author: THELTON E. HENDERSON, District Judge.

text:
    ASSOCIATED GENERAL CONTRACTORS OF CALIFORNIA, INC., a nonprofit California corporation; Balliet Brothers, a California corporation; William P. Young, Inc., a California corporation; Under-Ground Construction, a California corporation; Webcor Builders, a California corporation; and Guy F. Atkinson, a Nevada corporation, Plaintiffs, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant. San Francisco Black Chamber of Commerce, et al., Defendant-Intervenors.
    No. C 84-6899 TEH.
    United States District Court, N.D. California.
    Aug. 7, 1985.

      Ronald A. Zumbrun, John H. Findley, Pacific Legal Foundation, Sacramento, Cal., Eva Jefferson Paterson, San Francisco Lawyers’ Committee for Urban Affairs, Robert L. Harris, Charles Houston Bar Ass’n, Edwin M. Lee, William R. Tamayo, Asian Law Caucus, Judith Kurtz, Shauna Marshall, Equal Rights Advocates, San Francisco, Cal., William C. McNeill, III, Pearl, McNeill, Gillespie & Standish, Oakland, Cal., for defendants-intervenors.
    James W. Polk, Associated Gen. Contractors of California, West Sacramento, Cal., for plaintiffs.
    George Agnost, City Atty., Philip S. Ward, Chief Trial Deputy, Burk E. Delven-thal, Mara E. Rosales, Deputy City Attys., San Francisco, Cal., for city defendant.
   OPINION AND ORDER

THELTON E. HENDERSON, District Judge.

This case comes before the court on the cross-motions of plaintiffs, defendant, and defendant-intervenors, for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. The parties having fully briefed the issues, the matter was submitted without oral argument on June 3, 1985. After careful consideration of the parties’ papers, and the entire record herein, the Court determines that there is no genuine dispute over a material issue of fact, and that defendant and defendant-in-tervenors are entitled to judgment as a matter of law. Deukmejian v. United States Postal Service, 734 F.2d 460, 462 (9th Cir.1984). Accordingly, and for the reasons set forth below, defendant and defendant-intervenor’s motions for summary judgment are HEREBY GRANTED and plaintiffs’ motion for summary judgment is HEREBY DENIED.

The instant action concerns a facial attack upon the validity of the Minority/Women/Local Business Utilization Ordinance, Chapter 12D of the San Francisco Administrative Code (hereafter “Ordinance”), enacted by the Board of Supervisors (hereafter “Board”) of the City and County of San Francisco (hereafter “City”) on April 2, 1984. The Ordinance represents the culmination of a long effort by the Board and members of the community to increase the participation of minority and women business enterprises (hereafter “MBE’s” and “WBE’s”) in municipal contracting, by seeking to remedy the effects of past discrimination against such businesses in this area.

To this end, the Ordinance provides, inter alia, that City departments set aside 10% and 2% of their total eligible contract dollars for minority and women business enterprises, respectively. This 12% set aside is subsumed in an overall goal of awarding 30% and 10% of contract dollars to minority and women business enterprises, respectively. The Ordinance also affords minority and women enterprises a 5% bidding preference to aid achievement of the above set asides and goals. The 5% bidding preference is also extended to local business enterprises. These and other provisions of the Ordinance are explained more fully, infra, and in this Court’s Findings of Fact and Conclusions of Law re: Preliminary Injunction, filed January 8, 1985 (hereafter “Findings and Conclusions”).

Plaintiffs seek injunctive and declaratory relief invalidating the Ordinance on the grounds that its provisions violate 1) Section 7.200 of the San Francisco Charter (hereafter “Charter”), 2) 42 U.S.C. §§ 1981, 1983, 2000d, and 3) the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. In addressing these cross-motions, the court turns first to the pendent claim, since its resolution could moot or modify the need for constitutional adjudication. Hagans v. Lavine, 415 U.S. 528, 545-47, 94 S.Ct. 1372, 1383-84, 39 L,Ed.2d 577 (1974).

I.

San Francisco Charter § 7.200 provides, in relevant part, that public works contracts in excess of $15,000 be let by City departments to the “lowest, reliable and responsible bidder”. While an ordinance is invalid if it conflicts with a city’s charter, Acton v. Henderson, 150 Cal.App.2d 1, 13, 309 P.2d 481, 487 (1957), we reject plaintiffs’ contention that the Ordinance (to the extent it concerns public works contracts exceeding $15,000.) conflicts with § 7.200 because the phrase “lowest, reliable and responsible bidder” can only refer to price and quality of work, and therefore necessarily prohibits adoption of any affirmative action program regarding city contracts covered by that section.

We' believe our discussion of this issue in our Findings and Conclusions fully explains our reasoning on this issue. There we stated that “[i]n determining whether ... [the Ordinance conflicts with the Charter] ..., the following well settled rules apply. A city, such as San Francisco, which operates under a ‘home-rule’ charter, has full sovereign powers to regulate municipal affairs. The charter is not a grant of power, but only acts as a limitation. Thus, it should be liberally construed, and only when it expressly prohibits the ordinance, does it render the ordinance invalid. City of Glendale v. Trondsen, 48 Cal.2d 93, 308 P.2d 1 (1957); City of Grass Valley v. Walkinshaw, 34 Cal.2d 595, 212 P.2d 894 (1949); Acton, supra, 150 Cal.App.2d at 13-15, 309 P.2d at 487-88. Thus, in construing the charter, no restrictions may be implied. Miller v. City of Sacramento, 66 Cal.App.3d 863, 867, 136 Cal.Rptr. 315, 318 (1977).”

“Given the above, a ‘construction in favor of the exercise of the power and against the existence of any limitation or restriction thereon which is not expressly stated ... is clearly indicated.’ Acton, supra, 150 Cal.App.2d at 13, 309 P.2d at 487. In sum, ordinances enacted pursuant to competent authority enjoy a strong presumption of validity and ‘Courts are bound to uphold [them] unless they manifestly transcend the powers of the enacting body.’ Glass v. City of Fresno, 17 Cal.App.2d 555, 560, 62 P.2d 765, 768 (1936); Brown v. City of Berkeley, 57 Cal.App.3d 223, 231, 129 Cal.Rptr. 1, 4-5 (1976).”

“In addition, it is well established that, in determining whether a conflict exists between a state statute and the state constitution, the legislature’s construction of the constitutional provision at issue is ‘ “of very persuasive significance” ’, and should not be rejected unless ‘ “unreasonable or arbitrary.” ’ Methodist Hospital of Sacramento v. Saylor, 5 Cal.3d 685, 691-95, 488 P.2d 161, 164-67, 97 Cal.Rptr. 1, 4-7 (1971). Given that the Charter is the City’s ‘constitution’, Brown, supra, 57 Cal.App.3d at 230-31, 129 Cal.Rptr. at 4, and is governed by the same principles, Adams v. Wolff, 84 Cal.App.2d 435, 441, 190 P.2d 665, 670 (1948), the above rule of construction appears instructive in this case as well. Cf Franklin v. Peterson, 87 C.A.[Cal. App.]2d 727, 730, 197 P.2d 788, 790 (1948).”

“In light of the above, this Court concludes that section 7.200 of the Charter does not prohibit adoption of the Ordinance. The term ‘responsible’ is broad and does not expressly or necessarily require an interpretation narrowly limiting its scope to ‘work quality.’ Rather, the concept of responsibility is sufficiently flexible to embody other legitimate municipal concerns such as the remedying of past discrimination. Moreover, this Court finds no indication that the drafters of the 1932 Charter intended to preclude the City, by way of § 7.200, from redressing the effects of past or continuing discrimination.”

“This view is in accord with the City’s construction of section 7.200 (see Findings of Fact #25), as well as with several court decisions interpreting similar or identical bidding provisions. For example, in Weiner v. Cuyahoga Community College Dist., 19 Ohio St.2d 35, 39, 249 N.E.2d 907, 910 (1969), cert. denied, 396 U.S. 1004 [90 S.Ct. 554, 24 L.Ed.2d 495] (1970), the Ohio Supreme Court stated 'the capacity to assure a performance which complies with antidiscrimination laws is reasonably a part of the standard of a best or responsible bidder on a contract involving the expenditure of public funds.’ Similarly, in Southwest Washington, Nat’l Electrical Contractor Ass’n v. Pierce County, 100 Wash.2d 109, 115, 667 P.2d 1092, 1096 (1983), the Washington Supreme Court found ‘in the word “responsible” a legislative intent that “the social responsibility of the contractor should also be a concern.” ’ (emphasis in original) (citing S.N. Nielsen Co. v. Public Bldg. Comm’n, 81 Ill.2d [290] at 299 [43 Ill.Dec. 40], 410 N.E.2d 40 (1980).”

“As the Washington court noted, the more liberal construction, adopted here, is clearly consistent with the two purposes generally underlying competitive bidding statutes: 1) to protect the general public from cronyism or collusion in the awarding of contracts and, 2) to provide a fair forum for potential bidders. ‘Permitting rejection of bids due to failure to meet published affirmative action requirements presents no danger of fraud, collusion, or favoritism and in fact advances the broader public interest by alleviating the effects of past discrimination. Affirmative action requirements further the second purpose of competitive bidding in its broader sense, by providing a fairer forum for subcontractors disadvantaged by the effects of past discrimination.’ Southwest Washington, supra, 100 Wash.2d at 116, 667 P.2d at 1096.”

“In sum, section 7.200 does not, expressly or by neccessary implication, prohibit the City from considering affirmative action requirements in determining whether a bid is ‘responsible.’ Accordingly, the Ordinance does not conflict with, and therefore, does not violate, the City’s Charter.

“Plaintiff’s reliance on Associated General Contractors v. San Francisco Unified School District, 616 F.2d 1381 (9th Cir.), cert. denied, 449 U.S. 1061 [101 S.Ct. 783, 66 L.Ed.2d 603] (1980), is misplaced. In Associated General, the San Francisco School Board adopted an affirmative action policy to increase the number of minority firms awarded construction contracts. The policy declared that contractors who failed to comply with the policy were not ‘responsible bidders’ for purposes of Calif. Education Code § 15951 (now § 39640) which requires school construction contracts to be award to the ‘lowest responsible bidder.’ Id. at 1383.”

“The Court, however, interpreted Educ. Code § 15851 [15951] to allow the Board to consider only the amount of the bid and the bidder’s ability to complete the job. Id. at 1385. Since the School Board’s authority is limited to that provided by Education Code § 35160, which allows adoption of programs not in conflict with any law, the Court found that the Board lacked authority to adopt the affirmative action policy because it conflicted with Educ.Code § 15951.”

In determining the scope of the Educ. Code § 15951, the Court relied on City of Inglewood-Los Angeles County Civic Center Authority v. Superior Court, 7 Cal.3d 861, 500 P.2d 601, 103 Cal.Rptr. 689, (1972), which involved interpretation of a similar ‘competitive bidding’ provision in former Gov’t Code § 25454 (now Cal.Pub.Con.Code § 20128). In Inglewood, the City of Inglewood and the County of Los Angeles entered into a joint exercise of powers agreement for the purpose of creating a civic center. The agreement created a separate entity (apart from the City and County) to implement the agreement, which specified that the joint-powers entity was subject to the same restrictions as “ ‘are imposed upon the county in the exercise of similar powers.’ ” Id. at 864-65 at n. 2, 500 P.2d at 603, 103 Cal.Rptr. at 691. Like the school board, counties only have the powers granted to them by the California constitution or statutes. McCafferty v. Board of Supervisors, 3 Cal.App.3d 190, 192, 83 Cal-Rptr. 229, 230 (1969). The Court held that the joint-power entity, had no authority to consider the “relative superiority” of the bidders because such considerations conflicted with the requirement of Gov’t Code § 25454 that contracts be awarded to the lowest responsible bidder. The Court interpreted that section to require that ‘a contract must be awarded to the lowest bidder unless it is found that he is not responsible, i.e., not qualified to do the particular work under consideration.’ Inglewood, supra, 1 Cal.3d at 867, 500 P.2d at 604, 103 Cal.Rptr. at 692.”

“At the outset, this Court notes that the interpretation of similar words in other statutes is not controlling, In re Baby Boy I, 9 Cal.App.3d 815, 819, 88 Cal.Rptr. 418, 420 (1970). Gleason v. City of Santa Monica, 207 Cal.App.2d 458, 461, 24 Cal.Rptr. 656, 657 (1962), and that the Inglewood, supra, case was not decided in the context of affirmative action efforts. More fundamentally, however, those cases arose in a completely different context. They did not involve home-rule cities, such as San Francisco, acting pursuant to their full sovereign powers to regulate municipal affairs subject to express limitations in the Charter. Rather, they involved entities which acted from a much more limited authority, as described above. [For example, the School District can exercise only those powers delegated to it in the Education Code]. Thus, ... [those entities] were in a completely different posture with respect to the code provisions than is San Francisco with respect to its Charter. Thus, the holdings in Associated Contractors, supra, and Inglewood, supra, do not compel a similar construction of the bidding provision in the case at bar.” (at pp. 15-20).

Similarly, San Francisco Fire Fighters v. City and County of San Francisco, 68 Cal.App.3d 896, 137 Cal.Rptr. 607 (1977), does not assist plaintiffs’ position. There, the Charter provision at issue expressly conferred upon the Fire Commission the power to formulate reasonable rules and regulations concerning its employees. Nevertheless, the City mayor, Board of Supervisors, and Fire Commission entered into a binding agreement with the firefighters union which, in effect, surrendered the Fire Commission’s authority concerning employment regulations to an arbitrator. The Court of. Appeal held that such a delegation was impermissible in light of the Charter’s provisions.

Here, Charter section 7.200 permits all City departments, including the Board of Supervisors, to let public works contracts. The Ordinance does not divest City departments of this responsibility; nor does the Charter expressly confer upon any board, commission or official the exclusive right to regulate City procurement practices. Thus, we do not find that San Francisco Fire Fighters, supra, suggests that the Board acted beyond the scope of its powers in the case at bar.

II.

We next turn to the equal protection and federal statutory claims, the latter of which are subsumed in the equal protection analysis. Ohio Contractors Ass’n v. Keip, 713 F.2d 167, 175 (6th Cir.1983); Bratton v. City of Detroit, 704 F.2d 878, 887 (6th Cir.1983).

In Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), the Supreme Court, in three plurality opinions, upheld the constitutionality of a Congressional statute requiring local governments to allot 10% of federal monies, received pursuant to a federal public works program,.for minority contractors. In his concurrence, Justice Marshall reasoned that while “... racial classifications are prohibited if they are irrelevant”, this principle is “... inapposite to racial classifications that provide benefits to minorities for the purpose of remedying the present effects of past racial discrimination.” Such classifications, the Concurrence continued, “... may disadvantage some whites, but whites as a class lack the ‘ “traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” ’ ” Id. at 518, 100 S.Ct. at 2795 (Marshall, J., Brennan, J., Blackmun, J., concurring) (citations omitted). The Concurrence then concluded that “[bjecause the consideration of race is relevant to remedying the continuing effects of past discrimination, and because governmental programs employing racial classifications for remedial purposes can be crafted to avoid stigmatization, ... such programs should not be subjected to conventional ‘strict scruity’ — scrutiny that is strict in theory, but fatal in fact.” Id. at 519, 100 S.Ct. at 2795.

Although no one approach commanded a majority of the Fullilove Court, lower courts, drawing from the above analysis, and other opinions rendered in the case, have distilled a three-part test to measure the constitutionality of affirmative action legislation. This test, enunciated in South Florida Chapter of the Associated General Contractors v. Metropolitan Dade County, Fla., 723 F.2d 846 (11th Cir.), cert. denied, — U.S. -, 105 S.Ct. 220, 83 L.Ed.2d 150 (1984) and Southwest Washington Chapter, National Electrical Contractors Ass’n v. Pierce County, 100 Wash.2d 109, 667 P.2d 1092 (1983), is essentially as follows:

a) Does the legislative body have authority to enact remedial legislation to redress past discrimination?
b) Have adequate findings been made to ensure the legislative body is acting for the purpose of remedying the effects of past discrimination? and,
c) Is the remedial legislation narrowly tailored to meet its objectives?

See also, Ohio Contractors Ass’n v. Keip, 713 F.2d 167 (6th Cir.1983); Michigan Road Builders Ass’n, Inc. v. Milliken, 571 F.Supp. 173, (E.D.Mich.1983), appeal dismissed, 742 F.2d 1456 (6th Cir.1984).

We conclude that the above approach takes into account the primary issues and concerns reflected in the Fullilove opinions and is the appropriate standard by which to adjudge the constitutionality of the Ordinance in the case at bar. We further find that the Ordinance satisfies each element of this test as discussed in our Findings and Conclusions at pp. 21-25. There, we stated as follows:

“The City’s Authority

The City is a political subdivision of the State of California and is bound to guarantee equal protection of the laws to all citizens. As such, no provision is required to authorize a local government to enact legislation to prevent the denial of equal protection to persons within its jurisdiction. The prohibition against denial of equal protection carries with it the power to prevent such denial and to remedy past violations.”

“The above, taken together with the broad ‘home-rule’ [and inherent police powers] the City enjoys, gives the Board ample authority to study the effects of past discrimination and to fashion proper remedies in San Francisco with respect to procurement contracts. Metropolitan Dade County, Fla., supra, 723 F.2d at 852; Pierce County, supra, 100 Wash.2d at 123, 667 P.2d at 1100.”

“The Court rejects plaintiffs’ contention that, under Fullilove, supra, 448 U.S. 448, 100 S.Ct. 2758, only Congress is competent to pass legislation affirmatively addressing the effects of discrimination. We agree with the Eleventh and Sixth Circuits that ‘the references in Fullilove to Congress’ power were not intended to imply that governmental bodies other than Congress may not act to remedy past discrimination, but were only emphasizing the “unequaled” power of Congress to act under its specific powers granted by the Fourteenth Amendment.’ Metropolitan Dade County, Fla., supra, 723 F.2d at 852; Ohio Contractors Ass’n v. Keip, supra, 713 F.2d at 172.”

“Adequate Findings

The Findings of the Board, discussed in the [Findings and Conclusions], are adequate to satisfy this prong of the test. The Board is not required to find that the City has intentionally discriminated against minority contractors. Fullilove, supra, 448 U.S. at 478, 100 S.Ct. at 2774. Such a requirement would practically preclude remedial efforts because the legislative body would not risk the liability such an admission might bring. Rather, it is only necessary that the findings are adequate ‘to ensure that the county was acting to remedy the effects of past discrimination rather than advancing one group’s interest over another based on a perceived need not founded in fact.’ Metropolitan Dade County, Fla., supra, 723 F.2d at 853.”

“[Here], [t]he City had before it historical and factual data from which it could properly conclude that traditional procurement policies, when applied to minority and women businesses, perpetuated the effects of past discriminatory practices. As did Congress, the Board, ‘had before it, among other data, evidence of a long history of marked disparity in the percentage of public contracts awarded to minority business [including evidence of statistical disparity between the percentage of MBE/WBE/s in the City as compared to the percentage of contract dollars awarded MBE/WBE’s and statistical disparity between the percentage of minorities and women in the City population and the percentage of contract dollars awarded MBE/WBE’s]. This disparity was considered to result not from any lack of capable and qualified minority businesses, but from the existence and maintenance of barriers to competitive access which had their roots in racial and ethnic discrimination, and which continues today, even absent any intentional discrimination or unlawful conduct.’ Fullilove, supra, 448 U.S. at 478, 100 S.Ct. at 2774. See also, Metropolitan Dade County, Fla., supra, 723 F.2d at 853; Ohio Contractors Ass’n, supra, 713 F.2d at 171; Pierce County, supra, 100 Wash.2d at 123-24, 667 P.2d at 1100.”

“Given the findings of the [Human Rights Commission] and the Board, and the fact that racial discrimination is so prevalent in the construction trade that it has been deemed a proper subject for judicial notice, Local Union No. 35 v. City of Hartford, 625 F.2d 416, 422 (2nd Cir.1980), cert. denied, 453 U.S. 913 [101 S.Ct. 3148, 69 L.Ed.2d 997] (1981), this Court is well satisfied that the Board was acting ‘to remedy the effects of past discrimination and was not acting merely to advance one group’s interest over another based on a perceived need not founded in fact.’ Metropolitan Dade County, Fla., supra, 723 F.2d at 852.”

“Narrowly Tailored

It is not required that the legislative body resort to the least restrictive means possible. Fullilove, supra, 448 U.S. at 508, 100 S.Ct. at 2790 (Powell, J., concurring); Metropolitan Dade County, Fla., supra, 723 F.2d at 856, and Ohio Contractors Ass’n, supra, 713 F.2d at 174. However, the ordinance must ‘facially incorporate sufficient safeguards to ensure that it is narrowly tailored to its legitimate objective of redressing past discrimination.’ Metropolitan Dade County, Fla., supra, 723 F.2d at 853; see also, Pierce County, supra, 100 Wash.2d at 124-25, 667 P.2d at 1100.”

“A reading of the Ordinance reflects a carefully drafted instrument that allows for the achievement of its objectives while safeguarding the interests of third parties. To begin with, the Ordinance is subject to several levels of administrative review, both on a quarterly and an annual basis, and the rules and regulations implementing it are subject to revision on an annual basis. In addition, the Ordinance is limited in duration, and most importantly, has flexible waiver provisions. See Pierce County, supra, 100 Wash.2d at 125, 667 P.2d at 1101 (‘The key factor, and the one emphasized by Chief Justice Burger [in Fulli-love ] is the existence of a flexible waiver scheme’).”

“And while the Ordinance has an incidental impact on third parties, the following factors establish that the Ordinance does not unfairly burden them: (1) Non MBE’s and non WBE’s may participate in set aside contract dollars by owning up to 49% of an MBE or WBE enterprise; (2) non MBE’s and WBE’s may joint venture with MBE’ and WBE’s and benefit from set aside contract dollars; (3) the minimum requirements of the Ordinance potentially ensures only twelve percent of eligible contract City dollars will be awarded to MBE’s and WBE’s. Assuming that the City meets this total twelve percent set aside, non MBE’s and WBE’s could qualify for 88% of the City’s eligible contract dollars and all exempt and waived City contract dollars not subject to the Ordinance. See Pierce County, supra, 100 Wash.2d at 124, 667 P.2d at 1100 (‘The burden on nonminority male dominated firms is still relatively light, as they may still compete for 88% of the subcontracting business’). Even assuming the City reaches its 40% goal, non MBE’s and non WBE’s qualify for at least 60% of all City contract dollars; and (4) no one is excluded from the competitive bidding procedure. See Fullilove, supra 448 U.S. at 484, 488 [100 S.Ct. at 2777, 2780]; Metropolitan Dade County, Fla., supra, 723 F.2d at 856, n. 15.”

As the court recognized in Ohio Contractor’s Ass’n, supra, 713 F.2d at 173, “[i]t is clear that members of the majority can be required to bear some of the burden which inevitably results from affirmative efforts to rectify past discrimination. Even if it is assumed that the plaintiffs in this action are innocent of discriminatory conduct themselves, they are part of a group which did reap competitive benefit from past discriminatory practices of the state that have virtually excluded minority contractors from state business. It was within the power of the General Assembly to require the non-minority contractors to assume a reasonable burden.” We believe that the Ordinance here ensures that majority contractors shall assume no more than a reasonable burden.

For all of the above reasons, we find that the race-conscious provisions of the Ordinance do not offend the guarantees of the equal protection clause of the Federal Constitution. Accordingly, the sex-conscious provisions withstand constitutional scrutiny as well. See Pierce County, supra, 100 Wash.2d at 126, 667 P.2d at 1101.

III.

Plaintiff’s final contention is that the 5% bidding preference afforded local business enterprises (hereafter “LBE’s”) also violates the Equal Protection Clause. Section 12D.5 of the Ordinance defines “Local Business” as a “business firm with fixed offices or distribution points located within the boundaries of the City and County of San Francisco and listed in the Permits and License Tax Paid File with a San Francisco business street address.”

In considering whether legislation regulating economic or commercial matters offends equal protection, courts have traditionally applied a rational basis standard. Exxon Corp. v. Eagerton, 462 U.S. 176, 103 S.Ct. 2296, 76 L.Ed.2d 497 (1983). Thus, a state may impose “... more onerous taxes or other burdens on foreign corporations than those imposed on domestic corporations ... [if the] discrimination between foreign and domestic corporations bears a rational relation to a legitimate state purpose.” Western and Southern Life Insurance Co. v. State Bd. of Equalization, 451 U.S. 648, 668, 101 S.Ct. 2070, 2083 [68 L.Ed.2d 514] (1981). See also, G.D. Searle & Co. v. Cohn, 455 U.S. 404, 408 n. 6, 102 S.Ct. 1137, 1142, n. 6 [71 L.Ed.2d 250] (1982) (“Only a rational basis, however, is required to support a distinction between foreign and domestic corporations.”)

Relying on the Supreme Court’s recent decision in Metropolitan Life Insurance Co. v. Ward, — U.S.-, 105 S.Ct. 1676, 84 L.Ed.2d 751 (1985), plaintiff contends that the LBE bidding preference is invalid because it was not enacted pursuant to a legitimate state interest. Metropolitan Life concerned a challenge to an Alabama statute which taxed domestic insurance companies at a lower rate than out-of-state insurers. The Court found that the statute was designed solely to promote or favor domestic industry at the expense of foreign corporations. Id. at 1676. Such a “purely and completely discriminatory” motive, the Court concluded, “constitutes the very sort of parochial discrimination that the Equal Protection Clause was intended to prevent.” Id. at 1681-82. Accordingly, the Court invalidated the statute on the grounds that “promotion of domestic business within a State, by discriminating against foreign corporations that wish to compete by doing business there, is not a legitimate state purpose.” Id. at 1682-1683.

In the case at bar, the LBE bidding preference was enacted in response to findings by the Board that 1) “local businesses which seek to enter into contracts with the City and County of San Francisco are at a competitive disadvantage with business in the City (e.g. higher taxes, higher rents, higher wages and benefits for labor, higher insurance rates, etc.)”, and 2) “[t]hat the public interest would best be served by encouraging business to locate and remain in San Francisco through the provision of a minimal ‘good faith’ preference to local businesses in the awarding of City contracts”, and 3) “[t]hat policies and programs which enhance the viability of minority-owned, women-owned, and local businesses will best serve the public interest because the growth and development of such businesses will have a significant positive impact on the economic health of the City.” (See Ordinance, Sec. 12D.2, ¶¶ 4, 5, and 6).

Also relevant is the Ordinance’s “Declaration of Policy” which states in part that the “... ultimate goal ... is to offset some of the economic disadvantages faced by local businesses____ K The City and County of San Francisco is utilizing a preference for local business in the award of City and County contracts in order to encourage business to locate and remain in San Francisco and thereby increase the number of employed persons living in San Francisco. The additional cost to businesses located in San Francisco has been estimated as high as 15%; a preference of 5% for local businesses bidding on City contracts constitutes ‘good faith’ on the part of the City in support of businesses which contribute to the economic health of the City. The percentage is a reasonable expression of that good faith, does not unduly hamper non-local businesses in the contracting process, and parallels the preferences awarded in many other local jurisdictions.” Id. at Sec. 12D.3.

While both the instant LBE provision and the Alabama statute were designed to foster growth and development of domestic business, the critical distinction between them is that the Alabama statute was designed solely to provide in-state insurers with an advantage over foreign insurers. It was this “purely discriminatory” purpose that the Court found so objectionable in Metropolitan Life, supra, 105 S.Ct. at 1676. In contrast, the LBE provision was not prompted by a desire to penalize foreign, or reward, domestic contractors; rather, it was prompted by the Board’s findings that disproportionately higher local taxes, rents, wages, etc., put local contractors at a significant disadvantage when competing with foreign contractors. Thus, the Board was attempting to equalize the competitive position of local and non-local contractors, not grant local contractors an impermissible edge. We conclude that this objective does not run afoul of the principles set forth in Metropolitan Life, supra.

We find support for this conclusion in Western and Southern Life Insurance Co., supra, 451 U.S. 648, 101 S.Ct. 2070. There the Court upheld, against an equal protection challenge, a California “retaliatory” tax on foreign insurers. The tax is triggered if the foreign insurer’s state imposes higher taxes on California insurers doing business in the foreign state than California would impose on that insurer’s similar activities in California.

As in the case at bar, the thrust of the statute was to equalize the position of domestic and foreign corporations. In discussing the purpose of “retaliatory taxes”, the Court cited an A.L.R. survey which stated "... that their ultimate object is not to punish foreign corporations doing business in the state, or retort the action of the foreign state in placing upon corporations of the enacting state doing business therein burdens heavier than those imposed upon corporations of such foreign state doing business in the enacting state, but to induce such foreign state to show the same consideration to coprorations of the enacting state doing business therein as is shown to coprorations of such foreign state doing business in the enacting state.” Western and Southern Life Insurance Co., supra, 451 U.S. at 668-69, 101 S.Ct. at 2083 (citing Annot., 91 A.L.R. 795 (1934)).

We believe that the purpose and effect of the LBE preference at issue here is more akin to the permissible California “retaliatory tax” than to the Alabama statute presented in Metropolitan Life, supra. The Supreme Court specifically acknowledged the above differences between the Alabama and California statutes when it noted that the “crucial distinction” between the two was that Alabama’s was “... designed only to favor domestic industry within the State, no matter what the cost to foreign corporations also seeking to do business there____ contrary to [the] California ... [statute].” Id. 105 S.Ct. at 1681.

Thus, while a locality cannot, consistent with equal protection guaranties, treat foreign businesses differently than domestic businesses for the sole purpose of discriminating against foreign (or favoring domestic) businesses, we do not believe, for the reasons stated above, that the 5% LBE bidding preference derives from such an improper purpose. Additionally, we note that plaintiffs do not allege that the LBE provision is not rationally related to its stated purpose, and we conclude that such a relationship does exist. Accordingly, the LBE provision withstands scrutiny under the “rational basis” test; and thus, under the Equal Protection Clause of the United States Constitution.

IT IS SO ORDERED.

      . Efforts to improve minority and female participation in municipal contracting in San Francisco began with the enactment of Administrative Code Chapter 12(B) which prohibits contractors from discriminating in their employment practices on the basis of race or sex. As the Human Rights Commission of San Francisco ("HRC”) administered Chapter 12(B), it determined that effectuation of its goals could only be achieved if minority entrepreneurs were also given an opportunity to develop and gain a foothold in the marketplace. Eventually, Chapter 12(B) was amended to include affirmative action provisions requiring contractors to award a portion of their subcontracts to minority business enterprises. Exploration into the instant Ordinance was prompted by the Board’s concern that the City’s efforts to date had not significantly increased minority and female participation in City contracts and by complaints to the HRC that the subcontracting requirements, though helpful, were not providing minority and women business enterprises with sufficient opportunities and experience to enable them to obtain prime contracts with the City.

      . Finding of Fact No. 25 states in part that "[t]he Board has interpreted the term ‘responsible’ so as to allow consideration of matters of public interest and concern in addition to the quality of the work and the fitness of the contractor to perform the services”.

      . In 1982, the Board directed the HRC to investigate and conduct hearings into the extent of minority and women business participation in City contracts and to report their findings, along with any proposed remedial legislation, to the Board. The HRC contacted 56 City Departments or Bureaus and obtained data on the number and dollar amounts of contracts awarded or let during 1981 and 1982 to minority and women business enterprises. The HRC also conducted interviews with Department personnel and others to determine City practices in this area, and how they affect minority and women business enterprises. Four public hearings were also held in February, March and April of 1983, during which testimony, as well as written submittals, were received.
      The findings of the HRC and the Board indicated, among other things, the following: 1) Though MBE’s constitute 30% and WBE’s between 10 and 15% of San Francisco's business, and though minorities and women constitute nearly 50 and 60% of the City’s population, respectively, they were awarded no more than 2.8 percent of all City contracts. The latest U.S. Census data also revealed that 30.59% of all construction firms in San Francisco are minority owned and 10.65% are women owned. 2) City departments and contract awarding authorities were functioning without specific uniform standards and criteria in the award of contracts and leases by the City. This broad discretion was often inexplicably exercised to the disadvantage of MBE’s and WBE’s. 3) Many seemingly innocent, benign practices kept intact the “old boy" network which effective excluded newcomers, many of which were MBE’s and WBE’s. 4) Partly due to historic exclusion from the market place, MBE's and WBE’s had been unable to acquire the expertise and experience necessary to obtain prime contracts, and 5) Significant measures, including affirmative action, were needed to provide MBE’s and WBE’s a fair opportunity in the area of municipal contracting.

      . The October 30, 1984, declaration of Gail P. Roberts, Coordinator of the Human Rights Commission, states at If3 that "... local entrepreneurs often complained that non local business often- escaped liability for local business taxes applicable to the work those business[es] did in San Francisco. Local businesses are much more likely to be watched by the Tax Collector. Since local taxes are a significant business cost, the advantages a non local business enjoys over a San Francisco based business are exacerbated when the former escapes liability for taxes that both should pay."
      "Many local entrepreneurs complained that this condition threatens to drive them out of San Francisco. Many of these local business provide significant employment for minority and women residents.
      “In drafting the ordinance, we were concerned not to exclude form the local business preference any business that employs people locally or pays City taxes, [and contributes] ... to the health of the City’s economy.”
      "Hence, we rejected claims that the Ordinance should embody a preference for business with their headquarters or principal place of business in San Francisco. In our view, any business that had an office here and complied with City business tax registration requirements contributes to the local economy. Ensuring that non local businesses pay their taxes, would mitigate some of the disadvantages local businesses suffer but would not erect any commercial barriers around San Francisco or balkanize our local economy.”


source: Caselaw Access Project

author: BARRINGTON D. PARKER, District Judge:

license: Public Domain

text:
    Ada ROBINSON and Albert Robinson, Plaintiffs, v. James F. PALMER, et al., Defendants.
    Civ. A. No. 85-1044.
    United States District Court, District of Columbia.
    Aug. 8, 1985.

      Jeffrey F. Lawrence, Michael G. Roberts, Billig, Sher & Jones, P.C., Washington, D.C., for plaintiffs; Arthur B. Spitzer, Elizabeth Symonds, American Civil Liberties Union Fund of the Nat. Capitol Area, Washington, D.C., of counsel.
    Beverly A. Lewis, Asst. Corp. Counsel, Dept, of Corrections, Washington, D.C., for defendants.
   MEMORANDUM OPINION

BARRINGTON D. PARKER, District Judge:

In this proceeding the wife of a prisoner, and the prisoner who is confined to a District of Columbia penal institution, challenge a decision of the Director, District of Columbia Department of Corrections (“Department”) suspending the wife’s visiting rights for one year and later permanently suspending those rights. The plaintiffs Ada Robinson and her husband Albert Robinson seek to overturn the actions of the Department’s Director. They request in-junctive and declaratory relief as well as damages under 42 U.S.C. § 1983. The defendants are the Director and two officials of the Department, the Mayor of the District of Columbia and the District of Columbia.

The matter is before the Court on cross motions for summary judgment and plaintiffs’ application for a preliminary injunction. The matter was fully briefed and following argument on the motions, post hearing memoranda were submitted by the parties. For the reasons set out below the Court determines that Mrs. Robinson is entitled to procedural due process, through a hearing, before the suspension of her visiting rights was increased from a one-year to a permanent suspension.

BACKGROUND

The material and essential facts in this case are uncontroverted. Mr. Robinson is currently incarcerated in a Department facility located in Lorton, Virginia (“Lorton”) following a felony conviction and sentence. On March 8, 1983 while visiting her husband, Mrs. Robinson attempted to bring contraband into that facility. The contraband, a quantity of marijuana, was found in a plastic lunch bag secreted in her undergarments. Because of this infraction, Mrs. Robinson was advised in a letter dated March 8, 1983 from Salanda Whitfield, a Department official, that her visiting privileges were suspended for one year.

This is to advise you that your visiting privileges at all ... Department of Corrections Facilities have been suspended for a period of one year. This action is taken as a result of visiting regulations governing visitor conduct (Introduction of Contraband) during a visit to the institution on March 8, 1983.
You may apply in writing for reinstatement of your visiting privileges after March 8, 1984. If you have any questions regarding this matter, please contact this office ... at phone 727-4000, x-483.

The one-year suspension sanction was based on a Department contraband policy directive, effective June 28, 1978, which provided that “[ljegal or administrative sanctions are exercised against those who either attempt to introduce or are in possession of contraband.” On February 15, 1983, the Acting Director of the Department in reaffirming the contraband policy stated in a memorandum to his assistants, that “citizens permanently banned from further visitation privileges may continue to appeal such action to my office.” On February 6, 1984, one month before the end of Mrs. Robinson’s one-year suspension, the Department amended the June 28, 1978 policy directive to provide that

Any visitor who introduces contraband or attempts to introduce contraband into a Department of Corrections Institution will be permanently suspended from all Department of Corrections Facilities. (emphasis added).

The plaintiffs challenge the February 6, 1984 change in the contraband policy. They allege various constitutional violations and also claim that the policy was adopted in violation of the District of Columbia Administrative Procedure Act (“APA”).

At the outset, the Court notes that the Robinsons’ complaint fails to assert any cognizable claim against either the District of Columbia or the Mayor under 42 U.S.C. § 1983. Oklahoma City v. Tuttle, — U.S.-, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Monell v. New York City Dept. of Social Service, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Nor are there any claims or allegations that either was even remotely involved in the underlying facts of this litigation. Accordingly, those defendants are sua sponte dismissed by the Court.

ANALYSIS

The Constitutional Claims

A. First Amendment

Plaintiffs claim that the contraband regulation infringes upon their first amendment right to visitation. “[C]onvicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison.” Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979). See also Procunier v. Martinez, 416 U.S. 396, 422, 94 S.Ct. 1800, 1815, 40 L.Ed.2d 224 (1974) (Marshall, J., concurring) (“A prisoner does not shed such basic First Amendment rights at the prison gate”).

However, it is not clearly established that prisoners do have a constitutional right to visitation. “When confronted with the question whether inmates have a constitutional right to receive visits from family and friends, courts have reached varying results.” Ramos v. Lamm, 639 F.2d 559, 579 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). See also Martin v. Wainwright, 525 F.2d 983, 984 n. 3 (5th Cir.1976) (per curiam); White v. Keller, 438 F.Supp. 110, 114-15 (D.Md.1977), aff'd, 588 F.2d 913 (4th Cir. 1978). The question here is not whether an inmate has a constitutional right to visitation, per se, but whether prison officials may limit that right. In this case, prison officials seek to impose a limitation on visitors caught entering the facility with contraband.

Assuming arguendo that plaintiffs do have a constitutional right to visitation founded in the first amendment, the governmental restriction on that right must be closely scrutinized. “[C]hallenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law." Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974) (analyzing constitutional interests involving face-to-face interviews between prisoners and the media). See also Procunier v. Martinez, 416 U.S. at 409, 94 S.Ct. at 1809 (analyzing constitutional interests involved with censorship of inmates’ mail).

In evaluating the restriction on prisoner visitation through a contraband policy, the Court must determine whether it “is reasonably related to legitimate governmental objectives.” Block v. Rutherford, — U.S. -, 104 S.Ct. 3227, 3232, 82 L.Ed.2d 438 (1984). It cannot be disputed that there is a legitimate governmental objective in deterring visitors from bringing contraband into the prison. “Prison officials stressed the enormous security risk flowing from the introduction of contraband into the prison population____” Abdul Wali v. Coughlin, 754 F.2d 1015, 1032 (2d Cir. 1985). In such cases where the activity being regulated, in this case, contraband, is presumptively dangerous, there is a “burden upon prisoners to demonstrate that the restriction is not supported by a reasonable justification.” Id. at 1033.

Plaintiffs do not challenge the fact that Mrs. Robinson is appropriately a subject of sanctions for carrying contraband into Lorton. What they do challenge, however, is the reasonableness of a permanent suspension of visiting privileges. Be-

cause of the security objectives behind the contraband policy and the dangers posed by the introduction of contraband into Lorton, the Court cannot conclude that it is unreasonable for prison officials to adopt a permanent suspension policy. “Prison administrators ... should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell, 441 U.S. at 547, 99 5. Ct. at 1878. There are legitimate security objectives supporting the contraband policy, and the Court should defer to the reasonable judgment of prison officials as to the details of the policy. Cf Rutherford, 104 S.Ct. at 3234 (“When the District Court found that many factors counseled against contact visits, its inquiry should have ended. The court’s further ‘balancing’ resulting in an impermissible substitution of its view on the proper administration of Central Jail for that of the experienced administrators of that facility”). See also Blocker v. District of Columbia, C.A. No. 85-0527, Mem. at 2 (D.D.C. June 6, 1985).

Moreover, Mrs. Robinson has other means of communicating with her husband beyond visits. Given the alternate channels available, the limitation posed by the policy is not an unconstitutional infringement on first amendment rights. Pell v. Procunier, 417 U.S. at 827, 94 S.Ct. at 2806. Other restrictions on inmate visitation regulations have similarly been upheld by courts. See, e.g., Ramos, 639 F.2d at 580-81; Morrison v. Lefevre, 592 F.Supp. 1052,1079 (S.D.N.Y.1984) (“It is reasonable for a prison to deny visiting privileges to someone who is suspected of having attempted to aid a prisoner’s escape.”); Smith v. Coughlin, 577 F.Supp. 1055, 1061-62 (S.D.N.Y.1983), aff'd, 748 F.2d 783 (2d Cir.1984). Thus, the contraband policy, SO 5010.3C, is not a prima facie unconstitutional violation of plaintiffs’ first amendment rights.

B. Eighth Amendment

The plaintiffs argue that Mrs. Robinson’s permanent visitation suspension is tantamount to the imposition of “cruel and unusual punishment” for her husband, and thus violates the proscriptions of the eighth amendment. This argument is without merit. Given the fact that Mrs. Robinson’s exclusion was not a condition of Mr. Robinson’s confinement and that it resulted from her violation of the Department’s contraband policy, the permanent suspension does not violate Mr. Robinson’s eighth amendment rights. Cf. Morrison, 592 F.Supp. at 1079 (“The unreasonableness and the unconstitutionality of the deprivation in the instant case stems not from any cruel or unusual treatment in forbidding visits by a person accused of aiding inmate escapes”).

C. Fourteenth Amendment

Mrs. Robinson asserts in her affidavit filed in support of the motion for summary judgment, that she was not afforded any type of hearing prior to the imposition of her suspension. Prisoners retain rights under the due process clause which are not inconsistent with the nature of their confinement. Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974). The plaintiffs argue that the lack of any procedures prior to the imposition of the suspension was a denial of their fourteenth amendment due process rights. They further assert that they have a protected liberty interest in visitation rights such that those rights cannot be removed without according them the requisite procedural due process. “Liberty interests protected by the Fourteenth Amendment may arise from two sources— the Due Process Clause itself and the laws of the States.” Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983). Plaintiffs cannot claim that a constitutional right to visitation gives rise to a protected liberty interest because “[c]on-victed prisoners have no absolute constitutional right to unrestricted visitation.” McMurry v. Phelps, 533 F.Supp. 742, 764 (W.D.La.1982) (emphasis added). See also Keller, 438 F.Supp. at 114 (no constitutional right to unrestricted visitation). Since the regulation at issue involves a reasonable restriction on any constitutional right to visitation, plaintiffs cannot rely on a constitutional right as the basis for their liberty interest in visitation.

Moreover, plaintiffs cannot rely on a state created liberty interest in the form of a statute which gives inmates a mandatory right to visitation. See Kozlowski v. Coughlin, 539 F.Supp. 852, 856 (S.D.N.Y. 1982) (“The State of New York, by judicial decision, administrative regulation and departmental directive has granted its prisoners a protected liberty interest in receiving visits from persons of their choice”). Cf. Hewitt, 459 U.S. at 471-72, 103 S.Ct. at 871-72 (mandatory nature of Pennsylvania statute regarding administrative segregation). The Court cannot find, nor can plaintiffs point to, a provision of the District of Columbia Code relating to mandatory rights of visitation.

1.

However, a liberty interest may be created by a state regulation. “[A] prisoner may acquire a protected liberty interest by virtue of official policy statements or regulation duly promulgated by administrators of the particular institution at which the prisoner is confined.” Lucas v. Hodges, 730 F.2d 1493, 1504 (D.C.Cir.1984), vacated as moot, 738 F.2d 1392 (D.C.Cir. 1984). This may be the case when “a State creates a protected liberty interest by placing substantive limitations on official discretion.” Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983). Accord Lucas at 1505.

The Department of Correction’s contraband policies in existence, both at the time of the suspension, and at the time the suspension was increased, does not contain any language which limits official discretion with respect to the suspension or which “set[s] out explicit substantive criteria on which the decisionmaker must base the imposition of restrictions or the withholding of benefits.” Id. Thus, Mrs. Robinson need not have been provided a hearing prior to the invocation of the policy. Further, an examination of the Lorton Visitation Policy reveals that there are no restrictions on discretion concerning suspension of visitors for cause, including introduction of contraband.

However, even if the visitation policy can be read to provide Mr. Robinson with a liberty interest in such privileges, his entitlement to a hearing in this matter is questionable. Aside from the fact that Mrs. Robinson visited her husband at the Lorton facility, there is no allegation that he was in any way involved in the contraband incident. The Department’s letter suspending his wife’s visitation privileges did not charge him with illegal conduct and the record does not disclose that any charges were ever placed against him. He joined his wife as a co-plaintiff in this proceeding and we assume that his claim is based upon an expectation of visitation privileges from his wife which have been permanently suspended without a hearing. From the facts presented in this case, the Court is not prepared to hold that a prisoner is entitled to a hearing when he is not immediately implicated in an incident and where no disciplinary measures are assessed directly against him. Cf. Blocker, supra, Mem. at 3-4 (D.D.C. June 6, 1985).

2.

The Court concludes that Mrs. Robinson has a protected liberty interest in only a one-year suspension in her visiting privileges as provided in the Department’s March 8, 1983 letter from Salanda Whitfield. While the defendants contended at the oral hearing on the summary judgment cross motion, that a February 15, 1983 memorandum from the Department Director to his assistants referred to a permanent suspension of visiting privileges for contraband violations, it is clear that that memorandum was never written, published or circulated as a Department Order or Service Order as customarily done by the Department with respect to its contraband policy. The Whitfield letter of March 8, 1983, gave Mrs. Robinson a protected interest and expectation that suspension of her visitation privileges would be limited to one year. That suspension could not be permanently extended without notice and without affording her an opportunity to be heard.

In the absence of prior notice and a hearing, the Department’s decision was arbitrary, excessive and Mrs. Robinson is entitled to relief. This is not to say that anything approaching a formal adversarial hearing is required, however, minimal due process requirements should be provided. See Kozlowski, 539 F.Supp. at 858. Mr. Robinson may appear and participate, but under the facts of this case, his appearance and participation are not considered to be as “of right.”

DISTRICT OF COLUMBIA ADMINISTRATIVE PROCEDURE ACT

As a further argument, the plaintiffs contend that the 1984 contraband policy was adopted in violation of the District of Columbia APA, D.C.Code § 1-1501 et seq. (1981), and the rulemaking provisions of that statute. Section 1-1502(6) provided in pertinent part

The term ‘rule’ means the whole or any part of any Mayor’s or agency’s statement of general or particular applicability and future effect designed to implement, interpr'et, or prescribe law or policy or to describe the organization, procedure, or practice requirements of the Mayor or of any agency.

Counsel for the government argued to the contrary and responded to a question put by the Court at the oral argument that the Department had never observed the APA rulemaking procedures in promulgating its directives either on the contraband policy or with respect to visitation privileges. Of course what the Department has done in the past is not necessarily controlling.

The Court will defer ruling on the applicability of the APA pending the receipt from government counsel of a memorandum identifying all formal rulemaking undertaken by the Department since 1980. The memorandum shall present a full explanation and statement of reasons why rulemaking was pursued as to each rule identified.

THE QUESTION OF DAMAGES

The Court views this proceeding as basically a challenge to lack of procedural due process. In their § 1983 claim, plaintiffs seek damages as well as equitable relief. There is no quarrel with their request for injunctive relief. The question of damages, however, presents a serious problem. The weight of authority as to damages suggests that for denial of procedural due process, the plaintiffs are entitled only to nominal damages absent a showing of actual injury resulting from denial of procedural rights. Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). In that case, brought under 42 U.S.C. § 1983, the Supreme Court considered the elements and prerequisites for the allowance of damages by students suspended from public schools for violation of a rule for use of drugs. The school imposed a 20-day suspension for violation of that rule. Thereafter, a suit was filed under § 1983 charging that the students had been suspended without due process of law in violation of the Fourteenth Amendment. Declaratory and injunctive relief were sought together with actual and punitive damages in the amount of $3,000. A unanimous Supreme Court observed that under § 1983, the

rules governing compensation for injuries caused by the deprivation of constitutional rights should be tailored to the interests protected by the particular right in question — just as the common-law rules of damages themselves were defined by the interests protected in the various branches of tort law.

Id. at 259, 98 S.Ct. at 1050. The Court then held that

Even if respondents’ suspensions were justified, and even if they did not suffer any other actual injury, the fact remains that they were deprived of their right to procedural due process. ‘It is enough to invoke the procedural safeguards of the Fourteenth Amendment that a significant property interest is at stake, whatever the ultimate outcome of a hear-ing____’ (citations omitted)
Common-law courts traditionally have vindicated deprivation of certain ‘absolute’ rights that are not shown to have caused actual injury through the award of a nominal sum of money. By making the deprivation of such rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed; but at the same time, it remains true to the principle that substantial damages should be awarded only to compensate actual injury or, in the case of exemplary or punitive damages, to deter or punish malicious deprivation of rights.
Because the right to procedural due process is ‘absolute’ in the sense that it does not depend upon the merits of a claimant’s substantive assertions, and because of the importance to organized society that procedural due process be observed, see Boddie v. Connecticut, 401 U.S. 371, 375 [91 S.Ct. 780, 784, 28 L.Ed.2d 113] (1971); Anti-Fascist Committee v. McGrath, 341 U.S. [123] at 171-72 [71 S.Ct. 624, 648-49, 95 L.Ed. 817] (Frankfurter, J., concurring), we believe that the denial of procedural due process should be actionable for nominal damages without proof of actual injury. We therefore hold that if upon remand, the District Court determines that respondents’ suspensions were justified, respondents nevertheless will be entitled to recover nominal damages not to exceed one dollar from petitioners, (footnotes omitted).

Id. at 266-67, 98 S.Ct. at 1053-54. Therefore, the Court, sua sponte, grants nominal damages.

EXHIBIT 1

1. Purpose. To establish general guidelines relative to the appearance and attire of all visitors to the D.C. Department of Corrections Central Facility.

2. Issuances.

a. Cancellations: None

b. References: S.O. 4500.7B

3. Policy. The general policy of the D.C. Department of Corrections Central Facility, is to permit as much individuality in dress and appearance of visitors as is consistent with good judgement and institutional security requirements.

4. Delegation of Authority. The Administrator is delegated authority to prescribe clothing worn by visitors to the Central Facility. This authority will not be further delegated.

5. Procedure. All visitors to the Central Facility are to be dressed in accordance with the moderate prevailing standards of the fashion world.

a. All visitors must wear shoes or will not be permitted to enter the institution.

b. Males, must wear shirts. Females are allowed to wear halter tops; however, the midriff must be covered.

c. Shorts above the mid thigh are not permissible and visitors will not be allowed to enter the institution wearing shorts as described.

d. Hats and other forms of head dress may be worn; however, the same are subject to search.

e. Effective Date. Upon receipt.

Distribution: A & C

1. Purpose: The purpose of this order is to establish visiting hours at Central Facility that are compatible with other scheduled activities and programs.

2. Issuances affected or referenced: S.O. 4500.7C

3. Procedures:

a. Normal visiting hours at Central Facility will be as listed below. The Visiting Hall will be cleared of all visitors no later than one hour after close of visiting.

Monday — Friday: 6:00 P.M. to 9:00 P.M.

Saturday: 8:00 A.M. to 12:00 Noon

Sunday: 8:00 A.M. to 1:00 P.M.

Holidays: 8:00 A.M. to 12:00 Noon

b. Attendance of visitors at programs and special activities will be in accordance with times specified in approved MAT’s.

4. This order is effective June 8, 1981.

DEPARTMENT OF CORRECTIONS CORRECTIONAL COMPLEX LORTON, VIRGINIA

SO 4500.7C

May 15, 1970

SUPERINTENDENT’S ORDER 4500.7C

Subject: Visiting Policies and Procedures at the Central Facility and Adjustment Unit

1. Purpose. The purpose of this order is to advise staff and residents of changes in visiting policies and procedures.

2. Cancellation. This order supersedes and cancels Superintendent’s Order 4500.7B CH 1, dated October 1, 1968, which may be removed from the files.

3. Action.

a. Visitors

(1) Each resident shall have a list of authorized visitors containing only persons that appear to be sincerely interested in the resident’s welfare. The authorized list may include immediate relatives and friends; however, because of the necessity for limiting the number of visitors per visiting period that are permitted to visit, the number of friends authorized to visit will be limited. This means that under normal circumstances unmarried residents will be authorized to have a girlfriend on their visiting list. Visiting privileges for other friends, male or female, will be extraordinary, and worked out between the resident and his caseworker. When immediate relatives show that they are not very interested in visiting, the resident may work out a plan with the caseworker for other relatives or friends to visit. Immediate relatives, for example, are parents, siblings, children, grandparents, foster parents, guardians, wife or common-law wife. Immediate relatives may request that their spouse be authorized to visit, and in situations such as this, in-laws may be authorized to accompany the relative for visits.

(2) The Chief of Classification and Release Programs is responsible for the implementation of the visiting policies. In this connection, each visitor will be required to furnish certain pertinent information before he is authorized to visit. Included will be identification photographs which will be provided free of charge. Visitors who object to being photographed by institutional staff will be required to furnish two photographs for use as personal identification before receiving permission to visit.

b. Visiting Procedure

(1) The Associate Superintendent of Custodial Operations is responsible for the administration of the visiting procedures. One officer (hereafter referred to as the Visiting Room Officer) will be required to supervise the visiting procedures in each visiting facility, except when visiting on the lawn without direct supervision is authorized. The Associate Superintendent may detail supplemental staff to this program as needed. One officer will be required to work with the Visiting Room Officer, and perform duties including the supervision of clearance procedures, checking in visitors, shakedown duties, etc.

(2) Visiting will be extended throughout the week and include at least two evenings a week. Visiting during the day may commence at 8:00 A.M. and end prior to the afternoon count. Evening visits may commence immediately following the afternoon count. Evening visits should end approximately thirty minutes before it gets dark.

(3) Visiting on Saturday and Sunday, including the Fifth Sunday, will be held for one hour only from 8:00 A.M. until 2:30 P.M. on Sunday, and from 8:00 A.M. until 12:30 P.M. on Saturday. Visiting in the Adjustment Unit will not be changed.

(4) The number of visitors in the Visiting Room will be limited to the number of chairs and tables that are available. When the room is filled, the visitor must wait until space is available.

c. Visiting Conditions

(1) Visitors are required to keep children as orderly as possible in order that other visits will not be disturbed.

(2) Lasciviousness (exhibitionism and sexual play) will not be permitted. Visitors will be permitted to express affection at the beginning and end of the visiting period. Flagrant abuses in this connection will be subjects for discipline. These desires are understood, but we are not equipped for the authorization of this kind of intimate contact.

(3) Four types of visiting conditions will be in operaton at the Lorton Complex. As mentioned above, visiting at the Adjustment Unit will not be changed. At the Central Facility, visiting conditions will be as follows. 1. In connection with the honor system, some men will be permitted to visit, weather permitting, on the lawn. 2. Regular visiting will be held in the Main Visiting Room. 3. We will also mention a close custody visiting room for those who will be penalized, from time to time, for abusing visiting privileges.

(4) Each resident will be allowed to have ten hours of visiting time per month to be prorated among all of his visitors. No limits will be placed on the number of approved visitors that may visit a resident in concert other than occasions when it will be necessary to limit the number because of crowded visiting conditions. A resident may have only one visit a day. Residents may visit up to four hours on weekdays. Although visitors might remain for less than an hour on weekdays, the resident will be charged one hour for each fraction of a hour’s visiting time.

(5) Visitors are urged to refrain from bringing large pocketbooks into the Visiting Room. In this connection, occasionally, we will request that visitors leave their pocketbooks in their automobiles, and we may provide lockers for them to use to secure pocketbooks.

(6) Food and beverage machines will be provided for the visitors to purchase snacks if they desire to do so when they are involved in an extended visiting period.

(7) Visitors who desire to leave funds for residents may do so by giving the money to the Visiting Room Officer who will give them a receipt for the deposits. Large sums of money for deposit into a resident’s account is discouraged. The Visiting Room Officer is instructed to contact the caseworker who will confer with visitors who desire to leave more than fifty dollars for deposit in a resident’s account.

(8) The objective of these visiting policies and procedures are to improve the visiting program and cope with the problems in connection with the introduction of contraband through the visiting process. Residents should assume some responsibility in creating an appropriate atmosphere and decorum during visits.

(9) A resident may bring with him on a visit only his comb, handkerchief, locker key, and canteen book. All other items will be confiscated.

4. Effective Date. On or about May 15, 1970.

/s/ John 0. Boone John 0. Boone Superintendent

jap

DISTRIBUTION: “A”, “B”, “C”, “D” & “E”

      . Defendants’ motion to dismiss complaint or alternatively for summary judgment at Ex. D.
      On March 25, 1983, Mrs. Robinson was also charged with trying to enter Lorton under an assumed name after her visiting privileges had been suspended. Defendants' Motion for Summary Judgment at Exhibit F. Although defendants presented at the oral argument a letter, dated March 31, 1983, addressed to Mrs. Robinson stating that she would receive an indefinite suspension based on that attempt, it has been the consistent position of the defendants that Mrs. Robinson's permanent suspension is based on the contraband policy. See, e.g., Compl. at Exhibits 5, 6.

      . Compl. at Ex. 1.

      . Department Service Order No. 5010.3B, 5(e), June 28, 1978, Defendants’ Post-Hearing Memorandum at Ex. G.

      . Defendants’ motion to dismiss complaint or alternatively for summary judgment at Ex. A. (emphasis added).

      . Compl. at Ex. 3, Department Service Order No. 5010.3B, Change Transmittal 1, f 2, February 6, 1984. That Change Transmittal was soon replaced by a new contraband policy, Service Order No. 5010.3C, effective May 4, 1984, which incorporated the permanent suspension policy. See Compl. at Ex. 4.

      . Since the contraband policy is facially neutral regarding suspension of family members vis-a-vis non-family members, see Compl. at Exhibit 4, the Court does not view the policy as implicating constitutionally protected family rights. This is not a case where certain family members are banned from visitation, see, e.g., Valentine v. Englehardt, 474 F.Supp. 294, 301 (D.NJ.1979) (children banned from visiting inmates), or where the regulation is directed towards certain family members, see, e.g., Moore v. City of East Cleveland, 431 U.S. 494, 498-99, 97 S.Ct. 1932, 1935-36, 52 L.Ed.2d 531 (1977) (ordinance directing that certain categories of relatives may live together). Rather, although the suspended visitor in this case happens to be the wife of the prisoner, the Court will analyze her status in the fashion as does the contraband policy — as a visitor. Cf. Keller, 438 F.Supp. at 115 ("Although the named plaintiff visitors are the parents of the named inmates, they do not sue as parents qua parents but as parents qua visitors. Hence the question presented is that of the constitutional right to visitation generally and not that of the right to visits from family in particular”).

      . Defendants’ post-hearing memorandum at Ex. G; Complaint at Exs. 3 and 4.

      . The Court requested the defendants to furnish it with the policy. It is attached hereto as Exhibit 1.

      . Justice Marshall concurred in the result and Justice Blackmun did not participate in any manner.


author: PLUNKETT, District Judge.

text:
    Charles BURNS, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    No. 84 C 3984.
    United States District Court, N.D. Illinois, E.D.
    Aug. 8, 1985.

      Robert P. Burns, Northwestern University Legal Clinic, Chicago, 111., for plaintiff.
    Linda Wawzenski, Asst. U.S. Atty., Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

PLUNKETT, District Judge.

Charles Burns (“Plaintiff”) brought this action against Margaret M. Heckler, as Secretary of Health and Human Services (“Defendant” or the “Secretary”), essentially seeking reversal of the Secretary’s decision dismissing Plaintiff’s request for a hearing on his claim for Supplemental Security Income benefits (“S.S.I.”) as untimely. Plaintiff invokes 42 U.S.C. § 405(g) (“§ 405(g)”), see 42 U.S.C. § 1383(c)(3), and 28 U.S.C. § 1361 (“§ 1361”) as alternative bases for subject matter jurisdiction over this case. Presently before the court are Defendant’s motion, under Fed.R.Civ.P. Rule 12(b)(1), to dismiss Plaintiff’s second amended complaint for lack of jurisdiction over the subject matter, and Plaintiff’s motion for summary judgment. For the reasons set forth below, Defendant’s motion is denied, and Plaintiff’s motion is granted.

Factual Background

The following facts are not in dispute. Plaintiff filed an application for S.S.I. on October 13, 1982. The Social Security Administration (the “S.S.A.”) initially denied Plaintiff’s claim on December 28, 1982, and Plaintiff filed a timely request for reconsideration on February 17, 1983. On March 11, 1983, on reconsideration, the S.S.A. again denied Plaintiff’s claim. Notice of the latter decision, dated March 11, 1983, was mailed to Plaintiff at 4808 West Quincy, in Chicago, on or about that date. The notice properly stated that Plaintiff had a right to a hearing before an administrative law judge (“A.L.J.”) on his claim, if he requested such a hearing within sixty days after receiving the notice. See 42 U.S.C. § 1383(c)(1); 20 C.F.R. § 416.1433(b) (1985).

Plaintiff avers that, sometime in the autumn of 1982 after he applied for S.S.I., he moved from 4808 West Quincy to 4938 West Washington, also in Chicago. (Affidavit of Charles Burns, Exhibit A to Plaintiff’s Second Amended Complaint, 1JH 2-3.) (We note, however, that Plaintiff stated to the S.S.A. that he moved in February 1983.) Plaintiff further alleges that, two days after he moved, he called the local office of the S.S.A. and informed the woman who answered the telephone of his new address, and that she told him that his new address would be noted in his file. (Id., ¶ 3.) Also after he moved to 4938 West Washington, Plaintiff asserts, he asked Joe Lee Johnson (“Johnson”), who still lived at 4808 West Quincy, to pick up Plaintiff’s mail, which, like all mail sent to 4808 West Quincy, was delivered to an office in the building. (Id., ¶ 4.) Plaintiff avers that he called Johnson regularly to ascertain whether he had received any mail at 4808 West Quincy, and that in that manner Plaintiff learned of the 5.5. A.’s initial denial of his claim for S.S.I. (Id.) When he filed his request for reconsideration on February 17, 1983, Plaintiff alleges, he. told the S.S.A. employee who took the request form that his current address was 4938 West Washington (id., 15), although, as Plaintiff concedes, the employee listed 4808 West Quincy as Plaintiff’s mailing address on the request form.

Plaintiff avers that he believes that, at the time that the March 11 notice from the 5.5. A. was delivered to 4808 West Quincy and for some time thereafter, Johnson did not have access to the office to which mail was delivered, because the landlord was hospitalized. (Id., ¶¶ 6-7.) In early July 1983, Plaintiff asserts, he went to the local office of the S.S.A. to inquire about his request for reconsideration, at which time he was informed that a decision had been issued and mailed to 4808 West Quincy. (Id., 118.) Plaintiff avers that he then contacted the landlord at 4808 West Quincy, who, after at first telling Plaintiff that the March 11 notice had not been delivered to his office, informed Plaintiff on July 6, 1983 that he had discovered the letter in a pile of mail. (Id., ¶ 19.) (We note, however, that Plaintiff stated to the S.S.A. that he obtained the letter on July 5, 1983, rather than July 6.) On July 6, 1983, the same day Plaintiff contends he obtained the March 11 notice (or at most one day thereafter), but approximately 117 days after the March 11 notice was mailed to 4808 West Quincy, Plaintiff filed a request for a hearing before an A.L.J., together with a statement explaining the delay.

On November 25, 1983, an A.L.J. dismissed Plaintiffs request for a hearing on the ground that Plaintiff had not filed the request within sixty days after he “received” the March 11 notice and had not shown “good cause” for an extension of the sixty day period. (Exhibit 4 to Affidavit of Wilbur J. Laub, p. 2.) See 20 C.F.R. §§ 416.1433(c), 416.1411 (1985). The A.L. J.’s decision was entirely based on his conclusion that Plaintiff had failed to inform the S.S.A. of his change of address. That conclusion was, in turn, largely based on the fact that the 4808 West Quincy address appears on Plaintiffs February 17 request for reconsideration.

On February 10, 1984, the Appeals Council denied Plaintiffs request for review of the A.L.J.’s decision, giving no specific reasons for its decision. By letter dated February 20, 1984, Plaintiff, through counsel, submitted the affidavit of Plaintiff to which we have referred above, and, in effect, asked the Appeals Council to reconsider its decision. On March 22, 1984, the Appeals Council, stating only that it had reviewed Plaintiffs affidavit, decided that the affidavit did not provide a sufficient basis on which to reverse the A.LJ.'s decision and thus refused to vacate its February 10 decision. Accordingly, the S.S.A.’s March 11, 1983 decision denying Plaintiffs claim became the Secretary’s final decision with respect to Plaintiff’s application for S.S.I. Plaintiff filed his complaint in this court on May 8, 1984.

Discussion

The ultimate issue in these proceedings, that of whether Plaintiff is entitled to receive S.S.I., is, as the parties agree, an issue which this court cannot reach in this case. Rather, the underlying question in this case is that of whether Plaintiff filed his request for a hearing before an A.L.J. within sixty days after he “received” the March 11, 1983 notice from the S.S.A. See 42 U.S.C. § 1383(c)(1); 20 C.F.R. § 416.-1433(b) (1985). Indeed, because the answer to that question depends on the resolution of factual disputes, we cannot, as Plaintiff comes close to conceding, decide that question either. That leaves before us, at most, the issue of whether we should order the Secretary to reassess the issue of the timeliness of Plaintiff’s request for a hearing. Defendant contends that even such a limited order would exceed our jurisdiction. We disagree.

Because we analyzed this area of the law in some detail in our opinion in Hennings v. Heckler, 601 F.Supp. 919 (N.D.Ill.1985), we will shorten our discussion in this case through the use of citations to Hennings. As in Hennings, Defendant argues here that § 405(g) does not confer jurisdiction over this case, and that, because § 405(g) is the only possible source of jurisdiction, we must dismiss Plaintiffs second amended complaint.

Since we are not confronted with a “final decision of the Secretary made after a hearing” (indeed, the absence of hearings is largely what Plaintiff is complaining about), § 405(g) can provide a jurisdictional basis for this case only if Plaintiffs attack on the Secretary’s decision dismissing his request for a hearing presents a “colorable constitutional claim[].” Watters v. Har ris, 656 F.2d 234, 238-241 (7th Cir.1980); Hennings, 601 F.Supp. at 921-922. Plaintiff contends that it does, arguing that the Secretary’s failure to provide him with a hearing on the timeliness issue violated his rights under the due process clause of the Fifth Amendment. Plaintiff has not, however, adduced any cases in support of his argument which are on point, and we find that he did not have a constitutional right to a hearing. Cf. Watters v. Harris, 656 F.2d at 240 & n. 11; Hennings, 601 F.Supp. at 922; Solberg v. Secretary of Department of Health & Human Services, 583 F.Supp. 1095 (E.D.Wis.1984).

Our conclusion that we cannot properly exercise jurisdiction over this case under § 405(g) does not, however, end our inquiry, since Plaintiff alternatively alleges jurisdiction under § 1361, the federal mandamus statute. In Hennings, we held that, contrary to Defendant’s position, “under appropriate circumstances, mandamus jurisdiction under § 1361 is available in social security cases” “ ‘to review otherwise unreviewable procedural issues not related to the merits of a claim for benefits.’ ” 601 F.Supp. at 923-924 (quoting Dietsch v. Schweiker, 700 F.2d 865, 868 (2d Cir. 1983)). Defendant has not persuaded us that we should reconsider that decision. Moreover, whether the Secretary properly considered the question of the timeliness of Plaintiff’s request for a hearing is clearly an “otherwise unreviewable procedural issue[ ] not related to the merits of a claim for benefits.” Still, we must, of course, determine whether the circumstances in the present case are otherwise appropriate. In the present case, that determination turns on the question of whether the Secretary has “ ‘a plainly defined and peremptory duty’ ” to consider Plaintiff's request for a hearing in a manner other than that in which it was considered, and of whether Plaintiff correlatively has “ ‘a clear right’ ” to such different treatment. Hennings, 601 F.Supp. at 925 (quoting Americana Healthcare Corporation v. Schweiker, 688 F.2d 1072, 1084 (7th Cir.1982), cert. denied, 459 U.S. 1202, 103 S.Ct. 1187, 75 L.Ed.2d 434 (1983)). We conclude that the Secretary has such a duty, and that Plaintiff has such a right.

We note that Plaintiff does not contend that the March 11 notice was not delivered to 4808 West Quincy before May 7, 1983, that is, more than sixty days before he filed his request for a hearing on July 6, 1983. .Nor does Plaintiff claim that the Secretary erred in finding that he had an affirmative duty to inform the S.S.A. of his change of address. Rather, what Plaintiff challenges is the manner in which the Secretary rejected his contentions that he adequately informed the S.S.A. of his change of address and that he should therefore not be deemed to have received the March 11 notice before July 6, 1983 (or July 5, 1983).

In determining that Plaintiff did not file his request for a hearing before an A.L.J. within sixty days after he “received” the March 11 notice from the S.S.A., the Secretary applied, though not explicitly, the presumption contained in 20 C.F.R. § 416.-1401 (1985) (“§ 416.1401”), which provides, in part, that “ ‘Date you receive notice’ means 5 days after the date on the notice, unless you show us that you did not receive it within the 5-day period.” We are persuaded by Chief Judge Weinstein’s cogent analysis in Sinatra v. Heckler, 566 F.Supp. 1354, 1358-1359 (E.D.N.Y.1983), that that presumption “is of the going-forward variety, with the ultimate burden of persuasion with respect to lack of timely filing on the agency.” Id. at 1358. Thus, “[i]n order to rebut the presumption ..., the claimant must adduce evidence that would be sufficient to overcome a directed verdict for the Secretary in a jury trial.” Id. at 1359-1360.

In the present case, we find that the affidavit which Plaintiff submitted to the Appeals Council clearly satisfied that burden of production. The Appeals Council’s March 22, 1984 decision is, however, obviously inconsistent with this finding. Indeed, we read that decision (as well as the A.L.J.’s November 25, 1983 decision) as erroneously assuming that § 416.1401 placed the ultimate burden of persuasion on the timeliness issue on Plaintiff. Because the Secretary has “a plainly defined and peremptory duty” to grant Plaintiff a hearing before an A.L.J. on the merits of his claim for S.S.I. unless she can carry her burden of persuading an A.L.J. that Plaintiff “received” the March 11, 1983 notice before May 7, 1983, and because Plaintiff has “a clear right” to such a hearing subject to the same condition, see Sinatra v. Heckler, 566 F.Supp. at 1360, we conclude, as did the court in Sinatra, that we have mandamus jurisdiction over this case under § 1361. What has been said also establishes that Plaintiff is entitled to relief. See also McKentry v. Secretary of Health and Human Services, 655 F.2d 721, 724 (6th Cir.1981).

Conclusion

For the reasons stated above, Defendant’s motion to dismiss Plaintiff’s second amended complaint is denied, and Plaintiff’s motion for summary judgment is granted to the extent that we vacate the Secretary’s order dismissing Plaintiff’s request for a hearing and remand this case to the Secretary with instructions to conduct a hearing before an A.L.J., in a manner consistent with this opinion, within thirty days after receiving notice of this decision, on the issue of the timeliness of Plaintiff’s request for a hearing on the merits of his claim for S.S.I.

      . We note that a jurisdictional basis cannot be found in 28 U.S.C. § 1331 or 28 U.S.C. § 1346, or in the Administrative Procedure Act. Hen-nings, 601 F.Supp. at 923.

      . Given the nature of the relief to which we have found that Plaintiff is entitled, no material factual dispute exists which would preclude our granting summary judgment in favor of Plaintiff. See Fed.R.Civ.P. Rule 56(c).