author: NOWLIN, District Judge.

text:
    Larry JONES v. Raymond FRANK, Sheriff; County Judge Michael Renfro; County Commissioners David Samuelson, Bob Honts, Richard Moya, and Ann Richards; and Gregory J. O’Neill and Joseph Studdard.
    Civ. No. A-80-CA-510.
    United States District Court, W.D. Texas, Austin Division.
    Jan. 31, 1985.

      Bobby R. Taylor, Austin, Tex., for plaintiff.
    Minton, Burton, Foster & Collins, Roy 0. Minton, Charles R. Burton, Martha S. Dickie, Austin, Tex., for County & Com’rs.
    Gibbins, Burrow & Bratton, Richard Tulk, Austin, Tex., for Sheriff Frank.
    Stephen Capelle, Austin, Tex., for Studdard and O’Neill.
   ORDER

NOWLIN, District Judge.

Before the Court is the Plaintiff’s Motion for Leave to Appeal In Forma Pauperis brought pursuant to 28 U.S.C. § 1915 and Federal Rule of Appellate Procedure 24(a). The Court has considered the Motion as well as the response of the Defendants, and is of the opinion that the Motion is not meritorious and should be Denied.

The trial of the Plaintiff’s civil rights action began on September 24, 1984. On October 16, 1984 the jury returned a verdict in favor of all Defendants. The Plaintiff’s Motion for New Trial alleging twelve grounds of error was denied by this Court on November 19,1984. The Plaintiff then filed notice of appeal on December 4, 1984; his Motion for Leave to Appeal In Forma Pauperis was filed on December 11, 1984. This was the Plaintiff’s first application to proceed in forma pauperis since this lawsuit was filed in December, 1980. The Defendants filed a response to the Plaintiff’s Motion on January 4, 1985. The Court finds itself in the somewhat ackward position of determining not only whether the Plaintiff can afford the cost of his appeal but also whether the appeal is taken in “good faith.” 28 U.S.C. § 1915; Fed.R.App.P. 24(a); Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983); Carson v. Polley, 689 F.2d 562, 586 (5th Cir.1982). The party demonstrates “good faith” when seeking review of any issue which is not frivolous. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); Howard, 707 F.2d at 220. A determination of good faith necessitates an inquiry into the merits of the appeal, but does not require that probable success be demonstrated. The Court’s inquiry is limited to whether the appeal involves “legal points arguable on their merits (and therefore not frivolous).” Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Howard, 707 F.2d at 220. In other words, the existence of any non-frivolous or colorable issue on appeal will compel the Court to grant the Petitioner’s Motion. Howard, 707 F.2d at 220; Carson, 689 F.2d at 586.

The affidavit filed by the Petitioner sets out information sufficient to determine that he is unable to pay the cost of this appeal. The affidavit goes on to list twenty-seven (27) issues which the Petitioner wishes to present on appeal. The first two issues the Petitioner wishes to pursue address his desire to inquire into the mental processes of the jurors during their deliberations. This point was addressed by the Court’s Order denying Petitioner’s Motion for New Trial, a copy of which is attached to this Order. In an in camera interview, the juror in question testified that no outside influence was brought to bear upon any juror nor did the jury consider any extraneous prejudicial information during their deliberations. Consequently, the Petitioner had no right to inquire into the thought processes of the jury. Fed.R.Evid. 606(b); Carson, 689 F.2d at 580-81 (5th Cir.1982).

Petitioner’s third point complains that the Court abused its discretion by admitting evidence of the Petitioner’s character, reputation and prior criminal record. The Petitioner testified in this case, and various family members testified about his character, reputation and prior criminal history on direct examination conducted by Petitioner’s own counsel. It was the Petitioner, not the Defendants who placed these matters in issue. An appeal on this point would be frivolous.

Petitioner’s fourth point alleges the Court abused its discretion by allowing the Defendants to add additional witnesses a few days prior to trial without allowing him adequate time to prepare. Both parties to this lawsuit added additional witnesses shortly prior to the trial. The Petitioner was given at least two opportunities prior to trial to depose Dr. Turpin, an expert witness for the Defendants. In addition, the Court instructed the Petitioner that if at any time counsel felt he was not prepared for examination of a witness, the Court would recess and allow him whatever reasonable time was necessary to prepare. The Petitioner never requested a recess for this purpose.

Without citing a specific instance, the Petitioner’s fifth ground alleges that the Court abused its discretion by not admitting evidence properly offered by the Petitioner. The Court presumes the Petitioner is referring to rulings which denied admission of evidence concerning a lawsuit brought in the early 1970’s which challenged conditions at the Travis County Jail. The Petitioner’s injuries were sustained in December, 1979, several years after that suit was tried. The Court admitted all evidence of conditions of confinement related to the alleged assault and injury of the Petitioner. The Sixth issue stated by the Petitioner alleges the Court should have excluded the testimony of witnesses who have allegedly violated the rule. Fed.R. Evid. 615. Again, the Petitioner points to no specific incident; however, at one point during the trial the Petitioner informed the Court that a witness had discussed his testimony with defense lawyers during a lunch break. Upon inquiry by the Court, it was determined that there had been no violation of Rule 615 by any party or witness. In fact, it was determined during the hearing that counsel for the Petitioner had also discussed other witness’s testimony with the witness in question during the course of that witness’s testimony. It is also interesting to note that this witness was called by the Petitioner. Once again, the Petitioner complains of evidence which he elicited from the witness stand.

The Petitioner’s seventh and eighth issues challenge the Court’s ruling which directed a verdict in favor of all Defendants as to the Petitioner’s Eighth Amendment claim. As noted in the Court’s Order denying the Petitioner’s Motion for New Trial, the record reflects that the Petitioner was a pre-trial detainee at the time he was injured. Consequently, his Eighth Amendment claim was not appropriate in this case. Thibodeaux v. Bordelon, 740 F.2d 329, 333-34 (5th Cir.1984). In addition, the Court would note that even if this were error it would be harmless because the jury-found that there had been no assault or conscious indifference to serious medical needs on the part of the Defendants. The jury would not have reached the Eighth Amendment issue submitted by the Plaintiff. Consequently, this point is frivolous.

The Petitioner’s next six issues ask the Court of Appeals to directly review whether a preponderance of the evidence establish certain facts at trial. In issue sixteen the Petitioner asks for review of this Court’s ruling on his Motion for Directed Verdict. The Court assumes these issues all challenge the denial of Petitioner’s Motion for Directed Verdict. As noted in this Court’s Order denying the Petitioner’s Motion for New Trial, the Court denied his Motion for Directed Verdict at the close of this case because the evidence adduced at trial established that reasonable and fair-minded men could arrive at a verdict contrary to that sought by the Petitioner. The Petitioner’s allegation that the Court erred in failing to direct a verdict in his favor is ridiculous. As the Court noted in denying his Motion for New Trial “the evidence controverting the fact issues presented by the Plaintiff was so strong, that the Court was sorely tempted to direct a verdict in favor of all Defendants. In an abundance of caution, however, in recognizing that it is a function of the jury as a traditional finder of fact to weight conflicting evidence and inferences and determine the credibility of witnesses, the Court refrained from directing a verdict in favor of the Defendants and submitted the case to the jury____” Jones v. Frank, et al, A-80CA-510, Order at 4 (W.D.Tex. November 19,1984).

The Petitioner’s fifteenth issue alleges that the Court erred by failing to allow him to make a full argument to the jury by reciting from the Court’s charge. The Court instructed both parties prior to final argument that they should not recite the Court’s charge during their arguments. The Court informed counsel that in addition to carefully reading the charge to the jury, the Court would provide a copy of the charge to the jury for their use in deliberations. The Court instructed counsel for the Petitioner not to read from the charge only after counsel continued to recite long quotations from the charge. After the Court instructed counsel not to read from the charge, counsel agreed and did not object. This point is frivolous.

The Petitioner’s seventeenth issue seeks review of the Court’s ruling partially directing a verdict in favor of certain Defendants. The Court has previously discussed its ruling on the Petitioner’s Eighth Amendment claim and in the interest of brevity will refer to that portion of this order and the Court’s Order denying Petitioner’s Motion for New Trial. The Court granted the Defendants’ Motion and directed a verdict in favor of all Defendants as to the Petitioner’s allegation that all Defendants violated Tex.Rev.Civ.Stat. art. 6870. Article 6870 makes the Sheriff liable for the official acts of his deputies. There is no evidence that any party involved in this lawsuit was a deputy sheriff at the time of the alleged assault in Travis County Jail. The Court also directed a verdict in favor of Defendants Frank, Studdard and O’Neill as to the Petitioner’s claim that those individuals were liable for any violation of Tex. Rev.Civ.Stat. art. 5115. Article 5115 imposes a duty to maintain a safe and suitable jail on the Commissioner’s Court, not the Sheriff or Correctional Officers. In addition, the Court directed a verdict in favor of Defendants Studdard, O’Neill, Renfro, Moya, Honts, Richards and Samuelson as to the Petitioner’s allegation that they violated Article 16.21 of the Texas Code of Criminal Procedure. Article 16.21 outlines the Sheriff’s duty to prisoners. It is not applicable to Defendants Studdard, O’Neill, the County Judge or the County Commissioners. The Court would point out that even if these issues had been presented to the jury they would not have been reached because the jury found that no assault or conscious indifference to serious medical needs had occurred.

The Petitioner’s eighteenth issue alleges the Court abused its discretion in allowing the Petitioner’s medical records into evidence. The medical records introduced reflected the Petitioner’s history of serious mental illness. They were admitted after the Petitioner took the stand and after others had testified on direct examination in his behalf as to his competence, truth and veracity. They were clearly admissible for impeachment purposes. U.S. v. Lindstrom, 698 F.2d 1154 (11th Cir.1983); U.S. v. Partin, 493 F.2d 750 (5th Cir.1974).

The nineteenth and twentieth issues stated by the Petitioner allege that contacts between the Defendant’s, their agents, and the jury during trial prevented the Plaintiff from having a fair trial. During a lunch break two Defendants and an employee of defense counsel accidently wandered into the jury room while looking for the adjoining room which was occupied by defense counsel. The Court interviewed the jurors involved who all indicated that no conversations were held and that they would not be prejudiced by the accidental meeting. Counsel for all parties were given an opportunity to object or file any motions at that time. The record reflects that Petitioner’s counsel neither objected to continuing the trial nor asked that a mistrial be granted. It is clear that no harm or prejudice resulted from the minimal and accidental contact with the jury, and it is further clear that counsel for the Petitioner failed to properly preserve this issue for appeal.

The Petitioner’s next point claims that evidence from the Defendant’s medical expert should not have been admitted over the Plaintiff’s objection. This point merely reiterates that raised in issue number four. Again, the Court afforded counsel ample opportunity to depose the witness and also informed counsel that a continuance would be granted if counsel felt he needed more time to prepare for the witness. Counsel never requested a continuance for this purpose. This issue is frivolous.

The Petitioner’s next issue complains of admission of a telephone deposition taken during trial. Counsel for the Defendant’s requested the deposition pursuant to Federal Rule of Civil Procedure 30(b)(7). Counsel informed the Court that two days before the witness in question was to testify they learned that if she left Minnesota to testify in this Court her employment would be terminated. The Court granted the Motion and a time was arranged between the parties for the telephone deposition. All counsel were present during the deposition and counsel for the Petitioner was given an opportunity to pose questions to the deponent. The witness, Janet Holder, was listed on the Defendant’s witness list prior to trial. In fact, Ms. Holder also appears on the Plaintiff’s witness list which was filed on March 1, 1983. Counsel for the Petitioner cannot claim surprise by the testimony of this witness.

Petitioner’s twenty-third issue asserts that the trial court should have given the jury instructions requested by the Petitioner. Counsel for all parties submitted requested jury instructions to the Court. Prior to charging the jury, the Court held an extensive pre-charge conference with all counsel present during which the jury charge was extensively discussed. At that time the Court presented its proposed charge to counsel and allowed them an entire day to study the proposed jury instructions. Prior to charging the jury in the courtroom, the Court allowed counsel for all parties an opportunity to state their objections to the jury charge on the record. Federal Rule of Civil Procedure 51 states “no party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” Fed.R.Civ.P. 51. Plaintiff’s attorney made only one objection concerning the Court’s failure to give his proposed instruction concerning the County’s liability for the actions of the individual defendants if an assault or injury had occurred at the hands of a county employee. Even if the Court had given this instruction, the jury would not have reached this issue because they found that there was no assault or denial of medical care by the Defendants. Plaintiff at no time on the record requested or objected to the Court’s failure to give any other portion of the Plaintiff’s proposed charge. Therefore, the Plaintiff has failed to preserve any error on this point.

The Plaintiff’s twenty-fourth issue argues the Court abused its discretion by overruling the Petitioner’s Motion for New Trial. This issue has already been addressed by the Court in the body of this Order.

The Petitioner’s twenty-fifth issue is also repetitious and has been addressed in the body of this Order.

The Petitioner’s twenty-sixth issue concerns the Eighth Amendment issue which the Court has repeatedly addressed throughout this Order. Once again, there was no evidence offered nor any proof adduced during trial that the Petitioner was other than a pre-trial detainee at the time of his incarceration.

The Petitioner’s final issue claims that he was denied a fair trial because counsel for the Defendants had previously represented him in criminal matters and had used information obtained under the attorney-client privilege in their defense of this case. As the Court and the Plaintiff were informed at trial, all evidence and information presented concerning the Petitioner’s prior medical history were obtained through medical releases obtained in this civil action which were signed by the Plaintiff himself. Petitioner’s counsel had failed to procure copies of Petitioner’s medical records or request that Defendants provide Petitioner with copies of the medical records that Defendants had obtained. Consequently, it is understandable that Petitioner’s counsel was surprised by production of these documents at trial. However, at no time during trial was the Petitioner heard to complain that he was denied a fair trial because a defense attorney may have represented him at some time ten years ago. Additionally, the Petitioner has earlier complained in other documents that error was committed by the Court in granting the Defendant’s Motion in Limine to limit references to defense counsel’s prior representation of the Petitioner. In fact, upon review of the record, it is clear that the Motion in Limine was made by the Petitioner’s attorney to keep any reference from being made to defense counsel’s prior representations of the Petitioner. The Petitioner cannot now be allowed to complain of matters which he himself asked to be kept from the jury. Petitioner did not, at the time of trial, or in this Motion, specify any evidence which counsel for the Defendants obtained through representations of the Petitioner, because it was clear that all of the evidence concerning Petitioner’s past conduct, medical and criminal history came from and was fully documented by records obtained during the normal discovery process in this cause of action. It is equally clear that counsel for the Petitioner had access to the same records through the discovery process. Petitioner’s prior medical records reflecting his history of mental illness consisted of two full volumes of medical reports dealing with the Petitioner’s diagnosed status as a paranoid schizophrenic with reports made by numerous medical personnel. The Petitioner attempted throughout the trial of this cause to paint his prior history of mental illness as being one concerning alcohol abuse only. The matters presented in evidence at the trial as to the Petitioner’s prior mental illness were relevant and admissible in that they demonstrated the Petitioner was prone to hallucinations and paranoia. These matters were also admissible for impeachment purposes.

In conclusion, it is apparent to this Court that none of the alleged errors submitted by the Petitioner are meritorious and that they cannot be supported on appeal, and that an appeal of this action, therefore, is not taken in good faith. Accordingly, the Petitioner’s Motion for Leave to Proceed on Appeal In Forma Pauperis is hereby, in all things, DENIED.


source: Caselaw Access Project

author: BARRINGTON D. PARKER, District Judge:

license: Public Domain

text:
    Teresa M. DOWNEY, Plaintiff, v. William M. ISAAC, Defendant.
    Civ. A. No. 83-3746.
    United States District Court, District of Columbia.
    June 17,1985.

      Douglas B. Huron, Kator, Scott & Heller, Washington, D.C., for plaintiff.
    Ann S. DuRoss, Asst. U.S. Atty., Washington, D.C., for defendant.
   MEMORANDUM OPINION

BARRINGTON D. PARKER, District Judge:

INTRODUCTION

This case involves claims by Teresa M. Downey under Title VII of the Civil Rights Act of 1964, that because of her sex she was denied promotions, meaningful work assignments and was constructively discharged from her employment with the Federal Deposit Insurance Corporation (“FDIC” or “Corporation”). The plaintiff also claims retaliation for having filed sex discrimination charges against the FDIC.

The Court heard this matter in a bench trial and at the conclusion issued a bench ruling finding that the plaintiff failed to support her charges.

Pursuant to Rule 52, Fed.R.Civ.P., the Court enters the following findings of fact and conclusions of law.

A.

FINDINGS OF FACT

Ms. Downey, a 1974 female college graduate with a major in economics, was hired by the FDIC as a GG-4, step 4 clerk-typist in July 1974.

Ms. Downey did not take the Federal Service Entrance Examination before coming to the FDIC. However, she had the understanding that within 90 days she would be promoted to a GG-5 Research Assistant. On October 27, 1974, she became a GG-5, Research Assistant. In December 1974, she successfully completed the Professional and Administrative Career Examination (“PACE”) and as a result, in March 1975, she was promoted to Research Assistant, GG-7. In August 1975, she was promoted to Research Assistant, GG-8. On March 1, 1976, she was promoted to Research Assistant, GG-9.

In June 1976, Ms. Downey was awarded a Master of Science degree in accounting from Georgetown University. One year later she became a licensed Certified Public Accountant (“CPA”) in Maryland in May 1977.

B.

Prior to the adoption of the Merit Promotion Plan (“Plan”), effective in September 1978, the FDIC posting policy for position vacancies was fairly routine. Divisions/Offices would request a posting of positions. Postings were then prepared by the FDIC’s personnel office and contained information as to how and where to apply; the closing date for receipt of applications; a description of duties (position description attached); a statement that required qualifications were contained in the United States Civil Service Commission Handbook X-118 and were available in the personnel office of review; and information concerning grade level, occupational series, and position title.

Employees applied either by submitting SF-171’s or memoranda. All applications/memoranda were forwarded to the interested Division/Office for consideration. The Division/Office made its selection and returned the personnel materials to the FDIC personnel office. That office then determined whether the selectee’s qualifications met the requirements for the position. The personnel office then notified the selecting official of its decision and proceeded with arrangements to effect any appropriate action.

Under the September 1978 Merit Promotion Plan, the FDIC adhered to the following posting policy: Divisions/Offices request posting of positions by the personnel office. The posting includes opening/closing dates; information relating to job title, series and grade; summary of duties and qualifications; selective and quality ranking factors; and where and how to file.

Applicants filed by submitting a SF-171 or memorandum if they had already established a Merit Promotion File. Applications/Merit Promotion Files were reviewed for completeness, i.e., SF-171 and performance evaluation. Qualifications determinations were made by the Staffing Specialists. FDIC applicants found ineligible were notified. If there were less than 5 qualified applicants for the position, all were referred to the selecting official for consideration. If 5 (or more) applicants were found qualified for the vacancy, a panel of three was assembled to rank the applicants.

The top 3 to 5 candidates were then referred by the panel to the selecting official for consideration and selection. The candidates were referred in alphabetical order. The panel rankings were not forwarded to the selecting official. Less than 3 or more than 5 candidates would be referred if meaningful cutoff was otherwise precluded.

The selecting official made his determination and returned the roster to the personnel office. That office then took the necessary steps to initiate the action. Stipulation number 22; J.Ex. 39: 1978 Merit Promotion Plan; D.Ex. 21: FDIC Circular 2110.4; D.Ex. 22: Memo from OPM to All FDIC Employees re: Merit Promotion Plan.

Minor changes were made to the Merit Promotion Plan in July 1980. Performance appraisals for merit promotion were adapted for general use. Annual performance appraisals were to be included by the employee establishing the file. Panels are now used only if more than 5 qualified applicants apply rather than 5 or more applicants. FDIC Merit Promotion Personal Data Sheet was offered as a substitute for the SF-171. Stipulation number 22; J.Ex. 41: 7/1/80 Directive to All Corporation Employees re Employee Performance Evaluation; D.Ex. 4: 1980 Merit Promotion Plan.

It was the responsibility of the employee as to what was placed in his or her Merit Promotion File. The Plan itself specified that it was also the employee’s responsibility to ensure that information contained in an individual’s SF-171 was current, since it was the only record of experience, awards, and training used to determine relative qualifications for posted positions. J.Ex. 39: 1978 Merit Promotion Plan. D.Ex. 4: 1980 Merit Promotion Plan; D.Ex. 21: FDIC Circular 2110.4; D.Ex. 22: 9/18/78 Memo re Merit Promotion Plan.

Although the FDIC provided its employees with the opportunity to compete for all available posted positions, and had a policy of hiring from within, the consistent corporate policy has been that the best qualified candidate would be selected, whether the candidate was an inside or outside applicant.

C.

Two Senior Research Assistant, GG-11 positions, were filled in the Division of Research in 1977 under YA Nos. 77-68 and 77-173. The documentation for the filling of these positions was routinely destroyed in keeping with the Corporation’s record retention schedules.

The credible testimony and evidence clearly showed that Patrick Karnes and Michael Russcol were chosen as the best qualified candidates for these positions by the selecting official, Dr. Gary Gilbert, Chief of the Economic Analysis Section in the Division of Research. To meet the particular needs of the section at the time, Dr. Gilbert was looking for a Senior Research Assistant with advanced computer programming skills. Mr. Karnes had utilized advanced computer programming techniques in his previous position and was also a former Bank Examiner who had first-hand knowledge of the actual inner workings of banks. Mr. Russcol also had extensive hands-on computer experience, as well as college-level courses in computer programming. Plaintiff did not have comparable experience and her advanced degree in accounting and her CPA were of little relevance to the position in question. J.Ex. 28: Karnes’ SF-171; J.Ex. 40: Russcol’s SF-171; J.Exs. 1 and 3: Plaintiff’s SF-171s; D.Ex. 12: Investigative Files pp. 1-3.

In early 1978 William Birkes was selected as the best qualified candidate to fill a Financial Analyst, GG-9/11 position in the Division of Bank Supervision. Birkes was selected by Robert P. Rogers, Chief, Bank Support Unit, on the recommendation of Dr. Panos Konstas, Chief, Division of Management Systems and Economic Analysis. The pertinent records here were also routinely destroyed. The evidence before the Court did not convincingly reflect that plaintiff was actually a candidate for this position. Dr. Konstas, who knew plaintiff personally since she was detailed to him from August 1977 to March 1978, reviewed all applications for the position in question and maintained that Ms. Downey was not a candidate for the job.

But even if plaintiff had been a candidate for the position, a fair and objective comparison of her credentials and those of the selectee — Birkes, showed that Birkes was clearly the more qualified candidate for the position as compared to Ms. Downey. Her accounting background was of marginal significance since accounting was only a small part of the requirements for the job. Mr. Birkes had been a state bank examiner, in fact, an examiner-in-charge, who had the supervisory experience and skills which the position called for. He had also worked for the American Bankers Association and had actually written instructions about bank reporting requirements.

On March 12, 1978, plaintiff was selected for one of two vacant GG-9/11/12 Financial Analyst positions in the Division of Bank Supervision, Registration and Disclosure Unit, by Lawrence H. Pierce. After Ms. Downey submitted a copy of her Master’s Degree, she was qualified by personnel under the X-118 Qualification Standards as a GG-9. She did not submit any further qualifying information to personnel in order to attempt to secure Grade 11, despite Mr. Pierce’s recommendation that she prepare a supplementary statement detailing her prior work experience as a Research Assistant.

In qualifying her as a Grade 9, the FDIC personnel staffing specialists did not treat her in any different manner than the other applicants for the position. The X-118 standards for the position of Financial Analyst require that to qualify for a Grade 11, an individual must have three years of specialized experience, two years of which may be substituted by advanced education, but one year of the specialized experience must have included financial analysis work at the Grade 9 level. Ms. Downey failed to detail any of her alleged prior financial analysis experience and therefore failed to qualify for a higher grade.

Dennis Chapman, the selectee for the second available position, qualified as a GG-11 because he had been working as a Financial Analyst in the 1160 series since 1974 and had been in Grade 9 for two years. While a Financial Analyst at the Securities and Exchange Commission, Mr. Chapman worked with filings under the Securities and Exchange Act of 1934, and did work similar to that required by the FDIC of its Financial Analysts. The Court finds that between him and the plaintiff, he clearly outstripped her in experience and training. The credible testimony and evidence supported his selection for the grade 11 position. J.Ex. 17: X-118 for Financial Analyst Positions; J.Ex. 3: Plaintiff’s 1979 SF-171; D.Ex. 35: Karp Materials; J.Ex. 18: Position Description for Financial Analyst; D.Ex. 34: Posting Documents re 77-136, 77-205 and 78-19.

On March 25, 1979 plaintiff was promoted by Mr. Pierce to GG-11 Financial Analyst.

In early 1979, Ms. Downey applied for a GG-11/12 Economist position under VA No. 79-02. Initially she was found not qualified, but despite her late submission of qualifying information, the ranking panel was reconvened and considered her credentials. The panel did not rank plaintiff among those listed as best qualified and her name was not forwarded to the Selecting Official. Patrick Karnes was selected from the roster of eligibles at the GG-12 level. The FDIC personnel staffing specialists did not treat plaintiff in any different manner than other applicants for the position. J.Ex. 39: 1978 Merit Promotion Plan; J.Ex. 21: X-118’s for Economist Positions; D.Ex. 6: OPM Posting File pertaining to VA No. 79-02; J.Ex. 20: Announcement 79-2, 1-8-79; J.Ex. 22: Position Description, Economist, 1-2-79; J.Ex. 23: Personnel Work Papers For 79-2; J.Ex. 28: Karnes’ SF-171; P.Ex. 27: Memo from Laurilla to Downey 3/6/79.

In early 1979, Ms. Downey also applied under YA No. 79-09 for a Financial Analyst GG-11/12, position. The ranking panel included her name on the best qualified list and forwarded her name on the roster of eligibles to Dennis Olson, the selecting official. John Quinn, whose name was also on the roster of best qualified candidates, was selected as the best qualified applicant. He was credited with one year of specialized experience based on his graduate work and credited with two years for his prior experience as a research assistant and then an economic assistant in the Division of Research. Mr. Quinn’s SF-171 detailed his specialized experience. Plaintiff’s SF-171, on the other hand, provided merely a brief, vague and general recitation of her research assistant duties.

Of all the candidates, he clearly had the most relevant experience. He had broad-based financial analysis work and specific hands-on experience with problem banks; he had also completed a study of purchase and assumption transactions with the aim of predicting P & A premium bids. Plaintiff’s experience, on the other hand, was more accounting and budgetary work-oriented and she had little direct work analyzing or forecasting a bank’s financial condition. D.Ex. 7: OPM Vacancy File pertaining to VA No. 79-09; J.Ex. 30: Quinn’s SF-171; J.Ex. 31: Announcement 79-9, 1-31-79; J.Ex. 32: Personnel work papers for 79-9; J.Ex. 33: Position Description, Financial Analyst, 1-12-79.

D.

The credibility and the value of the plaintiff’s claims were weakened considerably through cross-examination of plaintiff herself and her expert, Mr. Robert Davis.

The plaintiff’s testimony at the trial on a number of issues was contradicted by her own prior inconsistent testimony, by Corporation witnesses who were simply more believable than plaintiff herself and who were either corroborated by other witnesses or independent documentation. For example, at her 1982 EEO hearing, Ms. Downey indicated that her computer experience was confined to a single project involving programming, while at the more recent trial, plaintiff supposedly recalled having actually written a number of computer programs, while at the FDIC; plaintiff’s failure to recall three separate interviews for the 79-09 Financial Analyst position in Dennis Olson’s section; plaintiff’s alleged application and interview for the Financial Analyst position filled in April 1978 versus Dr. Panos Konstas and Darrell Nelson’s recollection that she had not applied for the position nor had she been interviewed.

Plaintiff’s expert testimony was of little relevance here since Mr. Davis relied upon information, i.e., an applicant’s position description that, as a matter of FDIC policy and procedure, was not considered in making qualification determinations.

From July 24, 1979 to January 5, 1980, plaintiff was on approved leave without pay.

During her six year tenure with the FDIC, plaintiff received seven separate performance evaluations. J.Exs. 4-9, 61: Plaintiff’s Performance Evaluations. In mid-1980, the FDIC was in the process of implementing a revised Merit Promotion Plan. As a part of the revised plan, new performance appraisals were developed and a single evaluation system was adopted. The due date for performance appraisals under the new system was the anniversary date of the employee’s current appointment with the Corporation. A July 1,1980 FDIC Directive disseminated to all Corporation employees clearly indicated that the personnel office was responsible for forwarding performance evaluation forms to appropriate rating officials. New evaluation forms under the plan were not, however, immediately available. Absent these forms, and under the direction of personnel, Mr. Pierce gave plaintiff a summary evaluation of “satisfactory” on the old form, enabling her to receive a within-grade increase to a Grade 11, Step 2, effective August 24, 1980. D.Ex. 4: 1980 Merit Promotion Plan; J.Ex. 41: 7/1/80 Directive to All Corporation Employees re Employee Performance Evaluation; D.Ex. 12: Investigative Files p. 47.

Ms. Downey’s career advancement at the FDIC was not dissimilar to other paraprofessionals or professionals in the Division of Research or the Registration and Disclosure Unit. D.Ex. 10: Administrative Discovery; J.Exs. 42, 44, 45, 46, 48, 49, 50, 51, 53: Job histories of plaintiff’s peers and competitors.

Ms. Downey received a substantial amount of training while at the FDIC. Her Master’s Degree was paid for by the FDIC and she was afforded leave during working hours to attend her classes. D.Ex. 13: Plaintiff’s Training Record. Plainly, she was not discriminated against in this regard.

The plaintiff requested a “customary personnel evaluation” in July, August, October and again in December, 1980. Mr. Pierce construed these requests as asking for annual performance appraisals. In December 1980, it first became clear that plaintiff actually wanted a Merit Promotion evaluation. At a meeting on December 18, Mr. Pierce, and Mr. Moses told plaintiff that they would give her such an evaluation after the approaching holidays. Both Mr. Pierce and the plaintiff were scheduled to go on leave the next day until after the holidays. D.Ex. 12: Investigative File p. 56; J.Exs. 55, 56, 57: Plaintiff’s Memos to Pierce re Performance Evaluations. Without returning to work, plaintiff resigned in January 1981. Stipulation number 21; J.Ex. 12: Plaintiff’s Resignation Letter.

The Court finds from the preponderance of credible test and evidence that the plaintiff was not subject to retaliation or intolerable working conditions. She was subject to time and attendance constraints that were similarly applicable to all Corporation employees. She was not isolated from her peers. Room assignments were made by seniority and plaintiff’s office was located in conformance with that policy. FDIC Leave Policy; D.Ex. 19: 29 C.F.R. § 1613.-. 214(b); D.Ex. 12: Investigative File, pp. 50-53. J.Ex. 60: 3/3/80 Memo from Pierce to Downey.

CONCLUSIONS OF LAW

In a discrimination case brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.'S.C. § 2000e-16 et seq., plaintiff must first prove a prima facie case of discrimination by a preponderance of the evidence. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983) ; Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If plaintiff meets this burden, defendant is obliged to “articulate” some legitimate non-discriminatory reason for the complained-of actions. Burdine, supra; Aikens, supra. Should defendant succeed, plaintiff has the opportunity to prove by a preponderance of the evidence that the reason advanced by defendant was merely pretextual. Burdine, supra; McDonnell Douglas, supra; Williams v. Boorstin, 663 F.2d 109-117 (D.C.Cir.1980), cert. denied, 451 U.S. 985, 101 S.Ct. 2319, 68 L.Ed.2d 842 (1981).

With respect to promotions, to establish a prima facie case of discrimination by disparate treatment, a “plaintiff must prove by a preponderance of the evidence that [she] applied for an available position for which [she] was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.” Burdine, supra, at 253, 101 S.Ct. at 1093. An employer has the right to fix the qualifications that are necessary or preferred in selecting an employee for promotion. In order to make out a prima facie case, a plaintiff must establish that she meets these qualifications. EEOC v. Federal Reserve Bank of Richmond, 698 F.2d 633, 671 (4th Cir.1983), rev’d on other grounds, 467 U.S. 867, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984) . Our Court of Appeals recently held that the issue in a case of an allegedly discriminatory failure to promote is not the objective superiority or inferiority of the plaintiff’s qualifications, but rather whether the defendant’s selection criteria — be they wise or foolish — are nondiscriminatory. Mitchell v. Baldridge, slip op. 759 F.2d 80 (D.C.Cir.1985).

In a Title VII action, a viable defense available to an employer includes the fact that the person selected for the position was better qualified than the plaintiff. A desire to hire the more experienced or better qualified applicant for a position is a recognized nondiscriminatory, legitimate, and common reason upon which to base a hiring decision. Title VII does not require that a less qualified female employee be given preference over a better qualified male. Holder v. Old Ben Coal Co., 618 F.2d 1198, 1202 (7th Cir.1980).

The Court concludes that while Ms. Downey made a threshold showing of sex discrimination, the testimony and evidence presented by the FDIC provides convincing and abundant support that sex discrimination was not a factor in the personnel decisions related to Ms. Downey’s promotion efforts. In each promotion action challenged the FDIC demonstrated by persuasive testimony and evidence that the plaintiff was less qualified by training and experience.

It is also a well settled legal principle that the standard of proof established for instances of employment discrimination is equally applicable in retaliation cases. McCarthy v. Cortland County Community Action Program, Inc., 487 F.Supp. 333 (N.D.N.Y.1980). To prove a prima facie case of retaliation under section 704(a) of Title VII, the plaintiff must (1) show that there was statutorily protected participation; (2) that an adverse employment action occurred; and (3) that there was a causal link between the participation and the adverse treatment. Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d 1325, 1328 (5th Cir.1980). See also Mitchell v. Baldridge, supra, and Rogers v. McCall, 488 F.Supp. 689, 697-698 (D.C.D.C.1980). In a retaliation case, the plaintiff bears the burden of showing that the defendant intended to retaliate when it took the actions complained of, and there can be no retaliatory intent unless there is knowledge that the plaintiff has, in fact, filed charges. Downey v. A.H. Belo Corp., 402 F.Supp. 1368 (D.Tex.1975) and Rogers v. McCall, supra at 698. Thus, the plaintiff must establish that the employer had actual or imputed knowledge and that motivated by such knowledge, the employer acted with the intent to retaliate against or to punish the charging party. The plaintiff has not met this burden.

To establish a prima facie case of constructive discharge, plaintiff must establish that the employer deliberately made working conditions intolerable and drove her into an involuntary resignation. Clark v. Marsh, 665 F.2d 1168, 1173 (D.C.Cir.1981). See also Young v. Southwestern Savings and Loan Association, 509 F.2d 140, 144 (5th Cir.1975). In order to find constructive discharge, a court must determine whether or not a reasonable person in the employee’s position and circumstances would have felt compelled to resign. Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 65 (5th Cir.1980). Our Circuit Court has adopted the Bourque test and concluded that the mere fact of discrimination without some aggravating factors cannot sustain a finding of constructive discharge. Clark v. Marsh, supra, at 1173.

Failure to promote, in and of itself, is not sufficient to result in a constructive discharge. See EEOC v. Federal Reserve Bank of Richmond, supra at 672, and Irving v. Dubuque Packing Co., 689 F.2d 170, 172 (10th Cir.1982). The law is clear that an employer has not effected a constructive discharge merely because an employee believes that she has limited opportunities for advancement, Schaulis v. CTB/McGraw-Hill, Inc., 496 F.Supp. 666, 676 (N.D.Cal.1980). A claim of constructive discharge must be supported by more than an employee’s subjective opinion that her position has become so intolerable and difficult that she must resign. Neale v. Dillon, 534 F.Supp. 1381, 1391 (E.D.N.Y.1982), aff'd 714 F.2d 116 (2d Cir.1982).

In sum, in a retaliatory constructive discharge case, a plaintiff must show that he/she was retaliated against because of his/her E.E.O. activity and that retaliation constituted intolerable working conditions in which a reasonable person in similar circumstances would have felt compelled to resign.

Ms. Downey has failed to prove that any of the nondiscriminatory reasons articulated- by defendant were pretextual. She has not shown by a preponderance of the evidence that she was subjected to retaliatory, intolerable working conditions under which a reasonable person in similar circumstances would have felt compelled to resign.

The Court concludes that as a matter of law, judgment must be entered for defendant.

      . For all positions at issue in this proceeding, the FDIC adhered to standard federal personnel policy and practice. For example, FDIC relies on the X-118 criteria established by the United States Office of Personnel Management, which set qualification standards for particular positions. In addition, the pay schedules for FDIC and other federal agencies are identical for the positions at issue in this case, except that FDIC used GG rather than GS nomenclature.

      . In making qualification determinations FDIC personnel staffing specialists did not then, nor do they now, use position descriptions of positions encumbered by applicants. Nor were, or are, such position descriptions maintained in an employee’s official personnel folder.

      . J.Ex. refers to jointly agreed upon exhibits. D.Ex. refers to defendant’s exhibits; and P.Ex. refers to plaintiffs exhibits.


author: SHOOB, District Judge.

text:
    Joe BORDEN, Plaintiff, v. Edwin MEESE, Alan Nelson, and Louis M. Richard, Defendants.
    Civ. A. No. C85-2705A.
    United States District Court, N.D. Georgia, Atlanta Division.
    June 21, 1985.
    Motion for Reconsideration on June 25, 1985.

      Richard Prinz, Houston, Tex., Jay Solomon, Atlanta, Ga., for plaintiff.
    Sharon Douglas Stokes, Nina Hickson, Asst. U.S. Attys., Atlanta, Ga., for defendants.
   ORDER

SHOOB, District Judge.

Presently before the Court is plaintiff’s motion for a preliminary injunction directing plaintiff’s immediate release from the Atlanta Federal Penitentiary. In deciding this motion, the Court addresses issues that are peculiar to the facts of this case and that are entirely separate from issues previously addressed by this Court concerning the detention of Mariel Cubans. The distinguishing feature of this case is that plaintiff has been granted political asylum in the United States by an immigration judge.

BACKGROUND

Plaintiff first entered the United States as a child, became a permanent resident, and attended public school in Florida in the late 1950’s. Both his parents and two of his sisters presently are naturalized citizens of the United States. Plaintiff abandoned his permanent residency in 1961 to return to Cuba. According to the transcript of his exclusion hearing before the immigration judge, plaintiff participated in substantial anti-communist, anti-Castro activities in Cuba, for which he was shot on one occasion and was arrested, beaten, and imprisoned on several other occasions. Plaintiff returned to the United States in the 1980 Mariel boatlift and was paroled. In August, 1982, plaintiff was convicted of possession of cocaine. When he completed his sentence in June, 1984, he was sent to the Atlanta Penitentiary where he has since remained.

At an exclusion hearing on October 29, 1984, the immigration judge found that plaintiff was excludable under 8 U.S.C. § 1182(a)(20) (lack of proper entry documents) and (a)(23) (conviction relating to drugs). The immigration judge also heard extensive testimony concerning plaintiff’s anti-Castro activities and his resulting harsh treatment by Cuban authorities. Further, the immigration judge questioned plaintiff at length about the circumstances of his cocaine conviction. At the conclusion of the hearing, the immigration judge rendered his “Oral Decision” granting plaintiff asylum, which concluded as follows:

I have observed the applicant’s demeanor during his testimony during the hearing and judge him to be a credible witness.
Based upon his testimony that he was incarcerated in Cuba for espionage and his continued acts of espionage through the sixties and seventies and his distribution of anti-government literature, I would find that he has established a well-founded fear of persecution should he be returned to Cuba. I would therefore grant his application for political asylum.

Original (Transcribed) “Oral Decision of the Immigration Judge” at 3-4.

Also at the conclusion of this October 29, 1984 hearing, counsel for the Immigration and Naturalization Service (INS) apparently filed a notice of appeal of the grant of asylum and, the government contends, orally notified plaintiff of the appeal to the Board of Immigration Appeals. In a letter ■dated November 30, 1984, INS counsel advised plaintiffs counsel of the appeal.

Several months passed, and plaintiff remained in detention under the “lock-down” conditions in effect at the penitentiary. In a letter dated April 18, 1985, the District Director of INS denied plaintiffs requests for release pending appeal of the grant of asylum because he found that plaintiff “constitutes a danger to the community of the United States.”

On April 25, 1985, plaintiff filed this action alleging, among other things, that his continued detention constitutes an abuse of discretion because the government has acted contrary to its own regulations and procedures in handling the appeal. Plaintiff is seeking injunctive relief directing his release or, alternatively, an order directing the government to process the appeal. On May 6, 1985, this Court held a hearing to address plaintiffs request for a temporary restraining order (TRO) directing his immediate release. Counsel for the government suggested that the appeal had not proceeded because the immigration judge’s decision had not yet been signed. The Court was not convinced at that time that plaintiff was entitled to immediate release and, consequently, in its order of May 10, 1985, the Court denied the motion for a TRO.

Still, the Court was concerned that the government may not have appealed or may have abandoned its appeal of the grant of asylum. Thus, in that May 10,-1985 order, the Court directed the parties to appear at a June 6 injunction hearing and to brief the following issue: “whether, assuming that the grant of asylum was not appealed or that the appeal has been abandoned, the government may lawfully continue to detain plaintiff.” Both plaintiff and the government have responded that no authority exists to justify plaintiff’s detention if an appeal of the grant of the asylum is not pending. Both parties also have agreed that if an appeal is pending, the effect of the grant of asylum is stayed. See 8 U.S.C. § 1226(b); 8 C.F.R. §§ 3.6(a), 236.6.

On-May 14, 1985, after the Court had scheduled the June 6 preliminary injunction hearing, the immigration judge signed a document that was styled “Oral Decision of the Immigration Judge.” This “Oral Decision,” however, differs from the original “Oral Decision” transcribed from the October 29, 1984 exclusion hearing. Although both “Oral Decisions” purport to grant plaintiff asylum, the “Oral Decision” signed May 14, 1985 also finds that plaintiff is not entitled to withholding of deportation because he “has been convicted of a particularly serious crime and poses a danger to the community.” This finding does not appear anywhere in the original, transcribed “Oral Decision” or in the transcript of the October 29, 1984 exclusion hearing.

JURISDICTION

As the Eleventh Circuit Court of Appeals has observed, the executive branch has broad discretion over immigration affairs. Jean v. Nelson, 727 F.2d 957, 976 (11th Cir.1984). Nonetheless, even discretionary decisions of executive officials are subject to judicial review, although that review is “extremely limited.” Id.; see also Femandez-Roque v. Smith, 734 F.2d 576, 583 (11th Cir.1984). In Jean and Fernandez-Roque, the Eleventh Circuit held that discretionary decisions concerning the parole of aliens were reviewable for abuse of discretion. The issues presently being considered by this Court do not concern a discretionary grant of parole under 8 U.S.C. § 1182(d)(5)(A), but rather the release vel non of an alien who has been granted political asylum and whose release, the parties have agreed, is mandatory unless an appeal of his grant of asylum is pending. Thus, the Court concludes that it has jurisdiction to review the government’s actions in this case for abuse of discretion, under a standard of review at least as broad as those employed in Jean and Fernandez-Roque

ANALYSIS

To obtain a preliminary injunction, plaintiff must show (1) that there is a substantial likelihood that he will ultimately prevail on the merits; (2) that he will suffer irreparable injury unless the injunction issues; (3) that the threatened injury to plaintiff outweighs whatever damage the proposed injunction may cause the opposing party; and (4) that the injunction, if issued, would not be opposed to the public interest. United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir.1983).

The Court first addresses plaintiff’s likelihood of success on the merits. In arguing that INS has abused its discretion in failing to follow its own regulations and procedures with respect to this appeal, plaintiff cites three regulations that he maintains were violated. The first is 8 C.F.R. § 236.7(c), which provides as follows:

§ 236.7 Appeals.
(c) By district director. The district director may, within five days from date of decision, appeal from an order of the Immigration Judge to admit the applicant, or to grant asylum, or to grant the application for adjustment. The applicant shall be notifed in writing when an appeal is taken by the district director and advised that he will be allowed 5 days from the receipt of notification in which to submit written representations for transmittal to the Board with the record in the case.

The second regulation is 8 C.F.R. § 3.3(c), which provides that appellate briefs must be filed within the “time fixed for appeal,” but alternatively appears to allow the immigration judge to set up a briefing schedule. The third regulation allegedly violated by defendants is 8 C.F.R. § 3.5, which provides for forwarding the record to the Board of Immigration Appeals “upon timely receipt of the briefs, or upon expiration of such time allowed for the submission of such briefs.”

Plaintiff maintains that INS ignored these three regulations by failing to file its brief within five days of the decision, by failing to notify plaintiff within that time of his right to submit “written representations for transmittal” with the record, and by failing for over six months to transmit the record to the Board of Immigration Appeals.

The government admits that processing of the appeal did not begin until the immigration judge signed the revised “Oral Decision” on May 14, 1984. The government contends, however, that these regulations governing appeal procedures do not apply until the immigration judge issues a “written decision.” According to the government, the “practice in this district” is for the immigration judge to send out a formal notification of an appeal, a copy of his written decision, and a briefing schedule. Thus, the government argues that the decision has been properly appealed and the appeal remains in progress.

The government has cited no authority to support its assertion that the regulations of 8 C.F.R. governing appeals do not apply until a written decision is issued. On the contrary, the provisions of 8 C.F.R. flatly contradict this assertion. According to 8 C.F.R. § 236.5(a), “The decision of the immigration judge may be oral or written.” Relevant portions of that regulation are as follows:

§ 236.5 Decision of the immigration judge; notice to the applicant.
(a) Contents. The decision of the immigration judge may be oral or written. It shall include a discussion of the evidence and findings as to excludability; the formal enumeration of findings is not required. The decision shall be concluded with the order of the immigration judge.
(b) Oral decision. An oral decision shall be stated for the record by the immigration judge at the conclusion of the hearing and in the presence of the applicant. When entitled to appeal from an adverse decision of the immigration judge, the applicant shall be so advised and shall be required to state then and there whether he wishes to appeal. At his request, the applicant shall be furnished with a typewritten transcript of the oral decision of the immigration judge.

Hence, the Court concludes that the regulations published at 8 C.F.R. do govern an appeal from an immigration judge’s “Oral Decision” even if no written decision is signed.

Plaintiff is correct that an agency’s failure to follow its own regulations constitutes an abuse of discretion. See Payne v. Block, 714 F.2d 1510, 1517 (11th Cir.1983). This principle also applies to agency actions concerning immigration matters, notwithstanding the narrow standard of judicial review in that field. Moret v. Karn, 746 F.2d 989, 992 (3d Cir.1984); Yee Dai Shek v. Immigration and Naturalization Service, 541 F.2d 1067, 1069 (4th Cir.1976). Thus, having found that these regulations do apply, the Court must inquire whether the government has acted in accordance with its own regulations.

In reviewing the regulations that plaintiff alleges were violated by the government, the Court finds that the timing requirements stated are not as definite as plaintiff appears to argue. Assuming that the government appealed within five days of the October 29, 1984 decision, the Court interprets subsection 236.7(c) of 8 C.F.R. to provide only that the applicant should be notified in writing “when the appeal is taken”; no exact deadline is specified. Although subsection 3.3(c) does require that the appellant file any briefs “within the time fixed for appeal,” i.e., within five days of the October 29 decision, that subsection alternatively allows the immigration judge to grant additional time for briefing. Further, section 3.5 provides that the record must be forwarded to the Board of Immigration Appeals no later than the time allowed for submission of briefs, a period which might include any additional time granted by the immigration judge.

Still, in this case the immigration judge took no action to grant additional time until more than six months after his decision. Because of this inaction and because these regulations as a whole contemplate a speedier resolution of an appeal than has occurred, the Court finds that defendants abused their discretion in failing to follow their own regulations in processing the appeal.

This Court, however, is not unaware of the heavy workload borne by immigration judges and officials in the Atlanta area; the Court recognizes that delay often results from an innocent oversight. In light of the deference that courts ordinarily should afford executive officials in immigration matters, in other circumstances the Court would refrain from ordering plaintiffs release and instead simply direct that his appeal be processed promptly.

The circumstances of this “appeal,” however, weigh heavily in favor of plaintiffs release. As mentioned above, the “Oral Decision” that the immigration judge signed on May 14, 1985 and that presumably is being forwarded to the Board on appeal differs substantially from the original “Oral Decision” rendered on October 29, 1984. The May 14 version finds that plaintiff is entitled to asylum, and yet adds a finding that plaintiff was convicted of a “particularly serious crime and poses a danger to the community” and, therefore, is not entitled to withholding of deportation. Because this additional finding appears nowhere in the transcript of the October 29 exclusion hearing or in the original, transcribed “Oral Decision,” the Court concludes that the finding was not part of the immigration judge’s original decision.

This additional finding is most significant because it appears to undermine the rationality of the original grant of asylum. According to the regulations, a person who has been convicted of a “particularly serious crime” and who poses a “danger to the community” is not entitled to asylum. See 8 C.F.R. §§ 208.8(f)(l)(iv), 208.15(a). Ironically, the government illustrates the inconsistency of this finding in one portion of its brief:

[T]he exceptions to 243(h) relief [i.e., withholding of deportation] also apply to applicants for asylum. See 8 C.F.R. 208.-8(f)(l)(iii), (iv), (v); see also Matter of McMullen, [17 I & N Dec.] at 544 n. 2. Therefore, the IJ’s conclusion that the plaintiff was eligible for political asylum, yet ineligible for withholding of deportation based on his conviction for a particularly serious crime is internally inconsistent, and forms at least one of the bases for INS’s appeal.

Government’s Brief in Opposition to Preliminary Injunction at 8.

This additional finding cannot be said to have been implicit in the immigration judge’s October 29 decision. He questioned plaintiff extensively about his anticommunist activities and about his cocaine conviction. The immigration judge reported that plaintiff had testified that he had “recognized the error of his ways,” and in the next sentence the judge found plaintiff to be a credible witness. It is inconceivable that, at the time of the October 29 hearing, the immigration judge could have granted plaintiff asylum while holding the view that plaintiff “poses a danger to society.”

At the June 14 hearing, counsel for the government took the position that the original, transcribed “Oral Decision” is but a “working document.” According to 8 C.F.R. § 236.5, however, the original “Oral Decision” stated for the record by the immigration judge at the conclusion of the hearing is the judge’s decision. The revised “Oral Decision,” therefore, is in effect a separate document that purports to alter the original decision of October 29.

The regulations, however, provide that certain procedures must be followed before an immigration judge’s decision can be altered or revoked. See, e.g., 8 C.F.R. §§ 3.2, 3.8 (procedures governing motions to reopen or to reconsider), 208.15 (procedures governing termination of asylum status). Because the government has failed to follow its own regulations in attempting to modify the original “Oral Decision,” the attempted modification was ineffective. This modified “Oral Decision” apparently is the subject of whatever appeal proceedings are now in progress. The Court concludes that the government has abandoned any appeal of the original and valid “Oral Decision.”

Consequently, at least for purposes of this motion for a preliminary injunction, the Court finds that the government has failed to follow its own regulations and procedures in its delay in processing this appeal and in its improperly conducted attempts to modify the original “Oral Decision” of the immigration judge. Each of these acts constitutes an abuse of discretion. Because the government has failed to follow proper procedures in handling the appeal, the Court finds that the appeal of the original, valid decision has been abandoned. With no appeal pending, no grounds exist for plaintiff’s continued detention. Thus, plaintiff has shown a substantial likelihood of success on the merits of his claim that he is entitled to immediate release.

Addressing the other requirements of preliminary injunctions, the Court has little difficulty finding that plaintiff will suffer irreparable injury unless the injunction issues. Few injuries are as severe as loss of freedom, especially in view of the present environment at the penitentiary. The Court finds that plaintiff has satisfied this requirement for injunctive relief.

Next, the Court finds that the threatened injury to plaintiff outweighs any potential damage to the government’s interests if the injunction issues. Continued detention at the penitentiary is far worse than most fates imaginable. The Court finds that the government’s interest in detaining plaintiff is outweighed by the harm to plaintiff of continued detention, particularly when plaintiff has several family members who are United States citizens and who should be able to provide him support.

Finally, the Court considers whether plaintiff’s release would be opposed to the public interest. The Court finds that would not. Plaintiff’s conviction, although serious, was for a non-violent crime for which he has served his sentence. The transcript from his exclusion hearing suggests that the immigration judge found him sincere in his statement that he has recognized his mistake. Further, the Court finds that the public interest is actually harmed when the public’s confidence and pride in our government are tested by an administrative snafu that leaves a man sitting for months in prison in legal limbo, even though he has been granted political asylum by an immigration judge. Consequently, the Court finds that plaintiff is entitled to a preliminary injunction directing his immediate release.

Accordingly, the Court hereby DIRECTS defendants to release plaintiff from custody no later than Wednesday, June 26,1985, at 4:00 p.m.

ON MOTION FOR RECONSIDERATION

At approximately 4:30 p.m., June 24, 1985, the government moved the Court to reconsider its June 21, 1985 grant of a preliminary injunction directing that plaintiff be released from the Atlanta Federal Penitentiary by 4:00 p.m., June 26, 1985. The Court selected the June 26 deadline for release so that the government, if it chose, would have an opportunity to move the Eleventh Circuit Court of Appeals for a stay pending appeal.

The government’s motion to reconsider relies on the Board of Immigration Appeals’ June 19, 1985 decision, which apparently first became known to government counsel on June 24, 1985. In that decision, the Board of Immigration Appeals (BIA) sustained INS’s appeal of “a decision dated May 14, 1985” by an immigration judge who, on October 29, 1984, had issued an “Oral Decision” granting political asylum to plaintiff.

The June 19 BIA decision provides no support for the government’s motion to reconsider; on the contrary, the BIA decision confirms the Court’s findings in its June 21 order granting the preliminary injunction. The immigration judge purported to issue two substantially different “Oral Decisions.” The first of these, the “Oral Decision” stated for the record by the immigration judge on October 29, 1984, was a valid decision according to 8 C.F.R. § 236.-5(a), (b), and the government filed its notice of appeal immediately after that decision was rendered. The second “Oral Decision,” which was signed by the immigration judge on May 14, 1985 and which added a finding wholly inconsistent with a grant of asylum, did not supersede or revise the earlier, valid “Oral Decision.”

The government apparently has not even attempted to comply with the regulations of 8 C.F.R. that would allow it to modify or revoke the valid October 29 “Oral Decision.” See, e.g., 8 C.F.R. §§ 3.2, 3.8 (procedures governing motions to reopen or to reconsider), 208.15 (procedures governing termination of asylum status). Thus, the October 29 “Oral Decision” remains the only valid decision of the immigration judge. BIA’s June 19 decision addressed the immigration judge’s “decision dated May 14, 1985.” This fact confirms what the Court had anticipated in its June 21 order:

This modified “Oral Decision” apparently is the subject of whatever appeal proceedings are now in progress. The Court concludes that the government has abandoned any appeal of the original and valid “Oral Decision.”

Order of June 21, 1985 at 14.

In short, BIA’s June 19, 1985 decision only bolsters this Court’s finding that because of the government’s delay and its failure to follow its own regulations in attempting to modify the original October 29 “Oral Decision” of the immigration judge, the government has abandoned its appeal of that original, valid “Oral Decision.”

Accordingly, the government’s motion to reconsider is DENIED; however, so that the government may have a further opportunity to seek a stay of the preliminary injunction pending appeal, the Court EXTENDS until noon Friday, June 28, 1985, the time by which plaintiff must be released.

      . Plaintiff also has raised certain issues that have been raised by other Mariel Cubans, but this Court does not address those issues in this order.

      . It is not clear whether the notice of appeal was timely filed because the copies presented to the Court were not stamped "filed" with any date and, according to the complaint, neither plaintiff nor plaintiffs counsel was served with stamped copy. Based on the representations of counsel for the government, however, for purposes of this motion the Court assumes that the notice of appeal was filed the same day as the grant of asylum, October 29, 1984.

      . Based on past conferences with counsel for the government in related cases, the Court understands that under the “lock-down” procedures, detainees at the penitentiary receive at most one shower and one exercise period each week and are subject to other restrictions on activities ordinarily a part of prison life. The prospect of further detention in such an environment has added urgency to plaintiff’s request for injunctive relief.

      . Jean held that "immigration officials clearly have the authority to deny parole to unadmitted aliens if they can advance a ‘facially legitimate and bona fide reason’ for doing so.” 727 F.2d at 977.

      . The government has cited one Third Circuit case in attempting to argue that the Court lacks jurisdiction over the issue of abandonment of its appeal. The government maintains that plaintiff has not exhausted his administrative remedies with respect to that issue by first pursuing it before the immigration judge or the Board of Immigration Appeals. The Court disagrees. That case, Kephart v. Director, Office of Workers’ Compensation Programs, 701 F.2d 22 (3rd Cir.1983), in no way addressed the exhaustion of administrative remedies. Given that plaintiff has spent the past seven months in the penitentiary awaiting final resolution of his grant of asylum, he could hardly be expected to await the agency’s decision on a new issue before coming to federal court. See Environmental Defense Fund, Inc. v. Hardin, 428 F.2d 1093, 1098 (D.C.Cir.1970).

      . The government’s reference to "practice in this district” is unhelpful because, as government counsel stated during the June 14 hearing, there are presently no written regulations governing “practices in this district.” Even if written regulations did exist, it is doubtful that they would supersede the regulations of 8 C.F.R.

      . That the government filed a "notice of appeal” immediately after the original "Oral Decision" was stated for the record on October 29 indicates that the government considered the October 29 "Oral Decision” to be the decision of the immigration judge, even though it was unsigned.
      If the immigration judge’s "decision” was actually the later, revised "Oral Decision,” the government’s notice of appeal was premature.

      . As the Court pointed out in its June 21, 1985 order at footnote 5, if the immigration judge’s "decision" was actually this May 14, 1985 revised “Oral Decision,” the government’s filing of its notice of appeal on October 29, 1984 was premature.


author: JENKINS, Chief Judge.

text:
    Debbie BURTON (Paul Erickson), Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. C-83-1267J.
    United States District Court, D. Utah, C.D.
    June 28, 1985.

      A. Howard Lundgren, Salt Lake City, Utah, for plaintiff.
    Joseph Anderson, Asst. U.S. Atty., Corey Cartwright, Salt Lake City, Utah, for defendant.
   MEMORANDUM DECISION and ORDER

JENKINS, Chief Judge.

Paul W. Erickson timely sought review in this court of a final decision by the Secretary of Health and Human Services denying him Social Security disability benefits. Mr. Erickson alleged that he was disabled due to chronic alcoholism. The case was referred to the Magistrate who recommended the Secretary’s decision be affirmed. The matter came regularly on the calendar on November 14, 1984 for a hearing on plaintiff's Objections to Magistrate’s Report and Recommendations. A. Howard Lundgren appeared on behalf of the plaintiff. Joseph Anderson and Corey Cartwright represented defendant. Following oral argument, the court took the matter under advisement. After careful review of the complete record, and having considered the pleadings and memoranda submitted on behalf of the parties, this court holds that there is insubstantial record evidence to support the Secretary’s findings that Mr. Erickson’s alcoholism did not constitute a severe impairment and insubstantial record evidence to support the Secretary’s finding that Mr. Erickson’s alcoholism was not disabling within the meaning of the Social Security Act.

BACKGROUND

Claimant, Paul W. Erickson, filed applications in September, 1982 for Social Security disability benefits and supplemental security income. Mr. Erickson claimed that he was disabled primarily because of severe, persistent and uncontrollable alcoholism. Erickson’s requests for benefits were denied initially and upon reconsideration. The claimant then was granted a full hearing before an Administrative Law Judge (AU.) The evidence and testimony presented to the AU is summarized as follows:

Erickson, who was born on April 28, 1936, began drinking at the age of 14. (Rec. at 30.) Despite his apparent life-long relationship with the bottle, Erickson seemed to have managed quite well for most of his years. He married, raised three children and, for some 28 years, held down a steady job. For reasons undisclosed by the record, the year 1977 appears to have been the beginning of the end for Mr. Erickson. During the next six years, Erickson would surrender two jobs, two marriages and, ultimately, his life to alcohol.

Erickson’s long-time employer, Kennecott Copper Corporation, became aware of his alcohol dependency by, at least, April, 1977. At that time, the Kennecott people began issuing warnings that Erickson’s drinking was interfering with his job. Erickson was placed on “probation” numerous times for his drinking, during which times the personnel at Kennecott would assist Erickson in seeking medical help for his alcohol problem. (Rec. at 130.) Kennecott’s tolerant assistance, combined with Erickson’s own voluntary efforts, resulted in Erickson’s hospitalization for treatment of alcoholism on nearly a dozen separate occasions between the period April, 1977 and December, 1981. (Rec. at 26-27.) The treatments obviously failed. On March 26, 1982, after 28 years with the company, Kennecott fired Erickson because of his alcoholism. (Rec. at 28.) The only other recent employment Erickson experienced was as a grocery store clerk at Safeway. He was fired from Safeway, too, due to his chronic drinking. (Rec. at 35.)

Erickson admitted that his drinking interfered with his personal relationships during that six-year period. (Rec. at 38.) In 1978, his marriage of 24 years ended in divorce. A second marriage in 1979 resulted in a similar fate a couple of years later. (Rec. at 36). After the break-up of his marriages and the loss of jobs, Erickson was forced to take up residence in his parent’s basement. There, he faced increasing conflicts with his family, who was after him to “mend his ways.” (Rec. at 114.) Contacts with friends and neighbors was reported to be limited. (Rec. at 114.)

Erickson also experienced untoward encounters with the law between 1977 and 1982 because of his alcoholism. The record reflects that during that period, he had ten convictions for alcohol related offenses. (Rec. at 31.) He spent a significant number of weekends in jail for those offenses, requiring medication while confined in order to control the DT’s. Upon release, Erickson would resume drinking as soon as he could walk across the street from the jailhouse to the bar. (Rec. at 32.) As a condition of Erickson’s parole, he was required to take Antabuse and to quit drinking. Although he took the medication as prescribed, it seemed to have little effect on his drinking. (Rec. at 30.) Only on the days that Erickson was required to visit his parole officer, would he “watch” his intake so that he could be seen by parole officers without difficulty. (Rec. at 114.)

The medical evidence in the record leaves no doubt that Erickson suffered from severe, chronic alcoholism. Beginning in 1977, and continuing until the time of the hearing, Erickson received weekly treatment for his addiction from Dr. William W. Barrett, a psychiatrist. Three of Dr. Barrett’s medical reports are included in the record, as are various laboratory and x-ray studies. The reports corroborate the numerous hospitalizations for alcohol addiction treatment and the numerous alcohol related arrests. The lab and x-ray studies reveal that beginning in 1979, Erickson began to show adverse signs of the physical effects of alcohol abuse, primarily liver abnormalities. (Rec. at 111, 118, 119) A March, 1983 CT scan showed some brain atrophy. (Rec. at 121.) Dr. Barrett’s most recent report, in the form of responses to proposed questions, succinctly summarizes the history and extent of Erickson’s alcohol addiction. The report states, in part, that;

Mr. Erickson is a chronic alcoholic with uncontrollable dependence on alcohol____
Mr. Erickson has a very long history of chronic and excessive abuse of alcohol. He has been hospitalized numerous times and has been through the alcohol program at Raleigh Hills as well as city and state programs and a program at the University of Utah besides hospitalization in private hospitals.
He has been jaundiced due to liver problems from alcohol and is now showing brain damage manifested on the CT scan done on March 10, 1983 by “cerebral atrophy” and on a psychological evaluation as “cognitive deterioration due to chronic alcoholism” which would indicate that Mr. Erickson does not have the intellectual capacity to learn or even to do a job requiring new learning or that is complicated.
His persistence at indulgence in alcohol makes him chronically confused which results in perseveration in speech and ideas. He is forgetfull and disconnected at times. This condition in his brain is progressive with continuation of his drinking.

Medical Report, June 6, 1983 (Rec. at 126). When Dr. Barrett was asked whether Mr. Erickson had voluntary control over his drinking, Dr. Barrett responded in the negative. Id.

At the administrative hearing, Erickson’s testimony underscored the pervasiveness of his drinking habit. Mr. Erickson admitted that he drank between a case and a case-and-a-half of 16 oz. beers each day. (Rec. at 29.). He had downed four beers before leaving to attend his 9:00 a.m. hearing. (Rec. at 30.) At least three times a week, he managed to pour down three or four or five mixed drinks in addition to the beers. (Rec. at 29.) He did not sleep longer than an hour or two at night without awakening to take a drink. (Rec. at 37.) Mr. Erickson’s description of what a “normal day” was like in his life is poignantly telling. He said:

I’ll get up and I start drinking about as soon as I get up. And I watch TV. And I try to do a little yard work. But I have to — but I don’t do anything until I’ve drank ... its kind of like in the morning when I get up, my nervous system is like this. Then — so I sit and drink and drink until I kind of level out so that I’m not in this state. I kind of get it down to where I level out and then I’ll try and do a little yard work. And then I try to keep drinking to hold it down enough to where I don’t go over the edge and get to the bottom like this, in order to get back.

(Rec. at 36.)

Following the hearing, the AU took the matter under advisement and on July 19, 1983, issued a written decision. In the decision, the AU stated that “it is evident that the claimant deserves the diagnosis of alcoholism.” (Rec. at 8.) The AU concluded, however, that Mr. Erickson could “voluntarily control his alcohol consumption.” (Rec. at 10,11 & 12.) Based on that conclusion, the AU found that Mr. Erickson’s alcoholism did not constitute a severe impairment (Rec. at 12), and alternatively, that Mr. Erickson did not satisfy the requirements for a disability based on alcoholism. (Rec. at 10, 12.) The Appeals Council declined to review the AU’s findings and Mr. Erickson timely requested that this court review the administrative hearing decision.

On December 16, 1983, before the matter had been briefed and argued in this court, Mr. Erickson was found dead in his home. The cause of death was poisoning due to an overdose of ethanol and other chemicals. (Plaintiff’s Memorandum in Support of her Motion to Reverse the Defendant’s Administrative Decision, Attachments A, B.) His daughter, Debbie Burton, was substituted as plaintiff. Plaintiff alleges that there is not substantial record evidence to support the AU’s findings that Mr. Erickson could voluntarily control his alcohol intake, did not have a severe impairment and was not disabled.

DISCUSSION

For a final decision of the AU to be sustained by the reviewing court, that decision must be supported by substantial evidence. Broadbent v. Harris, 698 F.2d 407 (10th Cir.1983). In determining whether there is substantial evidence to support the AU’s decision, the reviewing court must examine evidence in the record that fairly detracts from its weight. Universal Camera v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); Nieto v. Heckler, 750 F.2d 59, 61 (10th Cir.1984). Substantial evidence is “more that a mere scintilla. It is such 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) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938).

The regulations governing the Social Security Administration provide for a sequential evaluation of disability. 20 C.F.R. §§ 404.1520, 416.920 (1983). Once a claimant proves that he is not currently gainfully employed, the claimant must then show that he has a severe impairment. If a claimant’s impairment is not severe, he is found not disabled. However, if a claimant’s impairment is severe and that impairment precludes an individual from engaging in any substantial gainful activity, the claimant will be found disabled. Tillery v. Schweiker, 713 F.2d 601, 602 (10th Cir.1983).

SEVERE IMPAIRMENT

Although they did not do so early on, for many years now, courts have accepted the fact that “chronic, acute alcoholism is itself a disease, ‘a medically determinable physical and mental impairment.’ ” See Griffis v. Weinberger, 509 F.2d 837, 838 (9th Cir.1975). Alcoholism, as is the case with most impairments, can be present in varying degrees of severity. The AU in the present matter unquestionably accepted the fact that the medical evidence clearly established “that the claimant is habituated to large amounts of alcohol.” (Rec. at 9). However, the AU found that Erickson’s habituation did not constitute a severe impairment.

The severity test for Social Security disability purposes, is designed to screen out those claimants whose physical or mental problems are so minor that they are presumptively non-disabling. For an impairment to constitute a severe impairment, the condition must be one that significantly limits a person’s physical or mental abilities to do basic work activities. 20 C.F.R. § 404.1521(a). Put another way, a non-severe impairment is a “slight abnormality which has such a minimal effect on the individual that it could not be expected to interfere with the individual’s ability to work, irrespective of age, education or work experience____” Brady v. Heckler, 724 F.2d 914, 921 (11th Cir.1984).

Given the above standard, the record in the present case is completely bereft of evidence that supports a finding that Mr. Erickson’s alcoholism did not significantly limit his physical or mental ability to do basic work activities. Although it appears that Erickson could walk, sit, stand and lift without a great deal of difficulty, the ability to perform basic work activities includes more that the ability to perform certain physical functions. The Secretary’s own definition of “basic work activities” includes such factors as:

a) understanding, carrying out and remembering simple instructions; b) use of judgment; c) responding appropriately to supervision, co-workers and usual work situations; and d) dealing with changes in a routine work setting. 20 C.F.R. § 404.-1521.

The inability of Erickson to perform most of the above enumerated tasks at all or without difficulty is addressed in the medical reports. The October, 1982 report states in part that Erickson “at times has difficulties in maintaining his coherence and cognition in talking about a subject. He is very repetitive and it is almost impossible to get him to understand what you are trying to get over to him.” (Rec. at 104.) The June, 1983 report reveals that Erickson was “chronically confused” and “forgetful and disconnected at times.” In addition the report states that brain deterioration due to alcoholism resulted in the lack of “intellectual ability to learn or even do a job requiring new learning or that is complicated.” (Rec. at 126.) Finally, common sense dictates that an impairment that results in repeated hospitalizations, arrests, lost jobs and broken marriages simply does not fit into the category of an impairment that has “minimal effects” on an individual.

There is nothing in the record to suggest anything other than that Mr. Erickson’s alcoholism severely circumscribed his day-to-day existence, including his ability to perform basic work activities. The AU’s finding that Mr. Erickson’s alcoholism did not constitute a severe impairment is not supported by substantial evidence.

DISABLING IMPAIRMENT

In addition to finding that Erickson’s alcoholism did not constitute a severe impairment, the AU made an “alternative” finding that Mr. Erickson’s alcoholism did not meet the requirements for a disability based on alcohol dependency because he had the voluntary ability to control his intake. Plaintiff also challenges the sufficiency of the alternative finding.

Nearly every court that has addressed the issue has found that alcoholism, alone, can constitute a disability if it prevents a claimant from engaging in substantial gainful activity. McShea v. Schweiker, 700 F.2d 117 (3d Cir.1983); Cannon v. Harris, 651 F.2d 513 (7th Cir.1981); Ferguson v. Schweiker, 641 F.2d 243 (5th Cir.1981); Hicks v. Califano, 600 F.2d 1048 (4th Cir.1979); Lewis v. Califano, 574 F.2d 452 (8th Cir.1978); Griffis v. Weinberger, 509 F.2d 837 (9th Cir.1975); Sharpe v. Califano, 438 F.Supp. 1282 (E.D. Va.1977). The Court of Appeals for the Tenth Circuit appears not to have addressed this issue, but those courts that have, are generally in agreement that the standard for disability due to alcoholism is a showing that the claimant has a clear addiction to alcohol with the lack of ability to control its use voluntarily. McShea, 700 F.2d at 119; Cannon, 651 F.2d at 519; Ferguson, 641 F.2d at 249; Hicks, 600 F.2d at 1051; Lewis, 574 F.2d at 455; Griffis, 509 F.2d at 838; Sharpe, 438 F.Supp. at 1286. In addition, the finding that the claimant has the ability to control his or her drinking must rest on competent medical evidence. Lofton v. Schweiker, 653 F.2d 215, 218 (5th Cir.1981). This court can find no persuasive authority that militates against adopting the standard agreed upon by the several circuits for determining whether alcoholism constitutes a disability within the meaning of the Act. It so adopts that standard.

In the present case, the AU disclaimed the precedential value of the court-established tests for chronic alcoholism, set forth above, because of the absence of Tenth Circuit or Supreme Court decisions. (Rec. at 11). Despite the disclaimer, it appears that the AU chose to follow the rationale accepted by the several circuits in analyzing the record evidence in that he determined whether Mr. Erickson had a clear addiction to alcohol with the lack of ability to control its use. In short, the AU unequivocally accepted the diagnosis of Mr. Erickson’s chronic alcoholism, but concluded that Erickson had the ability to voluntarily control his consumption. (Rec. at 11). Based on that conclusion, the AU then found that Erickson’s alcoholism was not disabling within the meaning of the Act.

The medical evidence in the record going to the question of voluntary control over alcohol intake could not be any more plain. When Dr. Barrett, Erickson’s long-time, personal physician, was asked whether Erickson was a chronic alcoholic, he responded, “Mr. Erickson is a chronic alcoholic with uncontrollable dependence on alcohol.” (Rec. at 126.) On two earlier reports, Dr. Barrett’s diagnosis is “alcohol dependence” (Rec. at 105) and “Alcoholism, chronic, severe, persistent.” (Rec. at 115.) When Dr. Barrett was specifically asked whether Erickson had voluntary control over his drinking, Dr. Barrett responded, “No. He drinks a case of beer daily while taking 250 mg. of Antabuse Tuesday and Friday. Then at times he will drink a fifth of whiskey.” Id. There is no competent medical evidence in the record that disputes Dr. Barrett’s opinion nor reason for this court to doubt it.

It is clear that in concluding that Mr. Erickson could voluntarily control his alcohol intake, the AU focused exclusively on an isolated portion of a statement contained in one of Dr. Barrett’s medical reports. The statement reflects an observation that Mr. Erickson watched “his [alcohol] intake enough so that he is able to report to his parole officer and be seen without difficulty, because part of his returning to prison is dependent whether or not he is drinking.” (Rec. at 114.) The AU interpreted that observation to mean that Mr. Erickson had the voluntary ability “to control his drinking when the alternative is incarceration.” (Rec. at 10.) The record simply does not bear out that conclusion.

The full text of the statement in the medical report, upon which the AU relied in part, is as follows:

This man continues to drink daily anywhere from a case to a case-and-a-half of 16-ounce beer. Once in a while he does indulge and go on a bender on heavy spirits. He is just watching his intake enough so that he is able to report to his parole officer and be seen without difficulty, because part of his returning to prison is dependent whether or not he is drinking. So far they have not been able to perceive his alcoholic intake and so there are no problems.

(rec. at 114.) (emphasis added.) It is painfully clear from the above statement that Mr. Erickson was not “controlling his drinking” at all, even when the alternative was incarceration. He continued to drink heavily on a daily basis. Apparently what Erickson was able to do was watch his intake enough for an hour or so on the few occasions required to pass muster on a parole interview. The conclusory assertion that if a person can endure a few hours without a drink to stay out of jail, he can maintain sobriety to regularly function on a job, demonstrates a misapprehension of the nature of alcoholism. See Ferguson v. Heckler, 641 F.2d 243, 249 (5th Cir.1981) (“The conclusory assertion that because a person has stopped drinking, he can again do so ... is unwarranted and shows an insensitivity to the problems faced by alcoholics.”)

The ALJ’s finding that Mr. Erickson could voluntarily control his alcohol intake is not supported by substantial evidence in light of the uncontroverted medical opinion that Mr. Erickson lacked the ability to voluntarily control his drinking. In accordance with the standard adopted herein by this court for determining disability due to alcoholism, the claimant has conclusively proven his disability. It is abundantly clear that Mr. Erickson could “do no work at all if he [could] not control his abuse of alcohol.” Ferguson v. Heckler, 750 F.2d 503, 505 (5th Cir.1985.) Plaintiff is entitled to a decision in her favor based on the record.

Accordingly, IT IS ORDERED that the decision of the Secretary is REVERSED.

      . The claimant originally alleged that he was disabled due to cirrhosis and poor circulation. In his request for reconsideration, however, Erickson admitted that his disabling impairment was alcoholism. Although the AU considered, and there is some evidence in the record that Erickson may have had medical problems apart from his alcoholism, this court’s disposition of the case negates the necessity of addressing other medical issues.

      . The ALJ’s specific findings relative to this review are:
      ******
      3. The claimant is a chronic alcoholic who has the ability to voluntarily control his alcohol intake.
      4. The claimant's subjective complaints of ... disability based on chronic alcoholism are not found to be credible and are not borne out by the objective medical evidence.
      5. The claimant does not have any impairment or impairments which significantly limit his ability to perform basic work related functions; therefore the claimant does not have a severe impairment.
      6. The claimant was not under a “disability" as defined in the Social Security Act, at any time through the date of this decision.

      . In accordance with the sequential evaluation procedures, a finding that a claimant’s particular impairment is "not severe” supports an ultimate finding that the claimant is not disabled within the meaning of the Act and renders unnecessary any further determination. Tillery v. Schweiker, 713 F.2d 601, 602-03 (10th Cir.1983.)

      . As one court noted, "some alcoholics can stop; more cannot." Griffis v. Weinberger, 509 F.2d 837, 838 n. 1.