author: BUCHMEYER, District Judge.

text:
    Jett Edwards PATTERSON, individually and as representatives of the Estate of James Patterson, deceased, Plaintiff, v. Rohm GESELLSCHAFT, Heinrich Rohm, Sr., Guenter Rohm, William S. Kirk; and Heinrich Peter Rohm, individually and d/b/a R.G. Industries, Inc., Defendants.
    No. CA 3-81-1006-R.
    United States District Court, N.D. Texas, Dallas Division.
    May 14, 1985.

      Windle Turley and John Howie, Dallas, Tex., for plaintiff.
    Robert G. Vial, Vial, Hamilton, Dallas, Tex., for defendants except Gesellschaft.
    Robert F. Ruckman, Jackson Walker, Dallas, Tex., for Gesellschaft.
    Chas. C. Sorrells, Dallas, Tex., for intervenor American Motorist Ins.
   MEMORANDUM OPINION

BUCHMEYER, District Judge.

This is a products liability action. The “product” involved is a Rohm .38 caliber revolver, a “Saturday Night Special.”

However, this handgun is not defective. Admittedly, there was no malfunction because of some manufacturing error; the gun did not lack any necessary safety features; and, it performed exactly as a handgun is intended to do, by firing a bullet with deadly force when the trigger was intentionally pulled.

But unfortunately, this .38 caliber revolver was used in a robbery. And tragically, this gun caused the death of the clerk at the grocery being robbed. Consequently, the plaintiff’s attorneys make this far-reaching claim: that, under an unconventional and expanded theory of products liability, the mother of the murder victim can recover damages from the manufacturer and the seller of this nondefective revolver because the risks of injury and death that accompany handguns “greatly outweigh any utility they may have” and, consequently, handguns are “unreasonably dangerous.” Restatement (Second) of Torts § 402A (1965).

This claim is totally without merit and totally unsupported by legal precedent. It is a misuse of tort law, a baseless and tortured extension of products liability principles. And, it is an obvious attempt— unwise and unwarranted, even if understandable — to ban or restrict handguns through courts and juries, despite the repeated refusals of state legislatures and Congress to pass strong, comprehensive gun-control measures.

Accordingly, this opinion grants summary judgment dismissing this supposed products liability claim.

1. FACTUAL BACKGROUND

The handgun in question was manufactured and sold in 1967 by a West German company, the defendant Rohm Gesellschaft (“Rohm”). The gun is a .38 caliber revolver with a four-inch barrel and a total length of only nine inches. It is cheap, small, light, easy to conceal — and, for these reasons, is of the type commonly referred to as “snubbies” or “Saturday Night Specials.”

On December 29, 1980 — over 13 years after the handgun was manufactured — it was used by Berlin Ransom in the attempted robbery of a “7-Eleven” store in Dallas, Texas. During the crime, Ransom shot and killed James Patterson, the clerk at this convenience grocery. Later, Ransom was caught and convicted; he is now confined in the Texas Department of Corrections.

The plaintiff, Jett Edwards Patterson, is the mother of James Patterson, the murder victim. She seeks $500,000 in damages from Rohm, the manufacturer, and from R.G. Industries, a firearm distributor in Florida (and its officers, Heinrich Rohm, Sr., Guenter Rohm, Heinrich Peter Rohm and William Kirk). Although it is conceded that the Rohm .38 revolver did not malfunction — and performed exactly as it was intended — the plaintiff’s attorneys nevertheless make these two “products liability” claims:

(i) Design Defect: that the handgun was “defective and unreasonably dangerous” in its design because handguns simply pose risks of injury and death that “far outweigh” any social utility they may have.
(ii) Defect in Distribution: that the system of distributing and marketing handguns was “defective and unreasonably dangerous” because it is too easy for handguns to be obtained by criminals and others who misuse them.

Both of these theories are baseless. They have been rejected by almost every court that has considered them. Since it is admitted that there was nothing wrong with the .38 caliber revolver, the plaintiff cannot recover under either of the purported “products liability” claims.

2. THE ALLEGED DESIGN DEFECT

a. The Texas Law

The Texas law of products liability controls this diversity case. Texas has adopted the Restatement (Second) of Torts § 402A — which provides that one who sells a product “in a defective condition unreasonably dangerous” is subject to liability for injuries caused by the product. Turner v. General Motors Corp., 584 S.W.2d 844 (Tex.1979); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967).

However, under Texas law, the manufacturer is not required to insure that its products are completely safe or that they will not cause injury to anyone. Instead, the manufacturer is liable for injuries resulting from a product only if that product is “defective” — i.e., has a defect in the sense that something is wrong with it. Syrie v. Knoll International, 748 F.2d 304 (5th Cir.1984); Davidson v. Stanadyne, Inc., 718 F.2d 1334 (5th Cir.1983). This required defect may be one of three distinct types;

(i) The product may malfunction because of some manufacturing defect.
(ii) The product may be defective because it was sold without sufficient warning or instructions.
(iii) the product may be defective because its basic design is unsafe. See Note, supra footnote 1, at 1912-13.

In cases involving the third type of defect, that of defective design, Texas uses the “risk/utility balancing test”: whether the product is “unreasonably” dangerous in the sense that “the danger-in-fact associated with the use of the product outweighs the utility of the product.” Davidson, 718 F.2d at 1338; Carter v. Massey-Ferguson, Inc., 716 F.2d 344, 347 (5th Cir.1983). Typically, this requires the jury to weigh the risks involved in the defective product against the feasibility and cost of an improved design. For example, if placing the gasoline tank in the center of the car “would reduce the chances of fire in rear-end collisions without creating other risks, significantly reducing performance, or significantly increasing costs, then the risk of the rear-end design outweighs its utility, and the car is defective.” See Note, supra footnote 1, at 1913-14.

b. The Contentions of the Plaintiffs Attorneys

In this case, it is admitted that the Rohm .38 caliber revolver did not malfunction and that it did not lack any essential safety features. Nevertheless, the plaintiff’s attorneys argue (i) that Texas law no longer requires a showing that the product is defective; (ii) that the word “defective” in § 402A is merely synonymous with the phrase “unreasonably dangerous”; and (iii) that the jury may simply apply the “risk/utility test” to any product (whether or not it has a defect).

By this reasoning, the plaintiff’s attorneys contend — in this and other cases— that a nondefeetive handgun will be “defective and unreasonably dangerous” if the jury determines that the risks of injury and death outweigh any utility a handgun may have. (Transcript, pp. 11, 15, 30.) Specifically, they argue that:

“... Handgun use results in 22,000 deaths every year in the United States and that medical care for gunshot victims costs approximately $500 million each year. Although handguns constitute only thirty percent of all firearms sold in the United States, ninety percent of all cases of firearm misuse involve handguns. Most murders are sudden crimes of passion; without the ready availability of handguns, such crimes would be less likely. Proponents of manufacturers’ liability further argue that handguns are almost useless for self-protection: a handgun is six times more likely to be used to kill a friend or relative than to repel a burglar, and a person who uses a handgun in self-defense is eight times more likely to be killed than one who quitely acquiesces. Thus, handguns, at least as distributed to the general public, are said to be defective.” (Note, supra footnote 1, at 1914.)

These arguments, of course, apply to all handguns, not just the “Saturday Night Special” involved in this case. See Mavilia v. Stoeger Industries, 574 F.Supp. at 110, footnote 2.

Aside from the fact that contrary evidence can obviously be advanced to argue the “social utility” of handguns — and despite this Court’s admiration for such a delightfully nonsensical claim: that a product which does not have a defect can nevertheless, under the law, be defective — the plaintiffs attorneys are simply wrong. Under Texas law, there can be no products liability recovery unless the product does have a defect. Without this essential predicate, that something is wrong with the product, the risk/utility balancing test does not even apply.

c. The Product Must Be Defective

There can be no valid products liability claim without a product which has a defect. This is demonstrated by any of the Fifth Circuit cases which state the principles of Texas products liability law. For example, in Syrie v. Knoll International, 748 F.2d at 306, the court listed the four essential elements of a “strict liability cause of action” — and the very first one was “a product [that] is defectivfe.” Similarly, in Davidson v. Stanadyne, 718 F.2d 1334, the Fifth Circuit stated:

“The principles governing recovery in a products liability case alleging defective design under Texas law have been recently summarized in Kindred v. Con/Chem, Inc., 644 S.W.2d 828 (Tex. App.—Corpus Christi 1982), rev’d on other grounds, 650 S.W.2d 61 (Tex.1983):
'As established in [Turner v. General Motors Corp., 584 S.W.2d 844 (Tex. 1979) ], the predicate for recovery in a defective design case is a showing that the product was defective, that the defect made the product unreasonably dangerous and that the defect was a producing cause of injuries ----’ ” (718 F.2d at 1338) (emphasis added).

See also Scronce v. Howard Bros. Discount Stores, Inc., 679 F.2d 1204 (5th Cir.1982) (sustaining directed verdict in favor of the gun manufacturer because the plaintiff failed to prove that there was a defect in the rifle); Hulsebosch v. Ramsey, 435 S.W.2d 161, 164 (Tex.Civ.App.—Houston 1968) (it is undisputed “that there was no malfunction of the weapon at the time it was fired by Taylor. The used military rifle did precisely what it was designed to when aimed at someone and its trigger pulled____ It is doubtful in a situation of this kind whether the doctrine of implied warranty or strict liability would apply in any event. Cf. Sec. 402A, Restatement of the Law of Torts, Second, Comment ‘0,’ p. 356.)”

d. “Defective” vs. “Unreasonably Dangerous”

This established principle — that a manufacturer is liable only if there is a defect in its product — is not changed by the fact that there are, as the plaintiffs attorneys argue, Fifth Circuit opinions which state that the words “defective” and “unreasonably dangerous” are essentially synonymous. This is, in fact, true in most design defect cases.

However, even a cursory review of these cases demonstrates that, in each instance, the Fifth Circuit required the existence of a defect — either one arising in a product’s design, or in its manufacture, or in its marketing — before there could be recovery under Texas products liability law. (See footnote 14.) Moreover, the operative phrase used in § 402A of the Restatement (Second) of Torts —a product “in a defective condition unreasonably dangerous”— was deliberately chosen to make it clear that the product must be defective, and that the manufacturer of a product that may involve some danger, but that is not defective, will not be held liable.

e. The “Risk/Utility Test”

In addition, the theory advanced by the plaintiff’s attorneys perverts the very purpose of the “risk/utility balancing test” used in Texas products liability cases.

That test, itself, incorporates the idea that a defect is something that can be remedied or changed. Thus, in considering a design defect claim, the “very factors a jury is supposed to consider when weighing risk and utility includes the feasibility and cost of an improved design.” Note, supra footnote 1, at 1916; Davidson v. Stanadyne, 718 F.2d at 1340; Hagan v. EZ Mfg. Co., 674 F.2d at 1051-52.

But here, the plaintiff’s attorneys offer no alternatives and no safer designs for a handgun. Nor can they do so — because a gun, by its very nature, must be dangerous and must have the capacity to discharge a bullet with deadly force. See Note, supra footnote 1, at 1916. Accordingly, by their unconventional application of the risk/utility test to a nondefective product, the plaintiffs attorneys simply want to eliminate handguns.

Moreover, if this unconventional theory were correct, then it should apply equally to other products besides handguns — to rifles, to shotguns, to switchblade and kitchen and Swiss Army knives, to axes, to whiskey, to automobiles, etc. — even though these products are not defective. The possible consequences of expanding products liability in this manner have been described:

“... a plaintiff would need only to prove that the product was a factual cause in producing his injury. Thus, the manufacturer of a match would be liable for anything burned by a fire started by a match produced by him, an automobile manufacturer would be liable for all damages produced by the car, a gun maker would be liable to anyone shot by the gun, anyone cut by a knife could sue the maker, and a purchaser of food with high calories would have an action for his overweight condition and for an ensuing heart attack. The liability would be like that created by a particularly stringent dramshop law.”

The plaintiff’s attorneys argue that this drastic expansion need not occur — that a handgun is not serving its function when it is used for unlawful purposes, so at least the illegal use of handguns should be subject to the risk/utility balancing test. Obviously, this is wrong:

“... Virtually any product can be put to an illegal use: an automobile can be used in order to make a getaway from a bank robbery, or a ship in order to smuggle drugs, yet no one would suggest that those products were not performing their intended function of transportation. The argument that a jury should be permitted to subject a product to risk/utility scrutiny merely because it is often used illegally has no logical limit: the manufacturer of any product that is frequently put to illegal use could be called into court to defend his product.” Note, supra footnote 1, at 1917.

f. Other Flaws

The plaintiffs attorneys make four other erroneous arguments in support of their unconventional theory:

(i) They assert that in several cases the product was not defective, and performed exactly as it was intended — like the handgun in this case — but the manufacturer was nevertheless held liable because the product was found to be “unreasonably dangerous.” This is not correct. The products in these eases were, in fact, defective because they were sold without sufficient warning of health risks or flammability.

(ii) They assert that imposing this absolute liability upon handgun manufacturers simply furthers the products liability goal of placing the financial burden upon those who are best able to spread the loss. This is not correct. Our tort law is premised upon fairness, making individuals responsible for their own acts. Note, supra footnote 1, at 1919. The ability of a gun manufacturer to “spread the loss” is not a sufficient basis for requiring guiltless purchasers of guns to subsidize the actions of those who use firearms wrongfully. If it were, then we should simply hold — contrary to established principles — that all manufacturers who cannot produce a “fail-safe product” are insurers because of their ability to spread loss. Id., at 1920, footnote 41.

(iii) They argue that, if their theory is not accepted, handgun manufacturers will be given a “special immunity” from responsibility for physical harm caused by their products. (Transcript, p. 9; Turley, supra footnote 9.) This is not correct. If this unconventional and unfounded theory is accepted, then — contrary to one of the basic principles of products liability — handgun manufacturers would become insurers for all injuries resulting from their products. Syrie v. Knoll International, 748 F.2d at 307. However, by its rejection, manufacturers of handguns, like the producers of any other product, will be responsible for injuries caused by defects in designing their products, in manufacturing them, and in distributing them. Carter v. Massey-Ferguson, 716 F.2d at 346, footnote 1.

(iv) They claim that the fact that not a single legislature has banned handguns— and that most have rejected efforts for any meaningful gun control — “weighs very heavily in the plaintiffs favor.” (Transcript, p. 26; see Turley, supra footnote 9.) This is not correct. It would be improper for courts to ignore the fact that legislatures have repeatedly rejected arguments like those made by the plaintiff’s attorneys in this case. Indeed, as other courts have held, the clear inference is that the majority of legislators — certainly those in Texas — do not consider that the manufacture and sale of handguns to the public is unreasonably dangerous or is socially unacceptable.

3. THE ALLEGED DEFECT IN DISTRIBUTION

The plaintiff’s attorneys also claim that the manner in which handguns are distributed is “defective and unreasonably dangerous” because it is too easy for handguns to be obtained by persons who misuse them (including criminals, such as Berlin Ransom in this case). Here, they rely upon Rickman v. Charter Arms Corp., 571 F.Supp. 192 (E.D.La.1983), in which the district court did hold that the sale of handguns indiscriminately to the public could constitute an “ultrahazardous activity under Louisiana law.”

However, Richman — which is pending on the Fifth Circuit’s certification of the controlling issues to the Louisiana Supreme Court (see footnote 5) — is contrary to Texas law. There is simply no such products liability principle as “defect in distribution.” Under Texas law, the plaintiff in a products liability case must establish that the product was defective because of its unsafe design, or an error in manufacturing, or the failure to give adequate warnings or instructions. See Davidson, 718 F.2d at 1338; Carter v. Massey-Ferguson, 716 F.2d at 346, footnote 1. This is also true in Illinois, so Richman was specifically rejected by the Seventh Circuit in Martin v. Harrington and Richardson, 743 F.2d 1200:

“Our primary misgiving with Richman is that it blurs the distinction between strict liability for selling unreasonably dangerous products and strict liability for engaging in ultrahazardous activities by making the sale of a product an activity. Accepting plaintiffs’ argument would run counter to Illinois’ long-standing requirement that strict liability for the sale of a product be limited to unreasonably dangerous products. Illinois has never imposed liability upon a non-negligent manufacturer of a product that is not defective.
“A change in this policy, as observed in Riordan, would require that manufacturers of guns, knives, drugs, alcohol, tobacco and other dangerous products act as insurers against all damages produced by their products. Whatever the economic wisdom of such a policy might be, there is no basis for assuming that Illinois wishes to adopt it." (743 F.2d at 1204.)

Moreover, as discussed above, the risk/utility balancing test is founded upon the premise that the alleged defect can be repaired or remedied. Yet, there is simply no way that a manufacturer could devise a safe and effective system of distributing handguns — without ceasing distribution entirely, even to persons who want them for legitimate reasons. See Martin, 743 F.2d at 1201, footnote 1; Note, supra footnote 1, at 1291.

In addition, even if the alleged “defect in distribution” could be shown, there would be no liability unless the defect actually caused the injury. Yet:

“... In order to prove actual causation (cause in fact), the plaintiff would have to show that his assailant would not have acquired a handgun had the manufacturer used a ‘nondefective’ system of distribution. If the assailant would have been able to purchase a handgun despite a ‘better’ system of distribution, the plaintiff could not recover. Because many of the people who misuse handguns have no criminal record or established history of violence, a distributional system that attempted to weed out people who were likely to misuse handguns could not prevent distribution to most of those who actually did misuse them; hence the cause-in-fact requirement would be difficult to fulfill.” (Note, supra footnote 1, at 1922-23.)

Accordingly, the Third Circuit, also rejected the Richman decision in Martin v. Harrington and Richardson, 743 F.2d at 1205, by specifically holding that the criminal misuse of a handgun breaks the causal connection between the manufacturer’s actions and the injury “because such criminal activity is not reasonably foreseeable.”

This is also the law in Texas. In Hulsebosch v. Ramsey, 435 S.W.2d at 163, the court held that the seller of a rifle was not liable to someone shot by it because the seller could not have foreseen “the clearly negligent act of young Taylor in aiming the rifle at plaintiff and pulling the trigger.” Accordingly, the supposed product liability claim of a “defect in distribution” is also baseless, and is rejected.

4. CONCLUSIONS

Despite the well-documented dangers of “Saturday Night Specials” and other handguns, not a single state has seen fit to prohibit the manufacture and sale of handguns. Nor has Congress passed any meaningful gun-control measures.

The increasing number of cases like this one (footnote 9) are intended to change this (see footnote 9), and to accomplish gun control under the guise of products liability law — by trying to subject handgun manufacturers to liability for all injuries caused by their products. Presumably, the proponents of these suits feel that “judges and juries enjoy immunity from the political pressures of the gun control lobby,” and that handgun control “is not going to come legislatively any time soon, if ever.” Note, supra footnote 1, at 1925.

But the unconventional theories advanced in this case (and others) are totally without merit, a misuse of products liability laws. It makes no sense to characterize any product as “defective” — even a handgun — if it performs as intended and causes injury only because it is intentionally misused. Similarly, the claim that handgun manufacturers should be held responsible for keeping their products out of the hands of criminals — an admittedly impossible task — is an unsupported, tortured extension of products liability principles. Id., at 1912. Both theories are contrary to the established law that a manufacturer is not an insurer of its products; and both theories would, unless logic is abandoned, be applicable to other products besides handguns.

Moreover, the judicial system is, at best, ill-equipped to deal with the emotional issues of handgun control. Certainly, there can be no effective handgun control imposed on an ad hoc basis by six or twelve jurors sitting in judgment on a single case. Decisions in these suits — made on the basis of a particular record developing a unique set of facts — will necessarily be inconsistent, and there can only be varying and uneven results in different jurisdictions. Id., at 1925-27; supra, footnote 5. Thus, an overwhelming number of cases — and tremendous expenditure of judicial resources — would be required before the proponents of these unconventional theories could even begin to accomplish their ultimate goal: driving all handgun manufacturers out of business. (See Turley, supra footnote 9.)

As an individual, I believe, very strongly, that handguns should be banned and that there should be stringent, effective control of other firearms. However, as a judge, I know full well that the question of whether handguns can be sold is a political one, not an issue of products liability law — and that this is a matter for the legislatures, not the courts.

Accordingly, this case is DISMISSED.

      . This opinion adopts the well-reasoned and well-researched analysis of this issue in Note, "Handguns and Product Liability, 97 Harv.L.Rev. 1912 (1984).

      . The summary judgment record consists of the pleadings, the depositions, and the facts stipulated by the parties. See Transcript of Hearing on Motions, pp. 4-8.

      . The record does not establish whether the Rohm .38 revolver was purchased or stolen by Ransom.

      . The defendants R.G. Industries and William Kirk also move for summary judgment on the grounds that, although the gun in question was manufactured in 1967, R.G. Industries did not even exist until 1968 and Kirk was not even employed by that company until 1978. In response, the plaintiff contends that R.G. Industries is the "alter ego" of Rohm Gesellschaft, and that discovery must be permitted before this motion for summary judgment is ready for disposition. Because of the result reached by this opinion, it is unnecessary to address these collateral disputes.

      . This precise issue has not been decided by a Texas court or by the Fifth Circuit. However, every reported decision to date — except one— has refused to permit shooting victims to recover damages from handgun manufacturers under "absolute or strict liability principles." See Martin v. Harrington & Richardson, Inc., 743 F.2d 1200 (7th Cir.1984); Mavilia v. Stoeger Industries, 574 F.Supp. 107 (D.Mass.1983); DeRosa v. Remington Arms Co., 509 F.Supp. 762 (E.D.N.Y.1981); Bennet v. Cincinnati Checker Cab Co., Inc., 353 F.Supp. 1206 (E.D.Ky.1973); Linton v. Smith & Wesson, 127 Ill.App.3d 676, 82 Ill.Dec. 805, 469 N.E.2d 339 (1984); Robinson v. Howard Brothers of Jackson, Inc, 372 So.2d 1074 (Miss.1979); Riordan v. International Armament Corp., 81 L 27923 (Circuit Court Cook County, Law Division July 21, 1983) (quoted in Martin, 743 F.2d at 1203-04).
      The sole exception is Richman v. Charter Arms Corp., 571 F.Supp. 192 (E.D.La.1983). Although this case holds that a nondefective handgun is not unreasonably dangerous, it found that selling such a gun to the public could constitute "an ultrahazardous activity” under Louisiana law. However, Richman is directly contrary to another unreported decision in the same court, the Eastern District of Louisiana (Perkins v. F.I.E. Corp., Civil Action No. 82-3982), which was rendered one month before the Richman opinion. Moreover, on appeal, these two cases were consolidated, and the Fifth Circuit certified the controlling legal questions to the Louisiana Supreme Court. Perkins v. F.I.E. Corp., 743 F.2d 262 (5th Cir.1984). The certified questions are still pending before the Louisiana Supreme Court.
      There are also some unreported decisions in which trial courts have permitted juries to consider unconventional theories like those advanced by the plaintiffs attorneys in this case. See the Florida state court case cited in Mavilia, 574 F.Supp. at 110, and the Texas state court case discussed in Note, supra footnote 1, at 1920 (which was tried by the plaintiff’s attorneys in this action). However, in the Texas case, there was also a "traditional” products liability claim — a defective safety mechanism — that required submission of the case to the jury.

      . Syrie v. Knoll International, 748 F.2d 304, 307 (5th Cir.1984) ("A manufacturer is not an insurer of the product he designs ... ”); Carter v. Massey-Ferguson, Inc., 716 F.2d 344, 347 (5th Cir.1983) ("A manufacturer is not obligated to design a completely safe product”); Hagan v. EZ Mfg. Co., 674 F.2d 1047, 1048 (5th Cir.1982) ("We hold that, as a matter of law, the doctrine of products liability does not require a manufacturer to build a failsafe product”).

      . Although some commentators have argued that consumers must be warned about the dangers of handgun use and the possibility of handgun theft (see Note, supra footnote 1, at 1913), there is no duty to warn of "dangers” that are obvious and commonly known. Obviously, it is not “necessary to tell a zookeeper to keep his head out of the hippopotamus’ mouth.” Bartkewich v. Billinger, 432 Pa. 351, 247 A.2d 603, 606 (1968). See Hagan v. EZ Mfg. Co., 674 F.2d at 1052.

      . In Carter v. Massey-Ferguson, 716 F.2d at 346, footnote 1, the Fifth Circuit described the three established catagories of defects in this manner: “ 'Defective' is a term of art that encompasses several actionable defects. A product can be defective because it is flawed. Flawed products are not in their intended condition because of an error in the manufacturing process. Although the condition of a product complies with the manufacturer’s intention, it can still be 'defective' if the design is not sufficiently safe or if the product does not have adequate instructions or warnings."

      . In a law review article written by one of the plaintiff's attorneys, it is estimated that the “fifty suits that have already been filed against handgun manufacturers and suppliers premised on theories of strict liability as described above, will grow to 200” during 1983. Turley, “Manufacturers' and Suppliers’ Liability to Handgun Victims," 10 N.Ky.L.Rev. 41 (1982).

      . See Turley, supra footnote 9.

      . In this case, the defendants were directed that it was not necessary to include any such evidence in the summary judgment record. Transcript, pp. 31, 35. However, some arguments are obvious:
      "... statistics on deaths involving handguns cannot capture all the possible uses and benefits of handguns. Handguns are collected as a hobby and are used for target shooting and hunting, as well as for self-defense. Despite the great movement in this country to ban or restrict handgun ownership, the failure of any state legislature to do so strongly suggests a general legislative agreement that handguns do have social utility. Furthermore, handguns provide their owners with a psychic security that cannot be easily measured. And although the chances that an intruder will be shot by a homeowner or merchant are small, the consequences of a gunshot wound are so serious that the possibility may deter many people from attempting crimes." Note, supra footnote 1, at 1915.
      Indeed, in the Texas state case mentioned above (footnote 5), the jury heard conflicting evidence like this — and then rendered verdict in favor of the manufacturer, refusing to find that the handgun was unreasonably dangerous or that "its risk outweighed its utility.” Note, supra footnote 1, at 1925.

      . Lewis Carroll would have certainly approved. In “Through the Looking Glass,” he was very candid in Humpty Dumpty’s statement: "When I use a word, it means just what I choose it to mean — neither more or less.”

      . See Note, supra footnote 1, at 1915-16 (particularly footnotes 19 and 20).

      . See Hagans v. Oliver Machinery Co., 576 F.2d 97, 99 footnote 4 (5th Cir.1978) (verdict for plaintiff reversed because there was no design defect in an industrial table saw); Mitchell v. Fruehauf Corp., 568 F.2d 1139, 142 footnote 1 (5th Cir.1978) (manufacturer of refrigerated meat trailer liable because of its design defect: instability caused by hanging quarters of beef unrestrained by partitions or tying to floor); Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1087 footnote 20 (5th Cir.1973) (insulation material containing asbestos defective because manufacturer failed to warn of dangers involved in inhaling asbestos dust).

      . When § 402A was originally drafted, it provided for liability if the product was "in a condition dangerous to the consumer.” However, this language was amended to prevent products (e.g., whiskey) from being found "unreasonably dangerous" in their normal, nondefective condition. The word “defective" was added “to ensure that it was understood that there must be something wrong with the product.” 38 ALI Proceedings 87-88 (1961), quoted in Wade, “Design Defect", 43 Ohio State Law Journal 61, 73 (1982). See also Restatement (Second) of Torts § 402A (comment i).

      . See Turley, supra footnote 9; Note, supra footnote 1, at 1924-26.

      . "... the Restatement (Second) of Torts states that '[g]ood whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics.' Yet thousands of people in America are alcoholics, and alcoholism inflicts great costs on society. Alcohol contributes to diseases such as cirrhosis of the liver, and drunk drivers cause thousands of injuries and deaths in automobile accidents each year. It is by no means clear that the pleasure people derive from alcohol outweighs the cost in human lives imposed by alcohol abuse.” (Note, supra footnote 1, at 1918-19.)

      . Wade, "On the Nature of Strict Tort Liability for Products," 44 Miss.L.J. 825, 828 (1973).

      . Turley, supra footnote 9, at 60-61.

      . Turley, supra footnote 9, at 60-61.

      . See Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir.1973) (asbestos insulation performed as intended, but manufacturer failed to warn of the risks of cancer); Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652 (1st Cir.1981) (birth control pills worked, but manufacturer failed to warn of dangers of stroke); D’Hedouville v. Pioneer Hotel Co., 552 F.2d 886 (9th Cir.1977) (acrylic fiber carpet manufacturer failed to warn of risks of fire); LaGorga v. Kroger Co., 275 F.Supp. 373 (W.D.Pa.1967) (jacket performed as intended, but manufacturer failed to warn of flammable nature).

      . Throughout this circuit, juries in products liability cases are routinely instructed that the manufacturer is not an insurer and "is not required to make certain that no one will be hurt in using its product or to market a product that is accident proof." See “Pattern Jury Instructions — Civil Cases," U.S. Fifth Circuit District Judges Association, pp. 115-16 (West 1980). See also the cases cited in footnote 6.

      . See Martin v. Harrington and Richardson, 743 F.2d at 1204; Mavilia v. Stoeger Industries, 574 F.Supp. at 111; Riordan, quoted in Martin, 743 F.2d at 1204.

      . During the 1981 session of the Texas legislature, at least 18 gun-control bills were introduced. None passed. Note, "A Farewell to Arms? — An Analysis of Texas Handgun Control Law, 13 St. Mary’s L.J. 601, 604-09, 620 (1982). The Texas Constitution guarantees that “every citizen shall have the right to bear arms in defense of himself and the republic” (Tex. Const. art. I, § 23), and chapter 46 of the Texas Penal Code imposes only moderate restrictions on handgun ownership and possession.

      . This theory is not as well-articulated in the present case as in others. However, the plaintiff's attorneys here also represented the plaintiff in Richman. See Turley, supra footnote 9. See also Note, supra footnote 9, at 1912, 1930.

      . This argument does find some support in Moning v. Alfono, 254 N.W.2d 759 (Mich.1979). There, the Michigan Supreme Court held that “if a jury finds that the risks of selling slingshots to young children outweigh the utility of permitting the children to have slingshots, the manufacturer can be held liable for the injury that results when one child shoots another with a slingshot.” Note, supra footnote 1, at 1920. However, the Moning opinion points out that “special rules for children are not unusual." 254 N.W.2d at 768. And, in any event, there are contrary decisions — see Bojorquez v. House of Toys, Inc., 62 Cal.App.3d 930, 133 Cal.Rptr. 483, 484 (1976) — so it has been noted that “the view expressed in Moning is not universally accepted, however, and will not easily be extended.” Note, supra footnote 1, at 1920-21.

      . For example, if the "defect in distribution” theory were adopted, “a jury could conceivably find that indiscriminately selling an automobile to any nonminor with enough money to buy one is a ‘defective’ method of distribution and that manufacturers should therefore compensate all victims of automobile accidents.” Note, supra footnote 1, at 1923-24.

      . Here, the plaintiff’s attorneys concede that even a "proper” distribution system for handguns would not answer their complaints. For example, if Rohm .38 caliber revolvers were distributed only to law enforcement officers— and if Berlin Ransom had killed Patterson with a Rohm .38 taken from a policeman who was trying to stop the robbery — the plaintiff’s attorneys still maintain that the case should "go to the jury” for a determination of whether the handgun was "unreasonably dangerous” because its risks outweighed its utility. Transcript, pp. 17-20.

      . See Holmes, Privilege, Malice, and Intent, 8 HARV.L.REV. 1, 10 (1894) (arguing that a seller of firearms should not be held liable for crimes committed with those firearms, because "every one has a right to rely upon his fellow-men acting lawfully”), quoted in Mavilia v. Stoeger Indus., 574 F.Supp. 107, 100 (D.Mass.1983). See also Note, supra footnote 1, at 1919 (particularly footnote 39); Bennet v. Cincinnati Checker Cab, 353 F.Supp. at 1210.


source: Caselaw Access Project

author: BRIEANT, District Judge.

license: Public Domain

text:
    BROTHERHOOD OF LOCOMOTIVE ENGINEERS, Plaintiff, v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC. and Consolidated Rail Corporation, Defendants.
    No. 84 Civ. 7104-CLB.
    United States District Court, S.D. New York.
    May 14, 1985.

      Brian Brown and Harold Ross, Shapiro, Shiff, Beilly, Rosenberg & Fox, New York City, for plaintiff.
    David S. Fortney, Morgan, Lewis & Bockius, New York City, for Conrail.
    Barbara Murphy-Warrington and Robert Stoloff, Asst. Attys. Gen., State of N.J., Trenton, N.J., for defendant New Jersey Transit Rail Operations, Inc.
   MEMORANDUM AND ORDER

BRIEANT, District Judge.

On October 2,1984, plaintiff Brotherhood of Locomotive Engineers (“BLE”) filed a complaint against New Jersey Transit Rail Operations, Inc. (“NJTRO”) and Consolidated Rail Corporation (“Conrail”) under the Railway Labor Act (“RLA”), 45 U.S.C. § 152, First. The complaint seeks declaratory judgment and prospective injunctive relief, to effectuate a collective bargaining agreement said to have been formed orally on March 23, 1983 between plaintiff and the defendants. Plaintiff seeks the unusual remedy under the RLA by which a designated representative can enforce “the duty upon defendants to bargain in good faith, including the duty to sign and acknowledge collective bargaining agreements” formed orally but not reduced to writing (Complaint, ¶ 14).

By notice of motion filed January 17, 1985, defendant NJTRO moves to dismiss the Complaint on the ground that the Eleventh Amendment to the United States Constitution bars this suit in the federal district court. This motion presents one very interesting legal issue: whether a state-owned rail carrier, engaged in interstate transportation of passengers, is amenable to suit in federal court by private parties seeking to enforce rights created by Congress in the exercise of its commerce clause power. For the reasons that follow, the Court answers this question in the affirmative.

The complaint alleges, and the documents cited or submitted demonstrate, that NJTRO is a public corporation of the State of New Jersey and a rail carrier of passengers whose lines extend into this District. NJTRO is a wholly owned subsidiary of New Jersey Transit Corporation, which is also a public corporation of the State of New Jersey, created by the New Jersey Public Transportation Act of 1979, as successor to the Commuter Operating Agency of the New Jersey Department of Transportation. Its purpose is to preserve and operate the essential commuter service into New York City which Conrail and its predecessor railroads had conducted for so long with such disastrous financial results. The State Legislature of New Jersey has made a legislative finding that New Jersey Transit Corporation and its subsidiaries are constituted as instrumentalities of the State exercising essential public and governmental functions of the State. This is said to be so notwithstanding that it sets its own tariffs for transportation services and it receives, deposits and expends its own funds in furtherance of its corporate objectives. N.J.S.A. § 27:25-5(n), (o), (p). Also NJTRO is independent of any supervision or control by any other department of the Executive Branch of the State of New Jersey. Id. at 25-4(a).

In its effort to maintain federal court jurisdiction, plaintiff argues that NJTRO is not an arm of the State, or the State’s “alter ego”, for Eleventh Amendment purposes. We disagree. Under similar facts, the United States District Court for the District of New Jersey already has determined that New Jersey Transit Corporation is the alter ego of the State for diversity purposes. Gibson-Homans Co. v. New Jersey Transit Corp., 560 F.Supp. 110, 113 (D.N.J.1982). In that decision the Court pointed out that although the State has purportedly disclaimed liability for any debts or liabilities of the corporation, N.J. S.A. § 27:25-17, the same statute prohibits the corporation from incurring a deficit or from raising money through the sale of its own bonds. Similarly, all property of New Jersey Transit is deemed by statute to be state property. Id. at § 27:25-16. The Gibson-Homans Court found that these facts necessarily require that state funds flow freely into the coffers of New Jersey Transit as needed to prevent a deficit. “This substantial and continuing contribution of state money to New Jersey Transit’s budget is a sufficiently direct effect on the state Treasury to support a finding that New Jersey Transit is the alter ego of New Jersey. Fitzpatrick v. Bitzer, 519 F.2d 559, 564-65 (2d Cir.1975), rev’d on other grounds, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976).” Gibson-Homans, 560 F.Supp. at 114. The District Court in New Jersey considered the alter ego issue solely for purposes of determining diversity jurisdiction. However, it relied in part on Fitzpatrick which presented an Eleventh Amendment question and was decided by our Court of Appeals. Under the Fitzpatrick standard, this Court finds that NJTRO is also the alter ego of the State for purposes of determining immunity under the Eleventh Amendment. However, since, we find that in any event, NJTRO is not immune from suit in this Court, the “alter ego” issue is not dispositive of the within motion.

The real question presented by this motion involves the constitutional power of Congress to regulate this sphere of industry. It appears that NJTRO does not dispute the contention that the Federal Railway Labor Act applies to the commuter services operated by NJTRO. Nor has NJTRO raised a defense based upon the Tenth Amendment. (Brief in Support of Defendant’s Motion, p. 7). This concession is entirely proper in view of the United States Supreme Court’s decisions that the RLA confers rights on employees of state-owned railroads, California v. Taylor, 353 U.S. 553, 77 S.Ct. 1037, 1 L.Ed.2d 1034 (1957), and that a state-owned commuter railroad is not immune from the requirements of the RLA, United Transportation Union v. Long Island R. Co., 455 U.S. 678, 102 S.Ct. 1349, 71 L.Ed.2d 547 (1982). Furthermore, this concession is necessary under the mandate of the New Jersey Legislature, e.g. N.J.S.A. § 27:25-14(e) (“[Labor relationships] may be changed only in accordance with the principles established under the ‘Labor Management Relations Act, 1947’ and the ‘Railway Labor Act’ ”).

Having established that the federal statute applies to NJTRO’s operations and controls its relationships with its locomotive engineers, we turn to the specific question of whether plaintiff can enforce its rights granted by Congress in the RLA in federal court, or whether it should be required to litigate in the state courts of New Jersey.

The Supreme Court authority most relevant to our discussion is Parden v. Terminal Railway, 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964). In that case, plaintiff sought damages under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51-60, for injuries sustained while employed by a state-owned railway. The Supreme Court reversed an order dismissing on the ground that the railway was an agency of the State and the State had not waived its immunity from suit, holding that the immunity doctrine as embodied in the Eleventh Amendment is no bar to federal court jurisdiction in a FELA action, because Congress enacted the FELA in the valid exercise of its power to regulate interstate commerce.

“By empowering Congress to regulate commerce, then, the States necessarily surrendered any portion of their sovereignty that would stand in the way of such regulation. Since imposition of the FELA right of action upon interstate railroads is within the congressional regulatory power, it must follow that application of the Act to such a railroad cannot be precluded by sovereign immunity.”

Id. at 192, 84 S.Ct. at 1212-13 (footnote omitted). Quoting from its previous decision in United States v. California, 297 U.S. 175, 184-85, 56 S.Ct. 421, 424-25, 80 L.Ed. 567 (1936), the Parden Court reminded us that:

“a State’s operation of a railroad in interstate commerce must be in subordination to the power to regulate interstate commerce, which has been granted specifically to the national government. The sovereign power of the states is necessarily diminished to the extent of the grants of power to the federal government in the Constitution____ [T]here is no such limitation upon the plenary power to regulate commerce [as there is upon the federal power to tax state instrumentalities]. The state can no more deny the power if its exercise has been authorized by Congress than can an individual.” 377 U.S. at 191-92, 84 S.Ct. at 1212-13.

As in FELA actions, the federal courts have original jurisdiction over RLA suits. Unlike the FELA, Section 152, First of the RLA does not contain an express statutory grant of jurisdiction. However, it is well settled that the federal district courts are authorized to grant injunctive and declaratory relief when railway employees challenge the legality of labor practices under the RLA. Chicago and N.W.R. Co. v. United Transportation Union, 402 U.S. 570, 91 S.Ct. 1731, 29 L.Ed.2d 187 (1971); O’Connell v. Erie Lackawanna R. Co., 268 F.Supp. 397, 399 (S.D.N.Y.1967). Subject matter jurisdiction is founded upon 28 U.S.C. § 1337 and the federal act, which has the stated purpose of avoiding “any interruption to [interstate] commerce or to the operation of any carrier engaged therein.” 45 U.S.C. § 151a. As in the FELA, the RLA contains no statutory language in limitation of its jurisdictional coverage. See Parden, 377 U.S. at 189, 84 S.Ct. at 1211 (“The language of the FELA is at least as broad and all-embracing as that of the Safety Appliance Act or the Railway Labor Act, and its purpose is no less applicable to state railroads and their employees”). Furthermore, despite defendant NJTRO’s contention that BLE can bring its suit in New Jersey state court, concurrent jurisdiction merely provides an alternative forum and should not be read as a limit on the authority of the federal district courts. Parden, 311 U.S. at 190 n. 8, 84 S.Ct. at 1212 n. 8. If Parden were the only relevant precedent, this Court would be persuaded that the similarities between the RLA and the FELA compel the same result here as in Parden. However, in Employees v. Missouri Public Health and Welfare Dept., 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973), the Supreme Court distinguished Parden.

In Employees, employees of state hospitals and training schools sued for overtime compensation under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b). The Court held that the Eleventh Amendment did bar plaintiffs’ suit in federal court, and that Congress did not intend to authorize federal court jurisdiction over FLSA suits by state hospital employees. Id. at 285, 93 S.Ct. at 1618. Significantly, the Court reasoned that Parden had involved employees of a railroad transportation business which the State had operated for profit, as a traditionally private or “proprietary” function, rather than a governmental function. In contrast, state hospitals are not regarded as proprietary, and for that reason the Court was reluctant to extend the Parden rule to cover FLSA actions: It held:

“Where employees in state institutions not conducted for profit have such a relation to interstate commerce that national policy, of which Congress is the keeper, indicates that their status should be raised, Congress can act. And when Congress does act, it may place new or even enormous fiscal burdens on the States. Congress, acting responsibly, would not be presumed to take such action silently. The dramatic circumstances of the Parden case, which involved a rather isolated state activity can be put to one side. We deal here, with problems that may well implicate elevator operators, janitors, charwomen, security guards, secretaries, and the like in every office building in a State’s governmental hierarchy.” 411 U.S. at 284-85, 93 S.Ct. at 1617-18.

In its conclusion, the Court stated that the issue of amenability to suit should turn on the existence of a clear Congressional intent to abrogate the State’s Eleventh Amendment immunity:

“It is true that, as the Court said in Parden, ‘the States surrendered a portion of their sovereignty when they granted Congress the power to regulate commerce.’ 377 U.S., at 191 [84 S.Ct. at 1212]. But we decline to extend Parden to cover every exercise by Congress of its commerce power, where the purpose of Congress to give force to the Supremacy Clause by lifting the sovereignty of the States and putting the States on the same footing as other employers is not clear.” 411 U.S. at 286-87, 93 S.Ct. at 1618-19.

The analysis in these two cases weaves together two distinct threads. Portions of the opinions concern the question of whether the States surrendered the protection of sovereign immunity in federal court suits when the States formed the Constitution with its commerce clause which must be read with the Eleventh Amendment. Other portions of the opinions, especially the majority opinion in Employees, refer to the different question of whether the States only subject themselves to instances of Congressional control, in that a State decision to operate a regulated interstate enterprise such as a railroad, may be read as a waiver of immunity, and that Congress must express its intent to condition the operation of the regulated enterprise upon the State’s amenability to suit in the federal courts in its capacity as such an operator. If, as we believe, an affirmative answer to the first question was the majority’s premise in Parden, there is no reason to look for explicit Congressional intent to disallow immunity. Employees, 411 U.S. 298, 300, 93 S.Ct. at 1626. (Brennan, J., dissenting); contra id. at 294-95 n. 10, 96 S.Ct. at 1623 n. 10 (Marshall, J. concurring); See generally, Note, The Eleventh Amendment and Federally Protected Rights, 27 Buffalo L.Rev. 57, 83-85 (1978). Nevertheless, later cases have construed Parden as resting on a principle of constructive waiver of immunity, or implied consent to suit. Employees, supra; Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Welch v. State Dep’t. of Highways and Public Transportation, 739 F.2d 1034, 1039-40 (5th Cir.1984) .

In 1974 Congress amended the FLSA so as to overrule the specific result reached in Employees. The amendments authorize state employees to sue their employer for money damages under the FLSA in “any Federal or State court of competent jurisdiction....” 29 U.S.C. § 216(b) (Supp. 1985) . The statute had previously authorized suit in “any court of competent jurisdiction” and the Employees decision had rendered the federal district court incompetent. Although Congress changed the result, the Employees rationale and its requirement that Congress must express its intent to abrogate Eleventh Amendment protection were cited with approval in the Supreme Court’s most recent Eleventh Amendment case, Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). There the Court stated that “[a] State’s constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued.” (Emphasis in original). Pennhurst concluded that the Eleventh Amendment prevents a State’s alter ego from being sued in federal court where the suit is based upon a state law claim.

In the case at bar, BLE’s suit is based not on state law, but on an Act of Congress which is one part of the extensive federal regulation of interstate commerce and labor relations. It must be apparent to NJTRO that its interstate rail enterprise carries with it the possibility of exposure to a RLA suit in the federal courts. The Railway Labor Act was enacted originally in 1926. As earlier noted the New Jersey Legislature was aware of the applicable RLA rights and remedies when it expressly provided that changes in bargaining relationships are to be made “only in accordance with the principles [of the] Railway Labor Act.” N.J.S.A. § 27:25-14(e). In view of the substantial federal regulation in the area of interstate rail service, and in view of the substantial federal rights which the RLA confers on railway employees, we cannot find that Congress intended to disallow RLA suits in the federal courts.

In a case essentially identical to ours, the Court of Appeals for the Fourth Circuit affirmed the district court’s opinion that a state port authority was not immune under the Eleventh Amendment from a RLA suit in federal court. International Longshoremen’s Ass’n. v. North Carolina State Port Authority, 370 F.Supp. 33 (E.D.N.C.1974), aff'd, 511 F.2d 1007 (4th Cir.1975). Both the district court and the court of appeals distinguished the case from the decision in Employees, finding that Parden governed the precise issue tendered for resolution — whether the port authority had subjected itself to suit in federal court by knowingly entering into the operation of an interstate railroad. Because Employees has since been altered by Congress, and need not be distinguished today as it was in North Carolina Port Authority, there is more reason than before to find that employees can bring RLA suits in federal court.

Furthermore, to the extent that Eleventh Amendment immunity is deemed waived due to the reach of Congress’ commerce clause powers, the Supreme Court’s recent decision to overrule National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976) and to extend Congress’ regulatory power over commerce, is supportive of BLE’s argument in favor of jurisdiction. Garcia v. San Antonio Metropolitan Transit Authority, — U.S. -, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985).

The concept underlying Parden depended upon the authority of Congress under its Article I powers to regulate interestate commerce. Cases following Parden have explained that “as part of a federal regulatory scheme, Congress can condition a state’s participation in federal programs or federally regulated activities on the states’ consenting to be sued in federal court. In such cases, waiver of a state’s Eleventh Amendment immunity is implied from the fact of participation in the federally regulated activity with knowledge that such participation will be taken as consent to be sued in federal court.” Carey v. White, 407 F.Supp. 121, 123 (D.Del.1976). Thus, when Congress can constitutionally subject a state to liability, and the suit against the state arises under that federal law, the plaintiff’s choice of a federal forum is not easily defeated by the state’s claim of Eleventh Amendment immunity. The issue of immunity from RLA regulation has already been decided in Long Island R. Co., supra. To the extent that the powers or immunities reserved to states under the Tenth Amendment and the Eleventh Amendment are subordinate to the Article I powers of Congress, the separate issue of immunity from a federal forum also is decided in favor of the federal judicial power. Thus the Garcia Court’s decision to expand the reach of the commerce clause power supports a finding that this Court has authority to adjudicate this action against NJTRO.

In Garcia, the Court held that the local, publicly owned mass transit system in San Antonio, Texas was not immune, under the Tenth Amendment, from the overtime and minimum wage requirements of the FLSA. .The Court found nothing in these regulations, as applied to a local transit system, “that is destructive of state sovereignty or violative of any constitutional provision.” — U.S. —, 105 S.Ct. at 1006. In reaching this decision, the Court discarded the time honored test of distinguishing between “governmental” and “proprietary” functions, a judicial balancing effort previously considered useful for determining State immunity. In place of this former test, and the resulting “discrete limitations on the objects of federal authority,” Id. at -, 105 S.Ct. at 1018, the Supreme Court invented a novel interpretation of the Constitution which shifts the protection of State sovereignty from judicial control based on the proprietary or governmental character of what is being regulated, to recourse only to the workings of the federal political process. Id. Four dissenting Justices in Garcia stated that the result of this new interpretation of federalism will be “that federal political officials, invoking the Commerce Clause, are the sole judges of the limits of their own Power.” Id. at -, 105 S.Ct. at 1026 (Powell, J. dissenting).

This Court concludes that the Eleventh Amendment is not a bar to a federal RLA suit against a state employer. The motion by NJTRO is controlled by Parden, supra, and by United Transportation Union v. Long Island R. Co., 455 U.S. 678, 102 S.Ct. 1349, 71 L.Ed.2d 547 (1982), which latter case is consistent with Garcia’s view of state immunity under the Tenth Amendment. In Long Island, without consideration of the Eleventh Amendment issue, the Supreme Court decided that the Tenth Amendment does not render a state-owned railroad engaged in interstate commerce immune from the provisions of the Railway Labor Act. The Long Island appeal was taken from a ruling by the lower federal court, and the Long Island Court remanded the case to the federal court of appeals.

Defendant’s motion to dismiss the complaint is denied. Counsel for the parties are directed to appear on May 29, 1985 at 9:30 A.M. in Courtroom 705 for a status and scheduling conference.

So Ordered.


author: McLAUGHLIN, District Judge.

text:
    Kevin T. TULLY, Plaintiff, v. Verne ORR, Secretary of the Air Force, Defendant.
    No. 85 CV 1468.
    United States District Court, E.D. New York.
    May 14, 1985.

      Schlam, Stone & Dolan, New York City, for plaintiff; Richard H. Dolan, New York City, of counsel.
    Raymond J. Dearie, U.S. Atty., E.D.N.Y., Anne E. Stanley, Asst. U.S. Atty., Office of the Judge Advocate Gen., Gen. Litigation Div., James M. Kinsella, Capt., USAF, of counsel, for defendant.
   MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

Plaintiff is in his final semester as a Cadet at the United States Air Force Academy (the “Academy”). He has been “dis-enrolled,” i.e., expelled, for various academic offenses and misconduct, and he brings this action for a declaratory judgment that the Academy’s disenrollment procedures violate Due Process. He now seeks a mandatory preliminary injunction directing defendant to: 1) permit plaintiff to sit for his final examinations; and 2) grade those examinations. Defendant has cross-moved to dismiss plaintiff’s complaint for failure to exhaust administrative remedies.

Because of the imminence of the final examination period at the Academy, the ruling on plaintiff’s request for injunctive relief must issue before defendant’s cross-motion is fully briefed. The parties agreed that plaintiff’s motion would be decided without an evidentiary hearing.

Accordingly, the Court has reviewed the affidavits and memoranda submitted by the parties, as well as the lengthy administrative record from Cadet Tully’s numerous disciplinary hearings. For the reasons developed below, the application for a preliminary injunction is denied.

Facts

The Academy’s disciplinary system is embodied primarily in Air Force Cadet Wing Regulation 111-1 (“Regulation 111-1”) and in Air Force Regulation 53-3 (“Regulation 53-3”). Regulation 111-1 defines, in great detail, the numerous classes of offenses that may be committed by cadets, and the various punishments that may be imposed for those offenses. Regulation 53-3 establishes a Cadet Disciplinary System and sets forth the procedures for disenrolling cadets from the Academy.

Under Regulation 111-1, disciplinary violations are punishable by combinations of demerits, confinements or tours, and periods of restriction. The maximum number of demerits that may be awarded for a single incident in 75; each cadet has a 100-demerit allowance for any six-month period.

Any cadet who exceeds 50 demerits in one period may be placed on conduct probation. Exceeding the 100-demerit limit causes a cadet to be deemed deficient in conduct. A cadet who is deficient in conduct after being on conduct probation “will normally be considered for disenrollment.” Regulation 111-1, ¶¶ 2h, 3.

For the majority of offenses, punishments are imposed by various Academy officers. A cadet charged with more serious offenses, or with continuing misconduct, may be brought before the Commandant’s Disciplinary Board (“CDB”). The CDB reviews the incident and recommends suitable demerits and punishments to the Commandant for his approval.

In addition to the disciplinary system, the Academy adheres to an Honor Code: “We will not lie, steal, or cheat, nor tolerate among us anyone who does.” Prior to June, 1984, allegations of Honor Code violations were considered by honor boards made up entirely of cadets. Because the Academy’s administrators believed honor boards were not functioning properly, they were suspended as of June 18, 1984. On June 25, 1984, all cases pending before honor boards or under investigation were referred to CDBs. From that date until January 6, 1985, honor cases were handled by the Cadet Disciplinary System, through the use of CDBs, pending implementation of a new honor system.

Plaintiff’s troubles began in the Spring of 1984, as he neared completion of his third year. On April 27, 1984, plaintiff attended a “Dining-Out” at a neighboring Air Force base. There he insulted a superi- or officer, Major Garvey. As a result of his actions that evening, plaintiff was charged with misconduct.

Several days later, plaintiff submitted a term paper in his Behavioral Science 332 course (the “BS paper”). Plaintiff was later charged with plagiarism, an Honor Code violation. The day after submitting the BS paper, plaintiff violated a direct order from Major Garvey not to drive his car back to the Academy.

On May 10, 1984 a CDB was convened to review plaintiff’s conduct at the Dining-Out and his violation of Major Garvey’s order. Plaintiff was given 70 demerits and other punishments, and placed on conduct probation. On June 1,1984 a cadet Honor Board was convened to review plaintiff’s alleged plagiarism of the BS paper. After plaintiff told the Board he had previously used the same paper in his English 330H course (the “English paper”), the Board recessed to investigate whether plaintiff should be charged with a second count of plagiarism.

Before the cadet Honor Board could reconvene, it was abolished; and plaintiff’s case was referred to a CDB. The CDB was made up of four officers and one cadet. Plaintiff was found guilty of plagiarizing both the BS paper and the English paper, and of lying about the references he used in those papers. He was given 75 demerits and additional punishments, and was continued on conduct probation.

In September, 1984, plaintiff was accused by his instructor of cheating on a Physics 411 quiz. On October 31, 1984, plaintiff went before a CDB on this charge. He was found guilty and given 75 demerits and other punishments. Additionally, the CDB recommended that plaintiff’s case be reviewed by a Hearing Officer (“H.O.”) to determine whether plaintiff should be dis-enrolled from the Academy. Plaintiff was formally notified on November 23, 1984 that he was being considered for disenrollment and that he had a right to review by an H.O.

Hearing Officer review of a cadet’s conduct is governed by paragraph 30 of Regulation 53-3. A cadet notified that an H.O. is to be appointed must elect whether to appear before the H.O. Should he choose to appear, as plaintiff did, he must receive written notice of the time and place of the hearing, the specific allegations against him, and the names and addresses of witnesses to be called. Additionally, the cadet must receive copies of all documents to be introduced at the hearing. Regulation 53-3, ¶ 30(a)(3).

A cadet may consult with counsel prior to the hearing; because it is a non-adversarial proceeding he may not have counsel at the hearing. During the hearing, the cadet may cross-examine witnesses and present evidence in his own behalf. Id. ¶¶ 30(a)(4), (a)(6).

The H.O. reviews all the evidence against the cadet and sends findings of fact to the Academy Superintendent. The H.O. makes no recommendations regarding disposition of the case. After receiving any rebuttal evidence a cadet may submit, the Superintendent determines what action to take. Should he believe disenrollment is warranted, the Superintendent makes that recommendation to the Academy Board. If that body also recommends disenrollment, it makes the recommendation to the Secretary of the Air Force (the defendant herein), who finally decides whether to disenroll a cadet.

After reviewing de novo all the charges against plaintiff, the H.O. found that plaintiff had cheated on the Physics quiz, submitted two plagiarized papers, engaged in conduct unbecoming an Air Force officer candidate at the Dining-Out, violated a direct order by Major Garvey, and acted disrespectfully toward him. The H.O. also found that plaintiff had not committed several other conduct violations with which he had been charged.

Plaintiffs ease was reviewed as required by Regulation 53-3, and on April 18, 1985 plaintiff was disenrolled from the Academy and honorably discharged from the Air Force. This action was commenced on April 19, 1985. On April 22, 1985 this Court issued a Temporary Restraining Order directing defendant to reinstate plaintiff as a cadet for the limited purpose of allowing plaintiff to complete his classes and prepare for exams.

Discussion

To obtain an injunction in this Circuit, a moving party must demonstrate irreparable harm and either: 1) a likelihood of success on the merits; or 2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant’s favor. Jack Kahn Music Co. v. Baldwin Piano & Organ Co., 604 F.2d 755, 758 (2d Cir.1979).

1. Irreparable Harm

Defendant suggests that disenrolling plaintiff from the Academy just prior to his examinations and graduation does not constitute irreparable harm. In support of this argument defendant relies on several holdings to that effect from other Circuits. See Dougherty v. Hidalgo, 539 F.Supp. 4 (E.D.Pa.1981); aff'd on other grounds, 688 F.2d 158 (3d Cir.1982); Love v. Hidalgo, 508 F.Supp. 177 (D.Md.1981). I cannot agree with those holdings.

The question presented has not been squarely addressed by this Circuit. In Phillips v. Marsh, 687 F.2d 620 (2d Cir.1982), however, the Court declined to disturb the District Court’s ruling that interruption of plaintiff’s class work would create irreparable harm. The District Court had held that “[t]he loss of time, military seniority, education and status involved in a dismissal from the Academy cannot be adequately compensated at law.” Id. at 622.

The District Court’s reasoning in Phillips has considerably more appeal than do the cases relied upon by defendant. The Academy seeks both to educate students and to train cadets as future officers and leaders of the Air Force. It creates an elite cadre of Air Force officers who will be expected, should the need arise, to assume positions of great authority and responsibility.

If plaintiff’s motion is denied, defendant’s order of disenrollment will be reinstated. Should this Court subsequently determine that plaintiff is entitled to be reinstated as a cadet, he will be forced at that time either to take make-up exams or to repeat some of his courses. Whichever occurs, plaintiff will be delayed in both his graduation and commissioning as an officer. The loss of status involved, including the indelible stigma of having once been disenrolled, cannot help but have a deleterious effect on plaintiffs future as an Air Force Officer, Such harm cannot be adequately compensated at law.

2. Likelihood of Success on the Merits

Plaintiff suggests that serious violations of his procedural and substantive due process rights were committed during his numerous disciplinary proceedings. The Academy is, of course, subject to the requirements of due process in its disciplining of cadets. Lightsey v. King, 567 F.Supp. 645, 648 (E.D.N.Y.1983). Nevertheless, as the Court stated in Wasson v. Trowbridge, 382 F.2d 807 (2d Cir.1967):

New decisions properly rest so exclusively within the discretion of the appropriate government officials than the selection, training, discipline and dismissal of the future officers of the military and Merchant Marine. Instilling and maintaining discipline and morale in these young men who will be required to bear weighty responsibility in the face of adversity — at times extreme — is a matter of substantial national importance scarcely within the competence of the judiciary. And it cannot be doubted that because of these factors historically the military has been permitted greater freedom to fashion its disciplinary procedures than the civilian authorities.

Id. at 812.

Having reviewed the entire record in this matter, I am satisfied plaintiff has not shown a bare possibility of success, let alone a likelihood. The record discloses no constitutional or statutory infirmities regarding the Honor Board, the CDBs, or any disciplinary action taken against him prior to the initiation of Hearing Officer review.

To the extent plaintiff complains of manipulation of the Honor Board system or CDBs to increase the likelihood and/or severity of his punishment, the record discloses two material facts. First, Honor Boards were abolished in June, 1984 for all cadets. All pending cases, not just plaintiffs, were referred to CDBs. (Declaration of Michael Oonk, Director of Honor and Ethics, U.S. Air Force Academy). Second, when the Academy considers a cadet for disenrollment, his entire conduct record is reviewed, not just that of the most recent six months. (Declaration of Major John Ottino, Chief, Cadet Wing Policy Division, United States Air Force; Regulation 53-3, § E). Plaintiffs claim that Academy officials manipulated the timing of his punishments, even if accepted, is thus immaterial.

Plaintiff also suggests constitutional violations at the Hearing Officer review. He claims that, in violation of paragraph 30(a)(3) of Regulation 53-3, he was not notified prior to his hearing of the identities of two witnesses who were called against him, Captains Cope and McClure. While it is true plaintiff was not given their names, plaintiff was given the names of 17 other proposed witnesses. The testimony of Captains Cope and McClure was quite brief, and the failure to give plaintiff their names prior to the hearing does not create a likelihood of success on the merits.

Exclusive of the procedural irregularity discussed above, plaintiff at the H.O. review received all the process due him under the Constitution. He was afforded the opportunity to present evidence and cross-examine witnesses, and to consult with counsel outside the hearing. The Academy is required to do no more. Rustad v. United States Air Force, 718 F.2d 348, 350 (10th Cir.1983); Hagopian v. Knowlton, 470 F.2d 201, 211 (2d Cir.1972); Wasson v. Trowbridge, supra, 382 F.2d at 812.

I have considered all of plaintiff’s remaining claims; none exist on which plaintiff is likely to prevail.

3. Serious Questions Going to the Merits

My conclusion that plaintiff has almost no chance of success on the merits compels a finding that (plaintiff has not raised sufficiently serious- questions going to the merits to make them a fair ground for litigation. The record does disclose that plaintiff and his superior officer, Major Garvey, unfortunately had an antagonistic relationship. Nevertheless, there is no evidence suggesting that because of this relationship plaintiff is any the less guilty of the charges against him. Nor is there evidence that the disciplinary proceedings against plaintiff were tainted by this relationship. Plaintiff has raised no serious questions going to the merits to justify issuance of a preliminary injunction.

4. Balance of Hardships

Absent serious questions going to the merits, no consideration of the balance of hardships is required. Nevertheless, I note that given the limited relief presently sought by plaintiff, and the irreparable harm discussed above, the balance of hardships in this case would tip decidedly in plaintiff’s favor. See Hagopian v. Knowlton, supra, 470 F.2d at 207.

For the foregoing reasons, plaintiff’s motion for a preliminary injunction is denied. The Temporary Restraining Order issued by this Court is vacated.

Plaintiff, notified by the Court of this decision, orally requested a stay of this Order pending appeal. The request is denied, without prejudice to renewal in the Court of Appeals.

Should this action proceed further, the Court intends to treat defendant’s cross-motion to dismiss, Fed.R.Civ.P. 12(b)(1), (6), as one for summary judgment. Fed.R. Civ.P. 56. Plaintiff shall serve and file his papers in opposition to the cross-motion not later than May 20, 1985.

SO ORDERED.


author: JACKSON, District Judge.

text:
    Edward HAASE, Plaintiff, v. William H. WEBSTER, Director of the Federal Bureau of Investigation, et al., Defendants.
    Civ. A. No. 85-0587.
    United States District Court, District of Columbia.
    May 14, 1985.

      Michael Ratner, New York City, for plaintiff.
    Edith S. Marshall, Asst. U.S. Atty., Washington, D.C., for defendants.
   MEMORANDUM AND ORDER

JACKSON, District Judge.

This is an action for injunctive and declaratory relief by a traveller returning from abroad to retrieve written matter seized in an allegedly illegal search made of his luggage as he entered the country, and to require the government agencies making the search to refrain from similar adventures in the future.

Plaintiff Edward Haase is a broadcast engineer and freelance journalist from Kansas City, Missouri, who, in his latter capacity, possesses a special interest in issues relating to Nicaragua. Defendants are the Director of the Federal Bureau of Investigation (“FBI”), the Commissioner of the U.S. Customs Service (“Customs”), and various of their respective subordinates. The case is presently before the Court on defendants’ motion to dismiss the case on mootness and standing grounds. For the reasons set forth below, defendants’ motion will be granted, and the complaint dismissed with prejudice.

I.

From the several declarations and affirmations filed by the parties it appears to be undisputed that on January 16, 1985, Mr. Haase boarded a flight in Managua to return to the United States following a several months’ stay in Nicaragua. Upon his arrival at Miami International Airport Haase presented at Customs where he was asked the expected routine questions, such as whether he had anything to declare and how long he had been out of the country. The Customs officer then circled certain information on Haase’s declaration card, including the country visited, the length of his stay, and the fact that he was declaring books, magazines and newspapers acquired in Nicaragua, and directed him to a secondary inspection station where a second Customs official (later identified as a student-trainee) conducted a search of Haase’s luggage. The official removed several books and magazines from Haase’s bags, as well as a piece of paper bearing names and addresses which he discovered behind a picture frame, but being “uncertain” as to the “possible seditious nature” of the materials, he summoned a supervisory Customs inspector who, in turn, decided to contact the FBI for assistance in determining whether the materials might be unimportable under 19 U.S.C. § 1305(a).

Shortly thereafter, Special Agent Jose Miranda of the FBI Miami Field Office arrived at the airport. (In the interim, the Customs official had photocopied the list of names and addresses found behind the picture frame. He turned the copy over to Miranda upon his arrival.) Haase was questioned briefly by Miranda who declared his intention to make his own search of Haase’s luggage for subversive materials and then proceeded to do so, extracting Haase’s personal address book, a diary, two articles he had written, five sheets of paper containing the names and addresses of organizations concerned with Nicaraguan and Central American affairs, still other papers having to do with the “National Network in Solidarity with the People of Nicaragua,” and certain additional books and magazines.

Anxious about missing a connecting flight, Haase requested and received permission to go to a different portion of the terminal to purchase a ticket, and while he was gone Special Agent Miranda, with the assistance of yet another Customs officer, photocopied the items he had removed from Haase’s luggage. All the originals were then returned to Haase, and he departed for his ultimate destination, Special Agent Miranda retaining the photocopies at the Miami Field Office. A week or so later Haase’s attorney contacted the FBI in an attempt to recover the copies but was unsuccessful, and this lawsuit followed on February 19, 1985.

II.

Plaintiff claims that defendants’ treatment of him on January 16th violated his rights under the First, Fourth, Fifth and Ninth Amendments; that it was also illegal under the Privacy Act, 5 U.S.C. § 552a, and his common law right to privacy; and that defendants acted in excess of their statutory authority. He therefore prays for permanent injunctive relief in the form of an order requiring defendants to destroy or return to him all copies of materials seized; to expunge from the files of the FBI or any other government agencies any information obtained from them; to disclose to plaintiff the nature of any use made of or dissemination given the materials, or any information derived therefrom; and to prohibit any further dissemination, indexing or other use of such information hereafter. Plaintiff also seeks a declaratory adjudication that defendants’ actions were in violation of plaintiff’s constitutional rights; that FBI agents have no statutory authority to engage in “border searches” without probable cause or a warrant; that 19 U.S.C. § 1305(a) is unconstitutional on its face and as defendants are applying it; and that defendants’ “policy” of singling out individuals returning from Nicaragua for special questioning and searches is itself unconstitutional.

Defendants have moved to dismiss those of plaintiff’s claims which look toward injunctive relief from the consequences of the January 16th seizure on the ground that they have become moot. Pursuant to the temporary restraining order entered at the outset of the case, they say, the only copies of the materials seized from Haase were located and sequestered. The supervisory special agent of the Miami Field Office averred in his initial declaration that no information derived from the papers had been disseminated or had made its way into any secondary data repositories by the time he delivered them as ordered on February 22nd to the Chief of the FBI’s Civil Litigation Unit in Washington, D.C.

Plaintiff responded with affirmations of his lawyer and an “expert on F.B.I. record-keeping,” pointing out what the supervisory special agent had not said (or could not say from personal knowledge) about the attention given the materials before he personally collected them. Defendants then filed declarations of each of the several special agents who had handled the documents following their seizure, attesting to the absence of any activity with respect to them while in their custody, and each of the Customs officers has similarly disavowed making any use of the documents other than to have turned them over to the FBI. Finally, the Assistant Director of the FBI who has had charge of them since they arrived in Washington asserts that upon receiving them he ordered that no use be made of them or any information they contain “unless authorized by order of the Court.” In summary, therefore, the materials’ chain of custody has been established under oath since they were first taken from Haase, and each of the custodians has sworn to have made no investigative use of them whatsoever; they have not been recopied, nor their content disseminated, indexed, filed, entered into computers or otherwise reduced to useable form as intelligence data.

The FBI now proposes that the documents themselves, i.e., the single extant set of photocopies in the possession of the Assistant Director, be deposited under seal in the Registry of the Court, there to remain, accessible to no one until they have been evaluated for archival purposes and an appropriate final disposition determined for them by the Court. It also promises not to derive any information which it might from the documents nor permit anyone else to do so. It suggests that the entire undertaking be accomplished by a “stipulation” which will be approved by the Court. In short, the FBI offers to restore the status quo ante the January 16th seizure, or as much of it as it can, depriving itself of any intelligence benefit it might have acquired from the event.

Plaintiff is, however, unwilling to let the matter rest there. He still suspects the FBI of being disingenuous about the extent to which it has already made use of his papers, but the only proof he offers is his circumstantial evidence of a “secret policy” of collecting intelligence from and about people who visit Nicaragua, from which, he argues, it should be inferred that the FBI agents and Customs officers are lying to conceal it.

The Court finds from the evidence now before it that there is no genuine issue of material fact as to whether the FBI is prepared to disengage itself completely from the documents taken from Haase, including any information it might have gleaned from them. It has, in effect, offered to accede to all the equitable relief plaintiff could conceivably win by way of injunction for its past transgressions against him, and the law does not require that a wrongdoer make a formal confession of error or a public act of contrition.

Although a voluntary cessation of illegal conduct may not, by itself, render a suit to enjoin it moot, when there is no reasonable expectation of its causing further injury, and interim relief or events have completely and irrevocably eradicated its past effects, the parties have lost the legally cognizable interest in the outcome necessary to a “live” controversy. County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). Those circumstances seem to be present here, but even if the claims relating to the January 16th seizure are not technically moot, the absence of “some cognizable danger” of a resumption of the illegal activity, something “more than the mere possibility” of it, would require a discretionary denial of injunctive relief. See United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 898, 97 L.Ed. 1303 (1953).

The Court concludes that the FBI’s offer to divest itself of Haase’s documents, and to “stipulate” that it will continue to observe the Assistant Director’s order prohibiting any use of their contents, subject to the Court’s approval, affords sufficient assurance that plaintiff is not in need of further specific relief with respect to the seizure made on January 16th. It will, therefore, grant the motion to dismiss those claims relating to the seizure, conditioned, however, as would have been the proposed “stipulation.”

III.

Plaintiff also asks for prospective declaratory adjudications with respect to defendants’ alleged practices, and the laws relied upon to justify them, to allay his anxiety about trips he expects to make to Nicaragua in the future. He charges the existence of an agreement between the FBI and the Customs Service to collaborate in causing excessive border searches to be made of travellers from Nicaragua for general intelligence-gathering purposes, and he prays that it be declared unconstitutional. Defendants contend that plaintiff is without standing to maintain such claims for wrongs which may never be done him.

Article III of the Constitution limits the jurisdiction of the federal courts to actual “cases” and “controversies,” and the doctrine of “standing” is one of several that have been developed to implement the constitutional limitation. See Allen v. Wright, — U.S. -, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556, reh’g denied, — U.S. -, 105 S.Ct. 51, 52, 82 L.Ed.2d 942 (1984). It is now well-established that “at an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to ‘show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant’ ... and that the injury ‘fairly can be traced to the challenged action’ and ‘is likely to be redressed by a favorable decision.’ ” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979), and Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976)). The injury or threat of injury, moreover, must be “real” and “immediate,” not “conjectural” or “hypothetical,” Golden v. Zwickler, 394 U.S. 103, 109, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969), a condition which is as necessary to justiciability whether the relief sought is an injunction or merely a declaratory judgment. See 28 U.S.C. § 2201; Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, reh’g denied, 300 U.S. 687, 57 S.Ct. 667, 81 L.Ed. 889 (1937).

In the past several years the Supreme Court has thrice reversed lower courts which, in particular circumstances, had found plaintiffs’ subjective apprehensions of future governmental misconduct, originating entirely in their past exposures to it, sufficient to give them standing to sue for anticipatory relief. In O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), the Court declined to permit an action to be maintained against state judicial officers to enjoin their allegedly discriminatory administration of the criminal justice system in the absence of evidence of a sufficiently real and immediate threat of its recurrence. “Past exposure to illegal conduct” the Court said, “does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.” Id. at 495-96, 94 S.Ct. at 675-76. Shortly thereafter, in Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), the Court similarly disposed of a citizens’ suit against a municipal mayor and police commissioner to compel them to take effective action to curb police brutality, holding that any attempt to predict what a “small, unnamed minority” of abusive police officers might do in the future because they had perceived past departmental discipline to be lax was even more speculative than the injustices the plaintiffs in O’Shea sought to avert, and “insufficient ... to warrant invocation of federal jurisdiction.” Id. at 372, 96 S.Ct. at 605.

Most recently, in City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), a motorist, stopped by police officers for a minor traffic infraction and then subjected to use of a “chokehold” which rendered him unconscious and damaged his larynx, sued the officers and the city for damages, but he also sought injunctive and declaratory relief, alleging that city and police policy approved the use of chokeholds, even in situations posing no significant danger to arresting officers. The district court entered a preliminary injunction against use of such “control holds” unless death or serious injury were threatened, and the court of appeals affirmed, but the Supreme Court reversed, once again finding no justiciable case or controversy to be presented. While the plaintiff could surely proceed against the city for damages, he had not demonstrated — nor could he — the presence of “a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part.” Id. at 105, 103 S.Ct. at 1667.

The lesson of Lyons and its predecessors is, simply, that federal jurisdiction does not extend to disputes which exist for the moment only in the mind of the plaintiffs. Applying that teaching to the instant case, the Court finds that Haase has not demonstrated that there is a substantial probability that he will ever again be subjected to such treatment as he received last January 16th. Accepting as true his assertion that he intends to return to Nicaragua in the near future to pursue his journalistic interests, and that he will once again be required on his return to submit to some sort of appropriate border search, unless he intends to provoke a confrontation for his own purposes, it would be a most unusual coincidence were he again to excite suspicion by carrying a list of names and addresses behind a picture frame, or the FBI would again be asked for its literary advice on the importability of items in his possession, in the course of which agents and/or Customs officials would once more find it necessary to seize and copy his personal papers.

Plaintiffs anecdotal evidence purporting to demonstrate the existence of a “policy” of the Customs Service and the FBI of subjecting travellers returning from Nicaragua to intrusive searches and seizures for the purpose of gathering general intelligence is no more probative of the fact than was similar evidence in Rizzo probative of official condonation of police brutality. Hearsay reports of several other recent returnees from Nicaragua having had books and papers seized by Customs officials were presented to the Court in the affirmations of plaintiffs counsel, but even had the accounts been submitted with the requisite evidentiary formality, and their resemblance to the instant case were unmistakeable, the record would still not support a finding of the existence of an inter-agency conspiracy to engage in unlawful, probably unconstitutional, conduct on the scale which would be required to make it reasonably certain that what happened to Haase before would happen again. See Rizzo v. Goode, 423 U.S. at 372, 96 S.Ct. at 604.

At this point plaintiff clearly has no standing to vindicate the rights of any other travellers to Nicaragua but himself, see, e.g., Valley Forge Christian College v. Americans United, 454 U.S. at 474, 102 S.Ct. at 758; Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975), and although Haase urges that he should be permitted to engage in discovery in an attempt to uncover additional evidence to confirm his suspicions, the allegations are altogether too phantasmal to warrant discovery of the magnitude which would be necessary to bring such a covert “policy” to light. If such an inquiry is to be made, Congress must do it. See Laird v. Tatum, 408 U.S. at 14-15, 92 S.Ct. at 2326-2327.

In the absence of any substantial showing of an actual present or immediately threatened injury to Haase himself— amounting to more than his mere discomfiture at being selected for some special scrutiny when he returns from Nicaragua in the future — the Court concludes he is without standing to seek any more relief than defendants have already agreed to afford him. It is, therefore, for the foregoing reasons, this 14th day of May, 1985,

ORDERED, that defendants’ motion to dismiss is granted; and it is

FURTHER ORDERED, that, upon condition defendants deposit the copies of all documents seized from plaintiff on January 16, 1985, under seal in the Registry of this Court within 10 days, and make no use of any information derived therefrom hereafter, the complaint shall stand dismissed with prejudice.

      . The motion to dismiss having been supported, and opposed, by affidavit, the Court treats the motion as one for summary judgment of dismissal in accordance with Fed.R.Civ.P. 12(b).

      . 19 U.S.C. § 1305(a) provides, in pertinent part:
      All persons are prohibited from importing into the United States from any foreign country any book, pamphlet, paper, writing, advertisement, circular, print, picture, or drawing containing any matter advocating or urging treason or insurrection against the United States, or forcible resistance to any law of the United States, or containing any threat to take the life of or inflict bodily harm upon any person in the United States....
      Upon the appearance of any such book or matter at any customs office, the same shall be seized and held by the appropriate customs officer to await the judgment of the district court as hereinafter provided____ Upon the seizure of such book or matter such customs officer shall transmit information thereof to the United States attorney of the district in which is situated the office at which such seizure has taken place, who shall institute proceedings in the district court for the forfeiture, confiscation, and destruction of the book or matter seized. Upon the adjudication that ... [it] is of the character the entry of which is by this section prohibited, it shall be ordered destroyed and shall be destroyed. Upon adjudication that such book or matter thus seized is not of ... [such] character, it shall not be excluded from entry under the provisions of this section.

      . According to Haase, the organization (of which he is a member) is “a coalition of domestic religious, professional, human rights and solidarity groups that support the efforts of the Nicaraguan people to build a democratic society in their country.”

      . On the date the complaint was filed the Court granted plaintiff's motion for a temporary restraining order, directing the FBI to assemble the documents seized and transmit them to the Director in whose custody they were to remain pending determination of plaintiff’s application for a preliminary injunction. By consent of the parties the TRO has been extended from time to time, the last extension to remain in effect until the motion to dismiss has been decided.

      . The FBI believes that it is without legal authority to give the documents to Haase directly prior to their review by an archivist. See American Friends Service Committee v. Webster, No. 79-1655 (D.D.C. August 27, 1981).

        . Although Haase maintains that the list inside the picture frame was not "secreted” there, but was merely scrap paper placed to secure the picture between the frame and the cardboard backing, it was not unreasonable for the Customs officer to suspect that it might have been purposefully concealed.

      . The Court has assumed throughout the case, although not now having to decide, that a warrantless border search by the FBI, and its seizure of innocuous personal property for general law enforcement purposes, is unlawful. See United States v. Soto-Soto, 598 F.2d 545 (9th Cir.1979). The Court also assumes, however, that it is not unlawful for the Customs Service alone to conduct proper entry inspections of travellers when they return from abroad. United States v. Ramsey, 431 U.S. 606, 616-19, 97 S.Ct. 1972, 1978-80, 52 L.Ed.2d 617 (1977). Nor is it unlawful for any law enforcement agency to be specially observant of either travellers arriving from particular places or of particular travellers. See United States v. Vasquez, 612 F.2d 1338 (2nd Cir.1979); United States v. Klein, 592 F.2d 909 (5th Cir.1979). That Haase finds himself "chilled” in the exercise of his First Amendment rights by such lawful activities does not enhance his standing to maintain this action. See Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154, reh’g denied, 409 U.S. 901, 93 S.Ct. 94, 34 L.Ed.2d 165 (1972).

      . Other "evidence” offered by plaintiff to indicate the existence of the "policy” included his lawyer's account of a meeting between Miami District Customs Director Carnes and certain Miami residents at which Carnes is alleged to have said that literature from Nicaragua is being investigated because it may be critical of U.S. policy. He also submitted press clippings describing the testimony given by FBI Director Webster at a recent House subcommittee hearing concerning contacts made with returnees from Nicaragua by FBI agents at non-border locations subsequent to their return home.