeals, on remand from the Supreme Court, ruled against plaintiffs who argued that Delaware State should not be applied retroactively in an action under 42 U.S.C. § 1983. The Court said, ”[0]nly one [case] offers square support for plaintiffs’ rule.” The one case was Egelston v. State University College at Geneseo, infra.

      The First Circuit nevertheless continued, "We cannot say that [Delaware State College ] established a new principle of law, either by overruling clear past precedent or by deciding an issue of first impression.” 681 F.2d at 52.

        . Davis is cited for support by the Third Circuit in Bonham v. Dresser Industries, Inc., 569 F.2d 187 (3d Cir.1977), decided two years before Sprott's termination. Bonham held at 191:
      [W]here unequivocal notice of termination and the employee's last day of work coincide, then the alleged unlawful act will be deemed to have occurred on that date, notwithstanding the employee’s continued receipt of certain employee benefits such as periodic severance payments or extended insurance coverage.

      . See Kremer v. Chemical Construction Corp., 623 F.2d 786, at 789 (2d Cir.1980).


text:
    Rev. Joseph J. TURNER, S.D.S. v. Mr. J.L.G. PARSONS, Medical Center Director.
    Civ. A. No. 84-1340.
    United States District Court, E.D. Pennsylvania.
    Oct. 3, 1984.
    Rev. Joseph J. Turner, pro se.
    Joseph M. Masiuk, Asst. U.S. Atty., Philadelphia, Pa., for defendant Parsons (director-VA Hosp.).
   MEMORANDUM AND ORDER

JAMES McGIRR KELLY, District Judge.

Presently before this Court is plaintiff Reverend Turner’s motion to compel a non-party Archbishop Ryan, to produce certain documents. Additionally, plaintiff seeks to have the Court hold Archbishop Ryan in contempt for his failure to answer the subpoena. Reverend Turner is not seeking Archbishop Ryan’s deposition, and relies upon Fed.R.Civ.P. 45 for authority for the motions.

Archbishop Ryan, through counsel, has responded to plaintiff’s motion. He has asserted that the subpoena is defective and without effect for several reasons: (1) that Archbishop Ryan was served in his individual capacity rather than in the capacity as president (agent) of the Military Vicariate, a New York Religious Corporation (Note: The documents are the property of the Military Vicariate, not personal property of the Archbishop’s); (2) that the Archbishop is outside the 100 mile limit of the subpoena power; (3) that the subpoena should have been issued by an auxiliary court, namely, the United States District Court for the Southern District of New York; (4) that no fee had been forwarded to Archbishop Ryan as required by Fed.R.Civ.P. 45; (5) that the subpoena was improper because the plaintiff had solely requested documents, not in conjunction with a deposition or trial.

To dispose of this motion, I need only address the last argument presented by the Archbishop.

Fed.R.Civ.P. 45(a) discusses the content of a subpoena for a witness while subdivision (b) states that a subpoena “may also command the person to whom it is directed to produce the books, papers...” (emphasis added). Certainly, this rule permits a non-party to be subpoenaed for a deposition. Additionally, this non-party can be required to bring certain documents to a deposition. Nowhere in the rule is it stated that documents can be subpoenaed alone, that is, without requesting their production in conjunction with a deposition or trial.

In Taylor v. Litton Medical Products, Inc., 19 Fed.R.Serv.2d 1190, 1193 (D.Mass. 1975), the court held: “that the defendant cannot subpoena documents for the purpose of inspection and investigation with the view to eventually subpoenaing them to a trial or deposition or other legal proceeding.” In Newmark v. Abeel, 106 F.Supp. 758, 759 (S.D.N.Y.1952). The court held: “There is no authority for the service of a subpoena duces tecum on a person not a party for purposes of discovery, in the absence of the taking of a deposition, and therefore these subpoenas duces tecum are irregular and must be quashed.” See also Dart Industries v. Liquid Nitrogen Processing Corp. of Calif, 50 F.R.D. 286 (D.Del.1970); Ghandi v. Police Dept. of the City of Detroit, 74 F.R.D. 115 (E.D. Mich.1977); McLean v. Prudential Steamship Co., 36 F.R.D. 421 (E.D.Va.1965).

Here plaintiff has subpoenaed documents alone, for the purpose of discovery. Indeed, plaintiff’s motion to compel Archbishop Ryan to produce certain documents is against the great weight of authority. Although Archbishop Ryan has not made a motion to quash the subpoena, this Court has the inherent power, on its own motion to quash a subpoena that is irregular. Taylor, supra; Newmark, supra. In conclusion, plaintiff has failed to meet the standard for a subpoena for documents pursuant to Fed.R.Civ.P. 45, and the subpoena is quashed on this Court’s motion.


author: CLARKE, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Charles D. SHUGARMAN, Albert Y. Webb, James R. Dubose, Sr., James R. Dubose, Jr., and Carlisle C. Hamilton, Defendants.
    Civ. A. No. 84-64-NN.
    United States District Court, E.D. Virginia, Newport News Division.
    Oct. 4, 1984.

      Michael A. Rhine, Asst. U.S. Atty., Norfolk, Va., Larry Meuwissen, Tax Div., Dept, of Justice, Washington, D.C., for plaintiff.
    Scott McLarty, Athens, Ga., Robert A. Blount, Newport News, Va., for defendants.
   MEMORANDUM OPINION

CLARKE, District Judge.

This matter comes before the Court on the Government’s request for permanent injunctive relief against the defendants. The government has submitted the following proposed findings of fact, which the defendants have agreed shall be the basis for the court’s opinion and order. Accordingly, the Court adopts the proposed findings as follows:

FINDINGS OF FACT

(a) The defendants have at some time all been active as organizers, promoters, agents or leaders of a program, plan, arrangement or entity known as the “Virginia Patriots.”

(b) The Virginia Patriots are a local affiliate of a national program, plan, arrangement or entity known as the “Patriot Network.”

(c) The Virginia Patriots maintained an office in 1983 at 10202A Warwick Boulevard, Newport News, Virginia, 23602.

(d) The Virginia Patriots, as the local affiliate of the national Patriot Network, make available materials, some of which have been developed and promoted by one Robert Barnwell Clarkson of Anderson, South Carolina. These materials deal with the Constitution of the United States, the United States Code (particularly the Internal Revenue Code) and various statutory and case law excerpts. Clarkson personally attended and spoke to a promotional meeting for the “Virginia Patriots” at the Western Steer Restaurant, 12652 Jefferson Avenue, Newport News, Virginia, on December 15, 1982.

(e) Charles D. Ray of Augusta, Georgia, has been active in the national organization of the Patriot Network. Ray made personal appearances with members of the Virginia Patriots in August, 1983.

(f) The advocacy of the defendants through the “Virginia Patriots” asserts the proposition that wages and salaries are not taxable under Section 61(a)(1) of the Internal Revenue Code but rather that they are exchanges of property under Section 61(a)(3) of the Internal Revenue Code thereby avoiding tax con sequences on wages received.

(g) These theories were at some time presented through the use of a videotaped presentation by Charles Ray that was played at certain regularly conducted meetings held to recruit members into the “Virginia Patriots.” This taped presentation is approximately two hours in length and contains numerous arguments concerning the Federal Reserve System and the taxation of wages. The videotape presentation asserts, for example, that no one paid income tax on wages prior to World War II. The presentation explains, step by step, how an individual should prepare a W-4 form (employee’s withholding allowance claim) in order to be exempt from income tax withholding. The presentation promises that members will be shown how to legally stop paying federal income tax on wages forever.

(h) At these meetings, the video tape presentation was followed by further discussion by the defendants. The oral promotion was sometimes reinforced by circulation of copies of federal income tax refund checks purported to have been paid to “Patriots” who had followed the Patriot Network plan. On some occasions, one or more of the defendants or other persons associated with the Virginia Patriots have made an oral presentation substantially similar in content to the videotape of Charles Ray.

(i) At such meetings persons in attendance were invited to join the “Virginia Patriots” for a $200.00 fee. Members also paid monthly fees of $25.00. Once an individual has joined the organization, the defendants provided (usually for a $5.00 fee) sample tax returns or sample amended tax returns (Form 1040X) about which the members were advised regarding re-copying and filing.

(j) The tax returns and amended tax returns described in. Paragraph (i), above, involve reporting an individual’s wages as gross receipts or sales, and an offsetting deduction is taken for “cost of goods sold.” The cost of goods sold deduction is sometimes determined using the individual’s wages as a starting point and deriving an amount which, according to the “Patriots” tax return instructions, will be “enuf (sic) to reduce tax liability to 0.”

(k) Defendants have advised members regarding the filing of a Form W-4. If the employer refuses to accept the W-4, members are advised by the defendants concerning legal remedies available with respect to the employer.

(l) The defendants have also advised members with respect to their legal re-courses regarding erroneously or illegally collected taxes or penalties pursuant to 26 U.S.C. § 7422 (tax refund actions) to contest, among other things, penalties imposed by Section 6682 of the Internal Revenue Code (26 U.S.C.) for a false or fraudulent withholding statement.

(m) The “Patriot Network” Membership agreement used by the defendants for the Virginia Patriots expressly states that the purported benefits of membership are contingent upon regular payment of dues by the member.

(n) The defendants contract under the terms of the membership agreement to provide a legal assistance fund and other advisory services as needed to members who encounter tax difficulties. The defendants thus know or have reason to know that the course of action they urge upon their members is false or fraudulent and is likely to result in adverse tax consequences to members who follow such advice.

(o) Defendants nevertheless have solemnly assured members that the courses of action they advocate are legal and have thus induced citizens to join and pay fees to the defendants for false and fraudulent advice that leads directly to the filing of false or fraudulent tax returns by members of the defendants’ organization.

(p) Defendants’ contention that they advocate civil disobedience as a means to argue their theories before the courts is not credible. Defendants do not warn prospective members that the courses of action they advocate have been universally rejected and held to be unlawful by the courts. Defendants do not inform prospective members that they are virtually certain to suffer civil and/or criminal penalties for following the defendants’ advice. They do not inform prospective members that they are virtually certain to lose any civil action brought to contest penalties assessed by the Internal Revenue Service for filing the type of tax returns suggested by the defendants.

(q) Defendants, in fact, do more than suggest the filing of a particular type of return; they actually prepare the return, but have the member re-copy it in his own hand before filing it. For this service, defendants generally charge a fee of $5.00 per return or for an amended return. The stipulations show that defendants Charles Shugarman and James R. DuBose, Sr. have actually prepared such returns and charged such fees. The other defendants have acted as promoters of this tax service and are likely to engage in the similar conduct if they are not precluded from doing so. None of the defendants appear to have any proper training for the preparation of lawful tax returns nor does there appear to be, at this time, any likelihood that they would conduct themselves in a lawful manner in the business of preparing federal income tax returns.

(r) Patriot Network materials made available to members by the defendants are replete with directives for abusive and contemptuous conduct against personnel of the Internal Revenue Service. Such directives are plainly calculated to cause interference with the proper administration and enforcement of Government personnel. Defendants have actively encouraged members to engage in such conduct and have provided specific instructions making it more likely that members will engage in such conduct. Some of these materials describe in considerable detail ways to write abusive and threatening letters. Others describe the filing of common law liens. Defendants have also discussed at meetings the creation of lists of Internal Revenue Service personnel to be distributed or published.

(s) The Form W-4 form described in paragraph (g) above is used by an employee to inform his employer of the number of withholding exemptions he claims in accordance with 26 U.S.C. Section 3402(f). Defendants generally advise their members to claim an excessive number of exemptions or to claim complete exemption from income tax withholding on wages under 26 U.S.C. Section 3402(n). The principal legal remedy that members are advised and assisted to take against an employer refusing to accept such a W-4 form is to sue the employer, thereby causing the employer to incur expense which may coerce the employer into acceptance of a false W-4 form.

(t) Defendants actively encourage litigation against the Government to contest various civil tax penalties assessed against members as a result of following the patriot plan in one or more respects. Typically, such actions are brought as tax refund actions and the defendants have prepared pleadings and furnished other assistance in the filing of such actions. In particular, the evidence shows that defendant Shugarman was actively involved in causing actions to be filed in this district by Thomas E. Scull and others (Civil Action Nos. 83-132-NN, 83-133-NN and 83-522-NN) in which summary judgment was granted in favor of the United States on April 10, 1984. (Reported at 84-2 U.S.T.C. 9529). The Patriot’s purpose behind such litigation is not for the sake of advancing any serious, legitimate legal argument, but rather to tie up the courts and Government agencies and to cause them unnecessary expense.

(u) None of the defendants appear to have had any formal training in the law by any recognized institution. Charles D. Shugarman has a certificate purporting to make him a member of the “Patriot Bar Association” dated September 5, 1983 and signed by Robert B. Clarkson, II as “Chairman.” This certificate attests to nothing more than the fact that Shugarman may have passed some test showing knowledge of the contents of various materials developed by Clarkson. Some of the Clarkson materials were introduced into evidence and the Court finds the contents of these materials to be sham, false, scandalous and impertinent. Defendants are plainly not qualified to provide legal advice of any sort, but it appears likely that they will continue to sell their bogus advice to the detriment of the courts and other Government agencies and also to the grave detriment of those naive or corrupt enough to be willing to follow such advice.

CONCLUSIONS OF LAW

Jurisdiction over this action is conferred by 26 U.S.C. Sections 7402 (authorizing the district courts to issue injunctions as may be necessary or appropriate for the enforcement of the internal revenue laws), 7407 (authorizing district courts to enjoin tax return preparers engaged in fraudulent or deceptive conduct that substantially interferes with the proper administration of the Internal Revenue laws), and 7408 (authorizing district courts to enjoin conduct subject to penalty under 26 U.S.C. § 6700. Section 6700 imposes a penalty upon persons who organize plans or arrangements that make or furnish statements regarding the allowability of any deduction or the excludability of any income that the person knows is false or fraudulent). Jurisdiction also lies under 28 U.S.C. § 1345, which provides for district court jurisdiction in all civil actions commenced by the United States.

The defendants here do not dispute that the Internal Revenue Code authorizes the issuance of injunctions in cases where individuals are engaging in certain proscribed conduct. Their argument is, rather, that the Government’s proposed injunction in this action violates their first amendment rights to free expression and free association.

The defendants attack the Government’s proposed Order of Injunction on two theories: first, that the Order inadequately distinguishes between protected and unprotected activity under the first amendment and thus is unconstitutionally overbroad; and second, that it is an impermissible prior restraint on the speech and associational rights of the defendants. The Court in this opinion addresses each claim separately.

It is settled beyond dispute that the first amendment protects an individual’s right to disagree with the law and to advocate the violation of a law. There is no protection, however, for speech or advocacy that is directed toward producing imminent lawless action. As the Supreme Court wrote in Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969):

(T)he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Id. at 447, 89 S.Ct. at 1829. Although the defendants argue that their conduct is merely advocacy of unlawful activity and is not directed toward producing lawless action, the record and the findings of fact demonstrate otherwise. Arguing for or advocating changes in the existing tax law is certainly protected activity; even advocating the violation of the tax laws is constitutionally sanctioned. These defendants, however, have gone beyond that permissible stage. They are actually breaking the law themselves and instructing others on how they, too, can break it. The Supreme Court has noted this distinction:

The mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.

Brandenburg v. Ohio, 395 U.S. at 448, 89 S.Ct. at 1830, quoting Noto v. United States, 367 U.S. 290, 297-98, 81 S.Ct. 1517, 1520-21, 6 L.Ed.2d 836 (1961).

The Court finds that the defendants in this case are not engaged in mere advocacy but in advocacy that is “directed to producing imminent lawless action.” Such advocacy is not protected by the Constitution.

In considering the scope of the first amendment protection for the speech and conduct of these defendants, the Court also considers that the speech is of a commercial nature. The defendants have stipulated that the Virginia Patriots charge fees for their service of providing false and fraudulent tax advice. Moreover, members who wish to receive their continuing services are required to pay regular dues. While the protection of the first amendment does extend to commercial speech, such speech may be regulated to safeguard the State’s interest in insuring the unimpaired flow of truthful and legitimate commercial information. See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 770, 96 S.Ct. 1817, 1829, 48 L.Ed.2d 346 (1976). The Supreme Court noted in Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), that commercial speech, “although meriting some protection, is of less constitutional moment than other forms of speech.”

The next consideration of the Court in assessing the first amendment consequences of abridging the defendants’ behavior in this case is the extent of “non-speech” elements in the course of conduct. The Supreme Court has held that when “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeeeh element can justify incidental limitations on first amendment freedoms. United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968).

In United States v. O’Brien, supra, the defendant burned his Selective Service Registration certificate in front of a large crowd in an attempt to influence others to adopt his anti-war beliefs. The Supreme Court held that while he had a right to oppose the Selective Service system and the Universal Military Training and Service Act, it did not follow that the unlawful destruction of his registration certificate was a constitutionally protected activity. The Court rejected his contention that his act of burning was “symbolic speech.” Id. at 376, 88 S.Ct. at 1678.

The conduct of these defendants is not entirely “speech.” They assist in the preparation of fraudulent tax returns and sell plans that instruct taxpayers how to avoid federal income tax payment. They assist in the filing of frivolous lawsuits and instruct members on ways to engage in abusive and contemptuous conduct clearly calculated to disrupt and interfere with the proper administration of the internal revenue laws. Such conduct is more adequately characterized as “nonspeech.” Any incidental suppression of free expression that may result from enjoining the defendants’ conduct in this case is sufficiently justified by the overriding interest of the government in securing voluntary citizen compliance with the tax laws.

The final, and perhaps most important, consideration in determining the extent of the defendant’s first amendment right to engage in this form of speech, is that the arguably protected message of the defendants is untruthful. The defendants teach that wages and salaries are not taxable income and that their members may lawfully stop paying tax on wages forever. They advise their members to force false and fraudulent wage withholding forms on their employers. Advice such as this, which is plainly fraudulent and untruthful, is not entitled to constitutional protection. In the words of the Supreme Court,

(T)here can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it (citing cases) or commercial speech relating to illegal activity.

Central Hudson Gas & Electric, 447 U.S. at 563-64, 100 S.Ct. at 2350.

The Court holds that the first amendment does not prevent the issuance of this injunction on three grounds: first, the defendants’ advocacy is directed toward producing imminent lawless action; second, the conduct is a mixture of speech and nonspeech and the government has a strong interest in regulating the nonspeech elements; and finally, the speech amounts to a misleading commercial message more likely to deceive the public than to inform it.

The defendants argue that the proposed injunction would violate their right to free association. The Court is not persuaded by this argument; the individual defendants are free to associate with whomever they wish, so long as they do not violate the law while they are freely associating. The case cited to support this argument of the defendants Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir.1980), is inapposite. In Familias Unidas, the Fifth Circuit held unconstitutional a statute empowering judges to demand public disclosure of membership of organizations thought to be engaged in activities that interfered with the operation of public schools. Because the right of privacy in group associations may be indispensable to the preservation of freedom of association, the Court struck down the statute. In this case, however, no associational rights are even involved. The right to engage in unlawful activity is neither indispensable nor incidental to the defendants’ right to freedom of association. Moreover, the injunction will not interfere with the organization’s right of privacy.

The second argument which the defendants advance in opposing the proposed injunction is that the injunction seeks to impose a prior restraint on the protected political expression of the defendants.

The Court has already concluded that the first amendment does not protect the activity against which an injunction is being sought in this case. In a similar case where the government sought to enjoin the defendant’s promotion and sale of an abusive tax shelter, the District Court wrote,

Having found that the alleged abuses do not fall within the protection of the first amendment, the Court need not wrestle with the appropriateness of a prior restraint ____

United States v. Buttorff, 563 F.Supp. 450, 453 (N.D.Texas 1983).

This Court likewise will not “wrestle” with the appropriateness of a prior restraint. An injunction that the Court may issue would not restrain any protected political activity. The defendants may continue to advocate or work toward changing the federal tax laws. They may not, however, continue to break those laws.

Conclusion

The Court is of the opinion that a permanent injunction should issue according to the terms set out in the accompanying Order entered this same date.

ORDER OF PERMANENT INJUNCTION

In accordance with a Memorandum Opinion rendered simultaneously herewith, it is ORDERED that:

Defendants Charles D. Shugarman, Albert Y. Webb, James R. DuBose, Sr., James R. DuBose, Jr. and Carlisle C. Hamilton, their agents, servants, employees, attorneys and all those in active concert or participation with them are enjoined from directly or indirectly:

1. Inducing, aiding or abetting the filing of false or fraudulent wage withholding exemption forms.

2. Inducing, aiding or abetting the filing of false or fraudulent federal income tax returns or amended returns.

3. Inducing, aiding or abetting abusive or contemptuous conduct directed against personnel of the Internal Revenue Service or Court personnel, including the filing of “common law liens” or any other instrument purporting to encumber real or personal property of such personnel without lawful authority under due process of law.

4. Inducing, aiding or abetting the institution of lawsuits against employers in an attempt to coerce acceptance of a false or fraudulent wage withholding exemption form.

5. Inducing, aiding or abetting the institution or prosecution of any civil action in any court in the United States based upon the claim that wages or salaries or other compensation for labor or services are not subject to Federal income tax.

6. Organizing, assisting in the organization of, selling or otherwise promoting any plan or arrangement based upon the false premise that wages, salaries or other compensation for labor or services are exempt from Federal income taxation or based upon any other false or frivolous contentions regarding Federal tax law.

7. Advertising, marketing, selling or otherwise . distributing any documents or other information to be used by taxpayers to avoid the payment of or to obtain the refund of Federal income taxes based on the false proposition that wages, salaries or other compensation for labor or services not specifically excluded from taxation under Title 26 United States Code are not taxable income.

8. Preparing or assisting any individual by any means in the preparation of false or fraudulent Forms 1040, 1040X, W-4 and any other tax returns or any other false or fraudulent form, return or declaration claiming that the taxpayer is exempt from Federal taxation or entitled to excessive multiple withholding allowances so as to reduce such taxation.

9. Preparing for compensation or employing one or more persons to prepare for compensation any return of Federal income tax or any claim for refund of Federal income tax for any person other than:

a. himself,
b. his regular and continuous employer, or
c. -a person for whom he acts as a fiduciary.

Preparing a return includes providing individualized “samples” of returns to be recopied as well as the preparation of any schedule or a sample of any schedule to be made a part of a return.

10. Making or furnishing a statement in connection with organizing, assisting in the organization of, selling or participating in the sale of an interest in a partnership, entity, investment plan or any other plan or arrangement

a. with respect to the allowability of any deduction or credit, the excludability of any income, or the securing of any other tax benefit by reason of holding an interest in the entity or participating in the plan or arrangement which the defendant knows or has reason to know is false or fraudulent as to any material matter; or

b. as to the value of property or services directly if the value directly relates to the amount of a deduction or credit for Federal income tax purposes or if the value so stated exceeds 200 percent of the correct value.

IT IS SO ORDERED.


author: TASHIMA, District Judge.

text:
    Joaquin SANCHEZ, et al., Plaintiffs, v. CITY OF RIVERSIDE, et al., Defendants.
    No. CV 81-4072 AWT
    United States District Court, C.D. California.
    Oct. 4, 1984.

      Leonard C. Kohn, David E. Osterloh, Minkin & Kohn, Los Angeles, Cal., for plaintiffs.
    John M. Porter, Roberts & Morgan, Riverside, Cal., for defendants.
   MEMORANDUM DECISION

TASHIMA, District Judge.

This is an action for damages under 42 U.S.C. § 1983 and under state common law, asserted under this Court’s pendent jurisdiction, against defendants City of Riverside (the “City”) and Victor Poisson, a City police officer. Plaintiffs Joaquin Sanchez and Emilio Aparicio alleged violations of their constitutional rights under color of state law, assault and battery, false imprisonment and infliction of emotional distress, arising out of the stopping and detention of plaintiffs by defendant Poisson, while he was acting in his official capacity as a police officer of the City.

Just prior to commencement of trial, defendants moved to bifurcate trial — that trial proceed against defendant Poisson on the claims against him and that trial against the City be deferred for later trial, if necessary. F.R.Civ.P. 42(b). The motion was based on the ground that establishing (and defending against) the City’s liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), would be a time-consuming exercise which would, in all probability, be rendered moot by the resolution of plaintiffs’ claims against the individual police officer. The motion was granted and trial proceeded on plaintiffs’ claims against the individual police officer defendant. Verdicts were returned in plaintiffs’ favor. Plaintiff Sanchez was awarded $28,000 actual damages for violation of his constitutional rights, assault and battery and infliction of emotional distress. Plaintiff Aparicio was awarded $4,000 for infliction of emotional distress. The jury found that plaintiff Aparicio was not deprived of any constitutional right. Punitive damages were neither sought nor awarded. The City has agreed that it is obligated under Cal.Gov’t Code § 825 to pay the judgment against its employee, defendant Poisson.

The City has now moved for summary judgment on the claims against it. F.R. Civ.P. 56. It contends that these claims have been rendered moot by the jury’s verdicts on the claim against the police officer defendant and the City’s agreement to pay the judgment entered on the verdicts.

Plaintiffs’ claims against the City allege no wrong not alleged against the police officer or no injury or damages proximately caused thereby different from the injury or damages sought against the police officer defendant.

The jury found that plaintiff Sanchez had been deprived of his constitutional right and was the victim of tortious conduct under state law, for which damages were awarded. With respect to the City’s liability under 42 U.S.C. § 1983, the pretrial conference order reserved the issue of whether any constitutional deprivation was pursuant to a “governmental custom” of the City under Monell. Monell, of course, does not create a separate class of constitutional wrongs; it merely provides that under certain circumstances a municipality may, itself, be held liable as a “person” for deprivation of a constitutional right, 436 U.S. at 690-91, 98 S.Ct. at 2035-36, as well as the individual perpetrator of the wrong. Since all compensable damages resulting from the constitutional wrong to plaintiff Sanchez have been assessed and the City has agreed to pay the judgment, nothing further remains to be adjudicated. Although plaintiff purports to seek punitive damages against the City, they are unavailable in a § 1983 action against a municipality. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981).

The jury found that only a common law tort under state law was committed against plaintiff Aparicio, for which damages were awarded. On the state law claim, with respect to the City’s liability, the pretrial conference order reserved the issue of whether plaintiffs’ injuries were proximately caused by the intentional, bad faith refusal or the negligence of the City “in failing to adequately supervise its police department.”

First, as under federal law, the City is not liable for punitive damages under state law. Cal.Gov’t Code § 818. Therefore, only actual damages would be recoverable against the City. Again, even assuming that one of the proximate causes of the tort inflicted on plaintiff Aparicio was the City’s failure adequately to supervise its police department, no additional damages are available for the harm that was, in fact, found by the jury to have been inflicted upon him. Thus, like the federal claim, nothing further remains to be adjudicated.

. Both state and federal claims are now moot because nothing of consequence turns on their adjudication. The issues of “governmental custom” and negligent supervision have been rendered hypothetical by the jury’s verdicts on plaintiffs’ claims against the police officer defendant and the City’s recognition of its obligation under state law to pay the judgment. Plaintiffs contend that adjudication of the remaining claim is important because any judgment adverse to the City could be used in future cases to establish custom and policy under Monell. It should be obvious that whether or not a live controversy remains cannot be decided on the basis of what may be important for some future case.

The reach of this Court’s jurisdiction is constitutionally limited to Article III “cases and controversies.” Pomerantz v. County of Los Angeles, 674 F.2d 1288, 1291 (9th Cir.1982). Since, in the present posture of the case, what is now sought amounts to no more than an “advisory” adjudication against the City, the remaining claims must be dismissed. United Public Workers v. Mitchell, 330 U.S. 75, 89, 67 S.Ct. 556, 564, 91 L.Ed. 754 (1947). Because Article III considerations implicate subject matter jurisdiction, dismissal under F.R.Civ.P. 12(b)(1), rather than summary judgment under F.R.Civ.P. 56, is appropriate.

The judgment on the verdict will incorporate the City’s agreement to be liable thereunder and a dismissal of all remaining claims.

      . The verdict was accompanied by interrogatories to explain the basis on which liability might be found. F.R.Civ.P. 49(b).

      . An award of punitive damages against the individual police officer would not affect the analysis here. Generally, a municipality is under no obligation to indemnify an employee for punitive damages. Cal.Gov't Code § 825.

      . Plaintiff Aparicio’s Monell claim against the City has been mooted entirely by the jury’s finding that his constitutional rights were not violated. It follows, necessarily, from that finding that there could not have been any violation which was pursuant to a custom or policy of the City.

      . Although state law recognizes a municipality’s respondeat superior liability, Cal.Gov’t Code § 815.2, no such claim has been asserted directly against the City based on defendant Poisson’s “act or omission".

      . The same analysis applies to plaintiff Sanchez’s state law claims.


author: CAHILL, District Judge.

text:
    Harry M. KATZ, M.D., Plaintiff, v. U.S. DEPARTMENT OF JUSTICE; William French Smith, U.S. Attorney General; Department of Health and Human Services; and Margaret M. Heckler, Secretary Department of Health and Human Services, Defendants.
    No. 84-0045C (4).
    United States District Court, E.D. Missouri, E.D.
    Oct. 4, 1984.
    Toby H. Hollander, St. Louis, Mo., for plaintiff.
    Joseph B. Moore, Asst. U.S. Atty., St. Louis, Mo., for defendants.
   MEMORANDUM AND ORDER

CAHILL, District Judge.

This matter is before the Court on defendants’ motion to dismiss plaintiff’s complaint, pursuant to Fed.R.Civ.P. 12(b)(1) and (6). For the following reasons, this Court grants the defendants’ motion.

To date, plaintiff has previously filed at least three other Freedom of Information Privacy Act (FOIPA) suits. The present suit constitutes plaintiff’s fourth. All of plaintiff’s previously filed FOIPA suits were dismissed. His third FOIPA suit filed in the Middle District of Louisiana named the Department of Justice as defendant. In light of the above, plaintiff cannot maintain his present suit against the defendant. A plaintiff cannot continuously relitigate the same cause of action against the same defendant. See Vorbeck v. Whaley, 478 F.Supp. 1117, 1119 (E.D.Mo.1979), affd, 620 F.2d 191 (8th Cir.1980). A final judgment on the merits bars further litigation. See Brown v. Felsen, 442 U.S. 127, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979); Roach v. Teamsters Local Union No. 688, 595 F.2d 446, (8th Cir.1979). The dismissal of the plaintiff’s claim constituted an adjudication on the merits. See Bierman v. Tampa Elec. Co., 604 F.2d 929 (5th Cir.1979). Therefore, plaintiff’s present cause of action must be dismissed. Accordingly,

IT IS HEREBY ORDERED that the defendants’ motion to dismiss is GRANTED.

IT IS FURTHER ORDERED that plaintiff’s cause of action is DISMISSED WITH PREJUDICE.