author: SAFFELS, District Judge.

text:
    Francis Paul JOHNSON, Plaintiff, v. COLT INDUSTRIES OPERATING CORPORATION, Defendant.
    Civ. A. No. 82-1390.
    United States District Court, D. Kansas.
    May 23, 1985.

      Richard F. Waters, Bengston, Waters & Thompson, Junction City, Kan., John E. Shamberg, Mark A. Johnson, Victor Bergman, Shamberg, Johnson, Bergman & Goldman, Shawnee Mission, Kan., for plaintiff.
    George A. Lowe, Christopher Bacon, Lowe, Terry & Roberts, Olathe, Kan., for defendant.
   MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on defendant’s motion to amend judgment, motion for stay of execution pending disposition of defendant’s motion for new trial, and motion for judgment notwithstanding the verdict and for new trial. The court has determined that oral argument would not be of material assistance in the determination of this matter. Rule 15(d), Rules of Practice for the United States District Court for the District of Kansas.

Defendant seeks to amend the judgment to reflect that actual damages awarded to plaintiff Francis Paul Johnson are Four Hundred Twenty-Five Thousand Dollars ($425,000), and similarly that actual damages awarded to Jannie Johnson are Four Hundred Twenty-Five Thousand Dollars ($425,000). Defendant seeks this amendment to reflect the percentage of fault found to be attributable to defendant. The court hereby finds that said amendment should be granted.

The court will now consider defendant’s motion for judgment notwithstanding the verdict and for new trial. In considering a motion for judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the party against whom the motion is made. Wilkins v. Hogan, 425 F.2d 1022 (10th Cir.1970); Rule 50(b), Federal Rules of Civil Procedure. A judgment notwithstanding the verdict may not be granted unless the evidence points one way and is susceptible to no reasonable inference which may sustain the position of the party against whom the motion is made. Symons v. Mueller Co., 493 F.2d 972 (10th Cir.1974). It is not the court’s duty to weigh the evidence [Wilkin v. Sunbeam Corp., 377 F.2d 344 (10th Cir.1967)], or to pass upon the credibility of witnesses [C. Wright and A. Miller, 9 Federal Practice and Procedure: Civil, § 2527], or substitute its judgment of the facts for that of the jury [Swearngin v. Sears, Roebuck & Co., 376 F.2d 637 (10th Cir.1967)].

The standard for granting a new trial is less rigorous than the standard for granting judgment notwithstanding the verdict. A decision to grant a new trial “involves an element of discretion which goes further than the mere sufficiency of the evidence. It embraces all the reasons which inhere in the integrity of the jury system itself.” Tidewater Oil Co. v. Waller, 302 F.2d 638, 643 (10th Cir.1962). A new trial is not in order unless the court finds that prejudicial error has entered the record or that substantial justice has not been done. Seven Provinces Ins. Co., Ltd. v. Commerce & Industry Ins. Co., 65 F.R.D. 674 (W.D.Mo.1975).

Defendant argues four grounds as the basis for its motion. Defendant asserts that plaintiff’s introduction into evidence of the court opinion in Bender v. Colt Industries (Plaintiff’s Exhibit No. 118) was prejudicial to defendant and constituted reversible error; that Instruction No. 9, telling the jury that defendant had a duty to exercise the highest degree of care in the design of the gun, overstated defendant’s duty of care; that defendant was prejudiced by plaintiff’s introduction of the issue of recall into the case at the time of trial; and that the punitive damage verdict was unreasonable, excessive and unsupported by the evidence.

Defendant asserts three grounds of error in relation to the introduction of the opinion in Bender v. Colt Industries, Inc., 517 S.W.2d 705 (Mo.App.1974). Defendant argues that the opinion was inadmissible as a matter of law, irrelevant based on a lack of substantial similarity to the case at bar and unfairly prejudicial. In considering the admissibility of evidence, the starting point is-Rule 402, Federal Rules of Evidence, which provides:

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

Although aware that other courts have found judicial opinions to be inadmissible as evidence [see Kasparek v. May, 182 Neb. 582, 156 N.W.2d 144 (1968); Carr v. Fidelity & Casualty Co. of New York, 248 So.2d 917 (La. Appeals 1971); and United States v. Furey, 491 F.Supp. 1048 (E.D.Pa.1980) ] this court does not agree that judicial opinions are inadmissible for all purposes.

In the case at bar, plaintiff offered the Bender v. Colt decision to establish knowledge of other like accidents on the part of defendant. The admission of the Bender v. Colt opinion was highly probative of this issue.

It is clear that evidence of similar accidents is relevant and admissible. See Rexrode v. American Laundry Press Co., 674 F.2d 826 (10th Cir.1982); and Julander v. Ford Motor Co., 488 F.2d 839 (10th Cir.1973). In the Julander case, the court refused to uphold the submission of copies of complaints by other plaintiffs against the defendant because most of the complaints were not dated or were filed after the cause of action in question and therefore they could not be upheld on the basis of a notice theory. However, the court did state that prior complaints are admissible as probative of the defendant’s knowledge. Further, in Soden v. Freightliner Corp., 714 F.2d 498 (5th Cir.1983), the Fifth Circuit Court of Appeals upheld the district court’s admission into evidence of complaints involving other litigation against the defendant. The court stated that evidence of other litigation is relevant on the question of notice if the complaint contains allegations of a design defect causing an accident under circumstances substantially similar to those in the case before the ■ court.

Defendant asserts that it was error for this court to admit the Bender v. Colt opinion because the facts of that opinion were not substantially similar to those of the case at bar. It is important to note that for evidence of prior accidents, the circumstances must be substantially similar to those surrounding the case at bar. Exact similarity is not required. Campus Sweater & Sportswear v. M.B. Kahn Construction Co., 515 F.Supp. 64 (D.S.C.1979), affirmed 644 F.2d 877 (4th Cir.1981).

Both Bender v. Colt and the instant case involved injuries occurring when a Colt single action army revolver was dropped and fired. In both cases, the gun was carried with a loaded round under the hammer. Neither gun had a positive safety device, and plaintiffs in both cases had experience with other firearms. In Bender, there were additional factors of the gun’s hammer being in the safety notch and the sear’s fracturing when the gun was dropped. However, the addition of these factors does not vitiate the substantial similarity of these two cases.

Defendant also asserts that the introduction of the Bender v. Colt opinion was unfairly prejudicial. Defendant argues that the jury was misled by the introduction of this opinion and was therefore predisposed to finding liability and recklessness in the instant case.

Upon review of the record and briefs of the parties, this court concludes that no error occurred by the introduction into evidence of the Bender v. Colt opinion. The opinion was relevant to show knowledge on the part of defendant of other similar claims. Further, the extent of defendant’s notice and knowledge was a contested issue in this case. Defendant in this case was given an opportunity to submit a limiting instruction to alleviate any potential unfair prejudice, yet defendant declined to do so. Defendant also failed to object to specific portions of the Bender opinion and chose to object only to the admission of the opinion in its entirety, therefore the court did not exclude any specifically objectionable portions.

Even if the court were to conclude that the admission of the Bender v. Colt opinion constituted error, the court would find that such error was not prejudicial and amounted only to harmless error, not affecting the substantial rights of the parties. Rule 61, Federal Rules of Civil Procedure. The jury was adequately instructed that they were duty bound to follow the law stated in the instructions of the court. (Instruction No. 1.) The jury was further instructed that they were to exercise their individual judgment in their consideration of the case. (Instruction No. 32.) Viewing the instructions in their entirety, the jury was advised to examine the facts based on independent judgment and to apply the law, as stated in the instructions given by the court, to the facts as determined. There is no evidence that the jury did otherwise in the instant case. In the Bender case, the jury awarded the plaintiff Fifteen Thousand Dollars ($15,000), found defendant Colt to be one hundred percent (100%) at fault, and did not consider the issue of punitive damages. In the instant case, the jury found plaintiff ten percent (10%) at fault, defendant Aleo five percent (5%) at fault, and defendant Colt eighty-five percent (85%) at fault, and found total actual damages in the amount of One Million Dollars ($1,000,000). The jury further found punitive damages in the amount of One Million Two Hundred Fifty Thousand Dollars ($1,250,000). The court is not convinced that the jury allowed the Bender decision to control the outcome of the instant case thereby resulting in prejudicial error.

Defendant also argues that Instruction No. 9, telling the jury that defendant had a duty to exercise the highest degree of care in the design of the gun, overstated its duty of care. Instruction No. 9 states:

A manufacturer of firearms has the duty to exercise the highest degree of care in the design of the product so that it will be reasonably safe for the use for which it was intended or which can reasonably be anticipated. Failure to fulfill this duty constitutes negligence.

Defendant asserts that under Kansas law it was required only to exercise reasonable care in the design of the gun. There is no Kansas case directly on point on this issue. However, Kansas law is clear that one having ownership or control of dangerous explosives, such as dynamite and firearms, has the duty to exercise the highest degree of care. See Wroth v. McKinney, 190 Kan. 127, 373 P.2d 216 (1962); and Clark v. E.I. du Pont de Nemours Powder Co., 94 Kan. 268,146 Pac. 320 (1915). Defendant argues plaintiff should have been charged with the highest degree of care rather than having that duty imposed on defendant. Instruction No. 16 states:

One who has in his possession, or under his control, an instrumentality exceptionally dangerous in character is bound to take exceptional precautions to prevent an injury being done by the instrumentality. The degree of care must be equal to the degree of danger involved.

The court finds that this instruction adequately set out the degree of care to be imposed on plaintiff in the instant case.

The court further finds that Instruction No. 9 properly established the standard of care to be- imposed on defendant. As stated previously, no Kansas case speaks directly to this issue, but the Kansas court has recognized that a higher degree of care in relation to a dangerous commodity should be commensurate with the dangerous propensities of the product. In Cope v. Kansas Power & Light Co., 192 Kan. 755, 391 P.2d 107.(1964), the court noted the defendant power company had a duty to exercise the highest degree of care to protect the public from danger arising out of contact with a high voltage line.

The Second Circuit Court of Appeals, in DiMeo v. Minster Machine Co., 388 F.2d 18 (2nd Cir.1968), found a power stamping press to be a dangerous machine which required the highest degree of care in its manufacture. Further, the Tenth Circuit Court of Appeals, when discussing Kansas law in Prince v. Leesona Corp., Inc., 720 F.2d 1166 (10th Cir.1983), indicated that manufacturers have a strict duty of care in design and production including the duty to guard against injury to negligent consumers.

The court fails to find any error resulting from instructing the jury that defendant had a duty to exercise the highest degree of care in the design of a firearm. This is particularly true when the plaintiff is also charged with a high duty of care.

Defendant also argues that it was prejudiced by plaintiff’s introduction of the issue of recall into the case at the time of trial. Defendant asserts that evidence pertaining to the issue of recall should not have been introduced because the recall issue was not raised by the pleadings or the pre-trial order, and because Kansas law imposes no duty of recall. Defendant further asserts that Instruction No. 12 improperly notified the jury that recall could be considered. Instruction No. 12 does not specifically mention recall, but states:

A manufacturer has a duty to take such measures as are reasonably necessary to protect the public from foreseeable harm after a product has been manufactured and sold. If a manufacturer knows of or later becomes aware of the fact that the design of a product causes unnecessary risk of serious injury to the product user or to the public, the manufacturer must take such reasonable steps under the circumstances as will lessen or prevent the risk of injury.

Defendant argues that plaintiff’s deletion of the recall count in his amended complaint was affirmatively misleading. Defendant asserts that had it known recall would be an issue it could have fully prepared for cross-examination and produced affirmative evidence on the issue. Plaintiff’s original complaint in this case contained two counts, one for actual damages and one for punitive damages. When plaintiff’s present attorneys entered the action, the complaint was amended to plead negligence, strict liability, warranty and willful/reckless conduct. Plaintiff asserts that he has never limited or altered his theories of negligence or strict liability, although the warranty claims were eventually dropped from the case.

In the pre-trial order filed on September 20, 1983, plaintiff claimed in part that defendant breached its duty of reasonable care by failing “to incorporate well known and available safety mechanisms or devices which would have prevented or lessened the likelihood of plaintiff’s injuries” and that “defendant knew of the design deficiencies inherent in the weapon and that defendant was aware of the likelihood of injury and harm resulting to users as a result of the design deficiencies.” Further, defendant, in questioning plaintiff’s expert witness, George Green, inquired into the proposed modification of the revolver as suggested by the witness. Counsel for plaintiff, when deposing Richard L. Brown, Vice President of Engineering for defendant, inquired into his awareness of Ruger’s continuing offer to retrofit existing revolvers in the field. Further, when plaintiff deposed defendant’s expert, David Findley, the issue of a possible similar retrofit offer by Colt was raised.

The court finds that no prejudice resulted by plaintiff's introduction of evidence into the case concerning the issue of recall. The court did not specifically instruct the jury that defendant had a duty to recall. The jury was instructed on the issue of due care. Whether a manufacturer has a duty to recall in any given case is incorporated into the concept of due care as it applies to negligence actions generally. No error was committed on this point.

Defendant’s final argument is that the punitive damage verdict in this case was unreasonable, excessive and unsupported by the evidence. Defendant argues two points of error. Defendant first argues that the issue of punitive damages should not have been submitted to the jury, and, second, that Instruction No. 27 fails to properly define the standard for an award of punitive damages under Kansas law.

Defendant asserts that the evidence presented to the jury did not justify any punitive damage award, and that the accident record of Colt single action revolvers did not show the gun to be unreasonably dangerous. Further, defendant asserts that the giving of a warning to a consumer is inconsistent with the concept of “reckless disregard or complete indifference” of the consequences of its actions. This court cannot agree that the evidence did not warrant a punitive damage instruction.

A punitive damage issue should go to the jury if at the close of the evidence the court decides that there is a legal basis for such damages shown by any interpretation of the evidence favorable to the plaintiff. Worsham v. A.H. Robins Co., 734 F.2d 676 (11th Cir.1984). Plaintiff submitted evidence that the revolver would be in a very dangerous condition if loaded with six rounds. Further, plaintiff submitted evidence of the foreseeability of inadvertent discharge along with evidence of past similar accidents and knowledge on the part of defendant. The evidence further indicated that only five percent (5%) of the accidental discharges resulted in injury, therefore there existed a greater number of accidental discharges than those reported. Plaintiff further presented evidence of the feasibility of eliminating the known hazard associated with the revolver. The court is satisfied that the evidence established a sufficient legal basis for the introduction of a punitive damage issue.

Defendant also argues that the jury was not properly instructed as to the proper elements to consider in fixing the amount of punitive damages. Defendant argues that the jury’s award was based on plaintiff’s counsel’s statement in closing argument that the jury should award One Dollar ($1) for every Colt single action revolver produced. The jury was properly instructed in Instruction No. 31 that statements and arguments of counsel are not evidence in the case.

Defendant also argues that Instruction No. 27 failed to sufficiently instruct the jury on the definition of reckless disregard or complete indifference of the probable consequences of the wrongful act. Instruction No. 27 provides:

If you find that plaintiffs are entitled to recover, and you also find that the conduct of the defendant was in reckless disregard or complete indifference to the probable consequences of its actions, then in addition to the actual damages to which you find plaintiffs entitled, you may award plaintiffs an additional amount as punitive damages in such sum as you believe will serve to punish defendant and to deter others from like conduct.

Defendant asserts that the court should have further defined the terms “reckless disregard” or “complete indifference.” This court cannot agree. Any additional definition of those terms would have been mere surplusage. The terms used in Instruction No. 27 are clear and are not in need of further definition. Additionally, the court would note that in Bailey v. Resner, 168 Kan. 439, 214 P.2d 323 (1950), the Kansas Supreme Court used the terms “reckless disregard” and “complete indifference” when defining the term “wanton.” The court is satisfied that Instruction No. 27 properly stated the law as it pertains to punitive damages. Defendant’s motion for judgment notwithstanding the verdict and for new trial shall be denied.

Defendant has also filed a motion for stay of execution pending disposition of its motion for new trial. The court finds that such motion should be denied as moot.

IT IS BY THE COURT THEREFORE ORDERED that defendant’s motion to amend judgment is hereby granted and the judgment shall be amended to reflect that actual damages awarded to plaintiff Francis Paul Johnson are Four Hundred Twenty-Five Thousand Dollars ($425,000), and similarly that actual damages awarded to Jannie Johnson are Four Hundred Twenty-Five Thousand Dollars ($425,000). IT IS FURTHER ORDERED that defendant’s motion for judgment notwithstanding the verdict or for new trial is hereby denied. IT IS FURTHER ORDERED that defendant’s motion for stay of execution pending disposition of its motion for new trial is hereby denied as moot.


source: Caselaw Access Project

author: WEINER, District Judge.

license: Public Domain

text:
    UNITED STATES of America, v. John W. DOWNING.
    Crim. No. 82-00223-01.
    United States District Court, E.D. Pennsylvania.
    May 23, 1985.
    Peter F. Schenck, Sp. Asst. U.S. Atty., Philadelphia, Pa., for the U.S.
    Brian E. Concannor, Mansfield, Mass., for John W. Downing.
   MEMORANDUM OPINION AND ORDER

WEINER, District Judge.

On August 17, 1982, John W. Downing was indicted on counts of mail fraud, 18 U.S.C. §§ 1341 and 1342; wire fraud, Í8 U.S.C. § 1343; interstate transportation of stolen property, 18 U.S.C. § 2314; and aiding and abetting, 18 U.S.C. § 2. On October 28, 1982, after a trial before this court, the jury found Downing guilty of all but the interstate transportation of stolen property counts. On January 25, 1985, the United States Court of Appeals for the Third Circuit vacated the judgment of conviction and remanded the case to this court with instructions to conduct an evidentiary hearing with respect to the admissibility of certain expert testimony which this court had declined to admit at trial. United States of America v. Downing, 753 F.2d 1224, 1244 (3d Cir. January 25, 1985). An evidentiary hearing was held on March 25, 1985. After consideration of the testimony presented at the hearing and the briefs filed by counsel, the court declines to admit defendant’s expert testimony and reinstates the judgment of conviction.

Briefly summarized, defendant’s indictment arose out of a scheme to defraud numerous vendors by a group of individuals calling themselves the Universal League of Clergy (U.L.C.). U.L.C. sent representatives, identifying themselves as U.L.C. clergy, to national trade shows where they expressed interest in the product lines of various manufacturers. When a vendor took an order for his product, U.L.C. would provide the vendor with a list of phoney credit references. U.L.C. established mail drops where it would collect inquiries sent by the credit departments of manufacturers. It provided positive credit reports to the manufacturers, who then shipped the goods to U.L.C. on credit. U.L.C. disposed of the goods without making payment to the manufacturers.

Defendant and co-defendants James A. Silva and Richard Piazza were indicted as representatives of U.L.C. The government sought to connect defendant with this scheme through eyewitness identifications. It produced twelve witnesses who identified defendant as a man they knew as Reverend Claymore. The witnesses personally observed Claymore for periods of 5-45 minutes during the course of business dealings that subsequently turned out to be fraudulent. At trial, defendant sought to introduce the expert testimony of a psychologist as to the unreliability of eyewitness identifications. The court declined to admit such testimony because it felt that it was the jury’s function to judge the credibility of the witnesses. However, the Third Circuit vacated the judgment of conviction and directed this court to conduct an evidentiary hearing to determine whether proffered testimony could meet the “helpfulness” standard of Fed.R.Evid. 702. Furthermore, if this court determines that the proffered testimony meets the helpfulness standard, it must then consider, pursuant to Fed.R.Evid. 403, whether the danger of unfair prejudice outweighs the probative value of the evidence.

In directing this court to hold an evidentiary hearing, the Third Circuit set forth various guidelines for determining the admissibility of scientific evidence that cannot be judicially noticed. The factors that the court must consider are:

1. the soundness and reliability of the process or technique used in generating the evidence;

2. the possibility that admitting the evidence would overwhelm, confuse, or mislead the jury; and

3. the proffered connection between the scientific research or test result to be presented, and particular disputed factual issues in the case.

At 1237-1238. In formulating this approach to admissibility, the Third Circuit expressly rejected the test first propounded in Frye v. United States, 293 F. 1013 (D.C. Cir.1923). Frye held that before scientific evidence may be admitted, the methodology used to generate it must be shown to have gained general acceptance within the relevant scientific community. Id. at 1014. With the guidelines of the Third Circuit in mind, the court must now consider the evidence presented at the hearing.

I

THE EVIDENTIARY HEARING

Defendant seeks to present before the jury the testimony of Dr. Robert Buckhout, a professor of psychology at Brooklyn College. Dr. Buckhout proffered testimony concerning three phenomena of memory which he claims that research in experimental psychology has identified:

1. retention interval, which concerns the rate at which memory declines over time;

2. the assimilation factor, which concerns a witness’ incorporation of information gained subsequent to an event into his/her memory of that event; and

3. the confidence-accuracy relationship, which concerns the correlation between a witness’ confidence in his/her memory and the accuracy of that memory.

Dr. Buckhout also testified about a checklist he prepared which purports to identify sources of bias in photographic lineups. In response to Dr. Buckhout’s testimony, the government offered the testimony of Dr. Michael McCloskey, an associate professor of psychology at Johns Hopkins University. The court will now proceed to review each area of Dr. Buckhout’s testimony and the response offered by Dr. McCloskey.

A) Retention Interval

According to Dr. Buckhout, the research on retention interval dates back to the early ,1900’s when “forgetting curves” were first published. Tr. at 11. He cited one study of face identification by Professors Shepard, Ellis and Davies published in 1982 [D-l] which found a straight line decay of memory over time up to a period of eleven months. Tr. at 11-12. Beginning with 60 percent correct identifications after seven days, the group tested was only 20 percent accurate after eleven months. When asked whether he could assist the jury in evaluating the accuracy of a witness’ memory after a period of over three years, Dr. Buckhout responded as follows:

I would have to project a limited body of data. The limited body of data here means by the time they reached eleven months they would not essentially have gone further with that type of testing for faces. When we look at older studies of memory without regarding verbal memory if it is well learned, such as a language structure, memory is quite good, but verbal and face memory appear to be two different processes to simplify it as much as I can.
In effect, testing beyond eleven months has not been done yet systematically because by the time you reach eleven months if you are down to close to 10 or 20 percent recognition, there isn’t much further you can go. Memory loss is substantial and further extension of that would be lower than that, but I have another point of contention about this because I think a lot of it depends on the kinds of testing and what people do when they go to those tests.

Tr. at 13-14. When asked whether it was possible to extrapolate from the eleven month period of the Shepard, Ellis and Davies study to a period of three years (the approximate time period between the witnesses transactions with Reverend Claymore and the time of trial), . Dr. Buckhout stated that:

Extrapolation is, of course, mathematically possible, but the trend of the curve is quite crystal clear. Unless a lot of research changes dramatically I would not expect a chance [sic] in the performance. I would expect it to get worse. They get much worse than are [sic] at the point of eleven months.

Tr. at 16.

On cross-examination, Dr. Buckhout acknowledged that in most of the studies of eyewitness identification, the individuals tested had a period of only sixty seconds or less to view the persons they were later asked to identify. Tr. at 32. Such was the case in the previously discussed Shepard, Ellis, and Davies study. Tr. at 42. Dr. Buckhout was aware of no studies in which the individuals tested had an opportunity to view the person they were asked to identify for periods of up to 45 minutes. Tr. 32. The following exchange took place between the government’s attorney and Dr. Buckhout, regarding the validity of extrapolating from studies where the viewing times were a minute or less to a situation in which the viewing times ranged from five to forty-five minutes:

Q And would it be fair to say that all of those, even the shortest of those, is in excess of the time you used in the experiments?
A Absolutely. There would be no issue if it were not for the long delay and the long length in taking information. The research in this area does not approach good research, which is familiar aticles [sic] where people have had years. We have one extreme or the other.
Q So really the scientific experiments, and yours don’t put you in the position where you can evaluate the kind of facts that we have in this case?
A I don’t agree at all. The facts [sic] pattern falls within the parameters and have become solid over the years. There was no necessity to apply research nor every single comment or element you find in the trial.
Q You will agree, the closer you get to the trial the more accurate your extrapolations would be?
A I’t [sic] very close to the fact pattern with respect to long term memory. Memory has fallen off to eleven months even though the exposure was much shorter.
When people have had significantly longer times, years of association in which the memory is reported to be quite good — between those two extremes a scientist has no problem taking variations on the parameters and offering the research for what it’s worth.
Research will never fit the exact combination of. factors. .
Q Do you believe you could extrapolate and give is [sic] to the jury for what it’s worth?
A When a jury is facing a unique pattern every time they face a case, knows there is a combination of things happening there and some have been testified to, the person presenting the photographic evidence in court has sworn to the reliability of the tests he is giving, that all my testimony adds is the additional information about what research shows in and around that process which the jury might have to fit together which is why their job is harder than ours.

Tr. at 34-36.

The government’s attorney and Dr. Buckhout also explored the problems of applying the results of laboratory experiments to real world situations:

Dr. Buckhout:
It is difficult, but in the course of my career I have moved back and forth between reasonably good, live simulations of crimes. They talk to the experts to find out what you would include in the simulations. We refer to this as ecological validy [sic] which means there is some truth to the simulation in comparison to the real world. It is not an exact duplicate any more than cancer research in this area would subject a human being to a carcinogen.
In running the simulation we find sometime we have to go back to basic research.
When I studied most recently the problem of person’s focus and arousal I find I had to return to the laboratory to get better control and use a less exact simulation of a crime in order to study the process. This is a two-way street and scientists are used to it.
Q In amny [sic] experiments to determine if identification can be made aren’t there many variables to be made; somebody runs it from the left and somebody from the right, and isn’t that accurate? A It depends on how you stage it. I have them run down center stage.
Q Have you been where a subject was sitting at a table and talked and they were to identifhim [sic] him?
A Yes, but not the time factor.
Q What rewards are there for the study or penalty if they make accurate or inaccurate identification in these tests?
A None. They are good citizens coming forward. That’s not a major issue. The movitation [sic] of people tested — it is that level of it fits between our research process and the real world, that’s sufficient to make the case that this is what memory is about.
Q That’s generally not true of the kind of experiments you run. Those that relate to tests; robberies, burglaries and perhaps a neighbor who witnessed the incident, a bystander?
A The range of published literature include incidents which you would describe as relatively innocous at that time. They have also found this is conducive to producing very good memories, vivid enough to last a long time.
Q lam not sure that answers my question.
In each case where you are testing is your subjects — called them students— when the students observe the subject or the person to be observed they are generally in the position of a bystander on the corner seeing a robbery or someone seeing something occur in front of him; would that be accurate?
A Yes.
Q So that there would not be the added factor of financial reward if they get to know the person well and was going to make a large sale to a person in a telling situation?
A Sorry. If I could reach into the literature for a pigeon drop or a good scam, I would make everyone happy here. The particular nature of the interaction whether long or short is not probable. To the scientist, I have conceded if you are five minutes to 45-minutes at least at the start you have all the ingredients of a good memory of a person’s face.

Tr. at 37-39. Dr. Buckhout went on to state that there is a disagreement in the literature as to the effect that the nature of the interaction, e.g. stressful or casual, has on memory. Tr. at 40-41.

Dr. McCloskey, the government’s expert, evaluated Dr. Buckhout’s testimony with respect to retention interval as follows:

I disagree with his specific statements that we can extrapolate to make a specific judgment as to how accurate a witness would be after two years or eleven months. He took the Shephard, Ellis, Davis study and said memory was poor and could only get worse. I took him saying the accuracy should be worse after three years than the eleven months. It’s a generalization. It came out in the testimony that the initial period of observation was on the order of one minute. To extrapolate with that and there was a face-to-face confrontation, and the person trying to remember the person can’t be properly done.

Tr. at 67.

B) The Assimilation Factor

Dr. Buckhout described research indicating that individuals tend to incorporate into their memories of an event facts learned after the event has taken place. Tr. at 16-18. This phenomenon is referred to as “the assimilation factor.” When asked how he could assist the jury with respect to the assimilation factor, Dr. Buckhout responded:

Given the facts of this case, I am not so sure I can relate it specifically to the facts of this case without looking at individual witnesses and I would be frank to say that I am in a bind over that because my practice in general is not to second-guess the evidence as it evolves.
There is indication here, for example, that there is a bit of protocology. The witnesses’ descriptions from day one vary all over the place, yet all were willing to sit in front of a line up with bearded men. We have at least one instance in the case where at least the beard that is evident in the line up was not added by the witness until the time of the trial. That could have resulted from assimilating the pictures prior to trial. It is something that can be avoided by well controlled testing but in a hearing I can say this, but at trial I cannot be in a position to blame or characterize the witnesses.
To point out the superiority of taking the original descriptions, which to summarize our research, we trust more, however complete or incomplete it may be. The original description did not include a beard. These were the bases for setting up a test of memory. Failure to do that may show it a typical assimilation process, meaning the witnesses change to what they pick up later.

Tr. at 19-20.

Dr. McCloskey testified that his own research regarding the assimilation factor contradicts that of others and suggests that no such phenomenon exists. Tr. at 68-69. He also stated that from his reading of the testimony, he could find no facts to indicate that any of the witnesses received additional information after their contact with Reverend Claymore. Tr. at 68, 78. [Dr. McCloskey testified that he reviewed the transcripts of the suppression hearing and the trial. Tr. at 67. Dr. Buckhout stated that he read summaries of the testimony prepared by counsel. Tr. at 34.]

C) The Confidence-Accuracy Relationship

Dr. Buckhout stated that studies he and other researchers have conducted have eonsistently shown no correlation between the confidence that witnesses express in their identifications and the accuracy of those identifications. Tr. at 20-21. He opined that confidence is a function of social pressures. He suggested, for example, that a witness might express 100% certainty in his/her identification due to the desires- of authorities. Tr. at 21. Stating that Dr. Buckhout had “ignored a large part of the literature,” Dr. McCloskey testified that studies of the confidence-accuracy were inconclusive. Tr. at 69-70. He further testified that the circumstances under which there is either a strong or a weak correlation between confidence and accuracy are unknown.

D) The Checklist

Dr. Buckhout proffered a checklist which he has designed to identify potential sources of bias in photographic lineups. [D-2]. The checklist contains thirty questions, including the following examples:

Do the participants have different skin tones?
Are the participants different in modes of dress?
Did the officer in charge make the witness aware that a suspect is present in the photospread?
Are any of the photographs distinctive in regard to their color or texture?

A “yes” answer is supposed to indicate a potential source of bias. Dr. Buckhout testified that he compiled the checklist as a result of his career-long study of testing methods and his experience in working with police departments on lineups and photospreads. Tr. at 22-23.

Dr. McCloskey criticized the checklist as being subjective, i.e. different people could answer the same question in different ways. Tr. at 74-75. He stated that another problem with the checklist is that it simply makes note of variations among the photographs, but cannot indicate whether such variations result in bias to the defendant. Tr. at 73. For example, Dr. McCloskey noted that while the photograph of defendant presented the darkest background, photograph # 6 contained the lightest background. Thus, it was not possible, in Dr. McCloskey’s opinion, to conclude that the dark background of defendant’s photograph necessarily biased the photospread against him. Tr. at 74.

II

ADMISSIBILITY UNDER FED.R.EVID. 702

Having reviewed the testimony of the evidentiary hearing, the court must assess it against the guidelines set forth by the Third Circuit.

A) The Soundness and Reliability of the Process or Technique Used in Generating the Evidence.

While the Third Circuit rejected the Frye test, the degree to which a scientific technique has gained acceptance may still be decisive. At 1238. Other factors which the court identified as bearing on the question of reliability include: (1) the relationship of a new technique to established modes of scientific analysis; (2) the existence of a specialized literature dealing with the new technique; (3) the qualifications and professional stature of expert witnesses; (4) the non-judicial uses to which the scientific technique are put; and (5) the frequency with which a technique leads to erroneous results. At 1238-1239.

In the case sub judice, the testimony of the two experts focused on conclusions which have been drawn from research on perception and memory. Neither expert presented, in any detail, the raw data upon which such conclusions have been based. Nor did they discuss the methodology used to generate the data. These omissions, standing alone, make the court hesitant to admit expert testimony. Absent a presentation of either the methodology underlying the perception and memory studies or the data such studies have generated, an important basis for assessing the reliability of the experts’ testimony is lacking.

This court is mindful of the Third Circuit’s statement that, “From the facts available on the record and otherwise, it would appear that the scientific basis for the expert evidence in question is sufficiently reliable to satisfy Rule 702.” At 1241. The court went on to quote People v. McDonald, 37 Cal.3d 351, 208 Cal.Rptr. 236, 690 P.2d 709 (1984), a case approving of the use of expert testimony regarding eyewitness identifications, where it was stated that “the consistency of the results of these studies [i.e. research into the psychological factors affecting eyewitness identification] is impressive.” 208 Cal. Rptr. at 245, 690 P.2d at 718. With due deference to the Third Circuit and the Supreme Court of California, the testimony presented at the evidentiary hearing held by this court belies such consistency.

For example, in State v. Chappie, 135 Ariz. 281, 660 P.2d 1208 (1983), a case which held that it was reversible error for the trial court to exclude psychological testimony on eyewitness identification, the proffer included testimony by Dr. Elizabeth Loftus to the effect that memory does not diminish at a uniform rate. 660 P.2d at 1220. However, the Shepard, Ellis, and Davies study submitted to the court found a uniform rate of forgetting. The authors of the study stated that, “This is an unusual effect in memory research, and may be peculiar to facial or person identification.” [D-1 at 86]. Without adequate information as to the shape of the forgetting curve, the jury is merely left with the common sense notion that memory declines over time.

Other areas of inconsistency concern the assimilation factor and the confidence-accuracy relationship. Dr. McCloskey denies the existence of the assimilation factor and asserts, in the alternative, that if it does exist, the circumstances under which it will arise are unknown. Tr. at 69. Dr. McCloskey also denied that it was possible to draw any conclusions with respect to the confidence-accuracy relationship. Both Dr. Buckhout and Dr. McCloskey were able to cite their own studies and the studies of others to support their respective opinions on the confidence-accuracy relationship. Tr. at 20-22; 69-71. Significantly, the Shepard, Ellis, and Davies study relied on by Dr. Buckhout for its conclusions with respect to retention interval was far from conclusive in its findings on the confidence-accuracy relationship. Their report states that:

From a practical standpoint, the results have an intriguing ambiguity. It would appear on the one hand that the chances of a person identifying a suspect after almost a year are much less than his chances after a week or even three months; but on the other hand, anyone who makes an identification with a high level of certainty after such a period is likely to be correct. However, it must be stressed that the instructions given were designed to discourage guessing by those who were uncertain, there were no consequences for the person selected, and only two people made a correct identification after the longest delay, far too few to enable any firm conclusions to be drawn.

[D-l at 86].

In view of the inconsistent results produced by the studies and the lack of testimony regarding either the methodology of those studies or the underlying data on which the test results are based, the court finds that the proffered testimony of Dr. Buckhout does not carry with it a sufficient degree of reliability to warrant its admission. Although the court finds this evidence unreliable, the court will proceed to a consideration of the. other two guidelines set forth by the Third Circuit in the interest of developing a complete record.

B) The Possibility that Admitting the Evidence Would Overwhelm, Confuse, or Mislead the Jury

Assuming that this court found defendant’s evidence reliable, it would then have to balance its reliability against the possibility that the evidence might confuse or mislead the jury. Of course, expert testimony is generally accorded a “ ‘presumption of helpfulness.’ ” At 1241 (quoting In Re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238, 279 (3d Cir.1983)). The Third Circuit noted, however, that caution is appropriate, particularly in the criminal context, “whenever proffered novel scientific evidence, if unreliable or likely to mislead, will increase the likelihood of an erroneous verdict.” At 1241. The court pointed out that one way in which expert testimony could mislead a jury is “where the jury is not presented with the data on which the expert relies, but must instead accept the expert’s assertion as to the accuracy of his conclusions.” Id. at 1239.

The court reiterates that the two experts in the case sub judice neither presented the data on which they relied nor the methodology used to generate that data in any great detail. This corresponds precisely to the situation in which the Third Circuit warns of a danger of misleading a jury. Absent such information, a jury has little basis for evaluating the testimony they hear. Accordingly, the court finds that even if the evidence offered by defendant was reliable, it could not be admitted due to its risk of misleading the jury.

C) The Proffered Connection Between the Scientific Research or Test Result to be Presented, and the Particular Disputed Factual Issues in the Case.

[A] defendant who seeks the admission of expert testimony must make an on-the-record detailed proffer to the court, including an explanation of precisely how the expert’s testimony is relevant to the eyewitness identifications under consideration. The offer of proof should establish the presence of factors (e.g. stress, or differences in race or age or between the eyewitness and the defendant) which have been found by researchers to impair the accuracy of eyewitness identifications.

At 1242.

It is perhaps in establishing the “fit” between the scientific research presented by Dr. Buckhout and the disputed factual issues of this case that defendant’s argument for the admission of expert testimony is weakest. The following observations identify some of the more important differences between the research on retention interval and the facts of this case.

1. The research has not generally tested the accuracy of a person’s memory for periods of up to three years.

2. In most studies, the exposure of a “perpetrator” to a “witness” occurred for periods of less than one minute. In contrast, the twelve witnesses who identified the defendant as the man they knew as Reverend Claymore witnessed defendant for periods ranging from five to forty-five minutes. Even Dr. Buckhout conceded that at exposures of this length “at least at the start you have all the ingredients of a good memory of a person’s face.” Tr. at 39.

3. Most studies which have attempted to simulate crimes have simulated crimes such as rape, robbery, and mugging. In these studies, the motivation of the witnesses was not an important factor. Rather, the witnesses are merely supposed to be good citizens coming forward. Tr. at 38. The twelve witnesses who identified the defendant, however, not only were not confronted by the fear and stress presented by a violent crime situation, but stood to realize a financial gain as a result of their transactions with Reverend Claymore.

These differences, taken together, reveal that there is, at best, only a weak connection between the research on retention interval and the disputed facts of this case. Accordingly, even if defendant’s proffer on retention interval survived the first two prongs of the analysis for admissibility under Rule 702, such testimony would still have to be excluded. With respect to the assimilation factor, it does not appear from the testimony of any of the witnesses that they assimilated any facts learned subsequent to their initial contact with Reverend Claymore. Therefore, the expert testimony on this issue cannot be connected with any facts of this case. Finally, as to the confidence-accuracy relationship, the testimony of Dr. Buckhout does not reveal the situations that the studies have tried to simulate. Accordingly, the court cannot determine that there is any “fit” between the confidence-accuracy studies and the disputed facts of this case.

In view of the foregoing, the court declines to admit the expert psychological testimony proffered by defendant under Rule 702.

ORDER

The court determines that the proffered testimony by the defendant, John W. Downing, of his psychological expert should not be admitted.

The judgment of conviction is REINSTATED.

The court’s prior sentence of defendant is AFFIRMED.

Defendant shall report to the institution to be designated by the Bureau of Prisons to serve his sentence fifteen (15) days from the filing of this order.

IT IS SO ORDERED.

      . Silva and Piazza were also convicted. Piazza has served his sentence and is presently on parole. Silva is now serving his sentence, his conviction was affirmed, and he has completed almost one-third of his sentence.

      . At the hearing, defendant objected to the testimony of Dr. McCloskey. While acknowledging that Dr. McCloskey is an expert psychologist, defendant contended that Dr. McCloskey has not done sufficient work in the area of eyewitness identification. [Transcript of Evidentiary Hearing, March 29, 1985 ("Tr.") at 63]. The court denied defendant’s objection. One reason that the Third Circuit abandoned the Frye test is that it has "allowed courts to manipulate the parameters of the relevant 'scientific community’ and the level of agreement needed for ‘general acceptance.”' At 1236. Dr. McCloskey is a cognitive psychologist, a specialty within the field of psychology which concerns perception and memory. The court is satisfied that both Dr. McCloskey and Dr. Buckhout possess "adequate backgrounds which render them competent to assist this court in determining whether it would be helpful for the jury to hear expert testimony.

      . The Third Circuit rejected defendant’s argument that this court erred in refusing to suppress the photographic identifications and in-court corporeal identifications of defendant. At 1244, n. 28. Of course, as part of his defense at trial, defendant could challenge the fairness of the photographic lineup in an attempt to impair the credibility of the witnesses’ identifications.

      . The court takes this opportunity to address the checklist proffered by Dr. Buckhout. As the court understands the proffer, the checklist was offered as a mere guide to identifying potential sources of bias in photospreads. It was not claimed that the checklist represented a scientifically reliable method for predicting when a photospread will, in fact, be biased. For example, Dr. Buckhout did not claim that any studies of his checklist had been conducted to determine its reliability for predicting bias. Dr. Buckhout did not indicate how many "yes" answers on the checklist were required for a showing of bias. Moreover, as Dr. McCIoskey correctly pointed out, the checklist merely indicates variations among the photographs, but does not indicate whether these variations will necessarily result in bias to the defendant. Since testimony about the checklist by Dr. Buckhout could give it an improper aura of scientific reliability, the court declines to admit this testimony/


author: HENRY WOODS, District Judge.

text:
    Billy Allen SKEETS, Plaintiff, v. Roy L. JOHNSON, et al., Defendants.
    No. LR-C-83-34.
    United States District Court, E.D. Arkansas, W.D.
    May 23, 1985.

      Cliff Jackson, Little Rock, Ark., for plaintiff.
    Mike Moore and Billy S. Clark, Friday, Eldredge & Clark, Little Rock, for defendants.
   MEMORANDUM OPINION

HENRY WOODS, District Judge.

INTRODUCTION

Plaintiffs amended complaint seeks a declaratory judgment, injunction, and reinstatement with back pay for the alleged deprivation of his rights to procedural due process by these defendants when his employment with the Arkansas State Highway and Transportation Department was terminated. His action arises under 42 U.S.C. § 1983, and this Court has jurisdiction under 28 U.S.C. §§ 1331 and 1343.

Pending before the Court is the resolution of the issues of whether or not the plaintiff possessed a property or liberty interest which was violated by the defendants and, if so, what process is due him under the Fourteenth Amendment to the United States Constitution. Plaintiff contends that if he receives a favorable ruling from the Court on these issues, he is entitled to the relief prayed for without inquiry by the Court into the substantive matters leading to his termination. The defendants contend that even if plaintiff prevails on these issues, plaintiff must still go forward and prove that he would not have been fired had he been afforded the procedural rights he seeks. Conversely, defendants argue that they would be entitled to prove he would have been terminated regardless of whether or not these procedural rights had been afforded.

FACTS

The parties have entered into a comprehensive stipulation which demonstrates that there is no dispute as to the facts governing the resolution of the currently pending issues referenced above. The uncontroverted facts are as follows:

1. That plaintiff, Billy Allen Skeets, was employed by the Arkansas State Highway Department on July 1, 1969, as a captain and district supervisor and continued in that position until April 10, 1979. Plaintiff’s job was not tenured, and under Arkansas law he was an at-will employee whose employment could be terminated at any time. Plaintiff’s only claimed source of a property interest is the department’s grievance procedures.

2. That on the aforesaid date plaintiff was informed by his direct supervisor, Roy Johnson, Chief of Weights Division, Arkansas State Highway Department, that he was terminated for “dereliction of duty.”

3. That as directed by Roy Johnson, plaintiff surrendered his badge and state automobile that day and also was relieved of his duties, although he continued to be carried on the department payroll until May 18, 1979, due to accumulated vacation time. He filed his first lawsuit on May 1, 1979.

4. That the “minute order” previously filed herein established a grievance procedure for employees of the Arkansas State Highway and Transportation Department; that said “minute order” was in effect as of April 10, 1979 and was applicable to any grievance the plaintiff might have had against Roy Johnson about his discharge or the conditions surrounding it.

5. That the plaintiff never submitted any grievance in writing to the Department or in any form to any superior of Mr. Johnson’s, although his testimony would be that at the time of his discharge he orally asked Mr. Johnson for a pre-termination hearing, for a specific list of the charges against him, for an opportunity to testify and produce witnesses on his own behalf, and for an opportunity to confront and cross examine those witnesses against him. His testimony would be that this request was denied.

6. Although Roy Johnson would testify that the plaintiff never requested these pre-termination procedures, he would agree that they were not afforded Mr. Skeets prior to the notification of his termination. When Roy Johnson notified plaintiff of his discharge, he did not advise plaintiff that he was entitled to these procedures. Johnson’s testimony would be that he told Skeets he had the right to demand a hearing. As a supervisor, plaintiff admits that he was familiar with the department’s grievance procedure. Johnson did not advise plaintiff to submit a complaint in writing or offer to assist plaintiff in preparing a written complaint.

7. That prior to April 10, 1979, Roy Johnson had hired George Coffman and directed him to investigate the plaintiff; that George Coffman had not submitted his investigative report to Roy Johnson by April 10, 1979, although he had discussed with Roy Johnson by phone some of the allegations being made against the plaintiff; that the investigative report was not completed and given to Roy Johnson until June or July, 1979; that prior to April 10 Roy Johnson had talked directly on several occasions to Sergeant Charles Bernard and Captain Glenn Cross, employees of the Arkansas State Highway Police who worked under the plaintiff’s supervision; also, that prior to April 10, 1979 Roy Johnson had received other information on Mr. Skeet’s job performance including correspondence from the Arkansas State Police, and the substance of the above information was later contained in Coffman’s formal report; and that the plaintiff secured a copy of Coffman’s complete report through his attorney during discovery in his first lawsuit, which was later non-suited.

8. That George Coffman would testify that his report contained both direct and hearsay testimony against the plaintiff; that he never confronted the plaintiff with the allegations and asked him for his side of the story; and that his reasons for not interviewing all persons named in his report was that it would have impaired the secrecy of the investigation, plus he would have had to advise certain individuals of their Miranda rights.

9. That neither Roy Johnson nor any other person made a written report to the director, Henry Gray, concerning plaintiff’s discharge; that Henry Gray was provided a copy of the investigative report in June or July 1979; that prior to April 10 Henry Gray was informed of the decision of Roy Johnson to terminate Mr. Skeets but did not make this decision himself or direct the manner in which Mr. Johnson terminated Mr. Skeets. Skeets was never given any written decision on his discharge.

10. That plaintiff never received a written reason for his termination; that Roy Johnson advised plaintiff that his discharge was for “dereliction of duty” and plaintiff’s Personnel Data Card reflects “termination (for dereliction of duty);” that the department, however, contested plaintiff’s application for unemployment benefits and advised the Arkansas Employment Security Division that plaintiff was discharged for “dereliction of duty, dishonesty, and misuse of a public vehicle;” and that plaintiff failed to attend a hearing on his employment benefits at which he could have contested his employer’s stated reasons for the discharge.

11. That plaintiff was nominated for United States Marshal in 1982 by Representative John Paul Hammerschmidt; that plaintiff signed the Authority to Release information to the FBI attached to defendant’s Memorandum in Support of Response to Motion for Summary Judgment; that the FBI contacted the Arkansas State Highway Department concerning plaintiff’s employment record; that the defendant provided said record to the FBI, including the “report of investigation” pertaining to plaintiff’s discharge; that Tom Hamburger, then a reporter for the Arkansas Ga zette, contacted Henry Gray concerning the allegations regarding plaintiff's termination and, after being referred to Roy Johnson, discussed the matter with Captain George Coffman, who made the statements contained in Tom Hamburger’s affidavit and attached newspaper article; and that Tom Hamburger contacted Representative John Paul Hammerschmidt concerning the allegations surrounding the termination. Plaintiff’s nomination was withdrawn.

PROPERTY INTEREST

The determination of whether or not the plaintiff has a protectable property interest is a matter of state law, Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), and “[s]uch a protectable property interest is not an automatic consequence of all public employment.” Brockell v. Norton, 688 F.2d 588, 590 (8th Cir.1982). Although plaintiff had no written contract which expressly gave him tenure (Stipulation of Fact No. 1), this does not end our inquiry. The policies and practices of an employer can give rise to an expectancy of continued employment in some circumstances. Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

Plaintiff contends that the grievance procedures referred to in Stipulation of Fact No. 4 and set forth in the exhibits to his motion for summary judgment establish such a property interest. Specifically, plaintiff relies upon Step 1 of the grievance procedure which states that when confronted with an employee’s grievance “[i]t is the duty of the supervisor to give an impartial hearing, make a thorough investigation and, if possible, make a decision which is mutually agreeable.” There is no state court decision applying this grievance procedure.

Grievance procedures have been interpreted in the manner suggested by plaintiff. Wilson v. Robinson, 668 F.2d 380 (8th Cir.1981). In Wilson v. Robinson the grievance procedure expressly required two weeks notice prior to job terminations. The language of the grievance procedure herein is not as unequivocal with regard to terminations, as in Wilson v. Robinson, but the Court does not view this distinction as fatal to plaintiff’s contentions. A reading of the subject grievance procedure leads this Court to find that an employee, such as the plaintiff, would expect that prior to any final decision being made with respect to a change in the conditions of his employment (including termination), he would be afforded an opportunity to present his “side of the story,” that a thorough investigation would occur, and that an impartial hearing would be conducted to resolve factual disputes. Plaintiff attempted to invoke the protection afforded by this grievance procedure and was denied that opportunity by defendant Johnson. Although Johnson denies that plaintiff requested any pre-termination procedures, it is difficult for the Court to believe that plaintiff, a 10-year employee, would have failed to request an opportunity to tell his “side of the story” when faced with such a drastic change in his employment conditions.

Defendants’ arguments that plaintiff entered the grievance procedure at Step 3 and failed to properly pursue his grievance at this juncture elevates form over substance and unnecessarily strains the reading of this grievance procedure. The plaintiff made a sufficient invocation of his rights under the grievance procedure when he requested permission of defendant Johnson to tell his “side of the story.”

WAIVER

Defendants also argue that plaintiff waived his rights under the grievance procedure, but when defendant Johnson denied him the opportunity to rebut any charges of dereliction of duty, the plaintiff was not required to go further. Although the last paragraph of the grievance procedure provides that a grievance is deemed settled if the employee fails to take a grievance to the next step, it also provides that “[i]f the Department fails to meet and/or provide for any grievance heard within the prescribed time limits as hereinabove provided, such grievance shall automatically advance to the next step.” Defendant Johnson’s refusal to provide plaintiff with the procedure set forth in Step 1 (e.g., impartial hearing, thorough investigation, etc.) prevent the defendants from arguing that plaintiff abandoned his grievance. The case of Birdwell v. Hazelwood School District, 491 F.2d 490 (8th Cir.1974) cited by the defendants is inapposite. In Birdwell v. Hazelwood School District, supra, the disappointed employee failed to appear at a scheduled hearing of which he had notice. This did not occur herein, and there are no other facts present which convince the Court that the plaintiff abandoned his rights under the grievance procedure.

RELIEF

The manner in which plaintiff was terminated constituted a deprivation of his property interests without affording him procedural due process. Notwithstanding this finding, defendants argue that plaintiff must demonstrate that the substantive allegations against him were untrue before he is entitled to any relief. However, this Court is persuaded by Chief Judge G. Thomas Eisele’s opinion in Shaw v. Gwatney, et al, 604 F.Supp. 880 (E.D.Ark.1985) on this issue. In Shaw v. Gwatney, Judge Eisele acknowledged that his narrow reading of Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) was the minority view, but he went on to hold that the court need not decide the underlying substantive issues in procedural due process cases where a plaintiff only seeks equitable relief.

Not only was it unnecessary for the court to resolve the merits, it was inappropriate. Courts in such cases should be interpreters of the Constitution, and not arbiters of every employment decision. If the adjudication of every due process claim required a court to examine and decide the merits of the underlying claim of entitlement, court intrusion into substantive employment and administrative decisions would greatly expand. Courts do not have the time, the expertise or the authority to take on comprehensive roles as employment decision makers. The focus in the first instance must therefore be upon the precise relief being sought.

Shaw v. Gwatney, et al, supra, at 887.

While back pay cannot be uniformly treated as equitable relief, see, e.g., Setser v. Novack Investment Company, 638 F.2d 1137 (8th Cir.1981), in a case such as this where the plaintiff seeks to be returned to the status quo ante (e.g., Title VII litigation), rather than to be made whole, the court should treat a prayer for reinstatement with back pay as equitable relief.

Although the distinction between equitable and legal relief stems from an archaic and formalistic court system long since abolished, the distinction nonetheless has continued validity. With respect to due process actions, equitable relief is intended not to make a person whole but to restore the situation to what it was before the act. In other words, equitable relief is directly intended to invalidate the illegal government action and restore the status quo ante. United States v. Cotton Plant School District No. 1, 479 F.2d 671 (8th Cir. 1973); Wagner v. Little Rock School District, 373 F.Supp. 876 (E.D.Ark.1973); see generally Dobbs on Remedies, § 3.1 (1973).

Shaw v. Gwatney, et al, supra, at 886-87.

CONCLUSION

The Court therefore concludes that plaintiff had a legitimate expectation that certain procedural safeguards would be adhered to prior to his termination and that when they were not carried out, his right to procedural due process was infringed. He seeks the equitable remedy of reinstatement with back pay, and the Court is therefore not required to inquire into the merits of the underlying substantive dispute concerning his job performance. The Court therefore orders that plaintiff be reinstated to his position with the Arkansas State Highway and Transportation Department and that he recover his back pay less deductions for money earned in other employment during the interim.

      . Because of the Court’s decision with regard to the property interest issue, plaintiffs liberty interest claim will not be reached.


author: SWEET, District Judge.

text:
    CITY OF NEW YORK, Plaintiff, v. Samuel R. PIERCE, Secretary of the United States Department of Housing and Urban Development, United States Department of Housing and Urban Development, City of Jersey City, New Jersey Waterfront Associates, and Bankers Trust Company, Defendants.
    No. 84 Civ. 9301(RWS).
    United States District Court, S.D. New York.
    May 23, 1985.
    Frederick A.O. Schwarz, Jr., Corp. Counsel of the City of New York, New York City, for plaintiff; Laura J. Blankfein, New York City, of counsel.
    Shanley & Fisher, P.C., New York City, for defendant Jersey City; A. Dennis Terrell, Lorraine C. Parker, New York City, of counsel.
   OPINION

SWEET, District Judge.

Plaintiff, the City of New York (“NYC”) has moved to stay this action pending a decision from defendant the United States Department of Housing and Urban Development (“HUD”) on the application of defendant Jersey City (“Jersey City”) for an Urban Development Action Grant (“UDAG”) for the development of Harbor-side. Jersey City has moved to dismiss the action pursuant to Fed.R.Civ.P. 12(b)(2) on the grounds that the court does not have jurisdiction over Jersey City, which is an indispensable party. The motion for a stay is granted.

Facts

NYC initiated this action against HUD, Jersey City, and others on December 27, 1984 to prevent the award of UDAG funds to Jersey City and the Harborside development. NYC alleges that HUD’s initial approval of the grant was premised on a commitment by Bankers Trust Co. to replace all jobs lost in NYC as a result of Bankers Trust move to Jersey City which would result from the grant. Such a job replacement program was necessary, according to NYC, in order to satisfy 42 U.S.C. § 5318(h). NYC further alleges that on or about November 1, 1984 Jersey City and Bankers Trust applied to HUD to amend the grant agreement to eliminate the job replacement program. NYC alleges that at some time before December 24, 1984 HUD approved the amendment to the grant, thereby causing the grant to violate 42 U.S.C. § 5318(h).

On January 9, 1985 HUD informed the court that HUD had withdrawn approval of the amended UDAG grant and was reconsidering the funding for Harborside. The parties agreed at that time to an informal stay pending a decision by HUD. On February 6, 1985, Jersey City moved to dismiss the case and soon thereafter NYC moved formally for a stay.

Discussion

A district court may stay an action by virtue of its “inherent power ‘over [its] own process.’ ” Soler v. G & U Inc., 86 F.R.D. 524, 526 (S.D.N.Y.1980), quoting 1 Moore’s Federal Practice § 0.60[6]. A motion for a stay is directed to the discretion of the court and demands consideration of the competing interests of the parties. Landis v. North America Co., 299 U.S. 248, 254, 57 S.Ct. 163, 165, 81 L.Ed. 153 (1936); Kistler Instrumente A.G. v. PCB Piezotronics, 419 F.Supp. 120 (W.D. N.Y.1976).

A court always has jurisdiction to determine its own jurisdiction, United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Ilan-Gat Engineers, Ltd. v. Antigua Intern. Bank, 659 F.2d 234 (D.C.Cir.1981), yet this investigation is itself limited by the requirement that advisory opinions on moot issues not be rendered. In North Carolina v. Rice, 404 U.S. 244, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971), the court remanded a case for reconsideration of mootness, holding that “the question of mootness ... must [be] resolved before [a court] assumes jurisdiction.” Id. at 246, 92 S.Ct. at 404.

HUD’s decision to reconsider its approval of the Harborside grant effectively eliminates the subject matter of the dispute before this court and would render moot any decision on either jurisdiction or the merits of the underlying claim. The posture of this case is such that until HUD renders an opinion on the Harborside UDAG application any adjudication by this court of a challenge to that grant would be advisory in nature and directed to a dispute not ripe for resolution.

Further, a stay is not prejudicial to Jersey City. It has not been shown that during the pendency of the stay any ill effects will inure to Jersey City’s detriment.

Consequently, this case is stayed until HUD renders an opinion on Jersey City’s Harborside UDAG application.

IT IS SO ORDERED.


author: PROPST, District Judge.

text:
    Morris R. STEENSON, Plaintiff, v. John O. MARSH, Jr., Secretary of the Army; MG Will Hill Tankersley, Commanding Officer 87th USA Maneuver Area Command, Dept. of the Army; MAJ Benjamin L. Payton, Adjutant General, 87th USA Maneuver Area Command, Dept. of the Army, Defendants.
    Civ. A. No. CV85-PT-1150-S.
    United States District Court, N.D. Alabama, S.D.
    May 23, 1985.
    Albert L. Jordan, Fitzpatrick & Jordan, Birmingham, Ala., for plaintiff.
    Frank W. Donaldson, U.S. Atty., Caryl P. Privett, George C. Batcheler, Asst. U.S. Attys., Birmingham, Ala., Major Anthony V. James, Dept, of the Army, Washington, D.C., for defendants.
   MEMORANDUM OPINION

PROPST, District Judge.

This cause comes on to be heard on cross motions to dismiss, or in the alternative, for summary judgment and a trial on the merits. The plaintiff filed a complaint seeking a temporary restraining order and preliminary injunctive relief on April 24, 1985, and on April 25, 1985, the court conducted a hearing, and denied plaintiff’s application for a temporary restraining order. By order of April 26, 1985, the court directed that the trial of the action on the merits be advanced and. consolidated with the hearing of the application for a preliminary injunction pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure. On May 9, 1985, the cause was heard.

Both parties have agreed that the record reflects no genuine issue of material fact and that there can be no such issue. Plaintiff Morris R. Steenson served continuously on active duty with the United States Army for a period of 16 years, 11 months, and 25 days, beginning October 9, I960. On October 3, 1977, plaintiff was relieved from active duty, and he subsequently received readjustment pay. By later performing periods of active duty for training (ADT) in the United States Army Reserve since his release, plaintiff has accrued more than 18 years of active federal service. As a result, plaintiff argues that he is protected by the following statute from being released from his current ADT tour of duty:

Under regulations to be prescribed by the Secretary concerned, which shall be as uniform as practicable, a member of a reserve component who is on active duty and is within two years of becoming eligible for retired pay or retainer pay under a purely military retirement system, may not be involuntarily released from that duty before he becomes eligible for that pay, unless his release is approved by the Secretary.

10 U.S.C. § 1163(d). (footnote added).

Defendants initially assert that plaintiff has failed to exhaust available administrative remedies because he did not first seek relief with the Army Board for Correction of Military Records (ABCMR). See 10 U.S.C. § 1552, 32 C.F.R. § 581.3.

The Supreme Court has identified the purposes of the exhaustion doctrine: (1) avoidance of premature interruption of the administrative process, (2) provision for the agency to apply its expertise and to develop a record, and (3) maintenance of judicial efficiency by elimination of many complaints as may be through the administrative process prior to judicial review. McKart v. United States, 395 U.S. 185, 193-95, 89 S.Ct. 1657, 1662-63, 23 L.Ed.2d 194 (1969).

Plaintiff argues that the instant case falls within an exception to the exhaustion doctrine. See Seepe v. Department of the Navy, 518 F.2d 760, 762. He submits that the question before the court is one of statutory construction, that there is no uncertainty about the facts, and that resort to the appropriate administrative agency would be futile.

“[Military personnel with grievances against the military establishment or its personnel must exhaust the administrative remedies provided by the military service before seeking relief in civilian courts.” Penagaricano v. Llenza, 747 F.2d 55, 61 (1st Cir.1984); see also, Linfors v. United States, 673 F.2d 332 (11th Cir.1982). As noted by several courts, where the gravamen of the complaint is that the service did not follow its regulations in arriving at the contested decision

whether this is viewed as a legal or a factual question, the Army ought to be the primary authority for the interpretation of its own regulations. A decision by the ABCMR that the Army should have followed [the regulation at issue] might completely obviate the need for judicial review. If on the other hand, the ABCMR concludes that [the regulation at issue] is inapplicable to the facts of this case and [the plaintiff serviceman] then seeks judicial review, the court will at least have a definitive interpretation of the regulation and an explication of the relevant facts from the highest administrative body in the Army’s own appellate system. See Nelson v. Miller, 3 Cir., 373 F.2d 474, 480, cert, denied, 1967, 387 U.S. 924, 87 S.Ct. 2042, 18 L.Ed.2d 980; Sohm v. Fowler, 1966, 124 U.S.App.D.C. 382, 365 F.2d 915, 918-919.

Navas v. Vales, 752 F.2d 765, 770-71 (1st Cir.1985) quoting Hodges v. Callaway, 499 F.2d 417, 422 (5th Cir.1974).

Plaintiff argues that appeal to the ABCMR would be an exercise in futility because the Army has already made its position clear on 10 U.S.C. § 1163(d). However, as the Hodges court noted:

Hodges would synonomize pessimism with futility, but courts must — at least initially — indulge the optimistic presumption that the military will afford its members the protection vouchsafed by the Constitution, by the statuté and by its own regulations.

499 F.2d at 424. Further, plaintiff is not alleging that the administrative system itself is unlawful, unconstitutional, or incapable of redressing his injury. See Porter v. Schweiker, 692 F.2d 740, 742-44 (11th Cir.-1982).

Courts are generally loath to interfere in military affairs because of concerns for efficiency and agency expertise. Sanders v. McGrady, 537 F.2d 1199, 1201 (4th Cir. 1976). Hence, because of the foregoing, the court finds that plaintiffs failure to exhaust his administrative remedies is fatal to his claim.

Defendant additionally urges that Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971) requires the conclusion that this action is non-reviewable. The Mindes court adopted a test for determining the reviewability of military matters:

[A] court should not review internal military affairs in the absence of (a) an allegation of the deprivation of a constitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations, and (b) exhaustion of available intraservice corrective measures.

Id. at 201. Secondly, even if the above analysis is satisfied, a court may still deny review. The court must examine and balance the following four factors to determine whether, as a policy matter, review of the military decision in question is proper:

(1) the nature and strength of the plaintiff’s challenge to the military decision. ..
(2) the potential injury to the plaintiff if review is refused...
(3) the type and degree of anticipated interference with the military function ... [and]
(4) the extent to which the exercise of military expertise or discretion is involved.

Id. at 201. A balancing of these factors does not dictate that the court now review the decision. The defendant has admitted to the court that if relief is ultimately granted to plaintiff, the relief can be full relief. For reasons hereinafter stated, the strength of plaintiff’s challenge is highly questionable. The interference with the military function at this stage would outweigh the effect of requiring exhaustion of available corrective measures.

Assuming that the court has jurisdiction to consider defendant’s motion to dismiss or to decide the case on the evidence, the court adopts the reasoning of Adams v. United States, No. KC-3729 (D. Kan. August 23, 1973) in holding that rules of statutory construction, the legislative history of 10 U.S.C. § 1163(d) and past administrative interpretation of the statute establish that plaintiff has not stated or proved a meritorious claim.

The defendants have also submitted declarations by Army personnel as well as copies of opinions of the Administrative Law Division, Office of the Judge Advocate General of the Army, in an effort to show that the Army’s interpretation of the status in question is consistent with the Adams case.

Further, in examining the statutory history of 10 U.S.C. § 1163(d), the court finds that § 1163(d) was originally enacted as part of the Act of July 9, 1956, Pub.L. No. 676, 70 Stat. 517, 518, which added § 265(d) to the Armed Forces Reserve Act of 1952. Id. The Armed Forces Reserve Act of 1952, Pub.L. No. 476, 66 Stat. 481, defined “active duty” as “full-time duty in the active military service of the United States, other than active duty for training.” Id. § 101(b). Thus, as originally enacted, the provisions of § 1163(d) were expressly inapplicable to active duty for training. In August 1956, Congress codified Title 10, adding the present definition of active duty found at § 101(22), which includes active duty for training. Section 1163(d) was codified in Title 10 in 1962. Act of September 7, 1962, Pub.L. No. 87-651, 76 Stat. 506-508.

In Cass v. United States, 417 U.S. 72, 94 S.Ct. 2167, 40 L.Ed.2d 668 (1974), the Supreme Court examined the committee reports accompanying the codification proposal in construing another section of the subject Act. The Court held that the congressional comments, combined with the fact that the consideration of any change in eligibility standards appears in the committee reports or other proceedings, demonstrate that Congress did not intend to increase eligibility under the statute. “[T]he meaning of the predecessor statute is clear and quite different from the meaning petitioners would ascribe to the codified law; and the revisers expressly stated that changes in language resulting from the codification were to have no substantive effect.” Id. at 82, 94 S.Ct. at 2172 (citations omitted).

A judgment in accordance with this memorandum opinion will be entered contemporaneously herewith.

FINAL JUDGMENT

In accordance with a Memorandum Opinion filed contemporaneously herewith, this cause is DISMISSED without prejudice, for the following alternative reasons in the order listed.

1. First Alternative Reason. For failure to exhaust administrative remedies.

2. Second Alternative Reason. The claim is non-reviewable as provided by Mindes.

3. Third Alternative Reason. The motion to dismiss is due to be granted because no claim is stated on which relief can be granted.

4. Fourth Alternative Reason. The plaintiff is not entitled to prevail on the merits based on the evidence at the trial. If an appeal is taken and if it is determined, on appeal, that either the Third or Fourth Alternatives is appropriate, the dismissal is with prejudice.

Costs are assessed against the plaintiff.

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

LT. COL. LLOYD K. ADAMS and MAJOR VINCENTE DeJESUS, Student Detachment, US Army Command and General Staff College, Fort Leavenworth, Kansas 66027, Plaintiffs, v. THE UNITED STATES OF AMERICA; SECRETARY OF THE ARMY; COMMANDING GENERAL, US ARMY RESERVE COMPONENT, PERSONNEL AND ADMINISTRATION CENTER, ST. LOUIS, MISSOURI 63132; COMMANDANT, US ARMY COMMAND AND GENERAL STAFF COLLEGE, MAJOR GENERAL HENNESSEY, Fort Leavenworth, Kansas 66027, Defendants.

Civil Action No. KG-3729

Aug. 23, 1973

MEMORANDUM AND ORDER

This is an action initiated by two United States Army Reserve Officers who were attending the Command and General Staff College at Fort Leavenworth, Kansas, at the time the suit was filed. They seek to enjoin defendants from relieving them from active duty in face of their requests for retention.

A temporary restraining order was issued on May 15,1973, and has been extended pending outcome of this action. At the preliminary injunction hearing on May 25, 1973, the parties agreed there were no disputed facts. Accordingly, defendants moved to dismiss the complaint, or in the alternative for summary judgment. Plaintiffs have also requested summary judgment. Briefs have been submitted in support of the parties’ respective contentions.

Two questions are presented for our determination:

1. Have plaintiffs stated grounds sufficient to invoke the jurisdiction of this court?

2. May an army reserve officer ordered' to “active duty for training” for a four-month period “tack” such time on to previous periods of active duty and thus bring him within the protective provisions of 10 U.S.C. § 1163(d)?

We shall first review the chronology of events leading up to this controversy.

Plaintiff Lloyd K. Adams. Adams served on active duty from July 18, 1954, until released on June 29, 1972, under the provisions of paragraph 3-58(a) of AR 635-100. As required by the regulation, his records were screened at Headquarters, United States Army, “to determine those officers whose degree of efficiency and manner of performance require relief from active duty or elimination from the service.”

On September 8, 1972, Adams applied to the United States Army Reserve Components Personnel and Administration Center, for Active Duty for Training for a period of 130 days to attend CLASS 4 of the Command and General Staff Officer Course at Ft. Leavenworth, Kansas, beginning on or about January 8, 1973. He was accepted for the course and was ordered to active duty upon self-executing orders for the duration of the course, a period of 131 days ending on May 18, 1973. (Both plaintiffs question whether or not they made a “request” or were “selected” for the school, relying on AR 351-16.) Adams would have been automatically released .from active duty for training without further action upon the expiration of his orders on May 18, 1973, except for the Temporary Restraining Order entered by this court on May 15, 1973.

Plaintiff Vincente Dejesus. Major DeJesus served on active duty from May 30, 1950 to June 4, 1953, and thereafter from September 2, 1957 through May 15, 1972, when he was released from active duty under the provisions of paragraph 3-58a, AR 635-100 (see above).

On September 10, 1972, he applied for Active Duty for Training to attend the Command and General Staff Officer Course at Ft. Leavenworth, Kansas, beginning on or about January 8, 1973. He was accepted and self-executing orders were issued ordering him to active duty for the duration of the course, a period of 131 days ending on May 18, 1973.

Like plaintiff Adams, he would have been automatically released from active duty for training without further action upon the expiration of his orders on May 18, 1973, except for the Temporary Restraining Order entered by this court.

Prior to the filing of this action, each of the plaintiffs made application for retention on active duty under the provisions of 10 U.S.C. § 1163(d). It has been stipulated that their requests for retention have in fact been denied by the Department of the Army.

CONCLUSIONS OF LAW

I

We turn first to the jurisdictional question. While the complaint lacks specific allegations of the “grounds upon which the court’s jurisdiction depends,” it definitely appears that a question arising under specific federal statutes is involved. In addition to a federal question being raised, 28 U.S.C. § 1331 also requires that the matter in controversy exceed the sum or value of $10,000. Although no allegation of a jurisdictional amount is made in the complaint, we are satisfied that this deficiency may be

cured by amendment. In the interests of judicial economy, we shall consider the complaint amended to state the requisite jurisdictional grounds under § 1331. Accordingly, defendants’ motion to dismiss is denied.

II

Section 1163(d) of Title 10, United States Code, provides that:

“(d) Under regulations to be prescribed by the Secretary concerned, which shall be as uniform as practicable, a member of a reserve component who is on active duty and is within two years of becoming eligible for retired pay or retainer pay under a purely military retirement system, may not be involuntarily released from that duty before he becomes eligible for that pay, unless his release is approved by the Secretary.”

Admittedly, neither of the plaintiffs would be entitled to the sanctuary accorded by Section 1163(d) without the four months of active duty for training at the Command and General Staff School being tacked on to their previous terms of active duty service. The answer to whether or not plaintiffs come within the purview of the statute is found in (1) the legislative history and intent of the statute, and (2) the construction given the statute by the agency charged with its administration.

In 1956 Congress provided lump sum readjustment payments for members of reserve components who were involuntarily released before they were eligible for retirement benefits (Public Law 676 July 9, 1956, 84th Cong.; 70 Stat. 517), in order to guarantee to the reservist that if he remains on active duty for a number of years and is then involuntarily released, he will be assured some percentage of economic security during his readjustment to civilian Life. H.R.Rep. No. 1960, 84th Cong.2d Sess., 2 (1956). The purpose of the original act was to grant readjustment pay to reserve officers who were serving on extended active duty in a career status and were separate involuntarily, thus bringing about a parity between involuntarily released Regular and Reserve Officers. (Hearings before the Senate Committee on Armed Service on H.R. 9952, 84th Cong., 2d Sess., p. 6; Hearings before the House Committee on Armed Services on H.R. 9952, 84th Cong.2d Sess., p. 698).

In enacting the readjustment pay legislation, Congress also recognized that reservists within two years of qualifying for retirement benefits should be protected from involuntary release, and enacted what is now § 1063(d) [§ 1163(d) ], the “sanctuary” provision. In the 1962 recodification of Title 10, United States Code, the “sanctuary” provision was detached from the readjustment pay statute (now codified at 10 U.S.C. 687) and put under 10 U.S. 1163, dealing with limitations on the power to separate members of reserve components.

A cardinal rule of statutory construction is that meaning should be given to every provision of a Statute. Parker v. United States, 448 F.2d 793 (10th Cir.1971), cert, den. 405 U.S. 989 [92 S.Ct. 1252, 31 L.Ed.2d 455] (1972). When effect is given to both 10 U.S.C. 1163(d) and 10 U.S.C. 687, it is clear to us that the intent of Congress was that “active duty for training” purposes may not be tacked upon previous terms of active duty, thereby enabling a reservist to bootstrap himself into the sanctuary afforded by 10 U.S.C. 1163(d).

The readjustment pay statute (10 U.S.C. § 687) and the sanctuary provision of 10 U.S.C. § 1163(d) were enacted at the same time. We believe they are in pari materia and therefore must be construed together. By these statutes Congress established two-fold protection for reserve officers involuntarily released from active duty before the expiration of twenty years service. If an officer was released after five years but before eighteen years service, he was entitled to readjustment pay. If he had served for eighteen years but less than twenty years, he had the “sanctuary” of 10 U.S.C. § 1163(d) unless the Secretary expressly approved his release.

Parenthetically, we note that plaintiffs have received readjustment pay upon their

prior release from active duty after more than seventeen years active federal service.

The purpose of the readjustment pay legislation is succinctly stated as follows:

“[this legislation is to provide for] a man who has served in the service for a relatively long period, a man who intended to make a career out of the military service and suddenly finds himself separated through no fault of his own, or beyond his control, having to re-establish himself in civilian pursuits and having a difficult time doing it.” (Hearings before the Senate Committee on Armed Services on H.R. 9952, 84th Cong., 2d Sess., p. 6.)

By the express provisions of 10 U.S.C. § 687(b)(2) reserve officers involuntarily released from “active duty for training” are not entitled to readjustment pay benefits. This is also made abundantly clear by the following colloquy when the bill was presented on the floor of the House:

“Mr. Gross: I think the Committee has inserted a number of very good provisions on page 2 of the Bill. But, I should like to ask the gentleman what is meant by a person who is released from active duty for training. What kind of training?
Mr. Vanzandt: A reserve officer who is called up for training purposes may find himself on active duty for a period of months, weeks or days, so we differentiate between an officer who is on active duty a longer period of time — anywhere from five (5) years to less than eighteen (18) years — and the reserve officer who is called up only for training purposes. Mr. Brooks of Louisiana: Mr. Chairman, if the gentlemen will yield, the six-month trainee under the reserve program would be one of the men included, and the National Guard sometimes sends its officers to the regular establishment for training purposes only.
Mr. Gross: But this is confined to a military trainee
Mr. Vanzandt: This is confined to active duty by a reserve officer but does not include a reserve officer called up only for training.” 102 Congressional Record at 10119 and 10120 (June 12, 1956).

Construing the readjustment pay statute with § 1163(d) and keeping in mind the purpose of this legislation, we are satisfied that Congress never intended that a reserve officer who had already been involuntarily released and received readjustment pay could then “tack on” active duty for training time and become qualified for the “sanctuary” afforded by § 1163(d). Plaintiffs, as career officers, have already had the benefits of readjustment pay for having been separated through no fault of their own prior to eighteen years of active duty. In our view, they have been accorded the only benefits Congress intended by this legislation. Furthermore, we have not overlooked plaintiffs’ contention that “active duty” as defined by 10 U.S.C. § 101(22) includes “active duty for training,” thereby bringing them within the ambit of the “sanctuary” provision. This argument is overridden by the legislative history of 10 U.S.C. § 687 and § 1163(d).

In reaching the conclusion that plaintiffs are not entitled to the benefits of § 1163(d), we are also persuaded by the long standing interpretation given this statute by the Department of the Army. It is a well-settled rule of statutory construction that the construction given a statute by the agency charged with its administration “should be followed unless there are compelling indications that it is wrong.” Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 23 L.Ed.2d 371, 89 S.Ct. 1794 (1969); CIR v. First Security Bank of Utah, 405 U.S. 394, 92 S.Ct. 1085 [31 L.Ed.2d 318] (1972); and Ute Indian Tribe of the Uintah & Ourqy Reservation v. Probst, 428 F.2d 491 (10th Cir.1970). An administrative interpretation should be accepted by the courts if it be a reasonable one, even though there might be another interpretation which was itself reasonable. Udall v. Tallman, 380 U.S. 1 [85 S.Ct. 792] 11 L.Ed.2d 980 (1965); and Unemployment Comm’n v. Aragon, 329 U.S. 143, 67 S.Ct. 245, 91 L.Ed. 136 (1946).

The temporary restraining order issued May 15, 1973, is dissolved and defendants’ motion for summary judgment is sustained.

IT IS SO ORDERED.

Dated this 23rd day of August, 1973, at Kansas City, Kansas.

/s/ Earl E. O’Connor

UNITED STATES DISTRICT JUDGE

      . At least there is no dispute that all of such time can be considered as continuous active duty.

      . There are two separate systems governing military retirement for officers. For an officer who has spent his entire career on active duty, 10 U.S.C. § 3911 provides that the Secretary of the Army may retire him after 20 years of service. For those who serve in the Army Reserve, 10 U.S.C. §§ 1331-1336 provides that they may be retired at age 60.

      . An apparent reason for requiring exhaustion is to have the appropriate agency consider the effect, if any, of the July 26, 1984 interim charge No. 107 affecting AR 635-100, 19 Feb. 1969.

      . The "exhaustion" and “non-reviewable” standards may be so closely related as to have meshed.

      . The opinion in that case is appended to this one.