author: SPELLMAN, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Norman SAUNDERS, et al., Defendants.
    No. 85-165-Cr.
    United States District Court, S.D. Florida, Miami Division.
    March 21, 1985.
    Richard Gregorie, Asst. U.S. Atty., Miami, Fla., for U.S.
    Philip Carlton, Jr., Miami, Fla., for Stafford Messick.
    Michael Yon Zamft, Hialeah, Fla., for Aulden Smith.
    Louis St. Laurent, II, Miami, Fla., for Andre Fournier.
    Albert Kreiger, Susan Von Dusen, Neal R. Lewis, Miami, Fla., for Norman Saunders.
   MEMORANDUM OPINION AND ORDER GRANTING MOTION TO PERMIT COPYING OF TAPE RECORDING ADMITTED IN EVIDENCE

SPELLMAN, District Judge.

The National Broadcast Company (“NBC”), Sunbeam Television Corporation (“Sunbeam”), the American Broadcasting Company (“ABC”), the Post-Newsweek Stations of Florida (“Post Newsweek”) and the Miami Herald Publishing Company (“Miami Herald”) have moved this Court for an Order permitting them to inspect and copy the videotape played in open court and introduced as evidence at the bond hearing in the above-styled case. For the reasons set forth below, the motions for access and copying the videotape are GRANTED.

BACKGROUND

On March 5, 1985 United States Drug Enforcement Administration (“DEA”) agents arrested Norman Saunders, Chief Minister of Turks and Caicos Islands, Stafford Messick, the Minister of Commerce of the Turks and Caicos, Aulden Smith, the sub-Minister of Transportation of the Turks and Caicos, and Andre Fournier, a Canadian businessman, on charges of conspiracy to import and distribute cocaine.

The following day, a bond hearing for all four Defendants was held before United States Magistrate Herbert Shapiro. At the hearing, the Government offered in evidence certain portions of a videotape of the activities of the Defendants and of a cooperating individual at a motel in Miami. The scenes depicted the Defendant, Norman Saunders, receiving, counting, and then pocketing sums of money contended by the Government to be bribes for permitting the airfield at Turks and Caicos Islands to be used as a stopover for planes loaded with cocaine flying from Colombia to the United States. Other scenes were of Andre Fournier talking to the other Defendants and to the cooperating individual of the setting aside of 10% of the proceeds to be received by the co-conspirators to be used as a slush fund for bonds and attorneys fees and of the use of a mountain hideaway in Colombia.

The tape was played in open court and admitted as evidence by the Magistrate. None of the Defendants filed a closure motion. Members of the media sketched the tape as it was played on a portable television monitor in the Magistrate’s courtroom. These sketches were broadcast on the March 6, 1985 11:00 p.m. local news report of Sunbeam’s WSVN Television. A description of the contents of the tape was provided by The Miami Herald in a story on March 7, 1985 and by the Associated Press in a wire story transmitted March 6, 1985.

Post-Newsweek, Sunbeam, WBC, and NBC all applied to the Magistrate for an order permitting the copying of the videotape which was introduced as evidence in the bond hearing. The United States Attorney’s Office, consistent with its position in other cases of this type, stated that it had no objection to the media’s application. The Defendants, however, objected. They contended that the rebroadcast of the tapes would so prejudice the public that it will be impossible to find impartial jurors. They further argued that they were entitled to be indicted by an unbiased grand jury and that broadcast of the tape prior to indictment may jeopardize this right.

On March 11, 1985, the Magistrate entered the Order which denied the media access to the tape. The Magistrate found that:

... in the interest of a fair and impartial administration of justice, and of the rights of the accused to a presentment before an unbiased grand jury, and impartial grand jury (should the Government determine to make such a presentment) as to which only evidence presented before all assembled together is to be received and considered, and further inasmuch as there is no voir dire or other control over such Grand Jury ... and purely as a prophylaxis and precautionary bases, this Court will not authorize the release of the videotapes prior to the indictment____

Order at 9.

Although the ground for denying the application was based upon the fact that the defendants had not yet been indicted, the Magistrate stated that, in his opinion, when the equities were balanced, “the right of the public to information as against the rights of the individual to a fair and impartial trial” ... would negate the rebroadcast of the videotapes prior to trial. The Magistrate recognized, however, that some trial courts have determined that with a thorough and careful voir dire and appropriate cautionary instructions, an impartial jury may be selected. Accordingly, he found that “it would be appropriate that any motion for authorization to reproduce the videotapes should be submitted to the trial court.” Order at 8-9.

On March 14, 1985, a federal grand jury sitting in Miami indicted all four Defendants in this action. The nineteen count indictment charges the Defendants with violations of the Travel Act, conspiracy and various narcotics offenses. Through a random selection process, the case was assigned to the undersigned Judge for trial.

This Court held a hearing on the media’s application on March 15, 1985. The Court heard oral argument from all parties and permitted the parties to submit additional memoranda of law.

THE PUBLIC’S RIGHT OF ACCESS

The issues raised by the media’s application are not new. The Supreme Court has emphasized that “[wjhat transpires in the courtroom is public property,” Craig v. Harney, 331 U.S. 367, 374, 67 S.Ct. 1249, 1254, 91 L.Ed. 1546 (1947) and that the public has strong interest in a full opportunity to know whatever happens in a courtroom. See Press-Enterprise v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 13 L.Ed.2d 248 (1982); Richmond Newspapers Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980).

Thus, the courts in this district as well as other federal courts have repeatedly recognized that once a tape has been admitted into evidence and played in open court, the common law and the first amendment establish the right of those interested to inspect and copy the tape. See, e.g., United States v. Miller, 579 F.Supp. 862 (S.D.Fla.1984) (Aronovitz, J.); United States v. Lacayo, 572 F.Supp. 1222 (S.D.Fla.1983) (King, J.); United States v. Hastings, 9 Med.L.Rptr. 1488 (S.D.Fla. Case No. 81-596-Cr-ETG, Jan. 10, 1983) (Gignoux, J.); United States v. Maddox, 7 Med.L.Rptr. 2600 (S.D.Fla. Case No. 81-330-Cr-CA, Jan. 12, 1982) (Atkins, J.); In re: Application of National Broadcasting Co. (Myers), 635 F.2d 945, 952 (2d Cir.1980); In re: Application of NBC (Criden), 648 F.2d 814 (3d Cir.1981); United States v. Martin, 746 F.2d 964 (3d Cir.1984); In re: Application of NBC (Jenrette), 653 F.2d 609 (D.C.Cir.1981); United States v. Mouzin, 559 F.Supp. 463 (C.D.Cal.1983); In re: Application of WFMJ, 566 F.Supp. 1036 (N.D.Ohio 1983); United States v. Pageau, 535 F.Supp. 1031 (N.D.N.Y.1982); United States v. Carpentier, 526 F.Supp. 292 (E.D.N.Y.1981); United States v. Shannon, 540 F.Supp. 769 (N.D.Ill.1982).

The right to inspect and copy obtains even when the press and the public already have the information pertaining to the evidence. For example, the second circuit in Myers observed that even though the public already had the transcripts of the AB-SCAM videotapes, there remained “a legitimate and important interest in affording members of the public their own opportunity to see and hear evidence that records the activities of a Member of Congress and local elected officials, as well as agents of the Federal Bureau of Investigation.” 635 F.2d at 952. Similarly, in WFMJ Broadcasting Co. the court found that the media should be permitted to copy tapes admitted into evidence because “transcripts are not a substitute for tapes which are the actual evidence.” 566 F.Supp. at 1042. In the present case, the press and the public were permitted to watch and sketch the tape as it was played, and report on its contents. However, denying the media permission to broadcast the tape itself effectively denies the public of what even the Magistrate acknowledged was the most accurate account of the conduct which led to the Defendants’ arrest.

Although the public’s right to access is not absolute, “[w]here ... [there are] attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.” Globe Newspaper, 457 U.S. at 606-07, 102 S.Ct. at 2619-20. And the showing required to limit access to matters which have already been placed in the public domain is particularly strong. As the second circuit observed in one of the “Abseam” cases:

... there is a presumption in favor of public inspection and copying of any item introduced into evidence at a public session of a trial. Once the evidence has become known to the members of the public including representatives of the press, through attendance at a public session of court, it would take the most extraordinary circumstances to justify restrictions on the opportunity of those not physically in attendance in the courtroom to see and hear the evidence when it is in a form which readily permits sight and sound reproduction.

Myers, 635 F.2d at 952 (footnotes omitted).

Thus, a Defendant seeking to prevent access to tapes introduced into evidence in open court has a particularly heavy burden.

THE DEFENDANTS HAVE NOT MET THEIR BURDEN

The Defendants contend that providing the media access to the tape will potentially jeopardize their rights to a fair trial. But this court finds that “[t]he alleged risk to a fair trial ... is too speculative to justify denial of the public’s right to inspect and copy evidence presented in open court.” Id. at 953.

There has been no showing that release of the tape itself would result in irreparable damage to the Defendants’ fair trial rights. Indeed, the Supreme Court in Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975) explicitly rejected the proposition that

juror exposure to information about a ... defendant’s prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process. (Emphasis added)

See also Myers, 635 F.2d at 953 (“despite the extensive publicity about Abseam ... about half of those summoned for jury selection had no knowledge of Abseam, and only a handful had more than cursory knowledge”); United States v. Haldeman, 559 F.2d 31, 62 n. 37 (D.C.Cir.1976), cert. denied sub nom., Ehrlichman v. United States, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977) (“Most of the venire simply did not pay an inordinate amount of attention to Watergate”); Associated Press v. U.S. District Court, 705 F.2d 1143, 1146 (pretrial documents in widely publicized prosecution of John DeLorean could be made available to public without irreparably injuring fair trial rights).

Defendants also have not demonstrated that alternatives to closure could not adequately protect fair trial rights. Undoubtedly, broadcast of the tape will greatly increase the number of people with knowledge of the tape’s content beyond those already aware of the videotaped event through reading press accounts and viewing television newscasts. This Court also does not doubt that actually seeing the tape will create a stronger impression on people than merely hearing a news account of the content of the tape.

But such an enhanced awareness does not mean that the Defendants’ right to a fair trial will be at all abridged. This Court has found that searching voir dire examination can identify those persons who have been so affected by their exposure to pretrial publicity that they cannot fairly decide the issues of guilt or innocence. Particularly in a large metropolitan area like Miami, with so many potential jurors, this Court believes it likely that “searching questioning ... to screen out those with fixed opinions about guilt or innocence” and “the use of emphatic and and clear instructions on the sworn duty of each juror to decide the issues only on the evidence presented in open court,” will produce a fair jury. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 564, 96 S.Ct. 2791, 2805, 49 L.Ed.2d 683 (1976). See also United States v. Lacayo, 572 F.Supp. 1222, 1223 (S.D.Fla.1983) (permitting access to tapes where court found that fair trial rights could be safeguarded through cautionary instructions and careful voir dire).

Of course, if the voir dire examination should reveal that an impartial jury cannot be assembled or that the jury assembled does not represent a fair cross section of the community, this Court can take additional protective measures such as continuing the trial until public attention has subsided or changing the venue to a place less exposed to the publicity. See Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966).

The circumstances of the instant case are virtually identical to those addressed by the Honorable Sidney Aronovitz of this court in United States v. Miller, 579 F.Supp. 862 (S.D.Fla.1984). The Defendants in Miller, like the Defendants in this case, had been indicted for conspiracy to import cocaine. At a bond hearing for the Defendants, the Government submitted a detailed affidavit describing the contents of certain audio and video tape recordings which purportedly showed one of the Defendants taking cash from a Drug Enforcement Agency special agent in exchange for an agreement to permit an airfield in the Bahamas to be used as a landing site for the importation of illegal drugs. At a subsequent bail reduction hearing, the Government played in open court portions of two of the audio and video tapes described in the affidavit and introduced the remainder of the tapes in evidence.

Before the trial of the case, Post-Newsweek, Sunbeam and NBC filed motions seeking permission to copy both the tape recordings which had been played at the bond hearing and the tape recordings described in the affidavit. The Government did not object to allowing the intervenors to copy the tape recordings actually played in open court. The Defendants did object, arguing that release of the tapes would jeopardize their rights to a fair trial.

Judge Aronovitz balanced the rights of the Defendants in Miller and the rights of the media intervenors. He concluded that in the absence of any particularized showing that access would jeopardize the Defendants’ fair trial rights and that no alternatives exist which would protect these rights while also permitting inspection and copying of the tapes, the tapes and the transcripts of the tapes which had been admitted in evidence at the bail reduction hearing should be made available to all members of the press and public. This Court agrees.

CONCLUSION

This Court is well aware that “[n]o right ranks higher than the right of the accused to a fair trial.” Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501,-, 104 S.Ct. 811, 819, 823, 78 L.Ed.2d 629 (1984). This Court further recognizes that it has “an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity.” Gannett Co. v. Depasquale, 443 U.S. 368, 378, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608 (1979). In this case, however, the Court is satisfied that denying the press access to the tapes is not necessary to ensure a fair trial. In permitting the tape to be released to the press, this Court also commits itself to conducting a searching voir dire of prospective jurors and taking whatever other steps may be necessary to ensure that the Defendants’ rights are fully protected.

In keeping with this Court’s previous announcement at oral argument, the effect of this Order is stayed until 12:00 p.m. on March 25, 1985 to allow the Defendants to seek whatever appellate relief may be available.

      . The movants further requested that this Court enter an Order permitting them to simultaneously copy all video or audio tape recordings which are introduced into evidence during any subsequent proceeding in this cause. At oral argument, the Court denied this request without prejudice to its renewal at a later time.

      . The Turks and Caicos Islands are in the British West Indies and are under British dominion.

      . The return of an indictment in this matter effectively mooted the reason the Magistrate gave for denying access to the press. The Magistrate did not make any provisions for release of the tapes if and when an indictment was returned against the Defendants. Rather, he suggested that any request for release of the tapes after indictment should be addressed to the trial judge.

      . The Court notes that the jurors who hear this case will probably view the videotape at issue because it is likely that the Government will show the videotape at the trial. Although the Court does not intend in any way to prejudice the merits of any motions to suppress, an initial examination of the tape does not indicate any obvious indicia of illegality. For example, government agents appear to have been present throughout the tape. Accordingly, it does not appear that the surveillance would be subjected to the stringent requirements of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1970). Compare In re Globe Newspaper, 729 F.2d 47 (1st Cir.1984) (first amendment right of access to pretrial bail hearing is outweighed in part by defendant’s privacy rights under the provisions of Title III).


source: Caselaw Access Project

author: REYNOLDS, Chief Judge.

license: Public Domain

text:
    Leonard A. PETH, Plaintiff, v. Richard BREITZMANN; Sam Carr; Larry M. Phillips; Kenneth F. Dethloff; Kenneth J. Wielinski; J. Wolf; Donald Linskins; R. Bruno; Roy Clark; P.A. McFarland; Corinne L. Hollar; W.M. Sheeley; K.M. Osinga; Joe R. Jaquemai; Joseph P. Stadtmueller; Stephen J. Lisscone; Jeffrey D. Snow; Hennes Erecting Company, Inc.; Wisconsin Associates; John Hennes Trucking Co.; Bronson C. LaFollette; William H. Wilker; Michael Ley; James W. Warner; Clayton J. Rentmeester; Arthur E. Foeste; J.R. Wise; D.W. Richardson; Clayton E. Seth; Susan F. Hagen; Lyle P. Jensen; Fuel Economy Corporate Officer(s); Roscoe L. Eggar, Jr.; United States of America; State of Wisconsin Corporation Counsels and Attorneys; Richard Kotecki; and John/Jane Does 1-500, Defendants.
    Civ. A. No. 84-C-1326.
    United States District Court, E.D. Wisconsin.
    March 22, 1985.

      Leonard A. Peth, pro se.
    Joseph P. Stadtmueller, U.S. Atty., Stephen J. Lisscone, Asst. U.S. Atty., Milwaukee, Wis., and Jeffrey D. Snow, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, D.C., for defendants Breitzmann, Carr, Phillips, Dethloff, Wielinski, Wolf, Linskins, Bruno, Clark, McFarland, and Hollar.
    William A. Morgan and Bruce R. Meckler, Pope, Ballard, Shepard & Fowle, Ltd., Chicago, Ill., for Joe R. Jaquemai, W.M. Sheeley and K.M. Osinga.
   DECISION AND ORDER

REYNOLDS, Chief Judge.

This is a pro se tax protest action under 42 U.S.C. § 1983. ' Presently before the Court are defendants’ motions to dismiss and to jguash certain “common law liens” filed by plaintiff, and plaintiff’s “demand judgment by default,” “demand entry of summary judgment,” “demand of of [sic] this Court to stop the injury being performed by John/Jane does [sic] (1 through 500),” “Motions to Service [sic],” “Request That This Action Proceed Under Rules of Criminal Proceedure [sic] Rule (1), Rule (2), Rule (3) and Rule (4),” and plaintiff’s “Writs of Mandamus Authority,” writs of assistance, writs of attachment, notices of common law liens, “Writs of Quo Warranto,” and “Writ of Corpus Delicti and Caveat.” Nowhere does plaintiff state a claim for relief. I find the action to be frivolous and to have been brought in bad faith. Therefore, defendants’ motions will all be granted, plaintiff’s “demands,” motions, and requests will all be denied, the action will be dismissed, attorneys’ fees will be awarded to the defendants who have requested them, and the government will receive double costs.

Plaintiff has been prolific in his filing of documents with the court. Since this action was filed in late October 1984, plaintiff has submitted no fewer then twelve amended complaints, each complaint adding new defendants. I have reviewed each complaint and the accompanying exhibits, and nowhere do I find a cognizable claim for relief under federal law.

The original complaint identifies plaintiff as a “Soverign [sic] Citizen” and a resident of the State of Wisconsin. Elsewhere, he alleges that he is a boilermaker by trade. Although the complaint does not expressly identify them, the supporting exhibits disclose that defendants Breitzmann, Carr, Phillips, and Dethloff are Internal Revenue Service (“I.R.S.”) officers working in the I.R.S.’s Milwaukee office; defendants Wielinski and Wolf are I.R.S. officers working in the I.R.S.’s Minneapolis office; defendants Linskins and Bruno are I.R.S. officers working in the I.R.S.’s Green Bay, Wisconsin, office; and defendants Clark and McFarland are I.R.S. officers working at the I.R.S.’s Kansas City office. The plaintiff alleges that these defendants (hereafter “the I.R.S. defendants”) conspired to deprive him of his property without due process of law. Specifically, he alleges that the defendants knew, or should have known, that he was “at no time required to file or pay and [sic] income tax____” The alleged conclusion that he is not required to pay income tax is based on the alleged fact that he is not “an officer, employee or elected official, of the United States, the District of Columbia, or any agency of the United States or the District of Columbia” within the meaning of 26 U.S.C. § 6331(a). The complaint incorporates by reference a series of exhibits, most of which are copies of correspondence between plaintiff and the defendants, plaintiff’s income tax returns for various years, I.R.S. Forms W-2 and W-4, sundry I.R.S. publications, and legal memoranda of plaintiff’s authorship.

The I.R.S. defendants moved to dismiss on November 20, 1984. One of the proffered bases for dismissal is plaintiff’s failure to allege that he filed a claim for a refund with the I.R.S. However, I find among the exhibits several letters from the defendants informing plaintiff and his spouse that their administrative claims for refunds had been denied and that they would have to file a lawsuit if they wanted to prosecute the matter further. Thus, it appears that plaintiff has exhausted the administrative claim procedure, even though he has not explicitly so alleged.

The second proffered basis for dismissal is that plaintiff has failed to state a claim for relief. With this contention, I agree. Plaintiff apparently thinks that only federal officers and employees are subject to the levy and distraint provisions of § 6331. He is wrong. See Sims v. United States, 359 U.S. 108, 112-113, 79 S.Ct. 641, 644, 3 L.Ed.2d 667 (1959).

In addition to his misreading of § 6331, plaintiff labors under several other misapprehensions that prompted him to file this lawsuit. A review of the exhibits appended to the original complaint discloses that this action arises out of the I.R.S.’s collection of income taxes and F.I.C.A. taxes from plaintiff through the withholding mechanism. In the exhibit lettered “C,” plaintiff discloses two alternative theories for his contention that the withholding mechanism is unlawful as applied to him.

First, he argues that he is not a “person liable” to pay taxes under 26 U.S.C. § 6001. The argument is this: the tax imposed by Title 26, according to plaintiff, is “not unapportioned direct tax,” because any such tax “would be in conflict with the apportionment restriction of direct taxes contained in [Article I of the Constitution].” Moreover, he finds that there are no apportioned taxes imposed by Title 26. Thus, any tax under Title 26 must be an indirect tax, that is, a tax upon some right, privilege, or corporate franchise. Plaintiff says he is not a privileged person, nor has he taken any corporate franchise. Therefore, so the argument goes, Title 26 has no application to him.

The argument has no merit. See U.S. Const, amend. XVI; Brushaber v. Union Pacific R. Co., 240 U.S. 1, 17-19, 36 S.Ct. 236, 241-242, 60 L.Ed. 493 (1915).

Second, plaintiff argues that even if he is a “person liable” to pay income taxes, he has earned no “income.” He raises three contentions here. In the first, he states that the income taxes are directed to taxable gain. Because he receives a paycheck for his labor, and because the paycheck is equal to the fair market value of his labor, he argues there is no gain.

No court has ever accepted this argument for the purpose of determining taxable income. Indeed, it has always been rejected. For once and for all, wages are taxable income. Granzow v. Commissioner of Internal Revenue, 739 F.2d 265, 267 (7th Cir.1984).

Plaintiffs next argument is that he is not an “employee” under 26 U.S.C. § 3401(c) because he is not a federal officer, employee, elected official, or corporate officer. Plaintiff mistakenly assumes that this definition of “employee” excludes all other wage earners.

Finally, plaintiff argues that his wages are excluded from withholding under 26 U.S.C. § 3401(a)(8)(B). This section excludes remuneration for services rendered to a nonfederal employer by a U.S. citizen within a United States possession. The argument assumes that Wisconsin is a United States possession. Plaintiff is wrong again.

In sum, plaintiff has failed to state a claim for relief in the original complaint. It will be dismissed with prejudice.

The remaining twelve complaints can be treated summarily. In the first amended complaint, plaintiff sues Corinne Hollar, who is a deputy clerk of this court. The reason Ms. Hollar is being sued is that when the original complaint was filed, she prepared summonses providing for a sixty-day answering period pursuant to Fed.R.Civ.P. 12(a). Plaintiff contends that Ms. Hollar’s act was tantamount to conferring “Titles of Nobility” on the defendants, and that he has the right to an answer in twenty days.

Ms. Hollar properly gave the I.R.S. defendants sixty days to answer, because they are federal officers. No legal violation occurred here, and thus plaintiff has failed to state a claim. The first amended complaint will be dismissed with prejudice.

The defendants named in the second, fourth, fifth, sixth, and eighth amended complaints are either officers of business entities who once employed plaintiff, or the business entities proper. These defendants (hereafter “the private defendants") are all alleged to have conspired with the I.R.S. defendants in depriving plaintiff of his property. Review of the exhibits appended to these complaints discloses that plaintiff and his employers have been embroiled in disputes over the propriety of the employer’s decision to report plaintiff as having earned “wages, tips, [or] other compensation" on the I.R.S. Form W-2.

The Court has reviewed these complaints and exhibits, and finds that the only reason the private defendants are being sued is because they withheld wages from plaintiff for taxation purposes. The law requires them to do this, and they are not liable to plaintiff for the amounts withheld. 26 U.S.C. § 3403. Plaintiff has wholly failed to state a claim for relief against the private defendants, and therefore the second, fourth, fifth, sixth, and eighth amended complaints are dismissed with prejudice.

The third amended complaint was filed shortly after the I.R.S. defendants moved to dismiss. Their motion was signed by Tax Division Attorney Jeffrey Snow and Assistant U.S. Attorney Stephen Liccione for U.S. Attorney Joseph P. Stadtmueller. The third amended complaint adds Messrs. Snow, Liccione, and Stadtmueller as defendants.

The third amended complaint wholly fails to state a claim against these defendants. Plaintiff raises several ludicrous questions in this complaint, such as whether these defendants sought leave of court before entering therein with their “Titles of Nobility.” Obviously, the filing of this complaint was merely a petty, vindictive response to the I.R.S. defendants’ legitimate effort to defend themselves against a frivolous lawsuit. The third amended complaint is dismissed with prejudice.

The seventh and eleventh (numbered “25”) amended complaints name as defendants the Attorney General of Wisconsin, the Wisconsin Commissioner of Revenue, officers of the Wisconsin Department of Revenue, and “corporation counsels and Attorneys” (hereafter “the state defendants”). Neither complaint has been served. Rather, plaintiff “demands” that these complaints be served at the public’s expense pursuant to Fed.R.Civ.P. 4(c)(2)(B)(iii). Neither complaint will be served, because neither complaint states a claim for relief under federal law.

The following arguments raised in the seventh amended complaint and the supporting exhibits are exemplary of the plaintiffs’ claims against the state defendants. First, plaintiff argues that Article I, § 10, of the U.S. Constitution prevents the states from coining money or making anything but gold or silver a tender in payment of debts, and therefore, the State of Wisconsin must accept gold or silver coin, or some other form of tender to be determined by a court, in payment of state income taxes. The short answer to this silly argument is that Article I, § 10, does not limit Congress’s power under Article I, § 8, to declare what shall be legal tender for all debts. Congress has declared federal reserve notes to be legal tender for all public and private debts, and this declaration is the supreme law of the land.

Plaintiff also argues that he does not have any “income” under Wis.Stat. § 71.10(2)(d), because “natural citizens [sic] wages are not taxable, only the INCOME FROM the source” (plaintiff’s emphasis). Once again, plaintiff is wrong. Compensation for labor or services, however the earner might wish to characterize it, is income for the purpose of Wisconsin’s revenue laws, and § 71.10(2)(d) expressly so provides. See also Whitman v. Wisconsin Department of Taxation, 240 Wis. 564, 4 N.W.2d 180 (1942).

Plaintiff argues further that his remuneration is exempt from taxation under 26 U.S.C. § 861(a)(3)(C)(ii), and thus excludable under 26 U.S.C. § 61 and, by reference, excludable under Wisconsin law. Suffice it to say that if plaintiff wished to avail himself of § 861(a)(3)(C)(ii), he would have to show that his work was done for a foreign office, or an office in a United States possession, of a domestic business entity. He has not alleged this, and it is clear from the record that he performed his work in the State of Wisconsin for Wisconsin employers.

The exhibits appended to the seventh amended complaint are copies of correspondence between plaintiff and the state defendants. Plaintiffs missives contain other legal challenges too frivolous to merit mention. This complaint does not state a claim for relief and will be dismissed with prejudice.

The same can be said for the eleventh amended complaint, in which plaintiff seeks an order that the defendants process his claims for refunds and give recognition to certain “common law liens” he has submitted to the court.

Insofar as plaintiff requests an order declaring the Wisconsin revenue laws unconstitutional and requiring that Wisconsin make restitution of all tax monies collected from him, this complaint is barred by the Tax Injunction Act, 28 U.S.C. § 1341. Moreover, the claims for refunds are predicated on the same fatuous legal arguments that underlie the seventh amended complaint. They provide no basis for me to order the Wisconsin Department of Revenue to do anything.

The request that I order the defendants to respect these-“common law liens” merits special attention, because these “liens” are the subject of a motion to quash filed by several of the private defendants. Plaintiff has from time to time submitted to the court documents captioned “Notice of Common Law Lien” with reference to defendants Carr, Dethloff, Wielinski, Wolf, Bruno, Clark, McFarland, Jaquemai, Osinga, Sheeley, Phillips, Breitzmann, Linskins, Hennes Erecting Company, Snow, Liccione, Stadtmueller, and Hollar. These notices purport to order the particular defendant to hold certain assets as security for the plaintiff in this action, and warns the defendant not to “release” any of the assets until the action is concluded. Thus, these “notices” represent an attempt by plaintiff to encumber the defendants’ property pending disposition of this action.

No liens presently attach to the defendants’ property by virtue of this action. Plaintiff has no legal authority to encumber anyone’s assets merely by filing this action. Under Wisconsin law, a common law lien exists where a person bestows labor upon an article or does some act with reference to that article, thereby increasing its value. Moynihan Associates v. Hanisch, 56 Wis.2d 185, 190, 201 N.W.2d 534, 536 (1972). This, of course, has nothing to do with the present situation where plaintiff simply seeks to freeze the defendants’ bank accounts. The so-called “Notices of Common Law Lien” are worthless scraps of paper and have no legal effect. The motion to quash them is granted, and the eleventh amended complaint is dismissed with prejudice.

The ninth amended complaint (numbered “19”) adds Commissioner of Internal Revenue Roscoe Eggar, Jr. (hereafter “the Commissioner”) as a defendant. The complaint identified the Commissioner as the “prime conspirator” in this action and incorporates by reference the text of a statement on illegal tax protesters that the Commissioner made before a House Subcommittee on June 10, 1981. I have read this complaint and the exhibits, and I find no claim for relief against this defendant. This complaint is dismissed with prejudice.

In the tenth amended complaint (numbered “24”), plaintiff sues the United States. He alleges that certain officers of the United States conspired with and gave aid and comfort to persons conspiring to deprive him of his rights. These officers are defendants Snow, Liccione, Stadtmueller, and Hollar, and also Ms. Carol Shupe, who is a deputy clerk of this court; Sofron B. Nedilsky, the Clerk of Court; and the Honorable Thomas J. Curran, a judge in this district. Plaintiff complains of the incident respecting defendant Hollar and the sixty-day summons described earlier, and of a previous tax protest action filed in this district, Civil Action No. 83-C-1962, which Judge Curran dismissed on April 10, 1984. Plaintiff also identifies forty-two other conspirators, some of whom have been named as defendants in the other complaints. The plaintiff seeks an order that all the conspirators be criminally prosecuted.

Plaintiff has failed to allege any facts that would form the basis for a criminal prosecution. Indeed, with respect to those “conspirators” not previously named as defendants, with the exception of Mr. Nedilsky, Ms. Shupe, and Judge Curran, it is impossible to determine just what the conspirators have done to prompt plaintiff to name them in this complaint. This complaint fails to state a claim for relief and will be dismissed with prejudice.

Finally, in the twelfth amended complaint (numbered “22”), plaintiff adds one Richard Kotecki as a defendant. Mr. Kotecki is the Treasurer of the Town of Peshtigo, Marinette County, Wisconsin. This complaint raises once again the silly argument that states are unable to make anything but gold or silver coin tender in payment of a debt. No claim for relief is stated in this complaint and therefore it will be dismissed.

Plaintiff makes a number of “demands,” “requests,” “questions to court,” and motions, all of which are denied.

This, however, does not end the matter. A considerable amount of time has been spent processing plaintiffs action, and it has been determined to be wholly without merit. Indeed, it is frivolous. No reasonable person could seriously think that, for example, the revenue laws can be avoided, and the government’s tax collection efforts can be brought to a standstill, by the contention that wages are not income. Indeed, plaintiff himself must have known this, because his contention that wages are not income for taxation purposes was explicitly rejected by Judge Cur-ran in Civil Action No. 83-C-1962.

Moreover, I find that this action was brought in bad faith, and for the invidious purpose of “getting back” at the I.R.S. and the Wisconsin Department of Revenue. I base this finding on the entire record, and particularly on the “Notices of Common Law Lien,” which were obviously submitted to vex, harass, and intimidate the defendants; and the fact that plaintiff threatened, then sued, deputy clerk Hollar, thereby disrupting the orderly functioning of this Court.

As always, the doors of the court are open to persons having colorable claims for relief under the Constitution and the revenue laws of the United States. Yet the First Amendment does not provide a broad license to file frivolous and vindictive lawsuits that harass and intimidate tax collection officials and delay tax collection efforts. Such lawsuits squander the monies of responsible persons who recognize their duty to carry a share of the nation’s tax burden. See Granzow v. Commissioner of Internal Revenue, 739 F.2d 265, 269-270 (7th Cir.1984). The Constitution is not a toy, and the judicial process is not a game. Because plaintiff has acted irresponsibly in prosecuting this action, a sanction will be imposed.

The Court’s authority to impose the sanction derives from Fed.R.Civ.P. 11, which provides in pertinent part:

Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address____
The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation____
If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.

Defendants Sheeley, Osinga, and Jaquemai have asked for costs and attorneys’ fees in their several motions to the court. Procon, Incorporated, has also asked for costs and attorney’s fees in its motion to dismiss. Procon has not been named as a defendant, but it has been identified as one of the myriad “conspirators” listed in the tenth amended complaint, and it has been served. It will therefore be treated as a “party” under Fed.R.Civ.P. 11. These requests for costs and attorneys’ fees will be granted. The United States has also requested costs in its motion to dismiss. Double costs will be awarded to the government.

ORDER

IT IS THEREFORE ORDERED that the defendants’ motions to dismiss are granted.

IT IS FURTHER ORDERED that defendants’ motions to quash the “Notices of Common Law Lien” are granted.

IT IS FURTHER ORDERED that this action is dismissed with prejudice.

IT IS FURTHER ORDERED that the United States be awarded twice the amount of its costs in defending this action.

IT IS FURTHER ORDERED that within fifteen days of the filing date of this order, the defendants W.M. Sheeley, K.M. Osinga, Joe R. Jaquemai, and Procon, Incorporated, shall serve and file affidavits setting forth the attorneys’ fees reasonably expended in defending this action.


author: O’KELLEY, District Judge.

text:
    Patricia DANIEL v. WINN-DIXIE ATLANTA, INC.
    Civ. No. C-84-2176-A.
    United States District Court, N.D. Georgia, Atlanta Division.
    March 22, 1985.

      Kathleen L. Wilde, Atlanta, Ga., for plaintiff.
    Homer L. Deakins, Jr., Robert O. Sands, Atlanta, Ga., Kenneth G. Mall, Jacksonville, Fla., for defendant.
   ORDER

O’KELLEY, District Judge.

Presently pending for consideration is defendant’s motion for summary judgment. Plaintiff filed this action under the Fair Labor Standards Act (FLSA) § 15(a)(3); 29 U.S.C. § 215(a)(3) (1982), alleging retaliatory discharge. Because questions of material fact remain for resolution, the court denies defendant’s motion.

Plaintiff worked for defendant, a Florida corporation which admittedly is engaged in commerce within the meaning of the FLSA. Plaintiff alleges in her affidavit the following facts. In early 1983, defendant installed a new time clock which did not register •all hours worked. Plaintiff called the Wage and Hour Division (W & H) of the United States Department of Labor (DOL). She asked whether defendant lawfully could deny her overtime compensation in this manner, and was told that defendant could not. W & H advised her that she was within her rights under the FLSA to demand payment for overtime worked.

Plaintiff then asked certain officials of defendant to check the time clock because she believed that she was being underpaid. She also informed them that she had talked to W & H, which had told her that the underpayments were unlawful. The officials denied that a problem existed and ignored plaintiff. On June 3, 1983, she wrote to the Division Manager requesting an explanation for the underpayment and threatening to cease her stock purchases. The letter did not mention her contact with W & H. Defendant investigated plaintiff’s complaint and offered to pay her the sum due if she would drop the matter. She agreed and accepted payment.

In November, 1983, defendant questioned whether plaintiff used the postage meter for personal mail. She responded that she had used two 20$ stamps on one occasion. Defendant then fired plaintiff for this occurrence. She filed this action alleging retaliation for contacting W & H regarding overtime compensation, in violation of § 215(a)(3). Defendant asserts that it fired plaintiff for using the postage meter. Further, defendant denies any knowledge that plaintiff contacted W & H regarding overtime pay.

An important fact, defendant’s knowledge of plaintiff’s contact with W & H, is in dispute. The materiality of this fact hinges on the court’s resolution of the issue whether plaintiff’s contact with W & H, without her filing a complaint or testifying in any proceeding, was sufficient to trigger the protection of § 215(a)(3). Because the court finds that it was, the question of defendant’s knowledge is material and mandates denial of summary judgment.

Section 215(a)(3) provides that it is unlawful to discharge or in any other manner discriminate against an employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.

The United States Court of Appeals for the Eleventh Circuit has not addressed the precise point of whether action outside the precise statutory language is protected. The court will analyze the issue by studying the statute’s purposes, Supreme Court construction of similar language, this circuit’s interpretation of other § 215(a)(3) terms, and other circuits’ decisions.

The FLSA’s purpose is remedial: to insure that all employees may obtain a decent standard of living. 29 U.S.C. § 202. Section 215(a)(3) promotes that remedial purpose by prohibiting employer intimidation.

For weighty practical and other reasons, Congress did not seek to secure compliance with prescribed standards through continuing detailed federal supervision or inspection of payrolls. Rather it chose to rely on information and complaints received from employees seeking to vindicate rights claimed to have been denied. Plainly, effective enforcement could thus only be expected if employees felt free to approach officials with their grievances. This end the prohibition of § 15(a)(3) against discharges and other discriminatory practices was designed to serve. For it needs no argument to show that fear of economic retaliation might often operate to induce aggrieved employees quietly to accept substandard conditions, [citations omitted]. By the proscription of retaliatory acts set forth in § 15(a)(3), and its enforcement in equity by the Secretary pursuant to § 17, Congress sought to foster a climate in which compliance with the substantive provisions of the Act would be enhanced.

Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292, 80 S.Ct. 332, 335, 4 L.Ed.2d 323 (1960).

Due to its remedial purpose, courts have construed the statute broadly. E.g., Shultz v. Mack Farland & Sons Roofing Co., 413 F.2d 1296, 1300 (5th Cir.1969). This liberal construction should be accompanied by reasonableness and common sense. Dunlop v. Ashy, 555 F.2d 1228, 1234 (5th Cir.1977). In the instant case, a liberal construction of § 215(a)(3) would permit plaintiff to be protected for consulting W & H concerning her suspicions that defendant was not paying her for overtime. Such a construction is reasonable, and in fact is dictated by common sense. As the Court stated in DeMario, an employee must feel free to approach W & H with information. 361 U.S. at 292, 80 S.Ct. at 335. In this way, an employee may vindicate her rights.

To construe § 215(a)(3) as narrowly as defendant wishes would do violence to the statute’s goals. Carrying the argument to its logical extremes, an employee who consulted, but did not file a complaint with, W & H and who informed her employer first would not be protected as long as the employer fired her before she actually could file a complaint. The act would protect, however, an employee who never bothered to discuss matters with an employer, but who first filed a complaint. Such a result defies common sense, and is inimical to § 215(a)(3)’s purpose.

A Supreme Court decision construing § 8(a)(4) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(4) (1982) supports a liberal interpretation of § 215(a)(3). In National Labor Relations Board v. Scrivener, 405 U.S. 117, 92 S.Ct. 798, 31 L.Ed.2d 79 (1972), an employee gave a sworn statement to an NLRB investigator. The employee had not filed a charge or testified at a hearing. The statute prohibits an employer from discharging or otherwise discriminating against an employee because he has filed charges on given testimony under this chapter. 29 U.S.C. § 158(a)(4)..

The Court held that the employee’s making of a sworn statement was protected under the NLRA. Id. at 121, 92 S.Ct. at 801. That statute’s purpose is to allow all employees to be free from coercion to give their information to the NLRB. Additionally, § 8(a)(4) provides that an employer may not discharge “or otherwise discriminate” against an employee. The words “or otherwise discriminate” proscribe a variety of discriminatory actions which violate the statute, and indicate Congress’ intent that § 8(a)(4) be construed broadly. Id. at 122, 92 S.Ct. at 801. A liberal approach also is required to effectuate the remedial purposes of the NLRA. Finally, no “substantial countervailing considerations” existed which mandated a narrower construction. Id. at 124-25, 92 S.Ct. at 802-03.

Decisions under the NLRA are useful guidelines, for FLSA determinations. See Rutherford Food Corp. v. McComb, 331 U.S. 722, 723, 67 S.Ct. 1473, 1473, 91 L.Ed. 1772 (1947) (decisions under NLRA on coverage are persuasive regarding coverage under FLSA). Thus, the court’s analysis in Scrivener provides guidance for the Court’s determination under the FLSA. Both sections 215(a)(3) and 8(a)(4) were designed to promote access to federal authorities, to inform them of potential violations, and to permit assertion of employee rights. Scrivener, 405 U.S. at 122, 92 S.Ct. at 801; DeMario, 361 U.S. at 292, 80 S.Ct. at 335. Second, the language of § 215(a)(3), “or in any other manner discriminate,” is as broad as that of § 8(a)(4), “or otherwise discriminate.!’ Both terminologies demonstrate Congress’ intent to construe the Acts’ provisions broadly. Scrivener, 405 U.S. at 122, 92 S.Ct. at 801.

Other language of the two provisions is similar. Section 8(a)(4) prohibits discrimination against an employee who “has filed charges or given testimony under this sub-chapter.” 29 U.S.C. § 158(a)(4). Section 215(a)(3) protects an employee who “has filed any complaint... or has testified or is about to testify.” Id. § 215(a)(3). Yet the Court in interpreting § 8(a)(4) stated that “[t]he Act’s reference ... to an employee who ‘has filed charges or given testimony’ could be read strictly and confined in its reach to formal charges and formal testimony. It can also be read more broadly.” 405 U.S. at 122, 92 S.Ct. at 801. The Court continued that a broad interpretation “would be consistent with § 8(a)(4)’s purpose and objective.” Id. Arguably, § 215(a)(3)’s language, which also protects institution of a proceeding or service on an industrial committee, is broader.

The NLRA and FLSA are pieces of 1930’s social legislation, and are of the same general character. 331 U.S. at 723, 67 S.Ct. at 1473. Both are remedial in nature, and are to be construed broadly to effectuate that purpose. The rights protected by these provisions should not be applied in a narrow, grudging manner. Tennessee Coal, Iron & RR Co. v. Muscoda Local No. 123, 321 U.S. 590, 597, 64 S.Ct. 698, 702, 88 L.Ed. 949 (1944). Finally, as in Scrivener, no “substantial countervailing considerations” exist to preclude § 215(a)(3)’s protection of an employee who contacts and consults W & H regarding an FLSA violation. Such an action furthers the FLSA’s purpose of providing information to authorities and permitting employee assertion of rights without trepidation.

Although not construing specifically § 215(a)(3), cases decided by the Eleventh and former Fifth Circuits give the FLSA a liberal construction. In Goldberg v. Bama Mfg. Corp., 302 F.2d 152 (5th Cir.), plaintiff reported a violation to W & H, filed a complaint, and was discharged. Id. at 153. The court held that defendant violated the FLSA. Id. at 154. Although plaintiff generally was an unsatisfactory worker, the immediate cause of her discharge was the assertion of her rights. Id. Because of her work history, the court ordered back pay, but not reinstatement. The court based its rulings on its reluctance to condone violations of the FLSA, and arguably gave a rather broad reading of remedies available thereunder. Id. at 156.

In Wirtz v. Home News Publishing Co., 341 F.2d 20 (5th Cir.1965), an employee testified at a criminal proceeding brought under the Act against his employer and was fired. Id. at 21. The employer claimed that § 215(a)(3) did not protect the employee’s conduct because the statutory language covering testimony at “any such proceeding,” meant any proceeding initiated by the employee. Obviously, the employee did not and could not initiate a criminal proceeding. Id. The court, citing § 215(a)(3)’s purpose, broadly interpreted “any such proceeding” to include any proceeding under or related to the FLSA. Id. at 22-23.

The court decided Wirtz v. Ross Packaging Co., 367 F.2d 549 (5th Cir.1966) by construing liberally “employee” under § 215(a)(3). 367 F.2d at 550. The court noted that the district court had held that employees were terminated as a direct result of their participation in DOL’s investigation and their insistence upon receiving payments due. Id. Because the court broadly interpreted employee, it upheld the district court’s decision.

Lower court cases in this circuit are more on point. In Marshall v. Georgia Southwestern College, 489 F.Supp. 1322 (M.D.Ga.1980), a plaintiff complained to her employer of an Equal Pay Act violation. Her husband, also an employee, was fired. The court held that the firing violated § 215(a)(3), expanding that provision to include not only a complaint to one’s employer, but also retaliation against one’s spouse. 489 F.Supp. at 1331. The district court for the Southern District of Florida held that the FLSA protected employees who refused to return their back pay checks which were owed to them as a result of the employer’s violation of the Act. Hodgson v. Yinger, 65 L.C. ¶ 32,533, at 44,887 (C.C.H.) (S.D.Fla. July 9, 1971). In Berry v. Andrews, 535 F.Supp. 1317 (M.D.Ala.1982), the plaintiff had “contacted” W & H about payments of wages; the opinion does not indicate whether this contact included filing a complaint. The court held that plaintiff could maintain an action under the FLSA and the Service Contract Act, 41 U.S.C. §§ 351 et seq., and denied defendant’s motion to dismiss. 535 F.Supp. at 1318. This circuit’s decisions apparently favor broad construction of the FLSA to effectuate its purposes. Plaintiff’s activities in the instant case fit within the construction, because she attempted to enforce the FLSA.

Other circuits interpreting § 215(a)(3) have done so in a broad manner. The United States Court of Appeals for the Tenth Circuit held that § 215(a)(3) protects employees who refused to release their back pay claims and were fired. Marshall v. Parking Co. of America-Denver, Inc., 670 F.2d 141, 142-43 (10th Cir.1982). In Love v. Remax of America, Inc., 738 F.2d 383 (10th Cir.1984), an employee wrote a memorandum to the president of her employer claiming that men were paid more, and attached a copy of the Equal Pay Act, a part of the FLSA. Id. at 384. The court held that her discharge violated § 215(a)(3) because that provision applied to an employee’s unofficial assertion of rights, such as complaints to her employer. Id. at 387.

The United States Court of Appeals for the Eighth Circuit likewise broadly construed § 215(a)(3). An employer asked his employee to endorse her back pay check to him. Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181-82 (8th Cir.1975). When she refused, she was discharged. The court held that this discharge was unlawful. Id. at 181.

The United States Court of Appeals for the Sixth Circuit has not ruled on this issue directly. In Bush v. State Indus., Inc., 599 F.2d 780 (6th Cir.1979), plaintiff asserted that he had been fired because he complained to his employer about the latter’s failure to compensate him for overtime. The court held that the newly passed amendment of § 216(b), granting an employee a private right of action, applied to plaintiff’s claim. The court remanded so that plaintiff could pursue his cause of action. Although not reaching the issue directly, the opinion in Bush indicates approval of § 215(a)(3) protection for complaints to employers. Additionally, a Tennessee district court held that § 215(a)(3) is violated if an immediate factor in discharge is the employee’s assertion of rights, either officially or in complaints at work. Bonham v. Copper Cellar Corp., 476 F.Supp. 98, 103 (E.D.Tenn.1979).

In the Fourth Circuit, a district court in North Carolina held that an employer’s attempt to persuade an employee to return back pay checks violated § 215(a)(3). Donovan v. Rockwell Tire & Fuel, Inc., 99 L.C. ¶ 34,466 at 45,921 (C.C.H.) (M.D.N.C. Mar. 30, 1982). In Wirtz v. C.H. Valentine Lumber Co., 236 F.Supp. 616 (E.D.S.C. 1964), the district court noted that an employer’s threats to fire an employee were insufficient to trigger FLSA protection. This case comes close to interpreting § 215(a)(3) in a strict manner. The court, however, cited only a requirement of a positive and overt act to come within § 215(a)(3) protection. Id. at 619-20. Its example is not of an employee filing a complaint, but of one demanding payment of wages due. Id.

Discussion of the precise coverage of § 215(a)(3) among the circuits is sparse. In most decisions on the provision, an employee has performed an act specifically mentioned in the statute. The general consensus, however, appears to be that § 215(a)(3) should be broadly construed to effectuate its purposes.

To summarize, plaintiff allegedly not only complained to her employer, but contacted W & H, explained her problem, and was advised to demand her rights. A common sense approach, coupled with the prescribed liberal construction, suggests that plaintiff’s actions promoted the FLSA’s purpose of protecting workers, and § 215(a)(3)’s goals of providing information to federal officials and allowing an employee to assert her rights. To permit her firing for her actions would chill these purposes. Because material issues of fact exist, such as whether defendant was aware of plaintiff’s contact with W & H, the court will deny defendant’s motion for summary judgment.

      . The Court also based its holding on the fact that the NLRB had given a broad interpretation to § 8(a)(4), that the NLRB can subpoena witnesses, and that the practicalities of agency action support such a view. 405 U.S. at 122-23, 92 S.Ct. at 801-02.

      . New cases discuss the scope of § 215(a)(3)’s. protection. Some courts, however, have discussed other provisions with language similar to that of the NLRA and FLSA. In Marshall v. Daniel Constr. Co., 563 F.2d 707 (5th Cir.1977), DOL promulgated a regulation under the Occupational Safety and Health Act, 29 U.S.C. §§ 651 et seq. permitting an employee to walk off the job if he believed that his life was in danger and that insufficient time existed to pursue regular statutory remedies. The court held that the regulation was beyond DOL’s power to promulgate under the statute. 563 F.2d at 715. The court also noted that DOL’s reliance on Scrivener was misplaced, because plaintiff did not allege that he requested an inspection, pursuant to the statute. Id. at 716. Additionally, a "substantial countervailing consideration" existed: the potential to disrupt or damage an employer’s business. Id.

      In Marshall v. Whirlpool Corp., 593 F.2d 715 (6th Cir.1979), the court disagreed with the holding in Daniel, holding that DOL had the power to promulgate the regulation, and that Scrivener and other cases recommended a liberal construction of remedial provisions similar to those of OSHA. Id. at 723-24. The Supreme Court granted certiorari in Whirlpool. 444 U.S. 823, 100 S.Ct. 43, 62 L.Ed.2d 29 (1979). Specifically mentioning the conflict between the Sixth and Fifth Circuits, the Court affirmed Whirlpool. Whirlpool v. Marshall, 445 U.S. 1, 100 S.Ct. 883, 63 L.Ed.2d 154 (1980). The Court did not discuss Scrivener's applicability. The viability of Daniel thus is greatly diminished in Whirlpool’s wake. Additionally, the instant case is distinguishable. First, the FLSA was not discussed in Daniel. Second, no “substantial countervailing considerations," such as damage to an employer's business, are present in the case sub judice. Plaintiff’s contact with W & H would not harm defendant’s operations.

      . The court’s expansive interpretation of employee in Ross Packaging lends support to the proposition that this circuit broadly construes FLSA provisions. No mention was made that the employees had filed a complaint, initiated proceedings, or testified. If they did not, the court’s dictum shows a tendency to liberally interpret § 215(a)(3)’s protection.
      In Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 (5th Cir.1969), the court noted that Title VII’s prohibition of retaliation was broader than that of the NLRA or FLSA. Id. at 1006 n. 18. Title VII also specifically includes assistance and participation in an investigation. Id.

      . See supra notes 2 and 3. This court will not address whether merely complaining to an employer triggers FLSA protection, because plaintiff alleges that she contacted W & H.

      . New cases discuss the parameters of § 215(a)(3) coverage. In Brown & Root Inc. v. Donovan, 747 F.2d 1029 (5th Cir.1984), the court did not apply retaliation protection under the Energy Reorganization Act (ERA), 41 U.S.C. § 5851(a) because the employee complained only to his employer. 747 F.2d at 1034. The ERA prohibited retaliation against an employee who commenced proceeding, testified at, or assisted or participated in, a proceeding. Id. at 1030 (citing 42 U.S.C. § 5851(a)). The court distinguished Scrivener because that case involved some communication with the enforcement agency, whereas the case before it concerned only an internal memo. Id. In Donovan v. Square D Co., 709 F.2d 335 (5th Cir.1983), the court refused to apply a state statute of limitations which would have foreclosed an employee’s OSHA claim. Id. at 337. Citing Scrivener and DeMario, the court stressed that effective enforcement is possible only if employees feel free to approach officials. Id. at 338.
      In Phillips v. Interior Bd. of Mine Operations Appeals, 500 F.2d 772 (D.C.Cir.1974), the court broadly construed the Mine Safety Act (MSA), 30 U.S.C. §§ 801 et seq., to protect a miner who walked off the job due to unsafe conditions. At that time, the Act was similar to FLSA and NLRA. Id. § 820(b)(1) (1976). Nonetheless, the Court cited Scrivener as authority for broad interpretation of the MSA, to effectuate its remedial and informational purposes. 500 F.2d at 782.

      . The court reviewed the committee and conference reports, and a number of the debates, concerning the FLSA of 1938, the 1949 amendment of § 215(a)(3), and the 1977 amendment of § 216(b). The last gave to employees a private right of action under § 215(a)(3). The main thrust of the legislative history concerned the very enactment of a law regulating wages and hours, and its effect on the national economy and on various industries and regions. Only one reference shed any light, however dim, on § 215(a)(3)’s scope. Sen.Rpt. No. 497, 95th Cong., 1st Sess. 16 (1977), U.S.Code Cong. & Admin.News 3201, 3260. A provision discussed § 4’s amendment of § 216(b) to authorize employee suits "against any employer who discharges or otherwise discriminates against an employee who seeks to enforce the Act or cooperates with the Secretary in enforcing the Act.” Id. This slight bit of legislative history supports the court’s interpretation of § 215(a)(3), because plaintiff in the instant case was trying to enforce the FLSA.


author: LEISURE, District Judge:

text:
    Lawrence B. ALKOFF, Plaintiff, v. Anthony R. GOLD, Defendant.
    No. 84 CIV. 4235 (PKL).
    United States District Court, S.D. New York.
    March 22, 1985.

      Arnheim, Lehman & Gikow, New York City (David H. Gikow, New York City, of counsel), for plaintiff.
    Lieberman Rudolph & Nowak, New York City (Mitchell A. Stein, New York City, of counsel), for defendant.
   MEMORANDUM AND ORDER

LEISURE, District Judge:

Plaintiff Lawrence Alkoff has asserted claims for damages and other relief pursuant to Section 10(b) of the Securities Exchange Act of 1934 (the “1934 Act”), 15 U.S.C. § 78j(b), Rule 10b-5 promulgated thereunder, and 18 U.S.C. §§ 1961-68, known as the Racketeer Influenced and Corrupt Organizations Act (“RICO”). In addition, plaintiff has asserted pendent claims for fraud, duress, mistake, and New York Business Corporation Law violations and seeks rescission, constructive trust and an accounting under New York common law. Defendant Anthony Gold has moved to dismiss, abate or stay the action pending resolution of an action proceeding in New York State Supreme Court and for dismissal of the RICO claim pursuant to recent decisions of the Second Circuit Court of Appeals. For the reasons presented below, the motion to dismiss, abate or stay is denied, and the motion to dismiss the RICO claim is granted.

FACTUAL BACKGROUND

Briefly stated the facts are as follows: Alkoff and Gold were the sole shareholders, officers and directors of Intersoft Corporation (“Intersoft”). Under his employment agreement with Intersoft, Gold was responsible for the day to day management of Intersoft and was obligated to devote his full efforts to Intersoft and not to compete with the business of Intersoft. In 1982, during the course of negotiations with certain venture capitalists to obtain additional financing for Intersoft, Alkoff claims he first learned of Gold’s involvement with PC Magazine, a magazine devoted to IBM Personal Computer interests. In connection with the private placement of Intersoft shares, the parties executed certain releases regarding the ownership of PC Magazine. In addition, pursuant to a new shareholders’ agreement, Gold was to sell his Intersoft shares to the other shareholders, including Alkoff, for $35 per share.

Alkoff claims he signed the release in favor of Gold based upon Gold’s representations that PC Magazine was economically insignificant and that Gold was merely a passive investor. In exchange for the release, Alkoff alleges he received two shares of Gold’s Intersoft stock. In November 1982 Gold sold PC Magazine for a substantial sum of money.

In April 1983 Alkoff and the other shareholders brought suit in New York State Supreme Court seeking specific performance of the shareholders’ agreement. Alkoff alleges that during discovery in that action he learned Gold made certain misrepresentations about conflicting interests and breach of fiduciary duties. Accordingly, Alkoff’s attorneys wrote a letter dated March 13, 1984 to the Intersoft Board of Directors informing them of the claims and requesting that the Board take action. On May 29, 1984 Gold brought suit for a declaratory judgment on the releases and for libel arising out of the March 13, 1984 letter. Gold v. Intersoft Corp., 489 N.Y.S.2d 660 (Sup.Ct.N.Y.Co.) (hereinafter Gold v. Intersoft or the “State Action”). Defendants’ answer therein asserted as a defense to Gold’s claim for a declaratory judgment that the Alkoff release was obtained in violation of Section 10(b) of the 1934 Act and Rule 10b-5 and that Gold is estopped from relying on the release. By letter dated December 17, 1984, counsel to the Executive Committee of the Intersoft Board of Directors notified Alkoff’s counsel that the Committee had determined that it would not assert any claims against Gold. In a decision published January 29, 1985 in The New York Law Journal, the Honorable Edward J. Greenfield denied the motion of the Gold v. Intersoft defendants to dismiss the libel claims on the grounds of a qualified privilege.

THE ABSTENTION MOTION

Gold seeks to dismiss the instant action pending resolution of Gold v. Inter-soft on the basis that all of the factual issues arising from the parties’ relationships are presented in the state court action. If it is determined that the releases are valid, Gold claims he will be free of any liability that may possibly arise in either action. Gold contends that pursuant to Will v. Calvert Fire Ins. Co., 437 U.S. 655, 98 S.Ct. 2552, 57 L.Ed.2d 504 (1978) and Weiner v. Shearson, Hammill & Co., 521 F.2d 817 (9th Cir.1975), the state court is empowered to review Alkoff’s federal securities law claims because such claims were affirmatively pleaded as a defense in the State Action. It is important to note at the outset of this discussion that' none of Alkoff’s affirmative claims for damages are asserted by way of defense or counterclaim in the State Action.

Defendant’s motion to have this Court dismiss, abate or stay the instant proceeding amounts to a request to have the Court use its discretion to abstain or decline from exercising its jurisdiction.

Abstention from the exercise of federal jurisdiction is the exception, not the rule. “The doctrine of abstention, under which a District Court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it. Abdication of the obligation to decide cases can be justified under this doctrine only in the exceptional circumstances where the order to the parties to repair to the State court would clearly serve an important countervailing interest.”

Colorado River Water Conservation District v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976) (hereinafter “Colorado River”) quoting County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 79 S.Ct. 1060, 1062-1063, 3 L.Ed.2d 1163 (1959). There are four general categories of abstention. 424 U.S. at 814-17, 96 S.Ct. at 1244-46. The first category is not applicable here because no federal constitutional issue would be avoided by deferring to the state court. The second category does not apply because federal jurisdiction has not been invoked for the purpose of restraining state criminal proceedings. The third category does not apply because no difficult questions of state law are presented by the instant action.

A fourth category, enunciated in Colorado River, rests “on considerations of ‘[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.’ ” Id. at 817, 96 S.Ct. at 1246, quoting Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952). This exception may apply when the state and federal courts have concurrent jurisdiction. Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246. This category is inapplicable to the instant case because there is no concurrent state and federal jurisdiction over the federal securities law claims herein. Silberkleit v. Kantrowitz, 713 F.2d 433, 435-36 (9th Cir.1983). The federal courts have exclusive jurisdiction over federal securities law claims under the 1934 Act. 15 U.S.C. § 78aa. Silberkleit, 713 F.2d at 436. See Calvert, 437 U.S. at 666, 98 S.Ct. at 2559.

Defendant’s reliance upon Calvert is misplaced. The issue decided therein by the Supreme Court was the standard to be applied for the issuance of a writ of mandamus under 28 U.S.C. § 1651. 437 U.S. at 661, 98 S.Ct. at 2556. The stay entered by the district court in Calvert did not apply to plaintiff’s claims for damages under Rule 10b-5. Id. at 659, 98 S.Ct. at 2555. Moreover, in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), the Court specifically stated that the decision in Calvert did not undermine the application of the Colorado River “exceptional-circumstances” test. 460 U.S. at 16-19, 103 S.Ct. at 937-939.

The Supreme Court in Calvert and the Second Circuit have squarely endorsed the proposition that “[w]here exclusive jurisdiction exists, only the federal courts can provide affirmative relief.” Levy v. Lewis, 635 F.2d 960, 967 (2d Cir.1980). Accord Movielab, Inc. v. Berkey Photo, Inc., 321 F.Supp. 806, 810 (S.D.N.Y.1970), aff'd, 452 F.2d 662 (2d Cir.1971). For this reason the Court declines to follow the example set forth by the Ninth Circuit in Weiner v. Shearson, Hammill & Co., 521 F.2d 817, 822 (9th Cir.1975), wherein the Court suggested that a state court may have jurisdiction over 1934 Act issues raised as a matter of affirmative defense. Cf. Herrington v. County of Sonoma, 706 F.2d 938, 940 (9th Cir.1983).

Defendant has also urged the Court to stay the instant action under the “parallel state proceeding theory” as described by the Honorable Robert J. Ward in Alameda Room, Inc. v. Pitta, 538 F.Supp. 1072 (S.D.N.Y.1982); Bryant v. Commissioner of Social Services, 530 F.Supp. 1175 (S.D.N.Y.1982). This theory of abstention, however, does not apply to the instant action for the same reason abstention would be inappropriate under Colorado River. Only federal courts can provide affirmative relief under the federal securities laws. In Alameda and Bryant the state and federal courts had concurrent jurisdiction to decide the matters presented.

Accordingly, defendant’s motion to dismiss, abate or stay the action with respect to the federal securities law and pendent state claims is denied.

MOTION TO DISMISS THE RICO CLAIM

Gold has made a motion to dismiss the RICO claim on grounds that the complaint alleges no distinct RICO injury, as required by the Second Circuit in Bankers Trust Co. v. Rhoades, 741 F.2d 511 (2d Cir.1984), and that it fails to allege the existence of criminal convictions for the predicate acts, as required under Sedima, S.P.R.L. v. Imrex Co., 741 F.2d 482 (2d Cir.1984), cert. granted, — U.S.-, 105 S.Ct. 901, 83 L.Ed.2d 917 (1985). Plaintiff concurs to the extent that a stay of the RICO claim is appropriate. The Court has concluded, however, that Bankers Trust and Sedima mandate dismissal of the RICO cause of action. Accordingly, the RICO claim is dismissed without prejudice. Plaintiff, however, has leave to reinstate the action nunc pro tunc in the event that the United States Supreme Court subsequently determines that a civil RICO claim requires neither a distinct RICO injury nor a criminal conviction.

SO ORDERED.


author: HUGH GIBSON, District Judge.

text:
    Betty LaVERNE v. UNIVERSITY OF TEXAS SYSTEM, Jon P. Newton, Tom B. Rhodes, Robert B. Baldwin, III, Janey Briscoe, Jess Hay, Beryl Buckley Milburn, James L. Powell, Howard N. Richards, Mario Yzaguirre, E. Donald Walker, University of Texas Medical Branch at Galveston, William C. Levin, John G. Bruhn, the State of Texas.
    Civ. A. No. G-83-313.
    United States District Court, S.D. Texas, Galveston Division.
    March 27, 1985.

      William C. Bednar, Jr., Eskew, Muir & Bednar, Austin, Tex., Carmen A. Graham, Malloy & Graham, Dickinson, Tex., for plaintiff.
    Mitchell J. Green, Asst. Atty. Gen., Austin, Tex., for defendants.
   ORDER

HUGH GIBSON, District Judge.

Before the Court are defendant’s motion to dismiss, motions for summary judgment, and plaintiff’s and defendant’s replies.

Plaintiff, BETTY LaVERNE, instituted this 42 U.S.C. § 1983 action against the State of Texas, the University of Texas System and its Chancellor, the University of Texas Medical Branch at Galveston and its President, members of the Board of Regents, and the Dean of the School of Allied Health Sciences. Plaintiff alleged that the defendants violated her constitutional rights to due process and equal protection by not renewing her contract of employment and denying her tenure status.

I. MOTION TO DISMISS

Defendants seek dismissal of plaintiff’s claim against the State, the University of Texas, and all defendant officials other than the President of the Galveston Medical Branch and the Dean of Allied Health, who approved the termination of plaintiff’s employment.

The Eleventh Amendment constitutes a jurisdictional bar to civil rights claims asserted against the State and its agencies and, likewise, prohibits damage recovery against state administrators in their official capacity. See United Carolina Bank v. The Board of Regents of Stephen F. Austin State University, 665 F.2d 553 (5th Cir.1982).

With regard to the individual defendants, vicarious liability cannot support a section 1983 claim, see Daly v. Sprague, 675 F.2d 716 (5th Cir.1982), cert. denied, 460 U.S. 1047, 103 S.Ct. 1448, 75 L.Ed.2d 802 (1983); Thompson v. Steele, 709 F.2d 381, 382 (5th Cir.1983). The defendants have established that the Chancellor and members of the Board of Regents had no direct involvement in the termination of plaintiff’s employment. Accordingly, the Court concludes that defendants’ motion to dismiss must be GRANTED.

II. MOTIONS FOR SUMMARY JUDGMENT

A. Due Process:

The primary and controlling issue in plaintiff's due process claim is whether plaintiff has acquired “tenure” with the Employer University. To resolve this issue, the Court will look at the undisputed facts established by the record, and the University’s rules and regulations as summarized below:

In 1972, the University appointed plaintiff as Coordinator of the Core Education in Health Occupation Program. The program, a joint effort between the Galveston Community College (GCC) and the School of Allied Health Sciences of the University of Texas Medical Branch (UTMB), trains students for health-related occupations, using facilities and instructional services provided by UTMB but funded by GCC.

From 1973 to 1982, plaintiff received annual appointment to this position or in a similar capacity by UTMB. However, 100 percent of her salary was funded by GCC. Plaintiff occupied this position at the academic rank of Instructor until the academic year 1979-80, when UTMB promoted her rank to that of an Assistant Professor. Plaintiff admitted in her deposition (pp. 62-70) that some time prior to 1980, she received tenure from GCC. Plaintiff has not proved that UTMB officials have ever, by affirmative acts, recognized her as a tenured faculty member.

The University of Texas “Board of Regents” Rules specify the conditions and procedures for acquiring tenure, defined as “a status of continuing appointment as a member of the faculty” at the University. See Regents’ Rule 6.2. This rule also provides that only members of the faculty with the academic titles of Professor, Associate Professor, or Assistant Professor may be granted tenure. Rule 6.21 provides further that only full-time service shall be counted toward fulfillment of a required probationary period related to the acquisition of tenure. The maximum period of probationary faculty service in non-tenured status in any academic rank or combination of ranks shall not exceed seven years. Regents’ Rule 6.23. At the end of the sixth year, the University, by its own regulations, is forced to make a choice either to “tenure” the faculty member or simply terminate his or her employment at the conclusion of the seven-year probationary period. No later than August 31 of the sixth year, the University is obligated to provide the employee with notice of its choice, commonly referred to as the “up or out” notice. See Regents’ Rule 6.23 and Dr. Levin’s deposition, pp. 12-14.

In 1980, the School of Allied Health Sciences officially came under the tenure rule and retroactively granted tenure to eight faculty members who had satisfied their probationary service. The Dean instructed the Departmental Chairman that these faculty members would “receive notification through their letter of appointment that tenure ha[d] been granted to them effective September 1, 1980.” (See Dr. Bing’s letter of June 8, 1980). Plaintiff was not one of these eight faculty members. Nor did her annual reappointment for the academic years 1980-81, 1981-82, and 1982-83 contain any discussion of tenure. Plaintiff, nonetheless, accepted the reappointment without inquiring into her tenure status through the appropriate authority (see plaintiff’s deposition pp. 88-92).

In December, 1982, plaintiff was notified by the Departmental Chairman that she would not be reappointed for the academic year 1983-84. Plaintiff then met with the Chairman and subsequently, the Dean, who informed plaintiff that until 1981, plaintiff was considered a part-time, without salary (WOS), employee of UTMB and, therefore, did not qualify for tenure (see David Cardova’s letter of December 16,1982.) Plaintiff vigorously disputed this determination.

The applicable Regents’ Rules contain the following provisions:

“6.(10) Reappointment of nontenured members of the faculty to a succeeding academic year ... or the award of tenure, ... may be accomplished only by notice by the chief administrative officer of a component institution or his delegate with the approval of the Board. Notwithstanding any provisions ...to the contrary, no person shall be deemed to have been reappointed or to have been awarded tenure ... because notice is not given or received by the time prescribed ... Should it occur that no notice is received by the time prescribed ... it is the duty of the academic employee concerned to make inquiry to determine the decision of the chief administrative officer of a component institution, who shall without delay give the required notice to the academic employee.” (Emphasis added.)
“6.(25) All faculty appointments are subject to the approval of the Board. No nontenured member of the faculty should expect continued employment beyond the period of his or her current appointment as approved by the Board. Any commitment to employ a nontenured member of the faculty beyond the period of his or her current appointment shall have no force and effect until approved by the Board.”

Thus, under the applicable rules, there is no tenure by default, de facto or “common law” tenure. The Court concludes as a matter of law that plaintiff was not a tenured employee. Where a university has published written procedures governing tenure, the legitimacy of a claim to tenure acquired outside the procedures is vitiated because there is no basis for mutuality. Scagnelli v. Whiting, 554 F.Supp. 77, 80 (M.D.N.C.1982). Absent an entitlement to continued employment, plaintiff’s unilateral expectation falls short of a property right which triggers procedural due process. Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Johnson v. San Jacinto Jr. College, 498 F.Supp. 555, 569 (S.D.Tx.1980).

The Court is not persuaded that the denial of tenure and the non-renewal of plaintiff’s appointment alone creates stigma which implicates a deprivation of plaintiff’s liberty interest. Plaintiff has failed to demonstrate that defendants published causes for her discharge that are both false arid stigmatizing. See Wells v. Hico I.S.D., 786 F.2d 243, 256 (5th Cir.1984); Wells v. Doland, 711 F.2d 670, 676, n. 8 (5th Cir.1983); Huffstutler v. Bergland, 607 F.2d 1090, 1092 (5th Cir.1979); Moore v. Otero, 557 F.2d 435, 437 (5th Cir.1977).

B. Equal Protection

Defendants’ second motion attacks plaintiff’s equal protection claim, alleging that their decision to deny plaintiff tenure was based on a rational and reasonable basis. Among the reasons cited for the denial was that plaintiff was the only faculty member who had been tenured through the GCC (see Robert Bing’s affidavit). Although plaintiff vehemently argued her subjective understanding of this tenure grant, the fact remains undisputed that plaintiff was the only faculty member seeking a “double-tenure” status.

In cases that do not involve a suspect class or a fundamental interest, a classification will be upheld if it has some reasonable basis. Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Wells v. Doland, 711 F.2d 670 (5th Cir.1983); Goodisman v. Lytle, 724 F.2d 818 (9th Cir.1984). The undisputed fact that plaintiff has received tenure through the GCC is reasonably sufficient to support the University’s disparate treatment. The Court concludes that the defendants’ refusal to grant tenure to an employee who has been tenured by another post-secondary institution in the same vicinity is not arbitrary and capricious so as to offend equal protection.

For the reasons stated above, it is ORDERED, ADJUDGED and DECREED that:

1. defendants’ motion to dismiss is GRANTED;
2. defendants’ motions for summary judgment are GRANTED.

      . The plaintiff has more than adequately raised disputed facts on whether the University has, by admission, recognized her as a full-time UTMB employee. Although full-time status is significant in determining when one becomes eligible for tenure, it does not in itself create tenure status. In light of Regent’s Rules 6.10 and 6.25 quoted herein, the Court concludes that whether plaintiff was a full time employee was not sufficiently material to defeat summary judgment on the due process issue.