author: SHAPIRO, District Judge.

text:
    Francis Joseph MONAGHAN, Jr. and Andrea Marion Monaghan, his wife v. UITERWYK LINES, LTD. and Uiterwyk Corporation.
    Civ. A. No. 82-0168.
    United States District Court, E.D. Pennsylvania.
    April 10, 1985.

      Fine & Staud, Philadelphia, Pa., for plaintiffs.
   MEMORANDUM and ORDER

SHAPIRO, District Judge.

This is an action by a longshoreman and his wife against the ship on which he was injured on March 27,1981; there is jurisdiction by reason of diversity of citizenship and under the Longshoremen’s and Harbor Workers’ Compensation Act (the “Act”), 33 U.S.C. §§ 901 et seq. After the institution of the lawsuit, defendants filed a Petition in Bankruptcy; the Bankruptcy Court subsequently permitted plaintiffs to proceed with this action so long as the debtor incurred no expense and recovery was sought only under any available insurance coverage. The lawyer who had previously entered an appearance for defendants lacked authority to act and was permitted to withdraw. No other appearance having been entered for defendants, when the case was called for trial a default judgment was entered for plaintiffs. The court then heard plaintiffs’ testimony on damages in accordance with Fed.R.Civ.P. 55(b)(2).

The default judgment held defendants legally responsible for plaintiff Francis Monaghan’s injuries. Therefore, he was entitled to an award of damages to compensate him for: past lost wages, reduced by the effective tax rate; his probable pecuniary loss over the duration of his career, reduced to its present value; past medical expenses; future estimated medical expenses, if any; past and future pain and suffering; and loss of life’s pleasures. Prejudgment interest (at 10%) has also been requested. Plaintiff’s wife, Andrewa Marion Monaghan, is entitled to a sum for loss of consortium, that is the loss of her husband’s society, caused by defendants’ negligence. American Export Dines v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980).

Past lost earnings are measured from the date of the accident to the date of trial. The accident occurred on March 27, 1981 and plaintiff was out of work until June 24,1983, when he returned to work as a water boy approximately one day a week. Plaintiff earned $25,760 in 1980. On this basis, allowing for increases in wages of longshoremen, the total gross past lost earnings (without deduction for taxes) would be $130,221. From this sum must be deducted the income plaintiff has actually received and reasonably should have received since the date of the accident. Plaintiff’s evidence was that he had earned $20,966 (also without deduction of taxes) since the date of the accident so that the total gross lost earnings would be $130,221 minus $20,966, or the sum of $109,255.

But the court finds the plaintiff could have earned more than $20,966 since returning to work after the accident. His testimony that he can only work one day a week is not persuasive, especially since he has chosen work requiring him to lift pails of water. It seems likely that plaintiff has been more concerned to work only at the waterfront than to maximize his earned income and mitigate his damages. That, of course, is his choice and it may make good sense to him but defendants are not required to pay for plaintiff’s reluctance to work elsewhere. Therefore, the court deducts double the earned income of $20,966, or $41,932, because plaintiff could have worked at least the equivalent of two days a week. So calculated, the total lost past gross wages is $88,289.

A portion of past lost earnings must also be deducted for the amount plaintiff would have paid in federal, state and local income taxes. Based on testimony of plaintiffs’ expert that plaintiff Francis Monaghan would pay 16% of his income in federal taxes and &-k% in state and local taxes, total past lost net wages as a longshoreman is $88,289 minus $19,886 or $68,403.

Plaintiff is also entitled to the loss of fringe benefits which included a pension plan as well as health and welfare benefits. The rate of his former employer’s contribution is approximately 36% of the wages for longshoremen; his past lost fringe benefits would amount to 36% of $88,289, or $31,-784.

To determine, future lost earnings, we first consider the amount that the employee would have been able to earn were it not for the injury. Mr. Monaghan’s current earnings would have been $38,520 per year as of the end of 1985. The court recognizes that some increases in such wages would be likely in the next 25 years and agrees with plaintiffs’ expert in taking such increases into account. But the court rejects plaintiff’s testimony that he might have become a gang boss or supervisor as speculative. While he loved being a longshoreman and it was a family tradition, in view of the number of persons his own age similarly situated and working on the docks, including his cousins, there is no reason to believe on this record that he had so much more initiative, competitive drive and incentive to work that he rather than others would have earned such advancement.

Also, the court disagrees with the expert that plaintiff’s present earnings of $6,656 per year are a true measure of his loss of earning capacity. Plaintiff is evidently a personable, articulate man of at least average intelligence who now has a high school education, drives both a car and a lift truck, and could certainly find gainful employment for more than one day . a week if he were motivated to do so. Many persons with more pain than that of Mr. Mona-ghan perform many jobs (although not necessarily on the waterfront). Therefore; the court reduces the plaintiff’s estimated loss of future earning capacity ($38,520 minus $6,656 = $31,864) by one-third and calculates same at $21,243 per year; this essentially posits that plaintiff will be able to hold a half-time position (15-20 hours per week) in the future.

Future lost earning capacity is measured for the duration of the work-life expectancy period based on plaintiff’s current loss of earning capacity. Mr. Monaghan is 39 years of age; his life expectancy, based on 1980 United States Life Tables (prepared by the United States Department of Health and Human Services) is 34 years. His work life expectancy at time of trial is 25.7 years if he would have retired at 65.

Future lost earning capacity must be calculated and reduced to its present value in accordance with Jones and Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983). The damage award represents the present value of a lost stream of earnings in an inflation-free economy. The two elements in the calculation are: 1) the amount that the employee would have earned during each year he would be expected to work after the injury; and 2) the appropriate discount rate, reflecting the safest available investment. The entire lost stream of earnings must be discounted back to the date of injury rather than date of trial if the plaintiff is to be awarded interest on the discounted sum for the period between injury and judgment. See Jones, 462 U.S. at 538, n. 22, 103 S.Ct. at 2551 n. 22, 76 L.Ed.2d at 784 n. 22.

In discounting to present value it is necessary to choose an appropriate below-market discount rate. No economic evidence was presented. The court presumes that Mr. Monaghan would invest in low risk, short-term securities and reinvest frequently; the relevant interest rate is the difference between the short-term -market interest rate and the average rate of price inflation in the same year. The court takes judicial notice of historical interest and inflation rates and determines the appropriate discount rate is 2%. On this basis the present value of future lost earning capacity is $454,572. After deducting for taxes, the present value of net future lost earning capacity is $352,293. The present value of lost future fringe benefits calculated also utilizing the net interest rate of 2% is $163,-646.

Mr. Monaghan has incurred total medical expenses to date of $21,198.42. There is no basis on the record for questioning the reasonableness or necessity of the past medical expenses and they will be awarded. But plaintiffs project future medical expenses caused by the accident in suit of $2,000 per year for hospitalization and $4,000 per year for physician fees and medications, a total annual medical expense of $6,000 per year. This is incredible.

Plaintiff Francis Monaghan suffers from a herniated disc (L4-5) and radiculopathy but has refused surgical treatment of his lumbar sacral spine. Although his symptoms are permanent, his orthopedic surgeon has discharged him unless his symptoms are aggravated. He may need occasional hospitalization for traction or ameliorative treatment but essentially plaintiff will be on medication for pain. The cost of such medication is recoverable as is an occasional doctor’s visit to have his medication prescriptions renewed (although this is frequently done by mail or phone). But there is no right to recover for hospital and surgeon’s fees for surgery he refuses to have. He is entitled to recover for attending another “pain clinic” to teach him to live with the pain he is not going to correct surgically and for sex therapy to teach him to cope with his disability better. The court is of the view that $600 rather than $6,000 per year will adequately accomodate these needs. Based on 34.4 years of life expectancy and a net interest rate of 2%, the present value of future medical expenses is $14,820.

Plaintiff is also entitled to an award to compensate for pain and suffering and loss of life’s pleasures. There is no formula for calculating this amount. Plaintiff testified that he was fine prior to the injury but since the accident he suffers constant pain in his lower back and down his left leg. Hospitalization and medication ameliorates but does not relieve his condition. This has effected his ability to work and his recreational and social life; this affects his self-image and personality. The tension resulting from his limited physical capacities and irritability adversely affect his ability to relate to his wife and child.

The fact that some families grow stronger and closer in adversity does not preclude recovery for the damage to this injured worker’s family life. A father’s primary role in raising a son might reasonably be viewed by many as providing love, emotional security and moral guidance rather than mere physical companionship, but the court credits this plaintiff’s testimony that his inability to share sports activities with his young son diminishes life’s pleasures for the father.

Plaintiff’s relationship with his wife has also been harmed, if not by his physical condition itself, by their reactions to it. Other aspects of the marital relationship have also suffered. His spouse obtained work outside the home to avoid constant exposure to his condition and while that has probably benefited them both financially, it might not be what she would have done had he not been injured.

The court will also allow something in damages for plaintiffs claim of impaired capacity for sexual enjoyment. But where remedial surgical intervention is possible but refused, an impartial factfinder can only conclude that the diminution in pleasure is not as great as described or not of sufficient importance to motivate correction of the condition. Plaintiff did testify he would undergo the operation if he were bed-ridden by his back condition, so that his refusing operative relief can be considered in regard to the credibility of his claims of pain, suffering and loss of life’s pleasures. But plaintiffs damages are not reduced by his failure to undergo an operation on his spine. It is a serious, although rarely life threatening, surgical procedure that is, like other surgical procedures, not always successful.

Plaintiff has been hospitalized, undergone a myelogram, and been treated with steriod shots, traction and a body cast (chest to groin) for ten weeks. He also attended a pain clinic. He still has limitation of motion and wears a back brace. He suffers pain which increases with motion or tension; he uses a Tens Unit (shock treatment) nightly and Percodan (muscle relaxant) for pain but nonetheless has trouble sleeping and cannot return to his former work or help around the house as he did formerly. While some of plaintiffs claims are exaggerated and incredible, the court awards the sum of $100,000 for past and future pain and suffering and loss of life’s pleasures. The court also awards $20,000 to Mrs. Monaghan for her loss of consortium caused by Mr. Monaghan’s injuries.

Plaintiffs request prejudgment interest or delay damages in the amount of 10%. This action is based on the admiralty laws of the United States. Plaintiffs are entitled to prejudgment interest under admiralty law; the rule in admiralty is that “prejudgment interest should be awarded unless there are exceptional circumstances that would make such an award inequitable.” Matter of Banker’s Trust Co., 658 F.2d 103, 108 (3d Cir.1981), cert. denied, 456 U.S. 961, 102 S.Ct. 2038, 72 L.Ed.2d 485 (1982). This rule has been applied in maritime personal injury cases. McCormack v. Noble Drilling Corp., 608 F.2d 169 (5th Cir.1979); Weiland v. Pyramid Ventures Group, 511 F.Supp. 1034, 1044 n. 3 (M.D.La.1981). See also, Dugas v. National Aircraft Corp., 438 F.2d 1386, 1392 n. 11 (3d Cir.1971) (prejudgment interest awarded in action under Death on High Seas Act); First National Bank of Chicago v. Material Service Corp., 597 F.2d 1110 (7th Cir.1979). The delay in bringing this case, filed in 1982, to trial was occasioned not by the plaintiffs but by the defendants’ bankruptcy which required the matter to remain in the suspense docket until plaintiff obtained leave of the Bankruptcy Court to proceed. There are no exceptional circumstances making an award of prejudgment interest inequitable.

The rate of prejudgment interest in admiralty cases is within the discretion of the court. No proof in support of this rate was offered but the court takes judicial notice that the Post-Judgment Interest Rate under the Federal Court Improvements Act of 1982 has averaged slightly over 10%. Also because this court has jurisdiction by reason of diversity of citizenship, it is reasonable to apply the rate of Pa.R.Civ.P. 238; under Rule 238, the court adds to the amount of compensatory damages, as part of the award, damages for delay at 10% per annum not compounded. (Pennsylvania delay damages are computed from the date the plaintiff filed the initial complaint in the action or a date one year after the accrual of the cause of action, whichever is later.) Therefore, delay damages are awarded at 10% from the date of injury, March 27, 1981, on all past due amounts.

The total sum awarded in which amount judgment will be entered is as follows:

Francis J. Monaghan. Jr.:
Past Lost Wages $ 68,403
Past Fringe Benefits 31,784
Past Medical Expenses 21,198
Pain and Suffering and Loss of 100,000
Life’s Pleasures Future Lost Wages 352,293
Future Fringe Benefits 163,646
Future Medical Expenses 14,820
Prejudgment Interest at 10% 88,554
Andrea M. Monaghan:
Loss of Consortium $ 20,000
Prejudgment Interest at 10% 8,000

FINAL JUDGMENT

AND NOW, this 10th day of April, 1985, following the entry of default on March 4, 1985 and a bench hearing on the amount of damages, trial by jury having been waived by plaintiffs, and for the reasons set forth in the foregoing Memorandum, it is ORDERED that:

JUDGMENT is entered in favor of plaintiff Francis Joseph Monaghan, Jr. and against defendants Uiterwyk Lines, Ltd. and Uiterwyk Corporation in the amount of $840,698.

JUDGMENT is entered in favor of plaintiff Andrea Marion Monaghan and against defendants Uiterwyk Lines, Ltd. and Uiter-wyk Corporation in the amount of $28,000.

       The real interest rate is effected not only by the lag in inflationary expectations behind the actual inflation rate and by changes in real supply and demand (business, consumer, Government and foreign) for United States credit, but also by the tax rate and tax structure. We assume that the recent yield on federal funds is approximately 8.5%, so the after-tax yield for someone in Francis Monaghan’s tax situation (22.5% tax rate) is 6.6%. If inflation is 4.9% (Philadelphia Consumer Price Index for January, 1984 — January, 1985), Monaghan’s real after-tax rate is 6.6% minus 4.8% or 1.8%. If tax rates were to be reduced by tax reform, after-tax interest rates could be effected; e.g., if the Reagan proposal to tax only real interest were enacted, Monaghan might pay tax of only 8.5% minus 4.8% or 3.7%, leaving an after-tax real interest rate of 2.9%. Considering all the uncertainties involved in the prediction of future economic behavior over the number of years involved, the court considers 2% a reasonable choice.


source: Caselaw Access Project

author: WINDER, District Judge.

license: Public Domain

text:
    Haskell Levi CHAPOOSE, et al., Plaintiffs, v. William P. CLARK, et al., Defendants.
    Civ. No. C-83-1145W.
    United States District Court, D. Utah, C.D.
    April 10, 1985.

      George E. Mangan, Machelle Fitzgerald, Roosevelt, Utah, for plaintiffs.
    Joseph W. Anderson, Asst. U.S. Atty., William R. McConkie, Dept, of the Interior, Salt Lake City, Utah, Martin E. Seneca, Jr., Fort Duchesne, Utah, for defendants.
   MEMORANDUM DECISION AND ORDER

WINDER, District Judge.

The issues in this case have been reduced by two previous memorandum decisions and orders. Only one issue remains. Both parties agreed that the final issue should be decided on memoranda without oral argument, with the plaintiffs submitting the first memorandum, the defendants then submitting their memorandum, and the plaintiffs submitting a reply. All memo-randa have now been received. Throughout the case, plaintiffs have been represented by George E. Mangan, Machelle Fitzgerald, and Herbert Wm. Gillespie. Defendants have been represented by Joseph W. Anderson and William Robert McConkie. The court has read the memo-randa submitted by the parties, and has reviewed the administrative record, various of the authorities cited, and all the material contained in the court file. Being now fully advised, the court renders the following decision.

Background

This case began when the Secretary of Interior denied applications from each of the plaintiffs that they be added to the rolls of the Ute Indian Tribe. The Secretary held that 25 U.S.C. § 677d precludes the plaintiffs from becoming tribe members. According to the Secretary, only Indians who are “full-bloods” can be members of the tribe. Also according to the Secretary, “full-bloods” are only those who “possess [ ] one-half, degree of Ute Indian blood and a total of Indian blood in excess of one-half.” 25 U.S.C. § 677a(b). None of the plaintiffs meet this blood-quantum requirement.

The Secretary’s action came after the highest level of the Ute Tribal Court had found that the plaintiffs are entitled to tribal membership under the tribal constitution. The tribal court had ordered the Ute Tribal Business Committee to seek the Secretary’s approval of an ordinance enrolling the plaintiffs in the tribe. Because the plaintiffs do not meet the blood-quantum requirement the Secretary believes to be mandated by § 677a(b), the Secretary refused to approve the Ute Tribal Business Committee ordinance which would have enrolled them in the tribe. The Secretary’s action means that the plaintiffs are not considered to be members of the tribe and are not awarded any share of the tribal trust funds.

This court previously dismissed the second through fifth causes of action contained in the plaintiffs’ complaint. Only one basic issue remains: whether the Secretary’s action in denying the plaintiffs membership in the tribe is arbitrary, capricious, or contrary to law. See 5 U.S.C. § 706(2)(A). Because the Secretary’s action turns on his interpretation of a statute he is charged to administer, his action can be overturned only if his interpretation is “clearly wrong” or “plainly erroneous.” R. V. McGinnis Theatres & Pay T. V., Inc. v. Video Independent Theatres, 386 F.2d 592, 594 (10th Cir.1967), cert. den., 390 U.S. 1014, 88 S.Ct. 1265, 20 L.Ed.2d 163 (1968); Board of Directors and Officers, Forbes Federal Credit Union v. National Credit Union Admin., 477 F.2d 777, 783-84 (10th Cir.1973), cert. den., 414 U.S. 924, 94 S.Ct. 233, 38 L.Ed.2d 158. As discussed below, this court finds that the Secretary’s interpretation of § 677d is clearly and plainly contrary to Congress’s intent. Consequently, the Secretary’s action cannot stand.

The Language of the 1954 Act

This case revolves around the proper interpretation of the tribal enrollment provisions of the Act of Aug. 27, 1954, Pub.L. No. 670, 68 Stat. 868 (codified as amended at 25 U.S.C. §§ 677-677aa) [hereinafter cited as “the 1954 Act”]. The 1954 Act divided the Ute Tribe on the Uintah-Ouray Reservation into two groups, the mixed-bloods and the full-bloods, and terminated only one of those groups, the mixed-bloods. The mixed-bloods were given their share of the tribal assets and their tribal identity was terminated. This termination was effective on August 24, 1961, when the Secretary of the Interior issued a proclamation removing restrictions on mixed-blood property and terminating federal recognition of the mixed-bloods as an Indian tribe. The full-bloods, however, were not terminated as a tribe. Congress intended that the full-bloods continue their tribal identity, and that the federal government continue to fulfill its trust responsibilities toward the full-bloods.

Although the legislative history clarifies the language of the 1954 Act, the statutory language itself is somewhat ambiguous. The membership section of the 1954 Act reads as follows:

Effective on the date of publication of the final rolls as provided in section 677g of this title the tribe shall thereafter consist exclusively of full-blood members. Mixed-blood members shall have no interest therein except as otherwise provided in this subchapter. New membership in the tribe shall thereafter be controlled and determined by the constitution and bylaws of the tribe and ordinances enacted thereunder.

25 U.S.C. § 677d (emphasized portion added in 1956 amendment).

The Act defines what a “full-blood” is. “Full-blood” means a member of the tribe who possesses one-half degree of Ute Indian blood and a total of Indian blood in excess of one-half, excepting those who become mixed-bloods by choice under the provisions of section 677c of this title.

25 U.S.C. § 677a(b).

The section of the Act defining when the membership rolls become final also contains some relevant language. That section provides, in pertinent part:

After disposition of all such appeals to the Secretary, and after all transfers have been made pursuant to section 677c of this title the roll of the full-blood members of the tribe, and the roll of the mixed-blood members of the tribe, shall be published in the Federal Register, and such rolls shall be final for the purposes of this subchapter, but said sections shall not be construed as granting any inheritable interest in tribal assets to full-blood members of the tribe or as preventing future membership in the tribe, after August 27, 1954, in the manner provided in the constitution and bylaws of the tribe.

25 U.S.C. § 677g (emphasized portion added in 1956 amendment).

Legislative History of the 195k Act

In order to properly interpret 28 U.S.C. §§ 677-677aa (“the 1954 Act”), it is helpful to understand the backdrop against which the original statute and its amendments were enacted. During the period from 1943 to 1961, the policy of Congress and the Bureau of Indian Affairs (“BIA”) was one of termination. The government wanted to eliminate the tribal structure and have the Indians become assimilated into society. See generally F. Cohen, Handbook of Federal Indian Law 152-80 (1982 ed.). The long-term aim of the policy was

the eventual discharge of the federal government’s obligation, legal, moral, or otherwise, and the discontinuance of Federal supervision and control at the earliest possible date compatible with the government’s trusteeship responsibility.

Id. at 157 (quoting Acting Commissioner of Indian Affairs William Zimmerman, Jr.’s Circular No. 3675 (May 28,1948)). In 1953, Congress made a general declaration of its Indian policy, which passed by unanimous vote in both the House and the Senate.

[I]t is the policy of Congress, as rapidly as possible, to make the Indians within the territorial limits of the United States subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States, to end their status as wards of the United States, and to grant them all of the rights and prerogatives pertaining to American citizenship....

H.R.Con.Res. 108, 83d Cong., 1st Sess., 67 Stat. B132 (1953). While there were some exceptions, the overall policy of Congress and the BIA was clear: the Indian tribes were to be disbanded and the Indians were to be integrated into American society. No longer were the Indians to be treated any differently than any other racial minority.

This is the context in which the 1954 Act was passed. The 1954 Act was one of many termination acts enacted between 1954 and 1962. See F. Cohen, supra, at 173-74. Apparently because of ambiguities in the unamended 1954 Act, there was some confusion in the Department of the Interior as to whether the 1954 Act was the first step in terminating the full-bloods as well as the mixed-bloods. In 1955, the Solicitor of the Department of the Interior held that it was such a first step, and interpreted the blood-quantum requirements of the 1954 Act as superseding the membership requirements of the Ute tribal constitution and bylaws.

You have requested my opinion .on the question whether membership in the full-blood group of the Ute Indian Tribe of the Uintah and Ouray Reservation in Utah, for the purpose of participating in the development program provided for that group by section 24 of the act of August 27, 1954, ... is to be determined by the constitution and bylaws of the Ute Tribe or by the provisions of the. act of August 27, 1954.
It is quite clear, I think that the provisions of the act control the determination of membership in the full-blood group for the purposes of section 24.
[T]he membership of [the full-blood group] is controlled by the statutory provisions referred to above and not by anything contained in the constitution and bylaws of the Ute Tribe_ [T]he constitution and bylaws and any tribal ordinances in force on the date of the act may be utilized only for the purpose of determining the “Ute Indian blood” of the mixed or full-blood member as those terms are defined in the act.

Dept, of Interior Solicitor’s Opinion of Sept. 6, 1955, reprinted in 2 Op.Sol. on Indian Affairs 1690 (U.S.Dept.Interior 1979). Apparently, the Secretary adopted the opinion of his Solicitor.

While the Solicitor’s interpretation is reasonable when viewed against the backdrop of the Indian policies of the era, the interpretation was wrong. In direct response to the Solicitor’s opinion, Congress amended portions of the 1954 Act to make it clear that the Ute Tribal Constitution governs membership, not the 1954 Act.

The purpose of S. 3779 is to amend the act of August 27, 1954 (68 Stat. 868), the Uintah-Ouray Termination Act. A similar bill, H.R. 10993, introduced by Congressman Dawson of Utah, was considered jointly with the reported bill.
The act of August 27, 1954 (68 Stat. 6868), provided for the partition and distribution of the assets of the Ute Indian Tribe of the Uintah and Ouray Reservation in Utah between the mixed-blood and fullblood members thereof, and for the termination of Federal supervision over the property of the mixed-blood members of said tribe. It also provided for a development program for the fullblood members of the tribe.
It was intended that after the mixed-blood members had been separated from the tribe and proper distribution made of the tribal property the fullblood members would continue the tribal government under the constitution, bylaws, and charter previously adopted by the tribe pursuant to the Indian Reorganization Act of June 18, 1934 (48 Stat. 984).
On September 6, 1955, the Solicitor of the Department of the Interior in an opinion (M-36304) held that the determination of the fullblood membership of the tribe for the purpose of participating in the development program provided for in section 24 of the act of August 27, 1954, is controlled by the provisions of said act and not by the constitution and bylaws of the Ute Indian Tribe. -
The opinion of the Solicitor was riot in accordance with the understanding of the Ute Indians. The Bureau of Indian Affairs concurred in the proposal to seek amendment of the act of August 27, 1954, for the purpose of expressing the original intention of the framers of the legislation. Sections 1 and 2 of S. 3770 amend section 5 and 8 of the act of August 27, 1954, to accomplish this purpose.

H.R.Rep. No. 2744, 84th Cong., 2d Sess. 1-2 (1956). See also S.Rep. No. 2432, 84th Cong., 2d Sess. 1-2 (1956) (containing virtually the same language as the House Report). Clearly, Congress amended the 1954 Act in 1956 to correct the Solicitor’s mistaken interpretation of the 1954 Act.

Administrative Interpretations of the 195k Act

The Interior Départment Solicitor’s opinion of Sept. 6, 1955 was the first important administrative interpretation of the 1954 Act. Subsequent to the 1956 amendments by which Congress clarified the statutory language to show that the Solicitor was mistaken, the Secretary of the Interior allowed the Ute Tribe to determine its own membership, just as the Tribe had done since the tribal constitution became effective in 1937. In 1958, the Ute Tribe increased the blood-quantum required for membership to five-eighths Ute Indian blood. The Tribal Business Committee followed the same procedure it had always followed, enacting the blood-quantum requirement by ordinance. The ordinance was subsequently approved by the Superintendent of the Uintah and Ouray Agency and became effective. The Commissioner of Indian Affairs also reviewed the ordinance and advised the tribe by memorandum that he did not recommend rescission by the Secretary of the Interior.

From 1956 until 1983, the Secretary of the Interior took the position that the 1954 Act, as amended, did not mandate a particular blood-quantum requirement for tribal membership. Instead, the tribe was allowed to determine its own membership requirements by its constitution, bylaws, and ordinances. This position of the Interi- or Department was apparent as late as 1978. In that year, the Interior Department Regional Solicitor, William Robert McConkie, wrote a letter opinion on the authority of the Ute Tribe to change enrollment criteria. He took the firm position that the 1954 Act did not affect the Tribe’s authority to control its own membership requirements.

The Congress intended that the tribe continue with identically the same authority as it had exercised in the past as regards enrollment ordinances.
We observe that over a 40-year period, the tribe has enacted a series of enrollment ordinances steadily increasing the requirement of blood quantum for membership in the tribe. The Secretary has approved each ordinance. The Congress blessed the procedure and endorsed the principle that the Tribal Business Committee had the authority to alter the formula for enrollment for persons enrolled subsequent to the time the Constitution was adopted. The current enrollment ordinance was enacted and approved 4 years after the Ute Partition Act. The Superintendent has approved per capita payments in the various annual budgets for decades.

Letter from William Robert McConkie to Superintendent, Uintah and Ouray Agency (Feb. 1, 1978). As is evident from Mr. McConkie’s letter, the ability of the tribe to regulate its own membership was accepted without question by the Department in 1978.

The same Departmental position was stated once again in 1981. In that year, the Ute Tribal Business Committee passed an ordinance making a minor change in enrollment procedures. The ordinance gave the Uintah and Ouray Agency Superintendent the authority to determine membership in certain cases. The Superintendent at that time not only did not question the authority of the tribe to regulate its own membership, but he questioned whether anyone outside the tribe could be given that authority.

The courts have consistently recognized that in the absence of express legislation by Congress to the contrary, an Indian tribe has complete authority to determine all questions of its own membership. The most recent example of this being the 1978, U.S. Supreme Court decision in Martinez v. Santa Clara Pueblo.
It is the policy of the Bureau of Indian Affairs to recognize the tribe’s sovereign powers to decide who their members are for tribal purposes. In view of this, it is unclear whether the Superintendent could legally exercise the responsibility [to determine tribal membership].

Letter from L.W. Collier, Jr., Uintah and Ouray Agency Superintendent, to Ruby Black, Chairperson of the Tribal Business Committee (Feb. 23, 1981). While the Superintendent did note that express legislation by Congress could undermine tribal authority over its own membership, the Superintendent did ndt even hint that Congress had done so in the case of the Ute Tribe.

In 1983, however, the Secretary decided that the 1954 Act blood-quantum requirements superseded the enrollment criteria adopted by the tribe. See letter opinion by Ken Smith (Apr. 12, 1983) (Complaint, exh. J). The Secretary held the 1958 ordinance, which had a requirement of five-eighths Ute Indian blood, to be invalid. The sole reason for invalidating the ordinance was that the Secretary believed that the blood-quantum requirement of 25U.S.C. § 677d still controls tribal membership.

Any and all Tribal Court decrees issued or tribal enrollment ordinances enacted after August 24, 1954, which establish or authorize a blood-quantum requirement for enrollment that differs from the Act cannot be enforced and such as presently exist are invalid. The enrollment criteria mandated by the Congress can only be changed by Congress. Id. at 9. The Secretary has revoked his approval of the 1958 ordinance and contends that all those, and only those, who meet the blood-quantum requirements of the 1954 Act must be enrolled in the tribe and share in the tribal trust funds.

Interpreting Legislation

When interpreting a statute that an administrative agency is charged to administer, a court will generally defer to a longstanding agency interpretation of the statute. See Chevron, U.S.A. v. Natural Resources Defense Council, — U.S. -, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). However, deference is not automatic, and a court cannot simply rubberstamp the agency interpretation.

The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent. If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.

Id. 104 S.Ct. at 2782 n. 9 (citations omitted). While a court may not substitute its own interpretation of an ambiguous statute for a reasonable interpretation made by an agency, the intent of Congress is what controls. See Chevron, U.S.A., 104 S.Ct. at 2782. When the intent of Congress is evident, a contrary administrative interpretation cannot stand no matter how reasonable it may be.

This case involves an administrative interpretative of statute, thus calling into play the canon of construction discussed above. But this case also involves Indians. There are, therefore, some special interpretative canons that must be followed in interpreting the 1954 Act.

Because the 1954 Act affects Indian rights, one important interpretive tool that is applicable in this case is the canon of construction which states that statutes. affecting Indians are construed in favor of the Indians. See County of Oneida v. Oneida Indian Nation, — U.S. -, 105 S.Ct. 1245, 1258-59, 84 L.Ed.2d 169 (1985); United States v. Felter, 752 F.2d 1505, 1510 n. 8, 1511 (10th Cir.1985). This canon of construction is based on the notion that the Indian tribes are sovereign and autonomous peoples, and that their rights and privileges can be taken only when Congress expressly does so.

Once powers of tribal self-government or other Indian rights are shown to exist, by treaty or otherwise, later federal action which might arguably abridge them is construed narrowly in favor of retaining Indian rights. The principle of a “clear and plain statement” before Indian rights can be abrogated also applies in nontreaty contexts.

F. Cohen, Handbook of Federal Indian Law 224 (1982 ed.); see also County of Oneida, 105 S.Ct. at 1258-59. To summarize the canon, a court interpreting legislation affecting the fundamental rights of an Indian tribe must presume that Congress intended not to abridge those rights. The rights can be taken away only by Congress, and then only if Congress plainly and unambiguously takes them away.

Another canon of construction applicable here is that a court should interpret a treaty as the Indians understand it. See F. Cohen, supra, at 224. In general, this canon applies only to Indian treaties, not to statutes affecting Indians. See id. at 224 n. 60. However, the difference between a treaty with an Indian tribe and a statute affecting the rights of an Indian tribe is one of form rather than substance. See Blake v. Arnett, 663 F.2d 906, 909-10 (9th Cir.1981); United States v. Felter, 546 F.Supp. 1002, 1012-13 (D.Utah 1982), aff'd, 752 F.2d 1505 (10th Cir.1985). In this case, the canon seems applicable because the 1954 Act was similar to a treaty. The Tribe’s feelings and desires were important to Congress. See H.R.Rep. No. 2744, 84th Cong., 2d Sess. 1-2 (1956) (stating that the opinion of the Solicitor regarding the 1954 Act was wrong because it “was not in accordance with the understanding of the Ute Indians”); S.Rep. No. 2432, 84th Cong., 2d Sess. 1-2 (1956). Indeed, the 1954 Act was drafted by the Ute Indian Tribe and was introduced at the request of the Tribe. H.R.Rep. No. 2493, 83d Cong., 2d Sess., reprinted in 1954 U.S.Code Cong. & Ad.News 3355, 3357. Therefore, the understanding of the Indians is an important clue in interpreting the Act.

The Proper Interpretation of the 1954 Act

After carefully examining the legislative history of the 1954 Act, this court finds that Congress expressly intended that the Ute Indian Tribe be able to control its own membership after the 1954 Act. The 1954 Act was never intended to prevent the Tribe from setting its own enrollment requirements. Because the Secretary’s interpretation of the 1954 Act is contrary to Congress’s intent, the Secretary’s interpretation cannot stand.

The language of the unamended 1954 Act was ambiguous. The fact that termination policy was then in vogue undoubtedly influenced the Interior Department Solicitor’s 1955 interpretation of the 1954 Act when he found that Congress had taken away the right of the full-bloods to control their own membership. In an era when whole tribes were being terminated, it was not unreasonable to suppose that Congress was preparing the full-bloods for eventual termination by taking away their right to control their membership. The Solicitor’s erroneous interpretation of the 1954 Act is therefore understandable.

However, Congress corrected the Solicitor’s error. Congress amended the 1954 Act to make it clear that the blood-quantum requirements were to be set by the Tribe' itself, through its constitution and by-laws, and the ordinances enacted thereunder. 25 U.S.C. § 677d. Although amending the 1954 Act in a somewhat piecemeal fashion did not make it a model of clarity, the legislative history of the 1956 amendments to the Act is clear, express, and explicit. Congress expressly stated that the Solicitor’s 1955 opinion that the 1954 Act took away the tribe’s authority to determine its own membership was wrong.

Congressional intent is often difficult to divine. Not so in this case. Here the intent of Congress can be clearly read from the language of the 1954 Act, as amended, and its legislative history. Congress intended to divide the Ute Tribe into two groups, the full-bloods and the mixed-bloods. The mixed-bloods were to be given their share of tribal assets and then be assimilated into society. With some minor exceptions, they would no longer be treated as an Indian tribe. The full-bloods, on the other hand, were not to be terminated as a tribe. The Ute Tribe would continue as a tribe, with only the full-bloods as members and not the mixed-bloods. Congress intended that the blood-quantum requirements of 25 U.S.C. § 677d be used only at the time of division, to separate the full-bloods and mixed-bloods so that the mixed-bloods could be terminated.

The Secretary’s main support for his finding that the 1954 Act controls tribal membership is one sentence in the 1954 Act. That sentence reads

Effective on the date of publication of the final rolls as provided in section 677g of this title the tribe shall thereafter consist exclusively of full-blood members.

25 U.S.C. § 677d. However, on closer examination, even this sentence does not support the Secretary’s finding.

The sentence immediately following that sentence states that the mixed-bloods shall thereafter have no interest in the tribe. See id. This juxtaposition makes it clear that the terms “full-blood” and “mixed-blood” are used in the Act only to accomplish the division of the two groups, and that the terms have no meaning after the division has taken place. This interpretation has further support in the section defining “full-bloods” and “mixed-bloods,” 25 U.S.C. § 677a(b), (c). Those definitions both apply only to “a member of the tribe.” Id. Once the division has taken place, the reference to “a member of the tribe” in the mixed-blood definition is meaningless, since no mixed-blood would be a member of the tribe. Clearly, the sentence that the Secretary relied on merely means that the full-bloods will continue on as a tribe after the division while the mixed-bloods will not.

After the division of full-bloods and mixed-bloods was complete, Congress intended that the Ute Tribe, now consisting of full-bloods only, be able to set its own membership requirements, just as it had done since 1937. The tribe was to set these membership requirements in its constitution, bylaws, and ordinances, just as it had done since 1937. 25 U.S.C. § 677d. Nowhere is there any indication that Congress intended to take away the Tribe’s right to determine its own membership. Indeed, every indication, and there are many express indications, was that the Ute Tribe would continue to set its own membership requirements. The only change was that the mixed-bloods were no longer tribal members for the purposes of sharing in trust fund distributions.

The 1956 Amendments to the 1954 Act settled the confusion as to the effect of the 1954 Act on tribal enrollment requirements. As was stated in both the House and Senate Reports, the intention of Congress had always been that the Tribe continue to govern itself under its constitution, bylaws, and charter. H.R.Rep. No. 2744, 84th Cong., 2d Sess. 1-2 (1956); S.Rep. No. 2432, 84th Cong., 2d Sess. 1-2 (1956). This intention was made express by the 1956 amendments.

The Department of Interior, after the 1955 Solicitor’s opinion was corrected by Congress, adopted the position that the Tribe could control its own membership. Nothing further was said about the 1954 Act superseding the tribal constitution for twenty-five years. As Mr. McConkie noted, the Ute Tribe has controlled its own membership continually since the Ute Tribal Constitution was approved in 1937. Letter from William Robert McConkie to Superintendent, Uintah and Ouray Agency (Feb. 1, 1978). The Tribe’s authority to control its membership was “approved” by the Secretary and “blessed” and “endorsed” by Congress. See id. The Tribe’s right, as an autonomous body, to control its membership had been recognized and affirmed by Congress. It was not questioned.

Then, in 1981, the Secretary resurrected the 1955 opinion of the Interior Department Solicitor. See letter opinion by Ken Smith (Apr. 12, 1983) (Complaint, exh. J). The Secretary once again adopted the discredited idea that the 1954 Act took away the Tribe’s right to control its own membership. In so doing, the Secretary failed to apply the appropriate canons of construction that must be applied to protect Indian rights. In so doing, the Secretary reversed his own agency’s .longstanding interpretation of the 1954 Act, an interpretation that was contemporaneous with the 1956 amendments. Most importantly, in so doing, the Secretary ignored the clear intent of Congress. The Secretary once again adopted the same 1955 Solicitor’s opinion that had been expressly repudiated by Congress. See letter opinion by Ken Smith, at 6 (Apr. 12, 1983) (Complaint, exh. J) (relying on language quoted from the 1955 opinion).

The Secretary improperly reads the 1954 Act as a backhanded way of abrogating fundamental tribal rights. See Menominee Tribe v. United States, 391 U.S. 404, 412-13, 88 S.Ct. 1705, 1710-11, 20 L.Ed.2d 697 (1968). It is not. The straightforward intent of Congress is clear: the Ute Tribe was to retain control over its own membership after the 1954 Act. Even if the Act were silent on the issue of the right to control membership, the tribe would retain that right. But the Act is not silent on the issue. The 1954 Act, as amended, and its legislative history speak loudly and clearly that the Tribe retains the right to control its membership. Moreover, even if the intent of Congress were not clear, applying the canons of construction that must be applied in Indian law cases would lead directly to the same result.

Although the plaintiffs urge this court to apply the special canons of construction governing legislation affecting Indians, the Secretary claims that those canons are inapplicable here. The Secretary argues that this is not a case involving Indians, but that it is merely a case involving those who want to become Indians. In making that argument, however, the Secretary misses the point. It is exactly this type of case where the special canons of construction must be applied.

If the Secretary’s interpretation of 25 U.S.C. § 667d is correct, Congress has taken away one of the most important rights an Indian tribe can have, the right to determine its own membership. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978). The special canons of construction are designed to protect this type of precious right. Moreover, another important Indian right is also implicated in this case, the right of the Ute tribe to settle internal disputes in its own judicial system. See Santa Clara Pueblo, 436 U.S. at 63-66, 98 S.Ct. at 1679-81. The Secretary’s actions effectively overrule the tribal court’s decision in this case, thus sending a message to the tribe that it cannot be trusted to handle even those disputes which affect only its own members.

Fundamental and precious Indian rights are at stake in this case. It is wrong to say that this case does not involve Indians and Indian rights, and that is to take a dangerous, myopic view of the issues involved. Congress, the Secretary, and courts such as this one must be careful to protect and safeguard Indian rights. Indians have little political power to protect their rights, and it is too easy for Indian rights to be eroded by mechanical, unthinking interpretations of federal law. Even though Indian rights can be easily overlooked and carelessly taken away, preservation of these rights is important to Indian and non-Indian alike.

Like the miner’s canary, the Indian marks the shift from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith.

Cohen, The Erosion of Indian Rights, 1950-1953: A Case Study in Bureaucracy, 62 Yale L.J. 348, 390 (1963). Failing to recognize the importance of the Indians' right to autonomy and self-government is to weaken democratic ideals upon which this country is founded. Such practices make our claims to democracy meaningless mouthings of an empty word.

Although this court finds that the Secretary’s interpretation must be overturned for the reasons discussed above, one final argument raised by the Secretary should be addressed. The Secretary claims that his interpretation must be correct because the interpretation urged by the plaintiffs would result in mixed-bloods regaining membership in the tribe. Since Congress terminated the mixed-bloods, argues the Secretary, any interpretation which reverses that termination action is necessarily contrary to the intent of Congress. However, the mixed-bloods are not regaining tribal membership under this court’s interpretation of § 677d. The correct interpretation of the 1954 Act is completely consistent with congressional intent.

When the mixed-bloods received their share of the trust assets, they received assets that they can pass on to their children. Their property is now subject to the same inheritance laws as any other non-Indian, and the government no longer holds anything in trust for them. Their property is their own.

The full-bloods, however, are in a different situation. They cannot pass their property on to their children, since their property is being held in trust for them by the federal government. The full-bloods are still a tribe, and the child of a full-blood will receive a share of tribal assets only if he becomes a tribal member in his own right. The only thing of value a full-blood tribal member can pass on to his children is the right to become a tribal member.

The membership section of the tribal constitution at issue in this case was undoubtedly designed to allow tribal members to pass on a valuable right to their children. The section provides that the membership of the tribe shall consist of

All children born to any member of the Ute Indian Tribe of the Uintah and Our-ay Reservation who is a resident of the Reservation at the time of the birth of such children.

Constitution and By-laws of the Ute Indian Tribe of the Uintah and Ouray Reservation, art. II, § 1(b).

This language accomplishes its intended purpose. No person who received a share of tribal assets as a mixed-blood can now gain membership in the tribe under § 1(b) of article II of the tribal constitution. Nor can the children of a terminated mixed-blood claim membership in the tribe through their mixed-blood parent. The only way a child can gain membership in the tribe is by claiming membership through a parent who was a tribal member residing on the reservation when the child was born. Allowing a child in that category to have a right to tribal membership is fully consistent with the tribal members’ desires to give their children a birthright. Moreover, it is entirely consistent with the intent of Congress to terminate the mixed-bloods and to continue the tribe of full-bloods. The mixed-bloods have no more interest in the Tribe under this court’s interpretation than any other non-Indian.

Conclusion

The intent of Congress in enacting the 1954 Act is clear. Congress intended the Ute Tribe to retain control over its membership. Even if this intention was not clear from the 1954 Act and its legislative history, the special canons of construction applicable in this type of case lead unambiguously to the same result. Because the Secretary’s contrary interpretation of the Act is plainly erroneous, it cannot stand.

As discussed in the previous memorandum decisions of this court, the Secretary has the authority and the responsibility to approve or disapprove tribal enrollment ordinances. Although this court holds that 25 U.S.C. § 677d does not preclude the Secretary from approving the enrollment ordinance at issue here, the Secretary must still consider other factors and determine whether to approve or disapprove the ordinance. This court trusts that the Secretary will act as quickly as possible on this matter, giving great weight to the importance of allowing the Tribe to control its own membership whenever possible.

Accordingly,

IT IS HEREBY DECLARED that 25 U.S.C. § 677d does not abrogate the power of the Ute Indian Tribe to control its own membership.

IT IS ORDERED that the Secretary’s disapproval of the enrollment ordinance at issue in this case is set aside. The case is remanded to the Secretary to proceed as indicated in this decision.

This order will suffice as the court’s action on the matter. Nothing further need be submitted by counsel.

      . Indeed, it appears that when the 1954 Act was passed, Congress was planning to eventually terminate the full-bloods as a tribe. See 25 U.S.C. § 677. However, there is no question that the full-bloods were not yet ready for termination. See H.R.Rep. No. 2493, 83d Cong., 2d Sess., reprinted, in 1954 U.S.Code Cong. & Ad.News 3355, 3356. Termination policy was repudiated before the full-bloods were ever considered to be ready for termination. The policy of termination was abandoned in favor of tribal self-government within a continuing federal trusteeship. United States v. Felter, 546 F.Supp. 1002, 1006 n. 5 (D.Utah 1982), aff'd, 752 F.2d 1505 (10th Cir.1985).

      . There is good reason why there is no such indication in the Act. The 1954 Act was drafted by the Tribe. It is simply inconceivable that the Indians would have given up such a fundamental right as the right to control membership. See Letter of Mitchell L. Bush, Jr., to Assistant Solicitor, at 3 (Jan. 28, 1983).


author: BATTISTI, Chief Judge.

text:
    LIFE SCIENCE CHURCH, Petitioner, v. UNITED STATES of America, and Albert Yandek, Respondents.
    No. C83-2439.
    United States District Court, N.D. Ohio, E.D.
    April 11, 1985.

      David J. Middleton, pro se.
    Asst. U.S. Atty. John Siegel, Cleveland, Ohio, U.S. Atty. Robert W. Kern, U.S. Dept, of Justice, Tax Div., Washington, D.C., for respondents.
   ORDER

BATTISTI, Chief Judge.

Petitioner on March 29, 1985 filed a motion to alter or amend this Court’s judgment of March 22, 1985 and also to stay execution of judgment pending disposition of the instant motion to alter. In its March 22, 1985 order, the Court denied petitioner’s motion to quash and ordered the enforcement of respondent IRS’s summonses on third-party recordkeepers with whom petitioner (through David J. Middleton and June C. Middleton) has financial dealings.

Petitioner seeks reconsideration of the March 22nd order on the grounds that the summonses are overbroad. In support of its claim, petitioner cites United States v. Trader’s State Bank, 695 F.2d 1132 (9th Cir.1983) which found that IRS summonses on third-party recordkeepers can be over-broad and implicate First Amendment associational rights where all church banking records are requested. In Trader’s Bank, the court applied the test used in United States v. Citizens State Bank, 612 F.2d 1091, 1094 (8th Cir.1980): Once a party seeking to quash disclosure meets their initial burden of making a prima facie showing of arguable First Amendment infringement, the burden shifts to the government to make a showing of need for the material. To meet its burden, the government must show that "there is a rational connection between such disclosure and a legitimate governmental end, and that the governmental interest in the disclosure is cogent and compelling.” Pollard v. Roberts, 283 F.Supp. 248, 256-57 (E.D.Ark.), aff'd, 393 U.S. 14, 89 S.Ct. 47, 21 L.Ed.2d 14 (1968) (per curiam).

In the instant case, the Court does not believe petitioner has met his burden of a prima facie showing of First Amendment infringement. In its original order, the Court noted that the IRS summons appeared to be drawn for a legitimate purpose to determine the tax liability of the individuals, David J. Middleton and June C. Middleton. Petitioner suggests that the Court erred in its analysis in the original opinion when it stated on page 6 of that opinion that the summonses were not over-broad- “since the documents are narrowly identified and clearly relevant to determine the tax liability of the church.” (emphasis added). Regrettably, the word “church” was used but this inadvertence does not alter the Court’s analysis or decision. It is indeed true that the summonses seek to determine the tax liability of David J. and June C. Middleton, not the Life Science Church. However, to the degree that the Middletons are trustees or officers of the Church, certain Church documents may be requested to determine the individual’s liability.

The Court responded to petitioner’s objection as raised in his initial “Verified Petition to Quash.” Petitioner asserted at page 2 of that petition that “these summonses are overbroad because they require disclosure of all church banking records.” Petitioner only cited U.S. v. Holmes, 614 F.2d 985 (5th Cir.1980) and United States v. Dickinson, 636 F.2d 219 (8th Cir.1980). Both of these cases examined whether the IRS could request all documents, including correspondence, minutes of meetings, and organizational charts.

The Court distinguished the instant case from both Holmes and Dickinson on the grounds that the instant summonses were limited to financial documents. However, the Court cited Citizens State Bank, 612 F.2d 1091 (8th Cir.1980) for the proposition that disclosure of the names of members might raise legitimate First Amendment concerns.

It is only now in its Motion to Alter and Stay that petitioner has fully developed its overbreadth argument. Although petitioner did cite Citizens State Bank in his original petition to quash, it appeared as part of a string citation supporting the proposition that freedom of association and privacy are valuable rights. Petitioner is proceeding pro se in this matter. The Court understands that pro se filings may not display the clarity and logic of argument expected of parties represented by counsel; accordingly, the Court gives special care and consideration to these matters. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972); U.S. ex rel. McClaughlin v. N. Y., 356 F.Supp. 988, 989 (E.D.N.Y.1973); Madison v. Sielaff, 393 F.Supp. 788, 789 (N.D.Ill.1975); Morpurgo v. Bd. of Higher Education, 423 F.Supp. 704 (S.D.N.Y.1976). However, the Court cannot be expected to presume all of plaintiffs objections nor all the possible grounds. In fact, one of the reasons to hire counsel is not only counsel’s ability to effectively present an argument but his ability to anticipate several arguments or attacks due to his experience and knowledge. “Although pro se ... complaints must be viewed with some latitude, liberal construction of pleadings should not be permitted to override completely” the burden of making out a case. Morpurgo, 423 F.Supp. at 713.

In the instant case, plaintiff has not met his burden of making a prima facie case of First Amendment infringement. In Citizens State Bank, the IRS sought records of a tax protester organization, the United States Taxpayers Union (USTU). In that case, three members of the USTU submitted declarations “detailing the adverse effects of the summons on USTU’s organizational and fundraising activities.” Id. at 1094. The Eighth Circuit found that “the potential for conflict with the First Amendment was raised by this evidence and the district court erred in failing to consider it.” The Court emphasized that its “decision will only rarely serve to limit the reach of an IRS summons.” Id. Instead of finding a First Amendment infringement, the Court remanded the case rather than reversing the decision so as to develop a record on possible First Amendment implications. Similarly, the Eighth Circuit in Dickinson found that “the extent of over-breadth of the summons was neither clearly raised nor fully developed in the district court,” id. at 224, and the Court remanded the case rather than finding a violation on the record before it.

In United States v. Meininger, 101 F.R.D. 700 (D.Neb.1984), the Court emphasized the necessity for petitioners to meet their burden of showing a First Amendment infringement. In that case, petitioner, who was a member of an anti-tax law organization, the National Commodity Barter Association (NCBA), alleged that enforcement of summonses on third-party re-cordkeepers would chill his First Amendment rights of association as a member of the NCBA. The Court distinguished his case from Citizens Bank. First, the Court found that “the taxpayer has not shown that information about the NCBA would be revealed by enforcement of the summonses.” Id. at 703. Secondly, the Court found that IRS had raised legitimate questions about the petitioner’s tax liability. “To deny enforcement of the summons in the present case would result in immunizing the taxpayer from audit because of his membership in an anti-tax law organization. This the Court declines to do.” Id. at 704.

As in Meininger, the instant petitioner has merely suggested a First Amendment infringement without demonstrating in any way how disclosure of Church financial records authorized by the Middletons will implicate associational rights of Life Science Church members. Furthermore, in In re First National Bank, Englewood, Colorado, 701 F.2d 115 (10th Cir.1983), which was cited in Meininger, the Tenth Circuit found a First Amendment violation sufficient to warrant an evidentiary hearing based on affidavits. Id. at 118. Those affidavits chronicled “harassment and intimidation of petitioners’ known members, and the resulting reluctance of people sympathetic to the goals of NCBA to associate with the group for fear of reprisals.” Id. at 116-17. Petitioner has not submitted any affidavits of this type. Additionally, the summonses were against the tax protector organization (not individuals as in the instant case) and would necessarily have disclosed membership records. Id. at 118.

Finally, in Goldberg v. United States of America, 586 F.Supp. 92 (D.Md.1984), the IRS served summons on third-party record-keepers to determine the tax liability of pro se petitioner Bruce Goldberg, a member of the Universal Life Church. Petitioner sought to quash the summonses. Quoting Godwin v. United States, 564 F.Supp. 1209, 1212 (D.Del.1983), the Court stated that the Government need only make out a 'prima facie case for enforcement consisting of: (1) a showing of a legitimate purpose for the investigation; (2) that the data sought is relevant to that purpose; (3) that the data being sought is not already in the IRS’s possession; and (4) that the administrative steps required under the IRS code (namely notice) have been followed. Goldberg, 586 F.Supp. at 94. Once the Government makes its prima facie case, the burden shifts to petitioner to “ ‘disprove the existence of a valid purpose or to show that enforcement of the summonses would be an abuse of the Court’s, process or otherwise would be improper.’ ” Id. at 95.

At this juncture, the Tenth Circuit considered Goldberg’s First Amendment claims. It reached the same conclusion that the Fifth Circuit had in United States v. Grayson County State Bank, 656 F.2d 1070 (5th Cir.1981) on the grounds that “petitioner has simply failed to produce any evidence that enforcement of the summonses would restrict the religious activity of church members.” Goldberg, 586 F.Supp. at 96. The Tenth Circuit denied the petition to quash and granted summary-judgment for the IRS on enforcement of the summonses.

Without “burdening” this opinion with discussion into who has the burden of making a prima facie case and when that burden shifts, suffice it to say that in the instant case, the Court has not been persuaded that its March 22, 1985 decision to enforce the third-party recordkeeper summonses was in error. Mere allegations of First Amendment infringement cannot be the basis for halting otherwise legitimate investigations by the Internal Revenue Service. The effect would be to shelter delinquent taxpayers who are members of virtually any group on the grounds that the associational rights of others are chilled. In the instant .case, this Court balances the legitimate enforcement needs of the IRS against the claimed chilling effect on the petitioners First Amendment rights and finds the latter less compelling.

Accordingly, petitioner’s Motion to Alter or Amend the Judgment is denied and the Motion to Stay Judgment is denied. This Court’s Judgment of March 22, 1985 ordering enforcement of the third-party record-keeper summonses is affirmed and shall be carried out forthwith.

IT IS SO ORDERED.


author: WILLIAM C. CONNER, District Judge.

text:
    Janice DeYOUNG, together with all others similarly situated, Plaintiffs, v. The CITY OF NEW YORK and Albert Rosario, Defendants.
    No. 84 Civ. 5918 (WCC).
    United States District Court, S.D. New York.
    April 11, 1985.

      Eugene B. Nathanson, New York City, for plaintiffs.
    Frederick A.O. Schwarz, Jr., Corp. Counsel for the City of New York, New York City, for defendants; Caryn Hirshleifer, Beth G. Schwartz, Asst. Corp. Counsel, New York City, of counsel.
   OPINION AND ORDER

WILLIAM C. CONNER, District Judge.

Plaintiff Janice DeYoung (“DeYoung”), a disgruntled victim of New York City’s parking enforcement authorities, seeks to vindicate a variety of constitutional rights allegedly violated by the City in connection with its improper towing and impounding of her car. Pursuant to 42 U.S.C. § 1983, she has sued the City and Albert Rosario, the traffic enforcement officer who ticketed her car, on behalf of herself and all others similarly situated. She alleges, first, that she sustained monetary damages and emotional injuries after Rosario either intentionally or negligently ticketed her legally parked car; the car was subsequently towed. According to plaintiff, this “seizure” amounted to a violation of her Fourth Amendment and due process rights. Moreover, DeYoung asserts that the City’s policies with respect to parking violations are unconstitutional in that prior to any adjudication of the parking violation, they condition release of an impounded vehicle upon payment of all towing and storage fees, and they do not permit the alleged parking violator to post a bond in lieu of full payment. Plaintiff also challenges the constitutionality of the City’s “policy of not advising plaintiffs who are found not guilty of parking violations that they have an absolute right to recover their towing and storage charges,” Compl. at ¶ 26, and of requiring individuals to execute a form containing a waiver of liability claims against the City before recovering those charges.

The matter is now before the Court on defendants’ motion for summary judgment. Defendants assert: (1) that the complaint states no cause of action under the Fourth Amendment; (2) that DeYoung was accorded all the process she was due under the Fourteenth Amendment; (3) that the City may constitutionally require payment of charges prior to an adjudication of guilt and need not accept a bond in lieu of payment; (4) that there is no policy of not advising individuals of their right-to a refund and that, in any event, plaintiff would lack standing to challenge any such policy; and (5) that the City may constitutionally require plaintiff to execute the release in question before obtaining a refund. For the reasons set forth below, defendants’ motion for summary judgment is granted with respect to the due process claims. The Court reserves judgment on the Fourth Amendment claim, however, pending additional briefing.

Background

For purposes of this motion, the following undisputed facts are relevant. On May 20, 1983, Rosario issued a summons to DeYoung for parking a rented car illegally on a Manhattan street. The car was towed and impounded. The next day, plaintiff redeemed the vehicle by paying $80.00 in towing and storage fees. In accordance with City policy, parking authorities would not permit her to post a bond for a lesser amount in lieu of payment.

DeYoung contested the illegal parking charge at a hearing on July 27, 1983. After testifying and presenting evidence, she was found not guilty of the offense. Several weeks later, she telephoned the New York City Parking Violations Bureau to inquire about recovering the towing and storage charges. The Bureau advised her that she could seek a refund and sent her a “Request for Refund” form. She did not file for a refund, however, because the form contained a waiver provision which she construed as foreclosing any future claim for damages resulting from the improper towing. DeYoung has not yet filed the form and thus has not claimed her refund.

Discussion

The parties agree that the Supreme Court’s decisions in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) and Hudson v. Palmer, — U.S. -, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) effectively foreclose aggrieved persons from filing § 1983 due process claims in order to remedy negligent and intentional deprivations of property by the State, where the acts complained of are random ór unauthorized and where there are adequate post-deprivation state tort remedies. These holdings are based upon the Court’s conclusion that “in most cases it is not only impracticable, but impossible, to provide a meaningful hearing before the deprivation.” Parratt, 451 U.S. at 541, 101 S.Ct. at 1916, Hudson, 104 S.Ct. at 3203. Defendants argue that Parratt and Hudson dispose of any constitutional claim based upon the initial seizure of plaintiff’s car.

Plaintiff, on the other hand, asserts that these authorities are inapposite for two reasons: (1) Rosario’s act of ticketing the car was neither random nor unauthorized, but was, instead, accomplished “pursuant to an established state procedure, codified in the New York State Vehicle and Traffic law and carried out through the ordinary procedures of the Department of Transportation and the Parking Violations Bureau”; and (2) the towing amounted to a violation of plaintiffs substantive Fourth Amendment rights, which are not subject to the restrictions placed on procedural due process claims by the Supreme Court in Parratt and Hudson. Pl.Mem. at p. 6.

Those constitutional claims arising out of the initial seizure of DeYoung’s car rest on her contention that the vehicle was, in fact, legally parked. While plaintiff suggests that the car was ticketed and towed “pursuant to established state procedure,” she does not actually contend that the City has a policy of authorizing or encouraging the towing of legally parked cars. Regardless of whether Rosario negligently or intentionally ticketed DeYoung’s car, his activity resulted in a random, unauthorized deprivation of plaintiff’s property, which is actionable under state law. Under these circumstances, the holdings of Parratt and Hudson mandate summary judgment in defendants’ favor on this due process claim.

With respect to plaintiff’s second contention, I note the parties agree that Parratt and Hudson do not apply to charges that state officials have violated substantive constitutional rights; they disagree as to whether plaintiff’s complaint states a Fourth Amendment claim. Defendants assert, first, that the complaint fails to mention the Fourth Amendment as a basis for liability, and that the Court should not permit her to change the nature of her claim so as to avoid summary judgment. Defendants are correct that the complaint does not refer to the Fourth Amendment; it does mention the Fourteenth Amendment, however, and because the latter provision secures Fourth Amendment rights against state intrusion, the Court will not foreclose plaintiff from pursuing this claim.

The City argues, alternatively, that the Fourth Amendment protects only against governmental intrusions which contravene an individual’s reasonable expectation of privacy, and that plaintiff had no such expectation here because she parked her car ón a public street. Def.Reply Mem. at 56. While the City’s argument carries some appeal, I am not convinced that the Fourth Amendment claim can be disposed of so easily. The allegations of the complaint amount to an assertion that the vehicle was ticketed and subsequently “seized” without probable cause. In order to grant summary judgment on this claim, I would have to conclude that state officials who seize property without a warrant and without probable cause violate no rights secured by the Fourth Amendment if that property is located in public view. I am unprepared to make such a ruling on the basis of the authorities thus far presented. The Court will therefore reserve judgment on defendants’ motion insofar as it seeks to' defeat a Fourth Amendment claim, pending further submissions on these limited questions: (1) whether Rosario had probable cause to ticket plaintiff’s car; and (2) whether, assuming there was no probable cause, the public location of the vehicle defeated any Fourth Amendment right DeYoung might otherwise have possessed.

Plaintiff next attacks the City’s requirement that an individual seeking to redeem his vehicle before any adjudication of the merits of the parking violation pay towing and storage charges in full. Towing and storage charges are refundable upon a determination that the vehicle was improperly ticketed, but to the extent there is any delay in the hearing process, the individual is temporarily deprived of either his car or his money.

DeYoung acknowledges the City’s legitimate need to clear the streets of illegally parked cars, and its need to do so without a prior hearing or notice. She argues, however, that once the offending vehicles have been reirioved to locations of relative safety, the government’s only remaining interest is in collecting the fees. In plaintiff’s view, this interest is insufficiently great to justify even a temporary deprivation without any opportunity to be heard. DeYoung regards the present arrangement as “manifestly defective,” but concedes that it might be saved from constitutional insufficiency if there were some provision by which an alleged parking violator could post bond in a lesser amount in lieu of full payment.

Plaintiff finds support for her position in Breath v. Cronvich, 729 F.2d 1006 (5th Cir.1984), wherein the Court of Appeals for the Fifth Circuit was faced with a due process challenge to towing procedures in Jefferson Parish, Louisiana. The court observed that a car owner who chooses to contest si parking violation is granted a hearing, and that in the meantime, he can redeem his vehicle without paying any fees by obtaining an appearance bond. 729 F.2d at 1101. The court then held:

This bond procedure, combined with the hearing on the merits of the ticket, affords adequate due process protection. The procedure protects the government’s interest in retaining security for the owner’s payment of towing and storage fees, and also protects the vehicle owner’s interest in the uninterrupted use of his automobile.

Id. Plaintiff concludes, on the strength of Breath, that if recovery of a vehicle is conditioned on full payment of towing and storage charges, the procedure violates due process.

Defendants, on the other hand, look to Goichman v. Rheuban Motors, Inc., 682 F.2d 1320 (9th Cir.1982) for support. In Goichman, the Court of Appeals for the Ninth Circuit rebuffed a constitutional challenge to Los Angeles towing procedures, which provide for a hearing within forty-eight hours but not for the posting of a bond in lieu of full storage and towing charge payment. After recognizing that due process is “a flexible concept and is procedural protections will vary depending on the particular deprivation involved,” the court weighed the competing governmental and private interests, observing:

Were we to require immediate release on demand, as proposed by Goichman, we would jeopardize the government’s “considerable interest in imposing the cost of removal upon the vehicle owner and retaining possession of the vehicle as security for payment[.]” ... Release-on-demand effectively requires the city either to provide on-the-spot hearings or to secure the costs of towage itself. Either option would prove burdensome and expensive.

682 F.2d at 1324 (citation omitted). The court held, in light of these considerations, that a hearing within forty-eight hours satisfied the requirements of due process. Id. at 1325.

With respect to Goichman’s additional argument that due process required the city to establish a procedure under which the vehicle owner could redeem his car by posting a bond in an amount less than the towing and storage charges, the court concluded that

the government’s considerable interest in retaining possession of the vehicle as security for the owner’s payment of towing and storage charges outweighs the private interests that would be served by the procedure. Because the substitute procedure Goichman proposes would not ensure that the owner of a lawfully towed vehicle pays the entire amount of these charges, the fiscal burden it would create for the city is too great.

682 F.2d at 1325.

Having reviewed these authorities, as well as the affidavit and documentary exhibit submitted by the parties, I am satisfied that New York City’s provision for payment of charges prior to any adjudication of guilt is constitutional, and that the City need not accept a bond in any amount less than those charges. According to the uncontested sworn statements of Samuel Morris, Chief Administrative Law Judge of the New York City Parking Violations Bureau,

[a]n individual can challenge the propriety of a parking violations [sic] summons either by mail or by personal appearance. A challenge by mail is heard by a judge in an ex parte proceeding. A challenge in person can be effectuated by appointment or immediately on a walk in basis at any of the Parking Violations Bureau offices on any day during the week except Saturday and Sunday and on any evening during the week except Friday, Saturday or Sunday.

Morris Aff. at II2 (emphasis added). Defendants’ Exhibit A, an information pamphlet issued by the Parking Violations Bureau, indicates that day sessions are held from 9:00 A.M. to 4:00 P.M., and that evening sessions are held from 6:00 P.M. to 8:00 P.M. Thus, it is apparent that under the procedures now in effect, an individual whose car has been towed can, in many instances, proceed immediately to one of the Bureau’s offices for a hearing.

Even under the worst of circumstances, an aggrieved individual would be deprived of either his car or his money from Friday at 4:00 P.M. to Monday at 9:00 A.M. Although such a delay would undoubtedly cause some inconvenience, not all temporary deprivations violate the Constitution. Due process guarantees “an opportunity to be heard at a meaningful time,” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 900, 47 L.Ed.2d 18 (1976), and I do not believe that a delay of this length deprives vehicle owners of that right.

I am also satisfied that New York City’s refusal to accept a bond in lieu of full payment of towing and storage charges is constitutionally sound. As the Ninth Circuit noted, the bond procedure proposed by DeYoung does not adequately ensure that the owners of lawfully towed vehicles will ultimately pay the full amount of these charges. Although defendants have produced no statistical evidence in this respect, there can be no question but that forcing the City either to absorb the difference between the bond and the charges, or to collect the difference after the car has been released, would impose substantial fiscal and administrative burdens. The law of Jefferson Parish, Louisiana notwithstanding, I conclude that plaintiff’s due process rights were not violated by New York City’s refusal to allow her to post a bond in order to obtain the immediate release of her car, and that summary judgment should be entered in favor of defendants on this claim.

DeYoung’s attack on the City’s policy of “not advising alleged traffic offenders of their absolute right to recover towing and storage charges on a finding of not guilty at a Parking Violations Bureau hearing,” Compl. at ¶ 26, is also appropriate for summary disposition. Defendants deny that there is any such policy or practice. According to Chief Administrative Law Judge Samuel Morris,

it is the policy of the Parking Violations Bureau to inform all individuals, at the outset of the hearing, that if the hearing results in a dismissal of the traffic summons, the individual is entitled to a refund of all towing and storage charges. “Request for Refund” forms are always, to the best of my knowledge, available at the various Parking Violations Bureau offices and it is the policy of the Parking Violations Bureau to advise all individuals who appear in person for a hearing of the availability of the “Request for Refund” forms.

Morris Aff. at 114. In opposition, plaintiff has submitted an affidavit stating that she was not informed of her right to a refund when she appeared at her hearing, and also an informational pamphlet entitled “How to Deal With Your Summons,” which is issued by the Parking Violations Bureau to summons recipients, and which does not advise the reader of his right to recover towing and storage fees upon a finding of not guilty.

Neither the Bureau’s pamphlet nor DeYoung’s affidavit raises any genuine issue with respect to the existence of the policy described in the Morris affidavit. While the City might well have placed in its pamphlet some reference to the car-owner’s right to a refund, the absence of such a reference from this particular document in no way reflects upon Morris’s statement that the Bureau has a policy of providing this information at the outset of its hearings. Moreover, DeYoung’s statement suggests, at best, that the hearing examiner who adjudicated her summons failed to follow Bureau policy in her case. To the extent that such an error by a City agent is actionable at all, I see no reason why plaintiff should not be required to pursue state tort remedies under the doctrine set forth by the Supreme Court in Parratt and Hudson.

I turn, finally, to plaintiff’s contention that the City violates due process by conditioning any refund of towing and storage fees upon the execution of a release which plaintiff construes as waiving any and all claims against the City arising out of an improper towing. Because I agree with defendants that plaintiff has misconstrued the release provision, I need not reach the question of whether due process would be violated by the kind of release described by plaintiff.

The “Request for Refund” form, attached as an exhibit to plaintiff’s complaint, directs the individual requesting a refund to check one of the listed claim categories, and to submit documentation to support the claim. Among the categories listed are “towaway payment,” “duplicate payment,” and “overpayment of summons.” At the bottom of the form, above a signature line, is the following statement:

It is understood and agreed by the applicant that receipt of the payment herein provided for o"n behalf of said applicant or anyone claiming by or through him shall constitute and operate as a release to the City of New York from any and all claims of and liability to the applicant for anything arising out of or relating to the claim set forth herein and that all supporting documents submitted herewith shall become the property of the City of New York.

(emphasis supplied). It is this provision which is in question here.

Defendant argues, and I agree, that when properly placed in context, the reference to a release of “claims arising out of or relating to the claim set forth herein” can only fairly be read to effect a waiver of claims to the towing and storage charges which are the subject of the refund request. Thus, the signed form “acts as a receipt.” Def. Reply Mem. at 10.

Plaintiff urges that her construction of the release must be correct because it is “preposterous to suppose that, on receiving a check for $80 in refund of towing and storage charges, plaintiff would subsequently file an additional claim for that same $80, and even more preposterous to suppose that the City would need a signed release to prevent plaintiff from successfully pressing that second claim.” Pl.Mem. at 9. I do not find these suppositions “preposterous” at all. Moreover, plaintiff’s argument that “the claim set forth herein” refers to “the claim that plaintiff’s automobile was towed and that she was then found not guilty at a hearing,” id., is nothing more than a strained attempt to construct a constitutional deprivation out of a common administrative requirement. Accordingly, defendants’ motion for summary judgment is granted on the waiver claim.

In summary, judgment is to be entered in favor of defendants on all claims save that which purports to allege a violation of plaintiff’s Fourth Amendment right to be free of unreasonable searches and seizures. Defendants are directed to submit additional materials in support of their motion for summary judgment on that claim on or before April 29, 1985. Plaintiff will have until May 13, 1985 to respond, and defendant may submit reply papers by May 20, 1985.

SO ORDERED.

      . Plaintiffs complaint indicates that this action arises under New York law as well as 42 U.S.C. § 1983. The nature of the state law claims is unclear, although plaintiff does allege in Paragraph 22 that she suffered "severe mental and emotional distress” as a result of defendants' conduct. Apparently, plaintiff had rented the vehicle in question to attend her grandmother’s wake in New Jersey. Compl. at ¶ 21. The sudden unavailability of her vehicle allegedly made it impossible for her to arrive on time.

      . Plaintiff concedes that she was not entitled to a pre-deprivation hearing or notice. She acknowledges that she was only entitled to “a determination by a traffic enforcement agent that her car was illegally parked and subject to towing under the law.” Pl.Mem. at 4. Although she complains that such a determination was not made, the summons issued by Rosario is evidence to the contrary. Rosario may have been wrong, but the provision of due process does not require a correct outcome.