author: LOUIS H. POLLAK, District Judge.

text:
    ESSINGTON METAL WORKS, INC., et al. v. RETIREMENT PLANS OF AMERICA, INC., et al. ESSINGTON METAL WORKS, INC., et al. v. Sidney A. FRIEDMAN.
    Civ. A. Nos. 81-5094, 82-4820.
    United States District Court, E.D. Pennsylavania.
    June 4, 1985.

      Sheva Stoloff, Beitch and Block, Philadelphia, Pa., for plaintiffs.
    Stephen J. Springer, LaBrum and Doak, Philadelphia, Pa., for defendants.
   MEMORANDUM

LOUIS H. POLLAK, District Judge.

In December 1981, Retirement Plans of America, Ernest D. Palmarella, Jo-Ann Laverghetta, and Leon L. Levy (“RPA parties”) removed to this court a suit which had been filed against them in the Court of Common Pleas for Philadelphia County. That suit had been brought by Essington Metal Works, Inc.; Essington Metal Works, Inc. Pension Plan and Trust; and Essington Metal Works, Inc. Profit Sharing Plan and Trust (“Essington parties”). The. complaint set forth a variety of tort causes of action based upon alleged breaches of duty by the RPA parties in preparing and implementing an employee benefits plan for use by the Essington parties. The complaint also set forth a cause of action for breach of contract based upon the same allegations. The suit was recorded on the docket of this court as Civil Action Number 81-5094. The removal petition stated that removal was proper because the complaint included a claim for breach of fiduciary duty which could only be brought under the Employee Retirement Income Security Act, (“ERISA”), 29 U.S.C. §§ 1001 to 1461, a federal statute. See 28 U.S.C. J) 1441(a) and (b) (removal of a federal question suit is authorized without regard to the citizenship of the parties).

On March 24, 1982, Louis Stafford brought suit in this court against one of the Essington parties, Essington Metal Works, Inc. and Fred Hoffken Sr. The suit alleged a claim under ERISA for recovery of employee benefits allegedly due to Mr. Stafford. 29 U.S.C. § 1132(a)(1)(B). The Essington parties thereafter filed a third-party complaint against the RPA parties in the suit filed by Mr. Stafford. The allegations in the third-party complaint paralleled the claims asserted in Number 81-5094 but the third-party complaint sought recovery solely for the damages for which the Essington parties might be liable under the Stafford claim. This suit was assigned Civil Action Number 82-1339.

In June of 1982, Civil Actions 81-5094 and 82-1339 were consolidated pursuant to the unopposed motion of the RPA parties.

In November 1982, Sidney A. Friedman removed to this court a suit filed against him in the Court of Common Pleas by the Essington parties. Mr. Friedman is a member of the Board of Directors and shareholder of Retirement Plans of America and was sued on the grounds charged against the RPA parties in the other two actions. Removal of the suit against Mr. Friedman was predicated on diversity of citizenship; Mr. Friedman is a citizen of New Jersey and the Essington parties are citizens of Pennsylvania. This case was assigned Civil Action Number 82-4820 and was consolidated with the other two cases in June 1983.

Following a period of discovery, the Stafford suit (82-1339) went to trial with the court sitting as the finder of fact. At the close of the trial, the court, in a bench opinion, concluded that judgment should be entered for the Essington parties and against Mr. Stafford, a result that rendered moot the Essington parties’ third-party claim against the RPA parties. At the same time, the court denied the motions of the Essington parties to remand their suits against the RPA parties (81-5094) and Mr. Friedman (82-4820). The latter suit appeared to be a proper diversity case, and the former seemed cognizable as a federal question claim under ERISA to which were annexed a number of pendent state claims.

An appeal was filed in Stafford and the two other cases were placed in civil suspense pending resolution of the appeal. In May 1984, the Court of Appeals for the Third Circuit affirmed the Stafford judgment. No petition for certiorari was filed.

On October 30, 1984, the Essington parties moved for leave to amend the complaint in the RPA suit. The motion stated that plaintiffs intended, by means of this amendment, to clarify the nature of the claims asserted. The movants contended that, if the motion to amend was granted, it would be clear from the amended complaint that the Essington parties were alleging only state law claims and did not intend to present a claim for breach of fiduciary duty under ERISA. The RPA parties responded to this motion on November 20, 1984. They argued that an amendment should not be allowed if the only purpose of such an amendment was to oust the federal court of jurisdiction. See generally Westmoreland Hospital Association v. Blue Cross, 605 F.2d 119 (3d Cir.1979); 1A Moore’s Federal Practice ¶ .160[7] (1985); 14A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3738 at 558-59 (1985). In addition, the RPA parties contended that the amended complaint could also be construed to contain a claim for breach of fiduciary duty and, thus, federal jurisdiction would be proper even if the amendment was allowed.

Upon review of these submissions, this court entered an Order scheduling oral argument on the motion to amend. In that Order, the court directed the parties to submit further memoranda on the following questions:

Bearing in mind the frequently stated principles regarding limitations on federal court jurisdiction of a removed case when the state court from which the case was removed could not have had jurisdiction of the suit, Gleason v. United States, 458 F.2d 171 (3d Cir.1972); Stapleton v. $2,438,110, 454 F.2d 1210 (3d Cir.1972); Leddy v. United States Postal Service, 525 F.Supp. 1053 (E.D.Pa.1981), see 14 C.A. Wright & A.R. Miller, Federal Practice and Procedure, § 3721 at p. 523 and § 3722 at p. 574; 1A Moore’s Federal Practice jf 0.157[3], do those principles have relevance to the present action? If so, how should those principles be applied to this litigation? If not, why are they not relevant?

Essington Metal Works, Inc., et al. v. Retirement Plans of America, et al., No. 81-5094 at 2 (March 22, 1985). The parties have since filed those submissions and oral argument was held on May 3, 1985. For the reasons set forth below, this court concludes that the RPA action must be remanded to the Court of Common Pleas for Philadelphia County.

The basis for removal of the RPA suit was the inclusion amonjg the claims against RPA of a claim which arguably fell under section 1109 of Title 29 of the United States Code. That provision of ERISA creates liability for breach of fiduciary duty. A civil action may be brought to recover for such a breach under section 1132(a)(2). Jurisdiction to hear such claims is exclusively vested in the federal courts. 29 U.S.C. § 1132(e)(1).

In 1922, the Supreme Court, speaking through Justice Brandéis, established the general principle that:

[t]he jurisdiction of the federal court on removal is, in a limited sense, a derivative jurisdiction. If the state court lacks jurisdiction of the subject matter or of the parties, the federal court acquires none, although it might in a like suit originally brought there have had jurisdiction.

Lambert Run Coal Co. v. Baltimore & Ohio RR. Co., 258 U.S. 377, 382, 42 S.Ct. 349, 351, 66 L.Ed. 671 (1922). See Franchise Tax Board of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1 n. 27, 103 S.Ct. 2841 n. 27, 77 L.Ed.2d 420 (1983); 1A Moore’s Federal Practice ¶ 0.157[3.-1] to [3.-5] (1985); 14A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure §§ 3721 and 3722 (1985). This doctrine of “derivative jurisdiction” has been consistently applied by the federal courts as a ground for dismissal of an action when the state court lacked jurisdiction to entertain the action at the time of or prior to removal.

In federal question cases, the principle of derivative jurisdiction mandates dismissal of an action when the federal cause of action arises under a statute which vests exclusive jurisdiction in the federal courts. Dismissal is required despite the fact that the court would have had jurisdiction to hear the suit had it initially been brought in federal court. E.g., State of Minnesota v. United States, 305 U.S. 382, 59 S.Ct. 292, 83 L.Ed. 235 (1939); General Investment Co. v. Lake Shore Ry., 260 U.S. 261, 43 S.Ct. 106, 67 L.Ed. 244 (1922); Gleason v. United States, 458 F.2d 171 (3d Cir.1972).

Because the deficiency is one which goes to the subject-matter jurisdiction of the court, it may be raised at any time— even on appeal. Moreover, it may, as in the present suit, be raised by the court sua sponte. 1A Moore’s Federal Practice ¶ 0.157 [3.-2] at 58 (1985).

The RPA suit was removed to this court solely on the basis of this court’s jurisdiction to hear cases arising out of federal statutes. The federal statute upon which the removal petition relies is ERISA and the portion of ERISA under which the plaintiffs’ claim allegedly falls is one over which federal courts possess exclusive jurisdiction. Therefore, the state court had no jurisdiction to hear that claim. Although the state court may have had general jurisdiction to hear and determine the state law claims in this case, those claims were not the basis for removal. Because the only claim which formed the basis for removal was one over which the state court had no jurisdiction, this court could not obtain jurisdiction by removal. Consequently, removal was improper and the matter should be dismissed or returned to the state court. See generally Cate v. Blue Cross & Blue Shield of Alabama, 434 F.Supp. 1187, 1189 n. 3 (E.D.Tenn.1977).

The RPA parties contend, however, that this court should retain jurisdiction of the RPA litigation for a number of reasons. The primary argument presented in support of this position is that the Essington parties have waived any objections they might have had to this court’s exercise of jurisdiction. The Essington parties respond that all of the action taken by them up to this time in the RPA litigation has been purely defensive in nature and that they have taken no affirmative steps to utilize this court’s processes. Therefore, the Essington parties assert that they have taken no actions which would estop them from moving to remand at this time.

Section 1447(c) of Title 28 states:

If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs.

This provision has been interpreted to allow the district court some discretion in deciding whether a technically improper removal necessitates remand. If the case is one within the original jurisdiction of the federal court, it is generally established that the federal court may retain jurisdiction if that court concludes that the party seeking remand has waived his objections. 1A Moore’s Federal Practice ¶ 0.157[11.-1] to [11.-6] (1985). However, defects in the removal of a suit which affect the subject-matter jurisdiction of the federal court are not waivable, even by express consent of both parties. Thus, although a district court would have had jurisdiction had the ERISA claim which formed the basis for removal of this suit been brought originally in federal court, the lack of jurisdiction of the state court over that claim and resulting lack of derivative jurisdiction of the federal court upon removal is not merely a technical or procedural defect. The absence of derivative jurisdiction goes to the subject-matter jurisdiction of the state court and, consequently, to the subject-matter jurisdiction of the federal court. See 1A Moore’s Federal Practice ¶ 0.157[3.-2] at 58 (1985).

“It has been held that where the state court lacks subject-matter jurisdiction and the case is removed, the defect cannot be waived although the federal court would have had original jurisdiction if the suit had been brought there initially.” 1A Moore’s Federal Practice ¶ 0.157[11.4] at 175. See e.g., Stapleton v. $2,438,110, 454 F.2d 1210 (3d Cir.1972), cert, denied, 409 U.S. 894, 93 S.Ct. Ill, 34 L.Ed.2d 151 (1972); A.J. Curtis & Co. v. D.W. Falls, Inc., 305 F.2d 811 (3d Cir.1962) (the parties may not create jurisdiction in the federal court by acquiescence when the state court from which the suit was removed could not have had jurisdiction). Accordingly, because the parties cannot waive objections to the federal court’s lack of derivative jurisdiction, this court may not proceed with the RPA suit on the basis of federal question jurisdiction.

The RPA parties have, however, asserted a number of other grounds on which, they contend, this court properly obtained and can retain jurisdiction of the RPA suit. Although these allegations were not stated in the removal petition, the RPA parties seek leave to amend that petition to include them if such an amendment will allow this litigation to remain in the federal forum. Before considering the propriety of such amendments, it is first appropriate to determine whether the additional jurisdictional allegations, if allowed, would warrant maintenance of this litigation in the federal courts.

First, the RPA parties contend that removal was proper under 28 U.S.C. § 1441(c) which states:

Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.

The RPA parties argue that Count 4 of the RPA complaint, which states a claim “in trespass” against Leon Levy, is such a separate and independent claim or cause of action. According to the RPA parties, Leon Levy is a citizen of New Jersey. Therefore, since all of the Essington parties are citizens of Pennsylvania, they contend that this court would have diversity jurisdiction with regard to that claim. Once jurisdiction is established with regard to that claim, the other counts of the complaint which include nondiverse defendants could be removed to the federal court under § 1441(c).

The cornerstone of this argument is the assumption that, when viewed against the totality of the complaint, Count 4 is a “separate and independent claim or cause of action.” The phrase “separate and independent claim or cause of action” has been defined in only the broadest terms. Whether a particular claim can be labelled “separate and independent” from other claims requires a case-by-case analysis of the nature of the complaint and the particular claims asserted therein.

The most frequently cited explanation of the phrase “separate and independent claim or cause of action” is found in the Supreme Court decision in American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951). In that case, the Court, speaking through Justice Reed, noted that the 1948 amendment of the language of this section had changed the operative phrase from “separable controversy” to “separate and independent claim or cause of action.” This modification, the Court concluded, was intended to “abridge the right of removal.”

Of course, ‘separate cause of action’ restricts removal more than ‘separable controversy.’ In a suit covering multiple parties or issues based on a single claim, there may be only one cause of action and yet be separable controversies. The addition of the word ‘independent’ gives emphasis to congressional intention to require more complete disassociation between the federally cognizable proceedings and those cognizable only in state courts before allowing removal.
____Considering the previous history of ‘separable controversy,’ the broad meaning of ‘cause of action,’ and the congressional purpose in the revision resulting in 28 U.S.C. § 1441(c), 28 U.S.C.A. § 1441(c), we conclude that where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under § 1441(c).

341 U.S. at 12-13, 71 S.Ct. at 539-540.

This language is perceived by most commentators as a significant limitation on the removal of diversity cases under section 1441(c). Because most states do not allow parties to be joined together in an action unless there is a question of law or fact common to all of them or unless the claims are asserted out of the same transaction or occurrence, it is difficult to imagine a case in which claims against different parties could be joined in a state court prior to removal but which would contain separate and independent claims or causes of action against different parties as described in Finn. 14A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3724 at 367-68 (1985).

In the RPA suit, Count 4 alléges that Leon Levy breached the duty of care he owed to the Essington parties; the alleged breach consists of recommending that the Essington parties (1) employ the RPA parties to prepare an employee benefit plan and (2) make use of the improperly prepared plan documents. Leon Levy is also included as a defendant in a number of the other counts of the complaint. In addition, the other counts contain allegations relating to the wrongful conduct of the RPA parties in preparing the benefits plan and in providing advice related to the use of that plan. The complaint seeks to recover damages for all of the injury suffered by the Essington parties due to the use of the improperly prepared employee benefits plan.

Thus, the claim against Leon Levy in Count 4 is merely part of a series of “interlocked transactions” which have all contributed to the alleged harm to the Essington parties. Consequently, Finn forecloses a finding that the claims in Count 4 are “separate and independent” from the other claims in the complaint.

Second, the RPA parties contend that removal of this suit to federal court was appropriate in that either the claims or the parties should be deemed pendent or ancillary either to the Stafford suit or to the Friedman suit. This contention labors under the severe handicap that there were no Stafford and Friedman cases for this suit to have been pendent or ancillary to at the time the RPA suit was removed. But the subsequent filing of those cases is said to have cured the difficulty.

Friedman was removed to this court on the basis of diversity of citizenship. Since pendent jurisdiction is only available when there is a federal question claim to which the remaining claims or parties are pendent, pendent jurisdiction would not be a proper ground for linking Friedman and this suit. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978); Seyler v. Steuben Motors, Inc., 462 F.2d 181 (3d Cir.1972); 13B C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3567.2 at 149-50 (1985).

Whether ancillary jurisdiction could be bottomed on Friedman turns on application of the three-level analysis formulated by Judge Becker in Ambromovage v. United Mine Workers of America, 726 F.2d 972, 989-990 (3d Cir.1984), (footnotes omitted):

On the first level, a court must determine whether it has constitutional power to determine a state-law claim. This “power” test depends on whether there is a “common nucleus of operative fact” between the state claim at issue and the accompanying federal claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). As we see it, Gibbs provides the unifying principle which limits the extent of federal jurisdiction over both pendent and ancillary claims. The second level requires the court to determine whether the exercise of jurisdiction at issue would violate a particular federal policy decision, such as the requirement of complete diversity or the explicit exclusion of a particular party from federal liability for the actions alleged in the complaint. At this level, the court may consider whether the plaintiffs assertion of aneillary or pendent jurisdiction is an attempt to manufacture federal jurisdiction where it is otherwise foreclosed by the relevant statutes. The issue generally turns on statutory interpretation. The final level — prudential in character — is for the district court, in its discretion, to weigh various factors bearing on the appropriateness of hearing a pendent claim.

726 F.2d at 989-90 (footnotes omitted).

The first step of the Ambromovage analysis is satisfied due to the significant duplication of claims between the RPA and Friedman actions. But the second step of the analysis is not satisfied. That part of the test requires the court to consider whether the exercise of federal jurisdiction would “violate a particular federal policy such as the requirement of complete diversity.”

In the present case, the defendants in the RPA suit are not of citizenship diverse from the plaintiffs. Therefore, although Friedman is properly here on the basis of diversity jurisdiction, if the Friedman and RPA suits had been combined as one suit, that suit could not have been litigated in a federal forum on the basis of citizenship of the parties. To allow RPA to be appended to Friedman through the doctrine of ancillary jurisdiction would merely employ an indirect mechanism to gain access to a federal forum which would otherwise be barred. Because this would directly conflict with the substantial federal policy limiting diversity jurisdiction to cases in which each plaintiff is a citizen of a state different from the state of citizenship of each defendant, this court will not exercise ancillary jurisdiction. See generally Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978).

An alternative argument is that the claims in the RPA suit are pendent to the Stafford claims or that the RPA. parties are pendent parties to Stafford. The determination whether these arguments form a proper basis for the exercise of federal jurisdiction again requires the court to employ the analysis set forth in Ambromovage.

The first issue to be considered is whether RPA and Stafford have a common nucleus of operative fact. Prior to the trial of Stafford, a portion of that suit substantially overlapped with a portion of RPA. That area of overlap involved the third-party claim in Stafford and the claims in RPA to the extent that those claims related to wrongdoing by the RPA parties which caused the alleged harm to Mr. Stafford. However, most of the RPA suit involved claims which had no relationship to the claims of Mr. Stafford. Accordingly, the first requirement of Ambromovage is not satisfied.

In addition, there would be good cause under the third level of the Ambromovage analysis for this court to decline to exercise its discretion to consider this case. At the present time, the only claims remaining in RPA are state law claims. These claims bear no relationship to any federal claim which was before this court in Stafford, since all such claims were extinguished by the resolution of Stafford in favor of the Essington parties. Therefore, there is no federal interest in retaining this suit in a federal forum and a substantial state interest in allowing a state court to consider and resolve the remaining questions of state law. In such a situation, there is no firm basis upon which this court could conclude that this action should continue in federal court.

In light of the foregoing determinations that this court did not properly gain jurisdiction of this case as a federal question action and that this court may not retain jurisdiction under the doctrines of ancillary, pendent or pendent party jurisdiction, it is now necessary to consider how to dispose of this case.

As a general matter, when a federal court determines that it did not gain jurisdiction of a case on removal because there was no jurisdiction in the state court, the action is dismissed by the federal court. 1A Moore’s Federal Practice ¶ 0.157[3.-2] (1985). However, in the present case, the state court did properly have jurisdiction of the state law claims which were joined with the alleged federal law claim. Although this court had no basis for obtaining jurisdiction over those state law claims absent jurisdiction of the federal claim, this court is empowered to remand cases which have been removed without jurisdiction. See, e.g., Bancohio Corp. v. Fox, 516 F.2d 29 (6th Cir.1975); Washington v. American League of Professional Baseball Clubs, 460 F.2d 654 (9th Cir.1972); Thorp v. Serraglio, 464 F.Supp. 149 (N.D.Ohio 1978). Therefore, I conclude that the alleged federal law basis for removal should be dismissed from this suit because this court did not obtain jurisdiction on removal and the state court would have no jurisdiction to consider the claim on remand. However, I will remand the remainder of the surviving state law claims in this action to the state courts for resolution.

      . There is one type of lawsuit arising under ERISA — a suit brought pursuant to 29 U.S.C. § 1132(a)(2)(B), by a participant or beneficiary to enforce rights to present or future benefits under an ERISA plan — which may be brought either in a federal or in a state court. 29 U.S.C. § 1132(e)(1).

      . If the defect in removal is not raised until the matter is appealed from the district court, the court of appeals will only consider whether the district court could have had original jurisdiction of the suit. See Medlin v. Boeing Vertol Co., 620 F.2d 957 (3d Cir.1980). A party may not wait until it has obtained a final judgment in the district court to raise an objection which does not go to the subject-matter jurisdiction of the court which entered that final judgment.

      . It is evident that there is something anomalous about the rule that, in a removed action which could have been initiated in a federal court, there can be no waiver of a lack of subject matter jurisdiction predicated on the lack of jurisdiction of the state court. But if the rule were otherwise, it would not avail these defendants.
      There are no fixed criteria for determining when waiver of objections to removal has occurred. However, the following factors are often relevant to the court’s decision: (1) the length of time prior to the filing of a motion to remand, Green v. Zuck, 133 F.Supp. 436 (S.D.N. Y.1955); Fisher v. Exico Co., 13 F.R.D. 195, 196 (E.D.N.Y.1952); (2) the degree to which the party seeking remand has made use of the processes of the federal court prior to filing the motion to remand, Monaco v. Carey Canadian Mines, Ltd., 514 F.Supp. 357 (E.D.Pa.1981); (3) the degree to which the party has sought affirmative relief from the federal court prior to seeking remand, In re Moore, 209 U.S. 490, 496, 28 S.Ct. 585, 586, 28 S.Ct. 706, 52 L.Ed. 904 (1908); and (4) whether the party seeking remand has done something or enjoyed something which would make it inequitable to remand the case at this time, Noethe v. Mann, 27 F.2d 451 (D.Minn. 1928).
      In the RPA case, the RPA parties contend that the Essington parties have waived their objections to removal because (a) they waited eighteen months prior to filing a motion to remand; (b) they filed a request for production of documents and noticed five depositions; (c) they filed a motion to compel production of documents; (d) they responded to a motion for summary judgment filed by the RPA parties and, as a consequence of that motion, a number of the Essington plaintiffs’ state law claims were dismissed; and (e) they moved for certification of this court’s decision on the summary judgment motion.
      Most of the reasons mentioned by the RPA parties to support their waiver argument are insufficient to warrant the conclusion they seek. For example, once the Essington parties had moved for remand in June 1983 and that motion had been denied, later actions by those parties such as the filing of a motion for certification of the decision on the RPA parties’ motion for summary judgment cannot waive the objection to removal since it has already been asserted and rejected. 1A Moore’s Federal Practice jf0.157[ll.-6] at 185 (1985). In addition, the participation of the Essington parties in discovery directed toward the RPA parties was a necessary aspect of the third-party claim which had been filed by the Essington parties against the RPA parties in the Stafford suit which was consolidated with the RPA suit. Thus, all discovery matters were docketed under the same civil action number for all of the suits. As a result, it is impossible to distinguish at this time between those items of discovery which would have been filed as part of the Stafford litigation which was properly before this court and the discovery which would only have been pertinent

        to the RPA suit.. Furthermore, the Essington parties cannot be deemed to have waived their objections to this court's jurisdiction by responding to the RPA parties’ motion for partial summary judgment. The defense of a motion filed by another party which may harm the interests of the party later seeking remand is generally not held against the latter party when the question of waiver is considered. Feller v. National Enquirer, 555 F.Supp. 1114 (N.D.Ohio 1982).
      On the other side of the balance, the length of time taken by the Essington parties prior to filing a motion to remand was significant and presents some support for the RPA parties' waiver contentions. In addition, the RPA parties suggest that they may be prejudiced by remand of the suit at this time because this court has resolved certain issues of state law in favor of the RPA parties on their motion for partial summary judgment and these matters may be relitigated in the state court on remand. However, the RPA parties have presented no legal support for this position. Therefore, it is not clear that a state court on remand would reopen this court's determinations on issues of state law.
      On balance, this court does not appear to have a sufficient basis upon which to conclude that the Essington parties have consented to this court’s exercise of jurisdiction over the RPA litigation.

      . The RPA parties also contend that this court may retain jurisdiction because the amendment to the complaint proposed by the Essington parties supports federal question jurisdiction. In Brough v. United Steelworkers of America, AFL-CIO, 437 F.2d 748, 749 (1st Cir.1971), the Court of Appeals for the Third Circuit held that the amendment of a complaint to add a claim under a federal statute established a basis for federal jurisdiction although such jurisdiction was not proper at the time of removal. The plaintiffs action in amending the complaint to add a federal claim was held to have been an affirmative act by the plaintiff to invoke the jurisdiction of the federal court which obviated any objections that the plaintiff might otherwise have to removal.
      The amendment proposed in the present case is quite different from the amendment that was found to have invoked the court's jurisdiction in Brough. In this case, the Essington parties seek to amend to establish that their claim for breach of duty does not fall within the framework of an ERISA claim for breach of fiduciary duty. Not only is this amendment being presented as a means to oust the federal court of jurisdiction— unlike the situation in Brough in which the amendment affirmatively invoked federal jurisdiction — but the amendment in the present suit seeks only to clarify the meaning of the alleged ERISA claim in the complaint. The amendment in Brough added an entirely new claim to the complaint; one based upon federal law. Therefore, the amendment in Brough provided a ground for federal jurisdiction that had not been available at the time of removal while, in the present case, the amendment would add no new federal claims. Due to these differences between the present case and the procedural history in Brough, it is inappropriate to conclude that the Essington parties, by their proposed amendment, are affirmatively invoking the jurisdiction of this court.

      . As with the instant suit, this court could not have obtained jurisdiction of an ERISA claim in Friedman since such a claim would not have been properly before the state court prior to removal.

      . Since I have concluded that this court should remand the case because removal was without jurisdiction, it is inappropriate to address the motion to amend filed by the Essington parties.


source: Caselaw Access Project

author: LATCHUM, Senior District Judge.

license: Public Domain

text:
    Esther GONZALEZ, Frances Fish, and Audrey Charsha, Plaintiffs, v. AVON PRODUCTS, INC., Defendant.
    Civ. A. No. 84-248-JLL.
    United States District Court, D. Delaware.
    June 4, 1985.

      Jacob Kreshtool, Wilmington, Del., for plaintiffs.
    Wayne N. Elliott of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, Del., for defendant.
   MEMORANDUM OPINION

LATCHUM, Senior District Judge.

This libel suit is presently before the Court on the defendant’s motion for summary judgment. (Docket Item [“D.I.”] 12.) Because there is yet an issue of material fact to be resolved, the motion must be denied.

I. BACKGROUND

This litigation arises from a series of events which took place in April of 1983 at the defendant’s (“Avon”) plant in Newark, Delaware. At that time, the three plaintiffs were employed by Avon in the Returned Goods or Merchandise Control Department at the plant. (D.I. 24 at 3, A-3.) On April 18, an Avon security guard spotted an employee from the Returned Goods Department attempting to steal a cookbook. (D.I. 15A at A-20 to A-21, A-30.) That employee, identified as Helen Goodine (id.), was subsequently interrogated on three occasions, first on April 21 by Donald Graham, a Safety and Security Section Manager (id. at A-19, A-27), again on the following day by James Willcox, the General Manager of the Newark plant (id. at A-29, A-30), and then again by Graham on the following Monday. (Id. at A-21 to A-22.) On these occasions Goodine stated that theft was a common occurrence in the Returned Goods Department (id. at A-28, A-30), and at her meeting with Willcox and her second meeting with Graham she identified the plaintiffs as having stolen a variety of items from Avon. (Id. at A-30 to A-31.) Goodine’s allegations were corroborated by another employee of the Returned Goods Department who detailed numerous instances of larceny supposedly perpetrated by the plaintiffs. (Id. at A-31 to A-33.) Managers at the Newark plant accepted these statements as confirmation of a theft problem they had long suspected of being rooted in the Returned Goods Department. (See id. at A-29 to A-30.) On April 25, Graham and an employee from Avon’s New York office investigated the allegations by interviewing Newark plant employees, including the plaintiffs. (Id. at A-33.) The following day, the plaintiffs were “suspended for cause.” (Id.) Two days later, on April 28, the plaintiffs and five other individuals were “terminated for cause.” (Id. at A-34, A-35a.) This decision was based on what Willcox called a “very thorough investigation.” (Id. at A-34.)

That same day, Willcox called a special meeting of all plant employees, some 900-1000 people (id. at A-34 to A-35; D.I. 24 at 4), and read to them a prepared statement that referred to “5 regular employees and 3 reserves that ... [were] terminated for cause,” (D.I. 15A at A-35a) and spoke in general terms about a violation of trust, the importance of contributing to and not taking away from the company, and the need for random searches as a “reminder to stop and think before doing something that will have lifelong implications.” (Id. at A-35b to A-35c.)

Approximately one year later, the plaintiffs filed this suit, claiming they were falsely and in bad faith defamed by Will-cox’s speech and that they have, as a consequence, suffered injury to their reputations, emotional distress, and financial losses. (D.I. 1.)

II. LAW

A. Summary Judgment

The well-established law governing the Court’s consideration of Avon’s motion provides that summary judgment shall be rendered if the record before the Court shows that there is no issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R. Civ.P. 56(c). The burden of demonstrating that this standard has been met is upon the moving party, and the evidence and inferences from it are to be construed in the light most favorable to the opposing party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).

B. Libel

It is undisputed that Delaware law controls this diversity suit. Delaware courts have frequently cited two authoritative sources on the common law of defamation: Professor Prosser’s hornbook on the Law of Torts (“Prosser”) and the Restatement of the Law of Torts (“Restatement”). See, e.g., Andres v. Williams, Del.Supr., 405 A.2d 121, 122-23 (1979) (citing with approval Restatement §§ 559, 762, and Prosser § 111); Spence v. Funk, Del.Supr., 396 A.2d 967, 969-71 (1978) (citing with approval Restatement §§ 559, 569, 570, and Prosser §§ 111, 112); Pierce v. Burns, 55 Del. 166, 185 A.2d 477, 479 (1962) (citing with approval Restatement §§ 559, 593, 596(d), 599, 600, 605, and Prosser § 95). Because the parties have not cited and the Court has not found Delaware precedent for all of the points of law at issue in this case, the Court must in part predict the law of Delaware; the Court believes Delaware would again rely on the law as described in Prosser and the Restatement to resolve issues that its own courts have not already addressed. Cf. Avins v. White, 627 F.2d 637, 642 (3d Cir.), cert, denied, 449 U.S. 982, 101 S.Ct. 398, 66 L.Ed.2d 244 (1980).

Among the matters the Delaware courts have addressed is the distinction between libel and slander, and although the parties in their briefing have apparently assumed without discussion that the alleged defamation is libel, it is worth noting why the speech made to the Avon employees should be considered under the law of libel rather than the law of slander. The scope of liability for libel is broader than it is for slander. Spence v. Funk, Del.Supr., 396 A.2d 967, 970 (1978). “This is to say, that while all slanderous statements would be libelous if written, not all libelous statements would be slanderous if spoken.” Id. In this case, the alleged defamation was written down {see D.I. 15A at A-34 to A-35), and so is properly considered under the broader liability standard of libel, even though it was communicated to the Avon employees by the spoken word, which is ordinarily the hallmark of slander. See Restatement § 568, comment e.

The elements of a cause of action for libel are as follows: (1) a false statement (2) which is defamatory, (3) which is of and concerning the plaintiffs, (4) which was made in an unprivileged publication to a third party, and (5) the making of which was a consequence of fault amounting at least to negligence on the publisher’s part. See Restatement §§ 558, 569; cf. Prosser § 113 at 802. Avon has, for purposes of this summary judgment motion, conceded the existence of elements one through three. (See D.I. 15 at 18; D.I. 27 at 8-9.) Avon argues, however, that it is entitled to summary judgment because, as a matter of law, its employee Willcox was protected by a qualified privilege in making the remarks he did (D.I. 15 at 9-11), and because no fault on Willcox’s part resulted in forfeiture of that privilege. (Id. at 11-16.) But Avon has ignored an issue of fact concerning Willcox’s good faith in saying what he did in his speech. To understand the materiality of that issue, a brief discussion of the law of privilege and abuse of privilege is necessary.

The privilege of which Avon claims the benefit is that expressed in section 596 of the Restatement:

An occasion makes a publication conditionally privileged if the circumstances lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that there is information that another sharing the common interest is entitled to know.

This privilege has been explicitly adopted in Delaware, see Pierce v. Burns, 55 Del. 166, 185 A.2d 477, 479 (1962): Battista v. Chrysler Corp., Del.Super., 454 A.2d 286, 290-91 (1982), and under Delaware law, the existence of the privilege in a given set of circumstances is a matter to be determined by the Court. Pierce v. Burns, supra, 185 A.2d at 480. Thus the Court must decide whether this “common interest” privilege applies to the speech Willcox made to Avon’s assembled Newark plant employees.

Avon asserts that the common interest of management and labor in operating a successful business clearly qualifies communications in furtherance of that goal as being privileged (D.I. 15 at 10-11), and Delaware precedent appears to bear this out: “This [common interest] qualified privilege is particularly germane to the employer-employee relationship____” Battista, supra, 454 A.2d at 291. Cf. Burr v. Atlantic Aviation Corp., Del.Supr., 348 A.2d 179 (1975). Although they failed to brief the issue, the plaintiffs contested at oral argument the applicability of privilege to this case. Their arguments, however, centered on the number of employees who heard the publication and the manner in which the publication was made, concerns which are more properly classified with considerations of abuse of privilege. The Court agrees with Avon that the common interest privilege does apply to this case. The dispositive question thus becomes whether Willcox abused that privilege.

A qualified privilege will be deemed abused and hence forfeited if there has been “[1] excessive or improper publication, ... [2] the use of the occasion for a purpose not embraced within the privilege, ... [3] the making of a statement which the speaker knows is false,” Pierce v. Burns, supra, 185 A.2d at 479, “[4] express malice ... [, 5] any desire to cause harm,” Short v. News-Journal Co., Del.Super., 205 A.2d 6, 8 (1965), or [6] bad faith in the exercise of the privilege. Battista, supra, 454 A.2d at 291. These types of abuse of privilege, particularly the last four, are closely related and involve some inquiry into the mind of the publisher. Such an investigation into subjective intent is ordinarily not a matter for summary judgment. See Look Enterprises S.A. v. Look, Inc., 596 F.Supp. 774, 779 (D.Del. 1984). This is surely why Delaware has traditionally reserved the question of abuse of privilege for jury consideration. Pierce v. Bums, supra, 185 A.2d at 480.

The plaintiffs claim that Willcox made his speech in bad faith, knowing it to be false (D.I. 1), but Willcox has sworn that he was motivated by his managerial judgment that, “some official statement addressing the terminations and Avon policy in general was necessary in order to ensure that the incident would not be blown out of proportion so as to eventually cause undue problems at the plant.” (D.I. 15 at A-35.)

When faced with an affidavit supporting a motion for summary judgment, an adverse party may not rest upon the mere allegations or denials of his pleading to rebut the affiant’s testimony. Fed.R. Civ.P. 56(e). There must be before the court some contrary affidavit or product of discovery if the adverse party wishes to raise a material issue of fact and stave off summary judgment. Id. In this case, the affidavit of Mr. Rowe, submitted on behalf of the plaintiffs, alleges that in his experience Avon had discharged many employees for theft and had followed a standard practice in notifying the work force of the company’s justifications in those cases. (D.I. 24 at A-4.) The standard procedure called for each supervisor to communicate the text of a company statement to the employees under his immediate supervision. (Id.) The meeting on April 28, 1983, however, according to Rowe was an unprecedented assemblage of all employees to hear the General Manager charge terminated employees with theft. (Id.) Furthermore, at oral argument the plaintiffs pressed the notion that Willcox’s assertions in his speech to the effect that employees could not be fired from Avon simply because “someone else says something bad about them[,]” and that “no stones were left unturned” in investigating the thefts allegedly committed by the plaintiffs were assertions made in bad faith and with knowledge of their falsity, considering Willcox’s deposition testimony (see D.I. 29 at 46-48) that the plaintiffs had been fired on the basis of reports by fellow employees.

Taking every inference from these submissions in the light most favorable to the plaintiff, as is required, Adickes, supra, 398 U.S. at 157, 90 S.Ct. at 1608, the Court must hold that a material question of fact exists about Willcox’s good faith in making the statements he did in his speech. The Court cannot say as a matter of law that a juror would be unreasonable in concluding that Willcox acted in bad faith by implying that something besides the testimony of fellow employees lay behind the plaintiffs’ discharge, or by concluding that the departure from standard practice in explaining terminations was motivated by some bad faith. Granted, such conclusions would be strained, but the United States Court of Appeals for the Third Circuit, whose opinions bind this Court, has consistently required that the standards for summary judgment be strictly construed and applied. See, e.g., Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir. 1981); Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert, denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977).

If a jury were to conclude that Willcox had acted in bad faith, the last two elements of a cause of action for libel would be satisfied: the publication to third parties would have been unprivileged and it would have been a consequence of some fault on the publisher’s part. Given Avon’s concession, for purposes of this motion, of the first three elements of a libel suit, and the possibility of a finding for the plaintiffs on the last two elements, summary judgment cannot be granted for the defendant.

An order will be entered in accordance with this opinion.

APPENDIX

Brought you together — recent events— want to make sure all of you fully understand what has occurred.

We have just notified 5 regular employees and 3 reserves that they have been terminated for cause.

This action is the result of a very thorough investigation that we conducted earlier this week.

A decision to terminate an individual’s employment at Avon, as you know, is never made in haste.

We have given everyone involved the full benefit of the doubt as well as every opportunity to speak up on their own behalf.

Although our decision is a difficult one, we feel it is just and that we have been fair.

As I’ve walked through the facility this week, many of you have asked me questions regarding this issue.

A popular question has been: “Why suspend these folks; why not just fire them?” Answer I’ve given: We wanted to insure that our investigation left no room for doubt and because of the seniority of the employees involved, our officers in New York wanted the same assurances that no stones were left unturned. That has always been our philosophy as a company and will continue to be in the future.

Another concern I’ve sensed is “can someone get fired if someone else says something bad about them?”

Again, I hope I’ve answered that, but in addition let me commit to you that no one

APPENDIX — Continued

can be terminated from this company without good reason. We take these situations very seriously. It doesn’t just happen in this case or any other case. This has been Avon’s policy (10 yr. rule). I think those of you who work here already know these things, but I offer you my personal reassurance that no one will be terminated based on hearsay.

The question remaining for all of us today is “where do we go from here?” I’ve always considered Avon an open and understanding company. Our whole business has been built on trust. Trust of our representatives and trust of our employees. When we see people violate that trust, I think we are genuinely shocked and disappointed. In order to run an organization this size we must have rules and regulations.

One of those regulations is random search. The biggest reason for random search is the reminder to stop and think before doing something that will have lifelong implications.

What I expect is that all of you take it upon yourselves to support our regulations and follow them in every way. I trust all of you will continue to do so as long as you allow it.

One employee mentioned yesterday that the whole experience could raise the issue of job security at Avon. Let me answer by telling you what job security means to me. It means doing everything we, as employees, can do to contribute to the growth and success of our business. It means doing nothing that takes away or detracts from our company.

In the past 2 or 3 years all of you have seen layoffs and plant closings in the Newark area — this has not happened at Avon because our business continues to grow and expand. We can continue to do that in the future with the support and dedication of people like you.

Supporting the company will guarantee all of us everything we want from Avon, both as individuals and as a group.

      . Jurisdiction is invoked pursuant to 28 U.S.C. § 1332.

      . The full text of Willcox’s remarks are appended to this opinion. Spelling abbreviations and punctuation omissions have been corrected; otherwise the text is as Willcox had prepared it and as he claims he delivered it. (D.I. 15A at A-35.)

      . This and following references to the Restatement are to the Restatement (Second) of Torts (1977).

      . Section 569 of the Restatement explains that all libel is actionable per se and that there is accordingly no need to show special damages in a suit for libel as there is in a suit for slander. This rule has also been explicitly made the law of Delaware; in Spence v. Funk, Del.Supr., 396 A.2d 967, 971 (1978), the Delaware Supreme Court said, “any libel ... is actionable without special damages, whether the defamatory nature is apparent on the face of the statement or only by reference to extrinsic facts." That very clear statement demolishes the argument Avon makes in Section III of its opening brief and thus makes any discussion of that argument unnecessary.

      . This and following references to Prosser in this opinion are to the new 5th edition, Prosser & Keeton, The Law of Torts (1984).

      . It is undisputed that if Willcox is liable to the plaintiffs for libel, then his employer, Avon, is liable.


author: CURTIN, Chief Judge.

text:
    Carlene MACK, Individually and on behalf of all other persons similarly situated; Shirley Stukes; Patricia Ramsure; Queen Esther Taylor; Thelma Barnes; Maxine McNeill; and Trina Lewis, Intervenor, Plaintiffs, v. Donald RUMSFELD, Individually and in his official capacity as Secretary of Defense; Martin R. Hoffmann, Individually and in his official capacity as Secretary of the United States Army, Defendants.
    No. CIV-76-22C.
    United States District Court, W.D. New York.
    June 5, 1985.

      National Center on Women & Family Law, New York City (Phyllis Gelman, New York City, of counsel), Greater Upstate Law Project, New York City (James I. Meyerson, New York City, of counsel), and American Civil Liberties Union of Ohio Foundation, Columbus, Ohio (Bruce A. Campbell, Columbus, Ohio, of counsel), for plaintiffs.
    United States Army, Office of the Judge Advocate Gen., Litigation Div., Washington, D.C. (Lt. Colonel Joyce Peters, Washington, D.C., of counsel), United States Air Force, Office of the Judge Advocate Gen., General Litigation Div., Washington, D.C. (Lt. Colonel Guy Sternal, Washington, D.C., of counsel), and Salvatore R. Martoche, U.S. Atty., Buffalo, N.Y. (Kathleen Mehltretter, Asst. U.S. Atty., Buffalo, N.Y., of counsel), for defendants.
   CURTIN, Chief Judge.

Plaintiffs challenge the policy of the Army, Army Reserve, Air Force, and Air Force Reserve which prohibits the enlistment, with rare exceptions, of single parents with children under 18 years old. They contend that it violates their rights under the fifth amendment. This case was certified as a class action on June 20, 1977. The named plaintiffs represent the class of women applicants who have been or are being denied admittance into the Army or Air Force because of Army or Air Force policies that deny admittance to a single parent with a child under 18 years of age.

Defendants originally moved for summary judgment in June of 1976. This court denied that motion on February 10, 1978, with leave to renew after additional discovery had taken place. Defendants renewed their motion in June of 1983. Plaintiffs have filed a cross motion for summary judgment.

Plaintiffs attack the constitutionality of the regulations expressing the single parent exclusion policy (see Appendix). Plaintiffs list three counts in their complaint. Plaintiffs’ first count charges that the Army and Air Force unjustifiably discriminate against unmarried parents of children under the age of 18. As their second count, plaintiffs allege that defendants' policies penalize plaintiffs for exercising their freedom of choice as to family life and that those policies erect an irrebuttable presumption as to the fitness of single parents for military service. Plaintiffs claim that these policies discriminate against women as their third count. (See Amended and Supplemental Complaint, March 22, 1977).

Both plaintiffs and defendants have filed extensive exhibits with the court in support of their motions for summary judgment and in opposition to the motions against them. Plaintiffs have submitted, among other things, depositions of their experts, portions of military studies and records, and affidavits from named plaintiffs and others.

Defendants have offered policy statements, military studies, depositions of military personnel and copies of the regulations at issue as they have been amended over the years.

For the reasons that follow, summary judgment is granted to defendants and the complaint is dismissed.

Preliminarily, defendants argue that this case is nonjusticiable and/or non-reviewable. It appears to the court that these terms are used interchangeably in this context. Defendants also raised this point in their original motion for summary judgment, and the court held that the case was justiciable in its order of February 10, 1978. At that time, the court relied upon Crawford v. Cushman, 531 F.2d 1114, 1121 (2d Cir.1976), in which it was held that substantive claims of constitutional dimension against the military are reviewable by the courts. Plaintiffs in this case have raised substantive claims of violations of equal protection and due process as guaranteed by the fifth amendment to the United States Constitution.

Defendants point out that, since the time of this court’s 1978 order, several courts of appeals have adopted the approach established by the Fifth Circuit in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971), in testing the reviewability of military decisions. Under this test, a court should examine four factors: 1) The strength of the plaintiff’s claim; 2) potential harm to plaintiff if review is denied; 3) type and degree of anticipated interference with the military; and 4) the extent to which military expertise is involved. Using this test, two courts of appeals have found the same policies at issue in this case not proper for review. See West v. Brown, 558 F.2d 757 (5th Cir.1977), cert, denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 520, and Lindenau v. Alexander, 663 F.2d 68 (10th Cir. 1981).

The Third Circuit, however, has rejected the Mindes test and found the same policies challenged here to be reviewable. Dillard v. Brown, 652 F.2d 316 (1981).

Once a claim falls within these parameters [a constitutional or statutory violation], a court should review the claim on the merits. Even if such a constitutional challenge appears weak or frivolous, jurisprudentially that claim should be rejected on the merits, rather than deemed to be non-justiciable by a federal court. We prefer an analysis which does not mingle concepts of justiciability with those affecting the merits of the claim to the extent that Mindes requires.

Id. at 323.

Crawford is still the law of this circuit {see Katcoff v. Marsh, 755 F.2d 223, 233 (2d Cir.1985)).

Plaintiffs have raised constitutional equal protection claims and due process claims, and under Crawford and the reasoning of Dillard, these claims are justiciable and reviewable.

The Supreme Court’s decision in Rostker v. Goldberg, 453 U.S. 57, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981), does not remove this case from the realm of reviewability. That case emphasized the deference due Congressional decisions involving the military and national defense. The court pointed to Congress’s broad constitutional power to raise and support armies, citing Art. I, § 8 of the United States Constitution. It stated that courts have an ultimate responsibility to decide constitutional questions, adding, “deference does not mean abdication.” Id. at 67 and 70, 101 S.Ct. at 2653 and 2654.

That courts have the power and the duty to review military conduct when challenged as violative of the Bill of Rights is clear. The standard of review, however, is far from clear. The military urges that, at most, this court may simply glance at the challenged policies to determine if there is a “rational nexus” between the exclusion of single parents and military readiness. In a recent case from the Eastern District of New York involving a naval reserve policy prohibiting the commissioning of pregnant cadets, the court interpreted Rostker as requiring mere rationality to withstand a claim of gender discrimination under the fifth amendment. Cobb v. United States Merchant Marine Academy, 592 F.Supp. 640, 643-44 (E.D.N.Y.1984).

In Rostker, the Court apparently declined to adopt such a test:

We do not think that the substantive guarantee of due process or certainty in the law will be advanced by any further “refinement” in the applicable tests as suggested by the Government. Announced degrees of “deference” to legislative judgments, just as levels of “scrutiny” which this Court announces that it applies to particular classifications made by a legislative body, may all too readily become facile abstractions used to justify a result. In this case the courts are called upon to decide whether Congress, acting under an explicit constitutional grant of authority, has by that action transgressed an explicit guarantee of individual rights which limits the authority so conferred. Simply labeling the legislative decision “military” on the one hand or “gender-based” on the other does not automatically guide a court to the correct constitutional result.

Rostker at 69-70, 101 S.Ct. at 2654-2655.

The Second Circuit has provided an interpretation of the Rostker decision in a slightly different context. In Katcoff v. Marsh, 755 F.2d 223 (2d Cir.1985), two taxpayers sought an injunction against Congress’s continuation of the Army’s military chaplain program, claiming that government financing of the program violated the establishment clause of the first amendment. Citing Rostker, the court said:

The line where military control requires that enjoyment of civilian rights be regulated or restricted may sometimes be difficult to define. But caution dictates that when a matter provided for by Congress in the exercise of its war power and implemented by the Army appears reasonably relevant and necessary to furtherance of our national defense it should be treated as presumptively valid and any doubt as to its constitutionality should be resolved as a matter of judicial comity in favor of deference to the military’s exercise of its discretion.

Katcoff at 234.

This court is well aware that the policies under attack here were not promulgated by Congressional act, but by military regulation. Yet the Supreme Court has held that military policies made under an explicit grant of Congressional authority are entitled to deference. See Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 890-91, 894, 81 S.Ct. 1743, 1746-47, 1748, 6 L.Ed.2d 1230 (1961). Here, the military defendants set enlistment requirements through the authority of Congress, which gave the Secretaries of the Army and Air Force the power to promulgate enlistment standards. 10 U.S.C. §§ 505, 510(b), 3012(g), 8012(f). Goldman v. Secretary of Defense, 734 F.2d 1531, 1538 (D.C. Cir.1984).

In light of the above discussion of the standard of review, this case is amenable to summary judgment. ■ Both parties have engaged in extensive discovery and neither requests additional time. In fact, both ask the court to decide the case on summary judgment, because a trial will add little, if anything, to the record.

Plaintiffs claim the exclusionary policy violates their fundamental constitutional right to freedom of choice in family matters and creates an irrebuttable presumption as to the fitness of single parents for military service, all in violation of the due process clause of the fifth amendment. The regulations at issue here, however, do not interfere with plaintiffs’ constitutional right to have, or not to have, a family. They simply prohibit plaintiffs, as single parents, from enlisting in the Army or Air Force. There is no constitutional right to join the military. Lindenau v. Alexander, 663 F.2d at 72-73, and Crawford v. Cushman, 531 F.2d at 1125.

As their first and third counts, plaintiffs claim the single parent exclusion policies discriminate against them as single parents and as women, in violation of the equal protection clause of the fifth amendment.

Under the Second Circuit interpretation in Katcoff, the exclusion policies shall be treated as presumptively valid and constitutional if they are reasonably relevant and necessary to further national defense.

Defendants maintain that these policies are relevant and necessary to the critical concerns of military readiness and mobility. They offer the depositions of several military leaders as well as military studies based on the results of surveys of commanders, supervisors, and married couples with children, both of whom are in the military, or single parents.

For instance, Major General H. Norman Schwarzkopf, Director for Military Personnel Management and Acting Assistant Deputy Chief of Staff for Personnel at the Pentagon, was deposed by defendants in November of 1982. He stated that a key concern of the military is the ability to deploy forces in the United States overseas as rapidly as possible. Single parents, according to the General, pose a threat to the Army’s ability to mobilize quickly. He admitted that a detailed analysis of the numbers of single parents who might not be prepared to deploy has not been done, since it is “not a question of numbers,” but of the “war-fighting capability of the Army.” (Item 146, p. 39)

General Schwarzkopf served as the Assistant Division Commander of the Eighth Infantry Division and Community Commander of Mainz Military Command in Germany from 1970 to 1972. He was in charge of personnel management for 12,-000 people in a U.S. Army community. He estimated that approximately 100 single parents lived in the community and said that some were deficient in performance. While he had no exact numbers, he said that the percentage of single parents who failed to report for alerts was “dramatically different” from the percentage of other soldiers. General Schwartzkopf recalled that division commanders repeatedly mentioned the availability of single parents as a matter of concern (Item 146, pp. 15-16).

Major General Kenneth LeRoy Peek, Director of Personnel Plans for the Air Force, served as Vice Commander, then as Commander, of the Air Force Manpower and Personnel Center at Randolph Air Force Base from March of 1979 until July of 1982. In that position, he encountered a “significant amount of concern” on the part of local commanders, supervisors and first sergeants about the difficulties some single parents had in meeting duty requirements (Item 147, pp. 9-11).

Other military leaders pointed to the serious problems single parents encounter during basic and technical training. (See Deposition of Air Force Lt. General B. L. Davis, Item 49, pp. 11 and 22, and Deposition of Air Force Lt. Colonel Donald Post, Item 50, pp. 13-15).

Defendants also submitted military studies which in part dealt with single parents. For example, a report by the Women in the Army Study Group was prepared in December 1976 (Defendants’ Exh. K). Comments solicited from major army commands formed the basis of the study. They were requested to determine whether single parents, both male and female, had a bad effect on unit readiness.

Some units reported no problems with single parents when there were only a few involved, but noted serious problems when significant numbers of single parents were in a unit. Specifically, single parents did not have the flexibility to work irregular hours or different work schedules. They also were said to need considerable advance warning before extended leave (Exh. K, Chap. 7, pp. 8-9).

From October 1980 through April 1981, the Air Force studied the readiness and availability of single parents (Report of the Availability of Single Member Sponsors and Military Couples with Dependents, Defendants’ Exh. G).

Military leaders, single parents, and military couples with children were interviewed in 27 Air Force bases. The focus of the survey was AF 35-59, an Air Force regulation dealing with provisions for child care. The results of the study showed that commanders strongly believed that single parents and military couples with children were not prepared to deploy on short notice. Younger, less experienced single parents and military couples with children tended to view themselves as less available and the chances of being called upon to deploy as less likely than did more experienced single parents or military couples.

The report concluded that the current stringent waiver policies for enlistment of single parents and military couples with children should be continued. It recommended that the policy of discharging those who become single parents and are not available be enforced (Defendants’ Exh. G, pp. 4-5).

Another one of the many Air Force studies, also based on surveys, found that many commanders believed that single parents lost more time than military couples with children or Air Force personnel with civilian spouses (see Study by Air Force Manpower and Personnel Center, January 1982, Defendants’ Exh. H, p. 24).

Plaintiffs maintain that defendants’ policies of retaining enlisted personnel who become single parents are fundamentally inconsistent with their position. They argue that if defendants were truly concerned about single parents disrupting mobilization and readiness, no amount of investment in training or gain in maturity and experience would justify retaining those who become single parents (Item 169, pp. 103-04).

What plaintiffs fail to take into account is that single parents whose performance deteriorates can be either discharged or barred from reenlistment (see Item 146, pp. 39-41, Deposition of Army Major General Schwarzkopf). In fact, The U.S. General Accounting Office [GAO] Report to the Secretary of the Army dated September 13, 1982, recommended that the Army forego discharging all those who became sole and in-service parents or assigning them to positions coded as “nondeployable” until further study.

As noted earlier, the Air Force report on the availability of single parents (Defendants’ Exh. G) recommended enforcement of the policy of discharging those who are not consistently available as well as recommending maintaining stringent restrictions on the enlistment of single parents.

Major General Schwarzkopf pointed out that those who become single parents while serving are not automatically discharged because they, unlike new enlistees, represent a valuable resource to the military due to their training and experience (Item 146, pp. 39-41).

Certainly, defendants’ refusal to automatically discharge soldiers and Air Force personnel who become single parents does not indicate that barring the enlistment of single parents on the basis of a need to sustain maximum readiness and mobility is pretextual. The military has no investment in those who seek enlistment, nor any commitment to them. Those who have been in the service have training and experience and can be discharged or reassigned if their performance declines.

Plaintiffs also urge that the repeated linkage of single parenthood with women’s issues reveals that the policies were motivated in part by a discriminatory purpose.

A perusal of defendants’ exhibits shows that single parenthood is frequently associated with women’s issues. For example, defendants’ Exhibit H, a report by the Air Force Manpower and Personnel Center, utilized written surveys. The first portion of these surveys asked commanders to evaluate the performance of female enlistees and of male enlistees. Another segment of the survey asked questions about the performances of single parents and military couples with children. A latter segment inquired about pregnancy (see Exh. H, Appendix B).

Single parenthood was also addressed by the Army as a women’s issue. Defendants’ Exhibit I, an opinion survey on the role of women in the Army, links pregnancy and sole parenthood. Exhibit K, although explicitly referring to the sole parent issue as applying to both men and women (Chap. 7, p. 8) was prepared by the Woman in the Army Study Group, which viewed it in part as a issue related to pregnancy (p. l-A-6).

A 1981 Department of Defense Report, Background Review: Women in the Military, stated, “Sole parents, whose numbers are increasing in the military, are frequently thought to be a female issue.” (Defendants’ Exh. 22 at 7.) Plaintiffs’ expert, Kathleen Carpenter, who was Deputy Assistant Secretary of Defense of Equal Opportunity in the Office of Secretary of Defense during the Carter administration, affirmed this. She testified at a deposition that the single parents issue was considered to be a woman’s issue (Plaintiffs’ Exh. 7, p. 23). Plaintiffs’ expert, Kurt Lang, a professor of Sociology at State University of New York at Stoney Brook, notes that single parenthood continues to be associated with illegitimacy and a dissolute lifestyle (Plaintiffs’ Exh. 12, p. 8).

While the plaintiffs have indeed demonstrated a frequent linkage of single parenthood with pregnancy and women’s roles in the military, this alone does not make the regulations unconstitutional. Plaintiffs have not shown that the regulations exist in part “because of” and not just “in spite of” their adverse effects on women. Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979). (Defendants have agreed, for the purposes of summary judgment, to assume the challenged regulations, while facially neutral, have a disparate impact on women.)

As defendants point out, the military has placed restrictions on the peacetime enlistment of people with dependents since 1841, 107 years before women were admitted into the armed forces. These regulations changed in content and restrictiveness over the years but usually were in force, in one form or another, throughout this period {see Item 158, Appendix A, and Defendants’ Exhibit A). The military’s concern about enlisting those with dependents has long been evident and, historically at least, was unrelated to gender.

Furthermore, the military places quotas on the number of women allowed to enlist. Such quotas could be used to directly reduce the number of women enlisting without resort to a single parent subterfuge. Of course, this in itself does not demonstrate that defendants were not employing a facially neutral statute for a discriminatory purpose, but it lends support to defendants’ position.

Even if plaintiffs could make a showing of discriminatory purpose, more would be required.

Plaintiffs claim defendants have not shown that the regulations are substantially related to important governmental objectives, the test in gender equal protection cases (Item 169, Plaintiff’s Brief at p. 96, citing Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976)). However, as stated above, in light of Rostker and the Second Circuit’s interpretation in Katcoff the question in the military context is simply whether the challenged regulations are reasonably relevant and necessary to the national defense.

Plaintiffs offer depositions and affidavits indicating that defendants failed to engage in any detailed statistical analysis to determine the actual quality of work by single parents in comparison to other personnel. Plaintiffs claim the potential effect of single parents on readiness and the ability to deploy quickly in the event of an emergency has never accurately been gauged. The policies challenged here, they say, are not founded on social science studies but the intuition of military leaders (Item 169, p. 17).

Plaintiffs rely primarily on the critique by their expert, Professor Lang, to highlight the deficiencies in military studies of the single parent issue and to show the absence of evidentiary validation for these policies.

Professor Lang concluded that military studies do provide evidence that some single parent service members have difficulty meeting their peacetime duties and that some of these problems are certainly related to inadequate child care. Yet, he also believed that the studies show that the large majority of single parents are performing at least satisfactorily (Plaintiffs’ Exh. 12, p. 1).

One of Professor Lang’s main contentions is that studies based on the opinions of military commanders with responsibility for national security tend to exaggerate the magnitude of the problem. (Plaintiffs’ Exh. 12, p. 9). He notes that many command centers surveyed by the Army in 1976 (Defendants’ Exh. T) reported only minor problems with single parents, which could be dealt with on an individual basis. (Plaintiffs’ Exh. R, p. 17-19). In fact, Professor Lang believes that when the results of the surveys are tabulated, they show that single parenthood “does not result in an excessive loss of time or create major problems that cannot be handled in the framework of regulations.” (Id. at 19.)

However, single parents need not cause an excessive loss of time or create major problems to make the regulations excluding them reasonably relevant and necessary to the national defense.

Professor Lang also pointed out that interview or survey questions are broad-based, biased in that they link single parenthood to women and sometimes phrase the issue as a “problem,” and rely on “self-reports,” by single parents, which he claims are of doubtful validity (Exh. 12).

Professor Lang’s concerns are echoed by Robert Pirie, Jr., Director of the Naval Strategy Program at the Center for Naval Analyses. From 1979 to 1981, he was the Assistant Secretary of Defense for Manpower Reserve Affairs and Logistics. He noted that there are analytical studies available to obtain objective information about the magnitude of the single parent problem. (Plaintiffs point out that the military customarily relies on detailed statistical analysis when examining issues relating to enlistment.) Mr. Pirie indicated that he would prefer to “utilize both statistical analyses and reports of commanders, as have been relied on in the past, to formulate a single parent policy. In his experience, analytical studies frequently contradict the intuition of military leadership. Mr. Pirie did not know whether this would be the case with the single parent policies (Plaintiffs’ Exh. 5, pp. 38-39).

Perhaps the strongest support for plaintiffs on this issue comes from defendants. In 1982, the GAO prepared a report to the Secretary of the Army entitled “Army Needs Better Data to Develop Policies for Sole and Inservice Parents” (Defendants’ Exh. N).

The report was based on questionnaires sent to first-line supervisors at Fort Bragg and Army installations in Europe. Professor Lang pointed out that studies based on evaluations by direct supervisors were more valid than those based on interviews with commanders (Plaintiffs’ Exh. 12, p. 21). Based on these responses, the GAO concluded that sole and in-service parents attended and performed at least satisfactorily and would most likely be available in the event of war (Defendants’ Exh. N, p. 4). The study recommended that the Army forego discharging all who become single parents or a military couple with children until objective and scientific data is obtained. It also recommended that data be developed to “reconsider the reasonableness of restricting enlistment of sole and in-service parents.” (Defendants’ Exh. N, p. 11.)

The court agrees that better, more reliable techniques for assessing the day-today performance and the likely availability of single parents in time of national crisis should be implemented, particularly in light of the GAO report to the Secretary of the Army in 1982 (Defendants’ Exh. N). However, the Rostker decision and the interpretations provided by the D.C. Circuit in Goldman v. Secretary, 734 F.2d 1531, and by the Second Circuit in Katcoff place a minimal burden on the military in defending its policies against constitutional attack. The policies need only be “reasonably relevant and necessary to furtherance of our national defense,” and “any doubt as to its constitutionality should be resolved ... in favor of deference to the military’s exercise of its discretion.” Katcoff, 755 F.2d at 234.

Defendants have provided the court with evidence, as discussed above, that there are problems with some single parents in flexibility with duty schedules and reporting for duty on short notice. These problems create concern on the part of many military leaders that single parents will not be available in the event of an emergency. Also, Air Force commanders discussed the burdens on single parents during basic and technical training.

The court has been presented with a challenge to the constitutionality of single parent enlistment restrictions only, not the regulations providing for the ouster or reassignment of trained personnel who become single or in-service parents after enlistment. Based on defendants’ evidence, I cannot conclude that a policy barring single parents from military service at the enlistment level is not reasonably relevant to and necessary for the furtherance of the national defense.

Plaintiffs point out that the military provides child care facilities to personnel who are already enlisted (Exhs. 43 and 44). They note that these services could be expanded. Strict enforcement, they say, of regulations requiring discharge for military parents who are performing poorly and regulations requiring the maintenance of careful dependent care planning would be an alternative to a blanket prohibition against single parent enlistment. See Katcoff, 755 F.2d at 235.

Plaintiffs also suggest that prohibiting single parents from bringing their children to basic or technical training would be a reasonable alternative. Plaintiffs even urge that current regulations limiting the locations to which a service member may bring children be extended to cover single parents, with perhaps more rigid limitations on single than married parents (Plaintiffs’ Brief, Item 169, pp. 128-29).

Again, however, plaintiffs skim over the difference between those who have already undergone training and have experience and those who are attempting to enlist. As discussed earlier, simply because the military provides child care services to trained personnel does not mean it is required to provide such services for those who are seeking to enlist. A common theme from the evidence submitted by defendants is a concern with the growing number of single parents and military couples with children and a belief that the greater the number, the greater the potential that readiness would be undercut. Under these circumstances, admitting those who are already single parents would increase the burden.

Plaintiffs have not shown that setting a lower age limit for dependents, rather than age 18, would significantly alleviate these problems. Nor does setting the age limit at the level at which commercial airlines permit minors to fly unaccompanied present a practical solution.

The most dramatic single illustration offered by plaintiffs supporting individual waivers involves named plaintiff Thelma Barnes. Ms. Barnes and her sister enlisted in the Army Reserves on the same day. Each had a child, but only the sister was married. Although Ms. Barnes transferred guardianship of her child to her mother, her enlistment was voided under the regulations then in force. Her sister, although she was married, relied on their mother to care for her child, as Ms. Barnes would have. The sister remained in the Reserves was promoted to sergeant (see Exh. 17). This lends support to plaintiffs’ argument that, at the least, single parent applicants should be reviewed on an individual basis.

It should be noted that both the Army and the Air Force had experimented with more liberal restrictions on the enlistment of single parents, permitting waivers for single parents if the application was “meritous” or if they could provide a detailed dependent care plan. Both the Army and Air Force had liberalized policies for a period in the early 1970s. The Air Force made another attempt from 1978-81. Both branches returned to the stringent regulations, such as those which barred the enlistment of the named plaintiffs, because the liberalized enlistment requirements were perceived to impair the readiness of the military and create problems in training (see pp. 14-24, Item 158).

Finally, plaintiffs urge the court to consider differences between the Army and Air Force and between the active branches and the reserves. Although the Army and Air Force do have differences in their functions and needs, each has provided evidence, in the form of depositions and studies, that single parents pose some threat to readiness and mobility.

Plaintiffs’ point as to the reserves has more appeal at first glance. Reservists live in civilian communities and are called upon only occasionally to report for duty. The purpose of the reserves is to be active in the event of war. Major General Paul S. Williams, Army Director of the Office of the Deputy Chief of Staff, cautioned that, although less time is required of the reserves during peacetime, there may be a need for sudden mobilization (Item 51, pp. 34-36). Robert Pirie, Jr., described the “total force concept,” in which the active Army (Air Force) and its reserves are viewed as one force. He stated that, in the event of an emergency, the reserves would be required to deploy in accordance with schedules which would be just as stringent as those of the active Army or Air Force (Plaintiffs’ Exh. 5, pp. 57-59). In light of this, regulations proscribing single parent enlistment in the active forces would be equally valid for the reserves.

Plaintiffs’ motion for summary judgment is denied. Defendants’ motion is granted, and the complaint is dismissed.

So ordered.

APPENDIX A.

ARMY AND RESERVES

Army Regulation AR 601-210

Effective April 1, 1975, and continued July 28, 1976

Same as Army Reserve Regulation AR 140-111, Effective May 1, 1975

RULE F — DEPENDENTS

IF APPLICANT IS

Without Prior Service ...

(2) An applicant without a spouse and with one or more dependents under 18 years of age is disqualified, except as provided in (3) and (4) below. No waiver is authorized.

(3) A divorced applicant may be processed for enlistment when the child or children have been placed in the custody of the other parent by court order and the applicant is not required to provide child support. No waiver is required.

(4) A divorced applicant may be processed for dependency waiver when the child or children have been placed in the custody of the other parent by court order and the applicant is required to provide child support.

Army Regulation AR 601-210

Effective November 1, 1980, as amended December 1, 1980

F — DEPENDENTS

With or without prior service

2. An applicant “without a spouse”—

a. who has “dependent(s)” under 18 years of age who has been placed in the custody of the other parent or another adult by court order, or as provided by state law and the applicant is

(1) not required to provide child support or required by court order to provide child support for 2 or less “dependent(s).”

(2) required by court order to provide child support for three or more “dependent(s).”

b. who has “dependents)” under 18 years of age who has not been placed in the custody of the other parent or another adult by court order or as provided by state law.

Eligibility Status

a. (1) Eligible.

(2) Not eligible; waiver requests considered.

b. Not eligible; waiver requests not considered.

Army Reserve Regulation AF 140-111 Effective February 1, 1979

RULE F — DEPENDENTS IF APPLICANT IS

Without Prior Service

(2) An applicant without a spouse and with one or more dependents under 18 years of age is disqualified, except as provided in (3) and (4) below. No waiver is authorized. An applicant without a spouse is defined as an applicant who is unmarried, is divorced, is legally separated, spouse is deceased, spouse has deserted applicant, spouse is incarcerated, spouse is not residing permanently with applicant, or applicant has sole custody of the dependents.

(3) An applicant without a spouse may be processed for enlistment when the child or children have been placed in the custody of the other parent of the child or children by court order and the applicant is not required to provide child support. No waiver is required.

(4) An applicant without a spouse, required to pay support for no more than two dependents under 18 years of age and where said dependents have been placed in the custody of the other parent of the child or children by court order, may be processed for enlistment without a waiver. If there are more than two dependents, a waiver is required prior to enlistment.

Army and Army Reserves combined Regulation AR 601-210 Effective October 1, 1982, through date of decision

2. An applicant “without a spouse”—

a. Who has “dependent(s)” under 18 years of age who has (have) been placed in the custody of the other parent or another adult by court order or as provided by State law and the applicant is—

(1) Not required to provide child support or required by court order to provide child support for two or less “dependents.”

(2) Required by court order to provide support for three or more “dependents.”

(3) Servicemembers who have surrendered custody of dependents under this rule will certify at the time of enlistment that it is their intent that the custody agreement will survive the term for which enlisting; servicemembers who enlist subject to this provision and who regain custody of their children during the term of enlistment will be

processed for involuntary separation for fraudulent enlistment unless they can show that the regaining of such custody is not contrary to the intent stated upon enlistment.

b. Who has “dependent(s) under 18 years of age who has (have) not been placed in the custody of the other parent or another adult by court order or as provided by State law.

Eligibility

a. (1) Eligible.

(2) Not eligible; waiver requests considered.

(3) Eligible; DA Form 3286-31R (Fig. 2-1) will be executed at the time of enlistment. DA Form 3286-31R will be locally reproduced on 8V2 x 11-inch paper.

b. Not eligible; waiver requests not considered.

APPENDIX B.

AIR FORCE AND AIR FORCE RESERVES

AFR-33-3

Effective March 31, 1975

Applicants are ineligible to enlist if one of the following conditions exists * * *

15. Applicants with one or more dependents under age 18 but without a spouse in household (note 4.) (Not applicable for enlistment in the ROTC or OTS programs.)

4. See paragraph 1-lj for definition of dependent. Dependency waivers may be requested:

a. When dependents have been placed by court order into the custody of some other person (irrespective of applicant’s responsibility to provide child support payments), or

b. For former Air Force members separated for pregnancy who apply for reentry within 1 year of date of separation.

AFR 33-3

Effective October 14, 1977

Applicants are ineligible to enlist when one of the following conditions exist

12. Applicant with one or more dependents under age 18 but without a spouse in household or with a common-law spouse (see notes 2 and 5). (Not applicable for enlistment in the Officer Training School or Prior Service programs.)

NOTES:

2. See paragraph 1-lh for definition of dependent. Dependency waivers may be requested:

a. When dependents have been placed by court order into the custody of some other person (irrespective of applicant’s responsibility to provide child support payments) or

b. When dependents have been placed for an indefinite period of time in the physical care, custody, and control of a person who has been authorized by the parent’s notorized [sic] Certificate of Child Care Arrangements to act on behalf of the dependent(s). The custody period involved will vary based on job assignment and will cover basic military training and technical training, if required. Additionally, it is recommended that the dependents) not join the parent at initial duty station until such a time as the parent has adjusted to the job and military base environment and made full arrangements for child care.

c. No waiver is required if applicant can prove permanent transfer of legal control to some other person through court order or adoption proceedings, provided actual transfer of legal control over the children) has occurred. Children) must still be listed on enlistment documents and present status explained. Documents (court order or adoption papers) must be reviewed by the recruiter and AFEES I NCO. An AF Form 3010, Statement of Understanding (Dependency) must still be signed by the applicant.

* * *

5. An applicant with minor children and a common-law spouse should be considered to be enlistment eligible if both parties are bona fide domiciled in a State recognizing common-law marriage, at the time they enter into such relationship. Waivers for enlistment under this situation are processed to the Recruiting Service Squadron Commander for approval.

ATCR 33-2

Effective August 31, 1982

(a) In the case of an applicant having any minor dependents and NO SPOUSE IN THE HOUSEHOLD, waiver is authorized if care, custody, and control of minor dependents have been assumed by another individual via court order. In addition, the applicant must complete a handwritten statement using ATC Form 1357, Dependent Care Statement regarding plans for post-enlistment care. Divorced or separated applicants must provide a plan should they be required to resume custody.

(b) Waivers may be considered only where custody of minor dependents has been transferred by court order to another person.

1. Bonafide court orders are the only acceptable documents that can be used to prove transfer of custody. Applicants must provide an original order (or copy) authenticated by a court official.

2. Evidence of custody transfer must show that it is unconditional and contain no conditions under which the applicant would resume custody during the initial term of service.

3. When an applicant claims or acknowledges to be the parent of an illegitimate child and no court order was or will be issued, a written agreement to pay child support and (or) an affidavit from the custodial parent establishing unconditional custody of the child with parties other than the applicant may be sufficient proof. Use of such documents apply only where court orders were not issued.