author: MOTLEY, Chief Judge.

text:
    G. & A. BOOKS, INC., 250 Book Center, Inc., Courageous Books, Inc., and M.J.M. Exhibitors, Inc., Plaintiffs, v. William J. STERN, individually and as Chairman of the New York State Urban Development Corporation, William H. Daly, individually and as Director of the Office of Midtown Enforcement of the City of New York, Steven Spinola, individually and as President of the Public Development Corporation of the City of New York, Herbert J. Sturz, individually and as Chairman of the City Planning Commission of the City of New York, Edward I. Koch, individually and as Mayor of the City of New York, The City of New York, Park Tower Realty Corp., Planning Innovations, Inc., Tishman Speyer Properties and Equitable Life Assurance Society of the United States, Defendants.
    No. 84 Civ. 7565 (CBM).
    United States District Court, S.D. New York.
    Feb. 5, 1985.

      Ralph J. Schwarz, Jr., New York City, for plaintiff.
    Leahey & Johnson, P.C. by Peter James Johnson, New York City, for defendant Stern.
    Frederick A.O. Schwartz, Jr., Corp. Counsel by Gary Schuller, New York City, for defendants Daly, Spinola, Sturz, Koch, and City of New York.
    Paul, Weiss, Rifkind, Wharton & Garrison by Martin Flumenbaum, New York City, for defendants Tishman Speyer Properties and Equitable Life Assur. Soc. of the U.S.
    Shea & Gould by Dean G. Yuzek, New York City, for defendant Park Tower Realty Corp.
    Demov, Morris, Levin & Shein by Robert Hammerling, New York City, for defendant Planning Innovations, Inc.
   OPINION

MOTLEY, Chief Judge.

Plaintiffs, all in the business of selling and exhibiting sexually-explicit books, films and performances, sue to enjoin the destruction of their businesses by the Forty-Second Street Development Project. Plaintiffs claim that one of the motivations behind the Project, which will attempt to upgrade the Times Square area by building four large office towers, a hotel, and a merchandise mart, is to put them out of business and stifle distribution of sexually explicit, constitutionally protected material. They maintain that the Project’s blight findings with regard to adult uses are inadequate, that the Project constitutes a prior restraint, that it violates the First Amendment and the Equal Protection Clause by in effect zoning retroactively on the basis of content, and that the Project fails to use the least restrictive means in furthering whatever legitimate goals it does have. Plaintiffs seek a preliminary injunction to stop the planned condemnation of the buildings on Forty-Second Street in which their businesses operate.

Defendants, myriad city and state officials with responsibility for the Project, and the private developers, respond that the Project is fully justified by the blight findings already made, that sexually explicit speech is not being singled out, that plaintiffs will not be denied access to the Project’s new commercial locations, and that even if they were, it would not give rise to a constitutional claim. Defendants move to dismiss on the merits and on the doctrines of abstention and comity. In addition, the private developer defendants argue that they are not proper parties to this action.

The case at bar requires the court to reconcile two broad strains of recent constitutional law. On the one hand, it has long been settled that the political branches of government have broad latitude in land use planning. See Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954). The Supreme Court has in recent years stressed that this deference extends to the role of local government both in formulating goals for planning and in devising means within the state’s police power to attain those goals. See Hawaii Housing Authority v. Midkiff, — U.S. -, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984); Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974). Indeed, this flexibility is necessary if government is to formulate and implement creative solutions to blight, crime, pollution, and other problems related to land use.

On the other hand, this deference must give way in the face of a substantial claim of infringement on a constitutionally protected right. For example, the federal courts have exhibited an increasing sensitivity to the negative impact of ostensibly neutral city planning devices on constitutionally protected speech. They have refused to defer completely to local government and instead have scrutinized both the ends and means of regulation to determine if it is unconstitutionally suppressive of speech. See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981); Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). It is a deep tradition in First Amendment law that government may not escape scrutiny of its attempts to suppress speech merely by label-ling its action as neutral regulation; it is the operation and effect of government action, not its form, that matters. Near v. Minnesota ex rel. Olson, 283 U.S. 697, 708, 51 S.Ct. 625, 628, 75 L.Ed. 1357 (1931).

In light of this potential conflict between important constitutional values, the extreme positions staked out by plaintiffs and defendants in this case are not particularly helpful. Plaintiffs urge the easy to grasp but logically flawed proposition that any government regulation which has the effect of curtailing speech is perforce an unconstitutional prior restraint. It is obvious, however, that countless forms of government activity, from taxation to regulatory enforcement to criminal prosecutions, may limit the exercise of speech rights. The question is whether the government restriction is content-based or singles out speech activities for special burdens, or if the effect on speech is merely incidental to a legitimate and neutrally enforced regulatory scheme. This inquiry nevertheless requires a closer examination of government ends and means than would be permitted under the extremely deferential due process approach urged by defendants.

Having made this examination, the court concludes that plaintiffs have failed to meet their burden in justifying a preliminary injunction, that there are no material facts in dispute, and that defendants are entitled to judgment as a matter of law. In reaching these conclusions, the court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT:

The Forty-Second Street Development Project is a large-scale redevelopment scheme jointly undertaken by the City and the State which would dramatically alter the physical, social, and cultural environment of the Times Square area. The Project emerged after years of false starts and failed initiatives by public officials seeking to bring renewal to Forty-Second Street. The present plan is the product of a lengthy, statutorily mandated land use review procedure which included extensive public hearings and resulted in hundreds of pages of detailed findings on the Project’s impact. Even a brief, partial summary of these proceedings and findings is sufficient for this court to conclude that substantial and important public purposes underlie the Project.

The present initiative in Times Square was launched on June 27,1980 with a Memorandum of Understanding between the City and the State’s Urban Development Corporation (UDC). The Memorandum provided that the City and the UDC would jointly prepare a plan and designate a developer, and that the UDC would have primary responsibility for implementation of the plan. Following technical studies, the City and the UDC jointly issued a report in February 1981 entitled “Forty-Second Street Development Project: A Discussion Document,” which described the potential Project’s goals and possible boundaries. In June 1981, the City and the UDC issued joint Design Guidelines and a formal Request for Proposals. Following the submission in September 1981 of responses from private developers, conditional designations were made of developers for the construction and operation of four office towers, a merchandise mart, a hotel, and renovated theaters in the Project. See Affidavit of Defendant Herbert Sturz at 2-4.

In November 1982, the UDC formed the Times Square Redevelopment Corporation as its subsidiary and entrusted it with the primary responsibility for the development of Times Square. Working with the City, the TSRC formulated the details of the current Forty-Second Street Development Project. A draft environmental impact statement was prepared and circulated pursuant to state law, and public hearings were held at Town Hall in Manhattan in March, April, and September of 1984. Scores of public officials, property owners, local residents, and other members of the public testified and submitted written comments on the Project. The Final Environmental Impact Statement (FEIS) was issued in August 1984, and following the receipt of additional public comment, the final document was approved by the UDC’s Board of Directors on October 4, 1984. The Board also adopted findings pursuant to the State’s Eminent Domain Procedure Law. Id. at 4-5.

In accordance with the original Memorandum of Understanding, the Project was submitted to the City’s Board of Estimate, which held a public hearing on October 25 and November 8,1984 and then unanimously approved the plan. The UDC officially published its findings on November 15 and 16, 1984, and intends to proceed with condemnation of property in the Project area as soon as preliminary procedures are completed. Id. at 5.

The FEIS is the primary document containing the factual basis for the Project. It reviews in detail present problems in Times Square and assesses the Project’s probable impact in several areas: land use and community resources, social and street conditions, historic resources, economic resources, traffic and transportation, air quality, noise levels, water resources, waste disposal, and energy resources. It should be noted that, by and large, plaintiffs do not challenge the essential factual content of the FEIS, but merely seek to interpret it differently than do defendants. The following factual findings, which are only highlights of some of the most pertinent parts of the FEIS, do not appear to be disputed and are adopted by the court.

The FEIS finds that the 13-acre Project area, which includes Forty-Second Street from Broadway to Eighth Avenue and parts of the adjacent blocks on Forty-First and Forty-Third Streets, suffers from severe physical and social blight including decaying and underutilized buildings, depressed property values and tax revenues, drug dealing, violent crime, loitering, and prostitution.

Specifically, the FEIS finds that the land use potential of the Times Square area is dramatically unfulfilled. At present, only 24 to 34 percent of the potential zoning capacity has been built, and approximately 16 percent of the Project area is devoted solely to surface parking lots. FEIS at 2-7. Twenty percent of all space in the area, and 34 percent of commercial and office space, is vacant. Id. at 2-13. Many buildings in the area are decaying and obsolete and most are too small to meet modern business needs. Id. at 2-13-17. No new major construction has taken place in the Project area in 50 years. Id. at 1-4. In addition, “fragmented” diversity of ownership makes private attempts at redevelopment difficult. Id. at 2-17.

The FEIS reports that only about 4,000 people work within the entire Project area. By comparison, between 4,000 and 5,000 people would be employed in one 1,000,000 square foot office building. FEIS Executive Summary at S-8. The area is expected to generate approximately $5.4 million in property taxes in 1984-85. A single building located a block away from the area, the New York Telephone Building, is expected to generate $6.2 million in the same period. Id.

The Project, by consolidating land ownership and developing four large office towers, a hotel, and a merchandise mart, is expected to generate at least $776 million in taxes and payments to the city between 1983 and 2005, compared to an estimated maximum of $123 million if the Project were not built. In addition, at least $40 million will be contributed by developers for theater renovation and subway improvements, and 21,000 jobs will be added to the Project area. Id. at S-13. The Project also seeks to preserve a part of the area’s history through the preservation of the architecturally significant theaters on 42nd Street.

Plaintiffs have made much of the statement within the FEIS that problems of physical blight are “no more than a backdrop” for the social problems of Times Square, arguing that this proves that the Project’s justification rests largely on the eradication of adult uses. However, the foregoing facts demonstrate that physical blight and underutilization are a serious problem in Times Square and an important target of the Project. Moreover, examined in context, the quoted line clearly refers to physical blight as “no more than a backdrop” only in the sense that social conditions are what primarily cause people to be uncomfortable on the street in Times Square. Id. at 2-56. Nowhere does the FEIS suggest that physical blight is not an important independent problem.

The FEIS does find, however, that these unpleasant and frightening street conditions also stand in the way of Times Square’s commercial and cultural renewal. The Midtown South police precinct, which includes the Project area, ranked first in felony complaints for the entire city for each of the last six years. FEIS at 2-81. Despite success by the police at curbing or at least displacing female prostitution in the area, and police sweeps which have reduced street crime levels temporarily, the blocks within the Project remain favorites for drug dealers, male prostitutes, and muggers. Id. at 2-87-89.

Beyond crime, the FEIS finds that several factors contribute to a generally tawdry and unpleasant ambiance in the Project area which discourages development and attendance in Times Square by many sectors of the public. The wide, overhanging movie marquees on Forty-Second Street provide a natural shelter for the assortment of drug pushers, three-card Monte dealers, chain snatchers, alcoholics, homeless people, and general loiterers who make up the permanent population of Times Square. While many of these people engage in no criminal activity and are victims rather than victimizers, the FEIS concludes that the total ambiance on the street is frightening to passers-by. Id. at 2-57-58, 75. In addition, reported crimes in the theaters themselves are frequent. Id. at 2-57.

Adult bookstores, such as those operated by plaintiffs, are said to contribute to the general street ambiance because of two characteristics. First, most adult uses have either opaque windows or window displays which nevertheless obscure the view in and out of the store. This provides a measure of privacy for customers, but also discourages “eyes on the street” interaction between businesses and their blocks, which is thought to discourage crime and loitering. Second, since customers seeking sexually explicit material are said to “hurry in and out”, the sidewalks outside of these stores are left free for loiterers. Id. at 2-58. The FEIS nowhere suggests that crime is caused by adult book stores, merely that the presence of such establishments, particularly those that are poorly maintained, contributes to the overall tawdry ambiance and provides a place where loitering can take place. Id.

Plaintiffs argue that since the FEIS does not specifically include plaintiffs’ storefronts in its brief description of favorite “hang-out” spots for loiterers, id. at 2-79, the FEIS has failed to support any connection between plaintiffs and loitering. However, a careful reading of the FEIS section on loitering, id. at 2-75-80, reveals that Forty-Second Street between Seventh and Eighth Avenues — the core block of the Project and the location of plaintiffs’ stores and many other adult uses — is a major center for loiterers.

Although the FEIS only includes adult uses as one of many contributors to the atmosphere of Times Square — along with pinball arcades, fast food restaurants, and bars — the document is replete with negative statements about such uses and a significant amount of space is devoted to cataloguing adult establishments. See id. at 2-59-61. Plaintiffs argue that since the FEIS fails to establish that adult uses in and of themselves are a major cause of blight or crime in Times Square, the attention given to adult uses proves that defendants are motivated by hostility towards the content of plaintiff’s materials and that a major goal of the Project is to eradicate pornography.

Plaintiffs are correct that the Project’s planners have displayed a pronounced hostility to adult uses that appears to reflect official City and State policy. Nine pages of the FEIS are devoted to assessing the possibilities for relocation of adult uses, id. at 2-103-12, as opposed to one full page devoted to the possible relocation of crime from the Project area. Id. at 2-117-18. The FEIS presents as a “worst case scenerio” the possibility that all the present adult uses in the Project area would seek to relocate elsewhere in the city, id. at 2-103, and states with apparent pride that there will be no sex-related uses in the Project after completion. Id. at 2-95. The FEIS Executive Summary describes the negative impact that a new concentration of adult uses would have on the northern Times Square area. Id. at S-12. In addition, the FEIS reports with approval that the City’s Office of Midtown Enforcement (OME), which is devoted to curbing such illegal activities as obscenity and prostitution, was successful in reducing adult uses in midtown Manhattan from 132 to 65 between January 1979 and December 1983. Id. at 2-92.

The FEIS’s section on mitigation of the impact of the Project outlines legal methods, such as criminal enforcement and code compliance inspections, that the city will use to make sure that relocated adult uses are conducted lawfully. Id. at 5-7. However, the FEIS makes it clear that the government’s policy is to discourage adult uses from relocating at all. The FEIS notes that administrative interpretations of current zoning limit establishments with four or more coin operated machines to a few specified amusement zones outside of Manhattan. If pending court challenges to this zoning are successful, the FEIS reports, the City will be limited in its ability “to prevent, through zoning, the re-opening of peep shows.” Id. at 5-8. Plaintiffs argue that since their businesses cannot survive economically with fewer than four machines, this zoning would in effect ban them from the borough once they are displaced.

In addition, the FEIS describes the city’s policy of working with merchant and civic groups to discourage landlords from renting to adult uses, id. at 5-9, and congratulates the OME for its success in bringing a “legitimate restaurant (the Barking Fish) to a former adult use site.” Id. at 1-20-21. The foregoing represents just a brief sampling of the negative statements about adult uses with which the FEIS and other Project documents are rife.

Nevertheless, government officials now insist that the Project and the City are neutral as to lawful adult uses, and that no discriminatory restrictions will be placed on the ability of sex-related businesses to relocate in the finished Project area. See, e.g., Affidavit of Herbert Sturz at 2; affidavit of William J. Stern at 3. Defendants seek to characterize statements in the FEIS and elsewhere that there will be no adult uses in the completed Project as mere predictions of what market forces will produce in the upscaled Project. Transcript of oral argument at 30. In light of the above, however, these statements seem a trifle disingenuous. The court concludes that there is sufficient evidence in public documents concerning the Project to show that the government defendants have an official policy of hostility towards adult uses. This conclusion is bolstered by an examination of prior cases in which the city’s selective enforcement of valid building code provisions in order to shut down sex-related establishments was enjoined as unconstitutional. See, e.g., Show-World Center, Inc. v. Walsh, 438 F.Supp. 642 (S.D.N.Y.1977); Black Jack Distributors, Inc. v. Beame, 433 F.Supp. 1297 (S.D.N.Y.1977). In light of sworn statements by the responsible officials, however, the court is unable to conclude as a matter of fact that adult uses will be banned from the completed Project.

Moreover, the court is unable to accept plaintiffs’ assertion that eradicating adult uses is the primary motivation of the Project — either as an end in itself or as the key to solving the social problems of Times Square. As defendants have argued, transcript at 30, it strains credibility to assert that the City and State would undertake such a massive project, involving investment of more than $1.6 billion, and displacing more than 400 businesses, in order to rid Times Square of a handful of pornographic book stores and a few adult theaters.

Plaintiffs insist that the Project’s main stated purpose is to wipe out social blight by displacing special uses, including adult bookstores and theaters, and that the FEIS rests primarily on the connection between plaintiffs’ uses and this social blight. In fact, as the cursory review of the facts above demonstrates, the Forty-Second Street Project has been designed to address equally intractable problems of social and physical blight, ranging from crime and drug use to diversity of land ownership and obsolete buildings. The Project’s justification does not rest on the rather limited demonstrated connection between plaintiffs’ adult uses and the social blight of Times Square. The court finds that there exists a substantial independent basis for the project that has nothing to do with the City’s undeniable hostility towards purveyers of sexually explicit material.

Notwithstanding these significant, independent state interests in the Project, the court does find that the Project will have some impact on the dissemination of sexually explicit materials, since many businesses purveying such matter will at least temporarily be displaced. The court further finds, however, that since at least three dozen other adult uses will remain within a few blocks of the Project, the overall availability of sexually oriented material will not be severely curtailed in midtown Manhattan.

CONCLUSIONS OF LAW:

Defendants offer several grounds on which the court should avoid the merits of this controversy. Defendants urge the court to exercise its discretion to abstain from deciding the case under the principles of Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) and Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). In arguing for Pullman abstention, defendants seek to characterize this action essentially as one challenging the legitimacy of a blight finding promulgated under an elaborate statutory scheme, challenges to which should be worked out under state law in state court. Burford abstention is also said to be warranted because the elaborate state regulatory scheme here implicates important state policies that should be addressed first by the state court. In a related argument, defendants argue that there is no ripe claim because plaintiffs’ fear of exclusion from the new Project area is distant, speculative, and not grounded in fact. In addition, as they did in Rosenthal & Rosenthal v. New York State Urban Development Corporation, et al., 605 F.Supp. 612 (S.D.N.Y.1985), another case regarding the Project decided by this court, the private developers argue that they should be dropped as defendants because they do not exercise governmental authority and therefore cannot suppress speech unconstitutionally nor condemn land.

Plaintiffs reply that Pullman abstention is not called for because the state law involved is not unclear, and the state proceeding provided under section 207 of the New York Eminent Domain Procedure Law is limited to the record of the state administrative proceeding and therefore does not provide an adequate forum for constitutional claims. Similarly, plaintiffs argue that Burford abstention is inapposite because rather than seeking to interfere with a comprehensive state regulatory scheme and embroil the federal court in local matters by substituting federal judgment for local processes, here the federal court is being asked to intervene on behalf of an overarching constitutional right. The case is argued by plaintiffs to be ripe because the deprivation they protest is not merely their eventual exclusion from the Project area, but the imminent destruction of their businesses through the condemnation process now poised to begin. The private developers are argued to be proper parties, as in Rosenthal, because their actions are so intertwined with those of the involved governmental parties.

None of defendants’ arguments present a bar to the court’s reaching the merits of this case. For the reasons advanced by the plaintiffs, the court declines to exercise its discretion to abstain. Moreover, the imminent destruction of plaintiffs’ businesses makes this an undeniably ripe controversy, notwithstanding any factual question about the City’s policy on allowing plaintiffs back into the Project area. Finally, the court denies the motion of the private defendants to dismiss them as improperly joined parties. If plaintiffs state a cause of action under the first amendment and 42 U.S.C. Section 1983, it may be possible for them to demonstrate that all defendants acted in concert under color of state law to deny plaintiffs their constitutional rights. See Rosenthal, 605 F.Supp. at 615; Archer Gardens, Ltd. v. Brooklyn Center Dev. Corp., 468 F.Supp. 609, 613 (S.D.N.Y.1979). The court proceeds, then, to consider the merits of the case, and the related questions of whether plaintiffs state a valid cause of action and whether a preliminary injunction ought to be granted against the condemnation of plaintiffs’ buildings.

Plaintiffs’ legal arguments proceed along two basic paths. First of all, they argue that the condemnation of their buildings for the Project constitutes a prior restraint on speech in violation of Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). They argue that the evidence connecting plaintiffs to blight in Times Square in the Final Environmental Impact Statement and other documentation does not meet the traditional heavy burden in justifying a prior restraint.

Plaintiffs insist that relocation within midtown Manhattan will be next to impossible because of restrictive zoning now in effect and the chilling effect on landlords of City efforts to discourage adult uses. Plaintiffs argue, however, that such ability to relocate is legally irrelevant because “one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” Schneider v. State, 308 U.S. 147, 163, 60 S.Ct. 146, 151-52, 84 L.Ed. 155 (1939). Accord Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556, 95 S.Ct. 1239, 1245, 43 L.Ed.2d 448 (1975). Plaintiffs suggest that just as many municipalities have turned in recent years to nuisance abatement laws, zoning, and building code enforcement to combat pornography, see generally Fahringer & Cambria, The New Weapons Being Used in Waging War on Pornography, 7 Cap.U.L. Rev. 553 (1978), this Project is merely another example of the government’s use of allegedly “neutral” land use regulation methods to restrict speech on the basis of content.

Plaintiffs next argue that the Project violates the First Amendment and the Equal Protection Clause by classifying speech on the basis of content and burdening it with overly restrictive regulation. Plaintiffs cite to a long line of cases which hold that time, place, and manner restrictions on speech must be content-neutral. See, e.g., Consolidated Edison Co. of New York v. Public Service Commission of New York, 447 U.S. 530, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980); Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975); Police Department of the City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). The net effect of the Project, plaintiffs argue, is “content control”; City policy statements show that rather than zoning neutrally, the city is punishing plaintiffs for their undesirable speech by putting them out of business.

Since the Project impacts upon speech, plaintiffs continue, the City must use the least restrictive means available to achieve its legitimate goals. Since police “sweep” operations and restrictions on windows and signage could fight much of the social blight of Times Square, as described in the FEIS, plaintiffs argue that the more restrictive alternative of putting them out of business is unconstitutional. Plaintiffs in-' sist that the Project is per se unconstitutional because it amounts to retroactive zoning, and Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) only approved prospective zoning of adult uses that did not close any existing theaters. However, even if seen as merely prospective, the plaintiffs argue that the plan is too restrictive.

Defendants argue that the FEIS’s blight findings are fully adequate and that therefore the court must apply, as it did in Rosenthal, 605 F.Supp. at 617, only the rational-relationship scrutiny of Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954). Although defendants insist that no discriminatory restrictions will be placed on plaintiffs’ ability to relocate within the completed project, and in fact insist that getting rid of pornography is not a major goal of the Project, they also maintain that such a restriction would be justified by the FEIS blight findings under the holding of Young.

The standard for granting a preliminary injunction is rigorous and well-settled: plaintiffs must demonstrate irreparable harm, and either a likelihood of success on the merits or substantial questions going to the merits and a balance of hardships tilting in their favor. Sierra Club v. Hennessy, 695 F.2d 643, 647 (2d Cir.1982). Defendants try to limit the case to the speculative, distant, and, they argue, false proposition that plaintiffs will be excluded from the completed Project sometime in the future. On that basis, they argue that no irreparable harm is imminent that would justify an injunction. Moreover, they suggest that no claim exists on which there is any substantial question, much less probability of success on the merits. Because an injunction now could kill the plan, defendants argue that the balance of hardships is in favor of the city.

Despite defendants’ attempt to focus the court’s attention exclusively on the question of whether plaintiffs will be banned from the Project area, the imminent destruction of plaintiffs’ book stores to make way for the Project clearly suffices to show irreparable harm. Nevertheless, in applying the rest of the standard, and in ruling on defendants’ motion to dismiss, the court must examine the merits of plaintiffs’ underlying claim.

The traditional deference which federal courts must accord to legislative and executive judgments regarding land use, Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954), is inappropriate when First Amendment values are implicated. Schad v. Borough of Mount Emphraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). Regardless of the form of the government regulation, courts will examine its operation and effect on First Amendment rights to determine its constitutionality. Near, 283 U.S. at 708, 51 S.Ct. at 628. Therefore, unconstitutional suppression of speech has been found not only when government overtly enjoins speech, id. at 722-23, 51 S.Ct. at 633; New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971), but also where ostensibly neutral regulatory means are used, such as zoning, Schad, and taxation. Speiser v. Randall, 357 U.S. 513, 528-29, 78 S.Ct. 1332, 1343, 2 L.Ed.2d 1460 (1958). Moreover, when government seeks to discourage speech, even sanctions short of actual suppression may constitute a prior restraint if they exercise a sufficient chilling effect on protected speech. Bantam Books v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963).

That government here uses land use regulation does not then automatically immunize its actions from constitutional scrutiny. We still must examine this Project to see if it constitutes a prior restraint on protected speech, and if it does we must enjoin it unless the government carries the almost insurmountable burden of justifying such a restraint. See New York Times, 403 U.S. at 714, 91 S.Ct. at 2141.

Even if the Project does not act as a prior restraint on protected speech, it must still pass the somewhat less rigorous scrutiny mandated by United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), which provides a four-part test for measuring the impact on protected speech of government regulation aimed at non-speech goals. Regulation that has a marginal impact on protected speech is constitutionally acceptable if it is “within the constitutional power of the Government,” if it serves “an important or substantial governmental interest,” if that interest is “unrelated to the suppression of free expression,” and if the resulting curtailment of protected speech is “no greater than is essential to the furtherance of that interest.” O’Brien, 391 U.S. at 377, 88 S.Ct. at 1679.

Variations on the four-part O’Brien test have proved helpful in measuring the impact of land use regulations and similar traditionally neutral police powers on protected speech. In upholding a Detroit zoning ordinance which restricted the locations of adult theaters, the Supreme Court in Young used a similar analysis. Writing for the plurality, Justice Stevens noted that the ordinance did not close any existing theaters, did not restrict the overall market for protected, sexually explicit speech, and served important government interests in reducing blight. 427 U.S. at 71-72, 96 S.Ct. at 2452-2453. In his decisive and influential concurrance, Justice Powell synthesized the same points into a formal application of the O’Brien test. 427 U.S. at 79-81, 96 S.Ct. at 2456-2457 (Powell, J., concurring). See also Schad, 452 U.S. at 71 n. 10, 72, 101 S.Ct. at 2184 n. 6, 2184; Kuzinich v. County of Santa Clara, 689 F.2d 1345, 1347-48 (9th Cir.1982); Purple Onion, Inc. v. Jackson, 511 F.Supp. 1207, 1226-27 (N.D.Ga.1981); see generally Note, Pornography, Padlocks, and Prior Restraints: The Constitutional Limits of The Nuisance Power, 58 N.Y.U.L.Rev. 1478, 1513-18 (1983).

Upon examining the facts of this case, it becomes clear that the condemnations planned for the Forty-Second Street Development Project, viewed as a whole, pass constitutional muster under both standards. Plaintiffs have failed to demonstrate that the project will act as a prior restraint on their protected speech, or that it will be unnecessarily suppressive under the O’Brien standard.

There is no doubt that plaintiffs engage in activities protected by the First Amendment. Films, Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502, 72 S.Ct. 777, 780, 96 L.Ed. 1098 (1952), all kinds of publications, Lovell v. Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938), and nude dancing, Schad, 452 U.S. at 75-76, 101 S.Ct. at 2186, are all protected forms of expression. A particular work or performance is presumed to be protected unless it is found to be obscene under the standard enunciated in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). There is no suggestion that plaintiffs’ property is being condemned because of any alleged obscenity, so for the purposes of these motions it will be presumed that plaintiffs distribute protected materials.

There is also no question that the Project will have some impact on the plaintiffs’ exercise of their First Amendment rights. They will be forced out of the area, and if they cannot relocate, their ability to distribute sexually-explicit material will be curtailed. Nevertheless, the Project does not constitute a prior restraint for one simple reason: Whatever the varied motivations behind the Project, in actual application the plan does not single out plaintiffs’ speech for special treatment.

In the cases cited by plaintiffs in which an unconstitutional prior restraint was found, official government action has in some way imposed a restriction directly upon a particular class of speech. For example, in Near, 283 U.S. at 702, 51 S.Ct. at 626, a newspaper was banned for its scandalous content. In Bantam, 372 U.S. at 61-62, 83 S.Ct. at 634-635, certain books were blacklisted as unsuitable for youth. In Show-World Center, Inc. v. Walsh, 438 F.Supp. 642, 652 (S.D.N.Y.1977), a sex-oriented establishment was issued a vacate order in a discriminatory application of the building code.

By contrast, in this case, several hundred businesses in a 13-acre area will be shut down, across the board, and a few of them will be adult uses. Plaintiffs’ businesses will be closed in a neutral fashion along with all the others. Plaintiffs cannot and do not argue that their buildings are being singled out for condemnation when whole blocks of commercial buildings are being demolished. The mere fact that their speech will be burdened by this overall condemnation is not enough to make out a prior restraint, because that would prove too much; it would give businesses engaging in protected speech virtual immunity from land use changes.

There exists no such absolute right. A business does not acquire an exemption from the neutral application of land use laws just because it engages in protected speech activities. For example, if the theater in Show-World had been vacated as a fire hazard as part of an even-handed enforcement program under which buildings housing many different kinds of uses were neutrally inspected, its owners would not be heard to complain of a First Amendment violation. That the City had expressed hostility towards adult uses might be evidence tending to support an allegation that the theater was being singled out for enforcement, but it would not by itself be enough to transform an otherwise neutral regulatory enforcement into an unconstitutional prior restraint. The City’s actions in Show-World were only unconstitutional because adult uses were, in fact, singled out for action that was not enforced against others similarly situated.

If, on the other hand, the government had decided to leave standing all the buildings in the Project area, and simply to condemn plaintiffs’ stores and replace them with “positive” uses, then plaintiffs might be able to show a prior restraint.. If they could, this court would have to apply the strictist scrutiny to the government’s blight findings to see if the connection between plaintiffs’ businesses and blight was sufficiently direct — and the interest in eradicating that particular kind of blight sufficiently compelling — to justify the drastic remedy of a prior restraint. It is unlikely that the data contained in the FEIS and other documents could withstand that scrutiny, since the actual connection between adult uses and crime, decay, and drug use is demonstrated tenuously if at all.

Looking at the project as a whole, however, and in the absence of any content-based restriction, the blight findings are adequate. It is not disputed that Times Square suffers from serious physical and social blight, ranging from underutilized and decaying buildings to violent crime, drugs, and prostitution. Viewed from this perspective, it is irrelevant that plaintiffs have not been proven to cause blight. Neither have many of the restaurants, retail shops, and other businesses that will be displaced by the Project. The Project does not purport to shut down only adult uses on the basis of blight findings about such uses alone; it looks towards a wholesale clearing and renovation of entire city blocks on the basis of a well-supported overall finding of blight — blight that is caused by many things other than adult uses. So long as protected speech is not singled out for special treatment, this blight may be attacked through a comprehensive land use plan without it constituting a prior restraint.

Although the court finds that the Forty-Second Street Development Project will not act as a prior restraint on plaintiffs’ protected speech, it is still appropriate to evaluate the Project under the standards of O’Brien and Young to gauge whether the condemnation will have an excessive impact on protected speech. The court must approve the plan if it is “within the constitutional power of the Government,” if it serves “an important or substantial governmental interest,” if that interest is “unrelated to the suppression of free expression,” and if the resulting curtailment of protected speech is “no greater than is essential to the furtherance of that interest.” O’Brien, 391 U.S. at 377, 88 S.Ct. at 1679.

The Project clearly satisfies the first prong of the O’Brien test. Condemnation for purposes of urban renewal is a long-recognized exercise of the police power within the constitutional power of local government. Berman, 348 U.S. at 33-34, 75 S.Ct. at 102-103.

The court’s findings of fact further establish that the second requirement of the test is met. The Project serves substantial state interests in eliminating physical and social blight in the form of underutilized and decaying buildings, violent crime, prostitution, and drug dealing. It seeks to preserve the area’s historic theaters, overhaul the subway stations, provide a wholesale merchandise mart for local industry, and build four major office towers which will bring thousands of new people into the neighborhood while significantly increasing the area’s tax base.

These goals, in and of themselves, are substantial, important, and unrelated to the suppression of free speech, thus satisfying the third strand of the O’Brien analysis. They are not made any less important by the possible existence of any illegitimate state motivation to put adult uses out of business because of the content of the material they purvey.

In evaluating, under the final prong of the O’Brien test, whether the Project is unnecessarily suppressive of speech, the court must apply a balancing test which weighs the state’s goals against the impact on protected speech. In applying this test, only the legitimate, non-speech goals of fighting blight and crime will be factored into the balance. To the extent that distaste towards sexually explicit material may cause the Project planners to exaggerate the importance of eliminating adult uses, such justifications for the Project must be discounted under the O’Brien test.

The court hesitates in concluding that the fourth requirement of the O’Brien test is met because of its finding that the Project will have some impact on the distribution of sexually-explicit, presumptively protected materials. Nevertheless, for several reasons explained below, the court concludes that the Project plan is no more suppressive of protected speech than necessary to further its substantial, legitimate, and lawful goals. The condemnation is therefore constitutional as applied to plaintiffs’ buildings.

The court finds two facts especially important in reaching this conclusion. First, upon examining the record of failed attempts to revive Times Square and the paucity of less restrictive alternatives, the court is convinced that a substantially less restrictive plan could not be expected to fulfill the goals of the Project. Plaintiffs insist that large scale police sweeps have been successful in curtailing street crime in the Project area. However, while these sweeps may have displaced crime from one area to another, or temporarily mitigated the overall climate of criminal activity on Forty-Second Street in such a way as to actually decrease total crime, they have not had the permanent effect of really “cleaning up” the street. Crime returns when the sweeps stop, and even with these sweeps, the area still has ranked among the most crime-ridden in the city. Moreover, increased police activity does nothing to address the permanent physical problems of decaying buildings and underutilized property which, despite plaintiffs’ characterizations, constitute important targets of the Project.

Second, the court has found that the general availability of sexually explicit material in the midtown area will not be severely curtailed by the closing of plaintiffs’ businesses, because several dozen adult uses will remain within a few blocks of the Project area. It is this question of overall public access to protected material, rather than the economic impact on individual commercial distributors, which Justice Powell found decisive in the application of the O’Brien test in his Young concurrance. 427 U.S. at 78 n. 2, 96 S.Ct. at 2456 n. 2. (Powell, J., concurring). Justice Powell asked two key questions: “(i) Does the ordinance impose any content limitations on the creators of adult movies or their ability to make them available to whom they desire, and (ii) does it restrict in any significant way the viewing of these movies by those who desire to see them?” Id. at 78, 96 S.Ct. at 2456. As Justice Powell did in Young, this court here answers those questions in the negative.

Plaintiffs point out, however, that the zoning plan approved in Young did not shut down any existing adult theaters, but only restricted locations for new ones, and that this distinction was important to the court’s holding. See 427 U.S. at 62, 71 n. 35, 96 S.Ct. at 2448, 2453 n. 35; id. at 81 n. 4, 96 S.Ct. at 2457 n. 4 (Powell, J., concurring). Here, by contrast, plaintiffs’ stores will be closed. Plaintiffs argue that this amounts to retroactive restrictive zoning in violation of Young.

This argument misconstrues the thrust of the Young opinion, which was not that adult uses could never be shut down, but that a zoning plan restricting the location of new adult theaters was acceptable, in part, because the overall availability of sexually explicit movies would not be significantly curtailed. “There is no claim that distributors or exhibitors of adult films are denied access to the market or, conversely, that the viewing public is unable to satisfy its appetite for sexually explicit fare. Viewed as an entity, the market for this commodity is essentially unrestrained.” 427 U.S. at 62, 96 S.Ct. at 2448.

Here, too, the court has found that access to adult films and books will not be materially curtailed by the condemnation of plaintiffs’ buildings. Therefore, so long as that condemnation is undertaken in pursuit of content-neutral goals, the incidental economic impact on plaintiffs does not make the Project unnecessarily suppressive of speech under O’Brien and Young.

The parties in this case have expended a great deal of energy debating the factual questions of whether plaintiffs would be able to relocate in the midtown area and what effects the City’s zoning ordinance interpretation limiting multi-machine establishments would have on plaintiffs’ economic viability. The court has not found it necessary to reach these questions in order to resolve this case. As plaintiffs correctly point out, if the Project condemnations amounted to a prior restraint, the ability of plaintiffs to relocate and continue their speech elsewhere would be legally irrelevant. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556, 95 S.Ct. 1239, 1245, 43 L.Ed.2d 448 (1975); Schneider v. State, 308 U.S. 147, 163, 60 S.Ct. 146, 151, 84 L.Ed. 155 (1939). The absence of a prior restraint does not make the question any more relevant. Since the court has found that no prior restraint is being imposed in this case, and that plaintiffs are being displaced neutrally along with hundreds of other businesses, plaintiffs have no legal right to relocation.

As the court has noted above, the question of economic impact on individual purveyers is not central to the O'Brien inquiry either. So long as the four prongs of the O’Brien test are satisfied — as they are here since no less restrictive alternatives are available to serve the important governmental objectives, and dozens of outlets for sexually explicit speech will remain in the area — the possibility that some condemned businesses will not be able to relocate does not undermine the constitutionality of the plan.

It is important to stress that the constitutionality of the City’s zoning restricting establishments with four or more machines to Coney Island and other distant locales is not before the court. Moreover, the court does not here consider the constitutionality of the City’s program of encouraging landlords to rent to other than adult uses. Defendants insist that the days of selective enforcement against adult uses are over, and that the City’s code enforcement efforts now focus on prostitution, drug distribution, and other illegal uses. Nevertheless, the court shares plaintiffs’ skepticism, given the City's long history of hostility towards adult uses which is reflected even in the Project’s own documents. It may very well be that in seeking to “mitigate” the impact of relocation by plaintiffs and other adult uses into adjoining neighborhoods, the City will engage in a campaign of official pressure and harassment that would constitute a prior restraint under Bantam Books v. Sullivan, 372 U.S. 58, 66-70, 83 S.Ct. 631, 637-639, 9 L.Ed.2d 584 (1963) (despite absence of actual injunction, officially sanctioned threats exerted chilling effect on protected speech that amounted to prior restraint).

Although the City’s actions might give rise to a cause of action by plaintiffs some time in the future, the court does not now have before it a justiciable controversy raising either the legitimacy of the City’s zoning interpretation or the effects of more informal attempts to limit relocation by adult uses. If plaintiffs attempt to relocate in Midtown and are unable to do so for these reasons, these questions may become ripe. For now, however, the court is faced only with the question of the constitutionality of the Project’s condemnation plan.

Similarly, the question of whether plaintiffs will be permitted to rent space in the completed Project does not present a ripe controversy. Despite the repeated statements in the Project’s documents that no adult uses will remain in the Project area, defendants now swear that no discriminatory standards will be established for renting the new stores. The anti-pornography statements are characterized as mere predictions that adult uses either will relocate somewhere else or will go out of business but, in any event, will not be able to afford to rent the desirable new space. The court has noted that it finds this line of reasoning somewhat disingenuous. However, the combination of the newly sworn and unequivocal statements of City and State officials and the fact that any controversy over access to the new Project is years away make premature any injunctive relief over this issue.

The court hopes that defendants honor their statements of neutrality, because such even-handedness towards the content of speech is constitutionally required. Although counsel for the private developer defendants have argued that a general ban on adult uses within the entire Project area would be constitutional under Young, the court is inclined to disagree. A blanket ban on sexually-explicit speech in stores the rental of which is controlled by the state would likely amount to an unconstitutional prior restraint.

The court does not suggest that plaintiffs have a vested right to relocate within the Project area, only that the same market forces that will determine the character of the area should be permitted to decide whether an adult bookstore is economically viable. Presumably, many modest retail operations, including coffee shops and candy stores as well as lower-volume adult uses, will be unable to pay higher rents. That is not content control. However, if plaintiffs seek to relocate in the Project area and are able to pay the going rate, they must be treated in the same manner as any other applicant. The Project’s studies do not establish a direct enough connection between plaintiffs’ businesses and serious conditions of blight to justify content-based discrimination in renting new space.

Just as interference with plaintiffs attempts to relocate outside the Project area might constitute a prior restraint under Bantam Books, refusal to rent space in the completed City-controlled Project on a content-neutral basis, or inclusion of restrictive clauses in City leases, might give rise to a cause of action under Southeastern Promotions, in which a non-obscene but sexually explicit theatrical production was denied equal access to a public auditorium. 420 U.S. at 556, 95 S.Ct. at 1245. Neither of these questions, however, is presented in a justiciable form by this case.

Plaintiffs further argue that if defendants really intend to permit plaintiffs to return to the Project area, then the Final Environmental Impact Statement is a meaningless document. In support of this view, plaintiffs seek to reduce the FEIS to essentially one statement: adult uses must be eliminated because they cause social blight. The court, however, has already rejected this distorted view of the Project’s factual justifications. Although there are many negative statements about sex-related businesses in the FEIS, and an attempt is made to link adult uses to loitering, nowhere is it suggested that adult uses are the primary, much less the sole, cause of blight on Forty-Second Street. Rather, the FEIS found that blight is caused by the totality of physical and social conditions in Times Square.

The Project will eliminate the decaying buildings, diversity of ownership, underutilization, and other aspects of physical blight which the FEIS found in Times Square. It will thereby also remove much of the physical setting for prostitution, drug pushing, and other social blight which has plagued the area. In that context, it would not be unreasonable for defendants to conclude that adult bookstores could be permitted back into the Project area without a reoccurrance of blight — especially since these businesses would have to survive in a significantly upscaled market.

The question of whether the City’s zoning will keep plaintiffs out of the new Project area also need not be addressed here. As the court has noted, plaintiffs do not yet have a claim that the zoning has prevented them from relocating. In connection with relocation within the Project some five years down the road, there is even less reason for the court to reach out to evaluate the constitutionality of the zoning. In the intervening years, the zoning ordinance may be amended or reinterpreted, or another court, facing a ripe controversy, may have cause to strike it down.

The case before the court involves only the condemnation of plaintiffs’ buildings at the very outset of the Forty-Second Street Development Project. The court has found that the condemnation does not act as a prior restraint on protected speech and that it is not unnecessarily suppressive of speech under the Supreme Court’s O’Brien standard. Plaintiffs have thus failed to demonstrate a likelihood of success on the merits or even substantial questions going to the merits of this case. Their motion for a preliminary injunction must therefore be denied.

The court has examined matters beyond the pleadings in making its findings of facts, and all parties have had ample opportunity to present all relevant material to the court. Defendants’ motion to dismiss will therefore be treated as a motion for summary judgment pursuant to Fed.R. Civ.P. 12(b)(6) and 56. The court finds that no material questions of fact remain to be determined at trial, and that defendants are entitled to judgment as a matter of law. Defendants’ motion for summary judgment therefore is granted.

      . A hearing was held on plaintiffs’ motion for preliminary injunction and defendants’ motion to dismiss on December 12, 1984. Since both sides presented, and referred to in argument, extensive factual material beyond the complaint, and since the parties had the opportunity to present any other relevant factual material, the court will treat defendants’ motion as one for summary judgment.


source: Caselaw Access Project

author: NANGLE, Chief Judge.

license: Public Domain

text:
    Robert and Mary YARIS, et al., Plaintiffs, v. SPECIAL SCHOOL DISTRICT OF ST. LOUIS COUNTY, et al., Defendants.
    No. 81-423C(1).
    United States District Court, E.D. Missouri.
    Feb. 13, 1985.

      Kenneth J. Chackes, Michael J. Hoare, Chackes & Hoare, St. Louis, Mo., for plaintiffs.
    Ramon J. Morganstern, Michael J. McKitrick, St. Louis, Mo., Jerry Short/Nancy D. Kelley, Asst. Attys. Gen., Jefferson City, Mo., for defendants.
   MEMORANDUM

ON MOTIONS TO ALTER OR AMEND

NANGLE, Chief Judge.

This case is now before this Court on two (2) separate motions, both of which seek to amend or modify this Court’s Order and Memorandum dated December 28, 1984, 599 P.Supp. 926. First, plaintiffs move to alter or amend said Order to: 1) award plaintiffs their costs and expenses incurred in connection with this lawsuit; and 2) award plaintiffs reasonable attorney’s fees. Second, the State defendants move to amend said Order to provide that the yearly maximum for contractual services aid is $800.00 per student in accordance with § 162.980 Mo.Rev.Stat.

This Court agrees with plaintiffs that they are entitled, as the prevailing party in this litigation, to an award of costs under Rule 54(d) and 28 U.S.C. § 1920. The matter of costs was overlooked previously because the parties gave the matter de mini-mus attention in their briefs and because plaintiffs did not file a formal bill of costs under 28 U.S.C. § 1920. The matter of plaintiffs’ costs will now be considered herein.

Plaintiffs’ total costs were $10,-947.67. This total includes the following categories: 1) depositions; 2) transcripts; 3) experts; 4) expenses of plaintiffs’ counsel; 5) copying; 6) court costs; 7) postage; 8) long distance telephone calls; and 9) miscellaneous. The State defendants do not seriously object to $3,747.64 of plaintiffs’ requested costs. The State defendants do object to: 1) $421.20 for certain depositions taken by plaintiffs; 2) $4,861.00 for expert witness fees; 3) $822.75 for plaintiffs’ counsel’s expenses; 4) $462.60 for copying; 5) $77.65 for postage; 6) $504.58 for long distance telephone calls; and 7) $50.25 for miscellaneous items. Because the State defendants do not object to $3,747.64 of the requested costs, said amount is awarded to plaintiffs and is taxed against the State defendants. The State defendants’ objection to the amount of $421.20 for the depositions of Huskie, Holley, Williams, Nickels and Tucker is sustained because plaintiffs did not demonstrate to the satisfaction of this Court that said depositions were reasonably necessary to the prosecution of plaintiffs’ case against the State defendants. Although this Court has discretion to award costs, including experts’ fees, not specifically enumerated in 28 U.S.C. § 1821, it is the exceptional case where such will be permitted. Paschall v. Kansas City Star Co., 695 F.2d 322, 338-39 (8th Cir.1982). In the case at bar, plaintiffs’ experts were arguably crucial or indispensable to their case, as required by Paschall, but plaintiffs merely provided this Court with the name of the expert and the amount sought. Absent from the record is the rate of compensation or the precise services, i.e., consultation or testimony, for which compensation is sought. This Court cannot engage in any meaningful evaluation of the reasonableness of the amount sought on this record and therefore plaintiffs’ experts’ fees are not awarded. The State defendants’ objection to the costs of copying is sustained for a similar reason, namely that the amount sought is not documented or itemized in such a way that this Court can meaningfully evaluate plaintiff’s request. The State defendants’ objections to the remaining items are sustained because said items are not taxable as costs. See Wolf v. Wolfe, 570 F.Supp. 826, 828-29 (D.S.C.1983) (expenses of attorneys, postage, long distance telephone calls and costs of legal research not taxable); Roche v. City of Normandy, 566 F.Supp. 37, 42 (E.D.Mo.1983) (expenses of attorneys and expenses for serving subpoena not taxable); United States v. Bexar County, 89 F.R.D. 391, 394 n. 5 (W.D.Tex.1981) (travel expenses of attorneys not taxable). Accordingly, the State defendants are taxed with plaintiffs’ costs in the amount of $3,747.64.

The second component of plaintiffs’ motion to amend was expressly rejected by this Court’s December 28, 1984, Order and Memorandum. This Court believes that said Memorandum adequately addressed plaintiffs’ arguments and this Court knows of no reason why it should be amended. Accordingly, the second component of plaintiffs' motion to amend is denied.

The State defendants’ motion to amend relates to that portion of the December 28, 1984, Order and Memorandum which directed the State defendants to provide contractual services aid to local districts for summer programming on the same basis as they do for the regular year. In so ordering, this Court relied heavily on the following stipulation approved by all parties, including the State defendants:

State aid for contracted services, reimbursed during the regular school year at $22.40 per student per day for approved programs, is not available for summer program contracted services.

Stipulation at 10. Now, the State defendants argue that Mo.Rev.Stat. § 162.980 (1978 as amended), places an $800.00 annual limit on such aid. Section 162.980 provides, as follows:

Each school district or special district shall receive up to $800 per year for each homebound child, child receiving special services outside the special class, or child served by contractual arrangement with a private or public agency.

Mo.Rev.Stat. § 162.980 (1978 as amended).

The State defendants’ motion to amend is granted and this Court’s December 22, 1984 Order and Memorandum is amended to make it clear that the State of Missouri is not required to provide contractual services aid in excess of the $800.00 statutory maximum. This does not really constitute an amendment because this Court’s prior Order merely required the State defendants to provide contractual services aid during the summer “on the same basis as they do during the regular year.” The State defendants have admitted that, if the $800.00 statutory maximum is not met during the regular year, then the amount remaining shall be available for summer programming. Although the statutory maximum was not brought to this Court’s attention earlier, this Court’s prior Order did not, and was not intended to, override any such legitimate limit on aid.


author: GETZENDANNER, District Judge:

text:
    Jack L. WALKER, Plaintiff, v. Conner GIBSON, Jr., Defendant.
    No. 84 C 2218.
    United States District Court, N.D. Illinois, E.D.
    Feb. 14, 1985.

      Chanon Williams, Chicago, 111., for plaintiff.
    Asst. U.S. Atty., Ann L. Wallace, Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

Plaintiff Jack L. Walker filed a one-count defamation complaint in Lake County Circuit Court against defendant Conner Gibson, Jr. on February 8, 8, 1984. Both parties were employees of the Department of the Army at the time of the actionable conduct. On March 15,1984, Gibson filed a petition for removal under 28 U.S.C. § 2679(d), alleging that Walker sought monetary relief for actions taken by Gibson as a federal official and within the scope of his employment.

Walker filed a three-count First Amended Complaint on July 3, 1984. In Count I of his amended pleading, Walker repeats his claim of defamation, adding allegations that Gibson’s conduct was outside of the scope of his duties. In Count II, he claims interference with his employment contract with the United States, adding allegations that Gibson threatened Walker with reprisals if Walker reported Gibson’s behavior to the authorities. Count III is a claim directly under the first amendment.

According to his amended complaint, Walker started working for the Department of the Army at Fort Sheridan on June 29, 1981, as a Planner-Estimator under the Supervision of Gibson. Beginning in September 1981, Gibson “commenced a malicious campaign of false and defamatory statements regarding Plaintiff’s conduct with fellow employees, Plaintiff’s job performance, and Plaintiff’s hygiene.” (First Amended Complaint ¶ 6.) Gibson allegedly made these statements at staff meetings and during working hours to Walker’s fellow employees and superiors. Walker further alleges that Gibson’s behavior took on forms other than verbal harassment. For example, Gibson required Walker to complete an unwarranted fitness for duty examination and to suffer a hearing on an unwarranted sexual harassment charge. Finally, Gibson threatened Walker with reprisals if he complained of Gibson’s behavior to the Inspector General and others. {Id. at 1113.)

According to Walker, Gibson’s harassment continued unabated from September 1981 to May 17, 1983. On the latter date, the United States Army Civilian Appellate Review Office conducted a hearing at Fort Sheridan regarding Gibson’s conduct. The Examiner, John M. Stewart, reached the conclusion on July 21, 1983 that Gibson had subjected Walker to “undue harassment and intimidation” and that corrective action against Gibson was warranted. {Id. at 1115.)

Before the court is Gibson’s motion to dismiss all three counts of the First Amended Complaint. Gibson argues for dismissal based on failure to comply with the statute of limitations, failure to state a claim upon which relief may be granted, and failure to allege actions by Gibson falling outside the scope of absolute federal official immunity.

Removal Jurisdiction

The parties have not addressed the court’s removal jurisdiction, but the court deems it important both to clarify the nature of the present case and to assure itself that it has subject matter jurisdiction. Removal was improper under the provision on which Gibson relies. Oddly, Gibson chose to remove under the Federal Drivers Act, 28 U.S.C. § 2679(b)-(e), which in turn is part of the Federal Torts Claims Act, 28 U.S.C. § 2671 (“FTCA”). A straightforward reading of the Federal Drivers Act makes clear that its removal provision is applicable to removal of actions against federal employees for losses and injuries resulting only “from the operation by an employee of the Government of any motor vehicle while acting within the scope of his office or employment____” 28 U.S.C. § 2679(b). Removal was thus improper under this provision.

The impropriety of removal under this statute must be stressed, for otherwise the government risks misconstruing this action. Under the Federal Drivers Act, removal under § 2679(d) renders the removed action one exclusively against the United States, and therefore under the FTCA. The action cannot be maintained against the employee as well, for the Act provides that employees are not personally liable for injuries stemming from operation of motor vehicles within the scope of federal employment. (The Act provides that if the operation is not within the scope of employment, the case is not against the United States and should be remanded to state court as an action against the employee. 28 U.S.C. § 2679(d).)

Were this action properly removed under the Federal Drivers Act, therefore, it would now be a claim against the United States, and would be subject to the provisions of the FTCA. Rogers v. United States, 675 F.2d 123, 124 (6th Cir.1982). This would require exhaustion of administrative remedies, compliance with special limitations periods, dismissal of such claims to which the United States has not consented to suit (such as claims for libel, slander, and interference with contract rights, 28 U.S.C. § 2680(h)), and dismissal of actions taken outside of the scope of the employee’s duties.

Such a construction of Walker’s claim would defeat his purpose in bringing the action against Gibson in the first place. Walker alleges that Gibson’s acts were outside of his employment, and as Walker clearly does not intend to sue the United States, he has not alleged compliance with the FTCA. Walker’s present allegations would allow immediate dismissal under the FTCA or remand under § 2679(d). The court thus stresses that removal under § 2679(d) was incorrect.

With this clarification, the court finds that it does have removal jurisdiction over this action. First, removal was proper under 28 U.S.C. § 1442(a)(1), which provides for removal of actions against federal officials. Second, as is usually the case, after removal to federal district court, plaintiff expanded his complaint, adding a claim under the federal constitution. Hence, removal based on 28 U.S.C. § 1331 would have been proper as well. The court now discusses1 the issues raised by Gibson’s motion.

Statute of Limitations

Gibson argues that the statute of limitations on defamation actions bars the assertion of Count I against him. Walker does not dispute Gibson’s contention that the Illinois limitations period for defamation actions is one year. Ill.Rev.Stat., ch. 110 ¶ 13-201. According to Gibson, as the alleged defamatory conduct began in September 1981, see First Amended Complaint ¶ 6, the February 8, 1984 filing exceeded the applicable period. Walker does not respond to this argument in his October 19, 1984 responding memorandum.

In his First Amended Complaint, Walker claims that the defamation “continued unabated up and through May 17,1983 in the form of Defendant’s false and defamatory statements regarding Plaintiff made at staff meetings and during regular conditions to Plaintiff’s fellow employees and Plaintiffs superiors at Port Sheridan, Illinois.” Id. at 11 6. Hence, it is possible that the defamation complaint was timely filed, depending on when the action accrued. Gibson never attempts to define accrual under the Illinois statute. In addition, a motion to dismiss is not normally the proper vehicle for asserting a fact-based defense such as this where the allegations do not foreclose the possibility of a timely filing. Jablon v. Dean Witter & Co., 614 F.2d. 677, 682 (9th Cir.1980). The motion to dismiss on this ground is therefore denied.

Absolute Federal Official Immunity

A. Applicable Standard on Motion to Dismiss

Before discussing Gibson’s claim of absolute immunity from this suit for damages, the court must determine whether the procedural posture of this case allows the court to rule in Gibson’s favor on this issue. The pending motion is one to dismiss. The court is aware of circumstances in which questions of absolute immunity have been resolved on a motion to dismiss. For example, where the complaint alleges facts constituting an absolute defense to the claim asserted, the complaint is vulnerable to dismissal under Rule 12(b)(6). Lepucki v. Van Wormer, 587 F.Supp. 1390, 1393 (N.D.Ind.1984). E.g., Lawrence v. Acree, 665 F.2d 1319, 1324-25 (D.C.Cir.1981).

Immunity, however, is a fact-based issue that often requires the consideration of evidence before it may be determined. A motion for summary judgment, for example, is a proper vehicle for raising this defense. Granger v. Marek, 583 F.2d 781, 785-86 (6th Cir.1978); e.g., Scherer v. Brennan, 379 F.2d at 610-11. Here, while Gibson attaches an affidavit to his motion to dismiss, the court excludes the affidavit and declines to construe this motion as one for summary judgment. Fed.R.Civ.P. 12(b). It is clear from Walker’s responding memorandum that he did not believe he was required to join issue with Gibson’s affidavit, and construction of the motion to dismiss as one for summary judgment would be unfair. The court's inquiry on this motion, therefore, is whether the allegations conclusively establish that Walker could offer no proof at trial that the misconduct was outside of Gibson’s scope of authority. With this standard in mind, the court will examine the law of immunity to be applied in this case.

B. Law of Federal Official Immunity

Gibson argues that Counts I and II, the state tort claims, must be dismissed under Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). Barr does not hold, as Gibson asserts, that “federal officials cannot be held personally liable in damages for state tort injuries____” (Defendant’s Memorandum, filed 7/31/84, p. 4.) Rather, the Court in Barr extended the principle of absolute federal official immunity to executive officials of lower than cabinet rank. Barr made clear that this immunity extended to suits based on actions taken “within the outer perimeter of [the official’s] line of duty ... despite ... allegations of malice in the complaint____” Id. at 575, 79 S.Ct. at 1341. In determining the “outer perimeter,” courts should keep in mind, “not the title of [the] office but the duties with which [the officer] is entrusted — the relation of the act complained of to ‘matters committed by law to [the officer’s] control or supervision’ [citation omitted].” Id. at 573, 79 S.Ct. at 1340. Courts should also consider the officer’s rank, for discretion, and thus immunity, are broader as the officer’s responsibilities and duties are greater. Id.

Concerning the “outer perimeter” element of Barr immunity, the Seventh Circuit has explained that “it is only necessary that the action bear some reasonable relation to and connection with the duties and responsibilities of the official.” Scherer v. Brennan, 379 F.2d 609, 611 (7th Cir.), cert. denied, 389 U.S. 1021, 88 S.Ct. 592, 19 L.Ed.2d 666 (1967). Barr is also read to incorporate a second element before absolute immunity may be invoked, and that is, that the conduct complained of have been taken under the officer’s “discretionary,” as opposed to “ministerial,” functions. Araujo v. Welch, 742 F.2d 802, 804-05 (3d Cir.1984); Strothman v. Gefreh, 739 F.2d 515, 519 (10th Cir.1984).

Walker argues that all of Gibson’s alleged actions were outside of the scope of his authority. He argues additionally that those actions constituting violations of federal law and regulation as a matter of law cannot have been taken within the scope of Gibson’s duties. Specifically, Walker alleges in Count II that Gibson violated a federal statute prohibiting reprisals, 5 U.S.C. § 2302(b)(8), and Army regulations prohibiting retaliation for filing complaints. Apparently following language contained in Justice Black’s concurrence in Barr, Walker concludes that Barr does not provide immunity for conduct “forbidden by an act of Congress or governmental rule” and that Gibson’s actions “would not be in the line of duty because they were expressly forbidden.” (Plaintiff’s Memorandum, filed 10/19/84, pp. 2-4.)

Concerning this last argument, the parties do not cite any authority for their positions apart from Barr itself. While the plurality opinion, in which four Justices joined, does not distinguish between an official’s generally dishonest, malicious, or irresponsible behavior and unlawful behavior, Justice Black’s sole concurring opinion at first blush appears to make such a distinction. This distinction, grasped by Walker to support the present argument, is contained in Justice Black’s comment that Barr’s actions were “forbidden neither by an Act of Congress nor by any governmental rule duly promulgated and in force.” 360 U.S. at 576, 79 S.Ct. at 1342. Put in context, however, this comment does not support Walker’s position.

In the concurrence, Justice Black discussed the possibility of formulating a body of federal libel law concerning criticism by federal employees, such as Barr’s criticism, which was sought to be held libelous. Justice Black concludes with the comment that, while the scope of such a body of law need not be reached, “[i]t is enough for me here that the [alleged libelous statement] was neither unauthorized nor plainly beyond the scope of Mr. Barr’s official business, but instead related more or less to general matters committed by law to his control and supervision.” Id. at 577-78, 79 S.Ct. at 1342-43.

Hence, the concurrence is concerned with a right to criticize other federal employees of an employee in the position of Gibson. It reflects a determination that libel laws should not reach such criticism, at least in the case where the criticism does not violate law or regulation. It is not, therefore, direct support for the argument that immunity should not attach to such statements, but simply that libel laws may constitutionally reach those statements.

The plurality opinion in Barr also does not necessarily compel Walker’s proposed exception to official immunity from personal damage actions. In Barr, the Court discussed immunity from actions that may have been taken with malice, dishonesty, improper purpose, or irresponsibility. It is clear that the fact that the action may be a state common law tort does not prevent a finding that the official acted within his or her authority. Barr, 360 U.S. at 572, 79 S.Ct. at 1340; Granger v. Marek, 583 F.2d at 785-86. Usually, behavior amounting to a common law tort, if not always a violation of federal law or regulation, is of the type of behavior that could be prohibited thereby. Hence, a rationale for distinguishing between tortious (especially intentionally tortious) acts that are not prohibited by federal law and those that are so prohibited is not immediately apparent. The most compelling distinction, of course, is that in the latter category the official is on notice that his or her contemplated conduct is wrongful. In the former category, the official can be deemed always on notice of potential wrongful behavior only when the contemplated action would constitute an intentional tort.

The parties do not discuss Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), except in the context of immunity under Count III, the federal constitutional claim. However, Butz sheds much light on Walker’s proposed exception. In Butz, the Court explained:

Barr ... did not address the liability of the acting director had his conduct not been within the outer limits of his duties, but from the care with which the Court inquired into the scope of his authority, it may be inferred that had the release been unauthorized, and surely if the issuance of press releases had been expressly forbidden by statute, the claim of absolute immunity would not have been upheld____ It is apparent also that a quite different question would have been presented had the officer ignored an express statutory or constitutional limitation on his authority.
Barr did not, therefore, purport to depart from the general rule, which long prevailed, that a federal official may not with impunity ignore the limitations which the controlling law had placed on his powers.

438 U.S. at 489, 98 S.Ct. at 2902 (emphasis added). After this discussion, the Court cited cases in which federal officials were held liable for acts violating federal statutes, id. at 490, 98 S.Ct. at 2902 (emphasis added), concluding that “[a]s these cases demonstrate, a federal official was protected for action tortious under state law only if his acts were authorized by controlling federal law,” id.

Here, Walker alleges that Gibson’s threats at retaliation for filing complaints about Gibson’s conduct directly violated federal law prohibiting such retaliation. Retaliation cannot be considered “authorized” by federal law in the same way the compilation of disciplinary reports and termination recommendations, whether or not executed with malice or dishonesty, can be so characterized. However, the court need not reach the question of whether acts violating federal law automatically defeat absolute immunity, as even without such a rule, the retaliatory acts in this case could be shown to be outside of Gibson’s authority.

The same is true of Gibson’s allegations in Count I, although it is clear that Walker has a more difficult case to make under this count, which does not include allegations of retaliation. The court does not have before it information concerning the scope of Gibson’s supervisory authority, the persons to whom he may and did make statements concerning Walker’s behavior, and the content of Gibson’s defamatory statements. With this incomplete record, the court declines to rule that under no circumstances could the allegations of Count I constitute an exception to absolute official immunity. The proper method for raising such an issue, as stated above, is through presentation of evidence, either at trial or in a motion under Rules 12(c) or 56.

The motion to dismiss Counts I and II based on absolute immunity is denied in full.

Constitutional Tort

A. Standard for Implying a Direct Action

Gibson’s final argument is that Count III, a damage claim for violation of Walker’s first amendment rights, must be dismissed under the logic of Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). Walker argues that he may maintain a damages action against Gibson directly under the first amendment, see Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979); Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), and that Bush does not compel a contrary result.

Walker’s first amendment claim is described as follows:

The above-described actions of Defendant against Plaintiff in threatening Plaintiff not to file complaints with the Office of Equal Employment Opportunity, the Inspector General, or writing his Congressman, interfered with the Plaintiff’s rights [sic] freedom of speech and freedom of association which are protected by the First Amendment. Insofar as Defendant harassed and intimidated Plaintiff during work, Defendant’s actions violated Plaintiff’s rights of freedom of association and freedom of speech with his fellow employees.
Plaintiff, as a result of Defendant’s unconstitutional conduct, has suffered a chilling effect on the exercise of his First Amendment rights of freedom of speech and freedom of association.

(First Amended Complaint ¶¶ 19-20.) In addition to declaratory and injunctive relief, Walker claims general damages of $25,000, special damages of $1,685 for attorney’s fees for representation before the U.S. Army Civilian Appellate Review Agency, recovery of lost wages and sick leave, punitive damages of $25,000, and reasonable attorney’s fees and costs. Walker complains of no suspension, demotion, reduction in grade, or termination.

In Bush, an engineer employed at the George C. Marshall Space Flight Center claimed that his reduction in grade was motivated by a desire to retaliate against him for exercising his first amendment rights. Bush appealed this decision to the Federal Employee Appeals Authority, and after relief was denied in that forum, requested the Civil Service Commission’s Appeals Review Board to reopen the proceedings. The Board heard Bush’s appeal and ordered reinstatement with back pay. During the pendency of this last action, Bush filed a two-count damages action in Alabama state court, alleging common law defamation and a direct action under the first amendment. The action was removed to the federal district court, where it was dismissed for failure to state a claim upon which relief could be granted. The Fifth Circuit affirmed and, after vacation by the Supreme Court, again reaffirmed the dismissal.

The Bush Supreme Court examined the propriety of implying a claim under the first amendment in Bush’s case. It assumed for purposes of the decision that (1) Bush’s first amendment rights were in fact violated, and (2) Bush’s civil service remedies were not as effective as a damages remedy and did not fully compensate him for the harm suffered. 103 S.Ct. at 2408. (The Court did not have to decide whether attorney’s fees and compensatory damages could be covered under a so-called Bivens action. Id. at n. 9.) The Court noted further that Congress had neither expressly limited Bush’s remedy to the civil services proceedings, nor had it explicitly precluded implication of a direct action under the federal constitution. Id. at 2408. It then examined the case before it in the context of Bivens and its progeny.

In Bivens, the Court allowed damages relief directly under the fourth amendment, explaining that “[t]he present case involves no special factors counselling hesitation in the absence of affirmative action by Congress,” 403 U.S. at 396, 91 S.Ct. at 2004, as well as no indication that Congress meant to limit complainants to some alternative remedy, id. at 397, 91 S.Ct. at 2005.

Justice Harlan, in his concurring opinion, hinged the implication of a constitutional action on “whether compensatory relief is ‘necessary’ or ‘appropriate’ to the vindication of the interest asserted.” Id. at 407, 91 S.Ct. at 2010. The deterrent effect of the action may be considered, but is only one of the many factors a court may consider when, like a legislature, it examines the “range of policy considerations” pertinent to creation of a remedy. Id. Justice Harlan also noted that relief through any other type of action was unlikely for Bivens. A state privacy action would be different in scope from one brought under the fourth amendment. Furthermore, rarely would someone in Bivens’ position, subject to a warrantless search, be able to obtain injunctive relief. Id. at 409-10, 91 S.Ct. at 2011-12. Finally, Bivens would most likely be barred from suit against the United States. Hence, for Bivens, “it [was] damages or nothing.” Id. at 410, 91 S.Ct. at 2011. In Bush, the Supreme Court agreed that inquiries such as those mentioned by Justice Harlan were appropriate. 103 S.Ct. at 2410.

These inquiries were conducted in Davis v. Passman, where the plaintiff, who could not be reinstated under the circumstances, had no alternative judicial relief for her discriminatory termination. Bush, 103 S.Ct. at 2410 & n. 13 (“For Davis, as for Bivens, ‘it is damages or nothing.’ ”). Hence, since factors counselling hesitation and congressional determination foreclosing a damages claim were absent, the court allowed an action directly under the fifth amendment. In Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), the Court similarly found no factors counselling hesitation in allowing a prisoner to maintain a damage action under the eighth amendment in addition to a claim under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. While Carlson contains language that the Federal Tort Claims Act remedy was less effective than a Bivens action, the Bush opinion makes clear that this is not a controlling factor in determining whether to imply a direct action under the constitution. Bush, 103 S.Ct. at 2408.

Hence, in determining whether to imply a direct claim under the first amendment, the court should consider whether such an action has already been foreclosed by Congress and whether factors counsel hesitation in creating that action. The Bush Court could find no congressional determination not to allow a constitutional damages action in the case before it, and hence examined whether factors counselled hesitation in that case involving reduction in grade. If these two factors did not foreclose a direct action, the next inquiry would be whether such an action is an appropriate vehicle for redress.

The Court first noted that the civil service remedies for an unconstitutional reduction in grade were constitutionally adequate. 103 S.Ct. at 2411 n. 14. It then pointed to concerns counselling hesitation, which are present here. United States v. Standard Oil, 332 U.S. 301, 67 S.Ct. 1604, 91 L.Ed. 2067 (1947), and United States v. Gilman, 347 U.S. 507, 74 S.Ct. 695, 98 L.Ed. 898 (1954), support the proposition that in matters involving the “complex of relations between federal agencies and their staffs,” the selection of policies to be followed is more appropriately a legislative decision. 103 S.Ct. at 2411-12. In Bush, which involved remedies for adverse personnel decisions, the merits of the case strongly implicated “federal personnel policies],” id. at 2412, and thus provoked a discussion of the scope of the courts’ role in fashioning those policies.

The Court next examined the complex regulatory scheme in place for adjudicating constitutional violations attendant to adverse personnel actions, such as terminations, reductions in grade, and suspensions, explaining:

The question is not what remedy the court should provide for a wrong that would otherwise go unredressed. It is whether an elaborate remedial system ... should be augmented by the creation of a new judicial remedy for the constitutional violation at issue. That question obviously cannot be answered simply by noting that existing remedies do not provide complete relief for the plaintiff. The policy judgment should be informed by a thorough understanding of the existing regulatory structure and the respective costs and benefits that would result from the addition of another remedy for violation of employees’ First Amendment rights.

Id. at 2416 (emphasis added). Concluding that the costs of review of disciplinary decisions were already significant, the Court held that it would not create a damages remedy for the violation at issue in Bush. Id. at 2417.

B. Application of Standard to Present Facts

This case does not involve a matter on which Congress has limited the power of the courts to fashion a judicial remedy. See 103 S.Ct. 2408. However, it does clearly involve matters of “federal personnel policy” that may counsel hesitation before a direct action may be implied. Yet, an important distinction exists between this case and the case in Bush. Here, Walker was not suspended, terminated, or subject to a reduction in grade. According to the complaint, he was subject to a long campaign of harassment and threats by his superior officer, but apart from having to contest a recommendation of termination, defend a sexual harassment allegation, and withstand the alleged abuse, he was not otherwise punished. Because of the nature of Gibson’s conduct, Walker continues, the panoply of remedies discussed in Bush was not available to him.

First, the provisions of 5 U.S.C. §§ 7501-7514 are inapplicable, as Walker was not subjected to suspension, reduction in grade or pay, or removal. Second, the provisions of §§ 7101-7135 are inapplicable, as Walker was not protected by a negotiated grievance proceeding. Walker did take advantage of grievance procedures established pursuant to 5 U.S.C. §§ 1302, 3302, 7301 and codified at 5 C.F.R. Part 771. In the grievance proceeding, according to Exhibit A of Walker’s responding memorandum, the Examiner recommended that the harassment be ceased and that two of Walker’s supervisors, including Gibson, be counselled concerning retaliatory actions. Walker did not seek damages for pain, suffering, or illness in that action, but requested attorney’s fees and reimbursement (recrediting) for sick leave used in an illness brought on by the harassment. The Examiner denied the requested relief of fees and recrediting, claiming no authority for that relief was provided by 5 C.F.R. Part 771.

Part 771 prescribes guidelines which agencies must follow in setting up grievance procedures for nonbargaining unit employees of an agency. 5 C.F.R. § 771.-204(a). Its coverage includes matters in which “an employee alleges that coercion, reprisal, or retaliation has been practiced against him or her.” Id. at § 771.205. There appears to be no judicial review of the grievance procedures, and the regulations leave open the type of relief available thereunder.

Additionally, the government does not dispute Walker’s claim that he could not avail himself of remedies under 5 U.S.C. §§ 7701-7703. Under those provisions, an employee in Walker’s position may submit an appeal to the Merit Systems Protection Board “from any action which is appealable to the Board under any law, rule, or regulation.” 5 U.S.C. § 7701(a).

The parties have not discussed the applicability of 5 U.S.C. §§ 2301-2302, 1201-1209, although Walker mentions that § 2302(b)(8) prohibited Gibson’s retaliation threats. The court’s own review of this statute reveals that at least some of Gibson’s actions were prohibited thereunder. First, the act covers employees of the Department of the Army, which is an Executive Agency not specifically exempted from the act. 5 U.S.C. §§ 2301(a)(1); 2302(a)(2)(C). Gibson’s actions in formally requesting Walker’s termination, ordering a fitness for duty examination, and executing an unsatisfactory performance evaluation are likely “disciplinary or corrective” within the meaning of 5 U.S.C. § 2302(a)(2)(A)(iii).

Assuming that §§ 2301 and 2302 apply to the parties in this action, the subsection clearly applicable to this case is § 2302(b)(ll), which proscribes the taking of personnel action in violation of the merit principles contained in § 2301. Section 2302(b)(8), cited by Walker, might be applicable as well. That subsection proscribes adverse personnel action taken in retaliation for disclosure of information regarding abuse of authority or mismanagement. While Walker suggests in Exhibit A of his responding memorandum that he disclosed information on mismanagement at Fort Sheridan, this exhibit is not an allegation and cannot be considered on this motion to dismiss. Walker does not allege that Gibson’s actions were in retaliation for any disclosure of information regarding Gibson’s harassment and abuse of authority. In fact, the factual allegations tend to suggest the opposite, that after the May 1983 disciplinary proceeding, the harassment ceased. If the taking of adverse personnel action as a way of preventing disclosure of information regarding personnel authority can be considered reprisal, then Gibson’s acts were prohibited by § 2302(b)(8). In any case, Gibson’s acts violated several merit principles enumerated in § 2301.

It is clear that Walker does not have an implied action under §§ 2301 or 2302, and Walker does not attempt to state such a claim. The Seventh Circuit has recently found that § 2301 does not create a private statutory claim. Schracta v. Curtis, No. 82-2869, slip op. at 2-7 (7th Cir. Jan. 21, 1985). Other courts have held that § 2302 does not support a private claim. Borrell v. U.S. International Communications Agency, 682 F.2d 981, 988 (D.C.Cir.1982) (concerning § 2302(b)(8)); Cutts v. Fowler, 692 F.2d 138, 140 (D.C.Cir.1982) (concerning § 2302(b)(1)(E) and (b)(10)); Braun v. United States, 707 F.2d 922, 925 (6th Cir.1983) (concerning § 2302(b)(8)). The court agrees with Brown and Borrell that § 2302(b)(8) does not create a private claim.

Because administrative remedies apparently exist for at least some of the conduct covered in the complaint, the allegations do not touch only upon matters that are not the subject of federal employment regulation, as Walker contends. However, Borrell, a pre-Bush case, held that the remedies of § 2302 did not foreclose a direct action under the first amendment. 682 F.2d at 990 (discussing legislative history’s indication that § 2302 was meant as an additional protection for so-called “whistle-blowers”). A post-Bush case in the same circuit implicitly approved the continuing validity of Borrell's holding on the constitutional claim. Carducci v. Regan, 714 F.2d 171, 176-77 (D.C.Cir.1983). Brown reached the opposite result, following the logic of the appellate court opinion in Bush, later adopted by the Supreme Court. See also Watson v. U.S. Department of Housing and Urban Development, 576 F.Supp. 580, 585-86 (N.D.Ill.1983) (claimed violation of § 2302(b)(8) could not also support a direct claim under first amendment after Bush).

The court chooses to follow Braun. A review of the District of Columbia cases in which a first amendment action coexists with a § 2302 violation reveals no explicit consideration for the “factors counselling hesitation” element so important to the Supreme Court’s analysis in Bush. Moreover, Borrell involved a probationary employee who may not have been entitled to grievance proceedings. Congress has provided, in §§ 2301-2302, 1201-1209, a complex regulatory scheme designed to rectify most of the behavior at issue in this case. The merit principles make clear that Gibson was held to a “proper regard for [Walker’s] constitutional rights,” 5 U.S.C. § 2301(b)(2), and was prohibited from reacting to Walker in an arbitrary manner, id. at § 2301(b)(8)(A). This scheme, like Walker’s grievance proceeding, appears to provide only equitable relief and the imposition of penalties on the offender. 5 U.S.C. § 1207(b). However, such relief, which would not involve monetary “equitable damage” in a case such as this, is constitutionally adequate here where Walker did not suffer any loss of salary through discharge, reduction in grade, suspension, or other penalty. Moreover, it should be noted that equitable relief was not available to Bivens. The procedures designed to halt the offending activity and penalize the offender sufficiently protect the first amendment rights of a person in Walker’s position.

The fact that Walker did not obtain compensation for out-of-pocket costs directly related to Gibson’s conduct does not indicate that the remedies in §§ 2301 and 2302 are constitutionally deficient. As discussed above, the Supreme Court made clear that the regulatory scheme that justifies refusal to imply a private claim may provide remedies that are not as comprehensive as a damages action. It should be noted additionally that in this case, involving activity that likely violated federal rules and regulations, Walker may defeat Gibson’s shield of qualified immunity and recover damages in a tort action.

The court therefore finds that Walker is not without remedies under the scheme of federal regulation of employment. The existence of the federal regulatory scheme persuades the court not to imply a direct action here. A complete absence of any remedy under the regulatory scheme, however, would require a reevaluation of this decision. See Bush, 103 S.Ct. at 2417-18 (Marshall, J., concurring); Egger v. Phillips, 710 F.2d 292, 297-98 (7th Cir.), cert. denied, — U.S. -, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983) (pre-Bush case). The court has conducted its own review of the regulatory scheme applicable to Walker, without aid from the parties as to §§ 2301— 2302. Should the court have erred in its determination that Walker was governed by this statute, the parties are encouraged to submit supplementary memoranda concerning the motion to dismiss by February 28, 1985. However, at this time, the court dismisses Count III for failure to state a claim upon which relief may be granted.

Conclusion

The motion to dismiss Counts I and II is denied. The motion to dismiss Count III is granted.

It is so ordered.