author: FEIKENS, Chief Judge.

text:
    Anne SPIELBERG, Plaintiff, v. BOARD OF REGENTS, UNIVERSITY OF MICHIGAN, Defendants.
    No. 84-CV-7190-AA.
    United States District Court, E.D. Michigan, S.D.
    Feb. 5, 1985.

      Anne Spielberg, in pro per.
    Peter A. Davis, Davis & Fajen, P.C., Ann Arbor, Mich., for defendants.
   MEMORANDUM OPINION AND ORDER

FEIKENS, Chief Judge.

Plaintiff, Anne Spielberg, brings her suit citing 42 U.S.C. § 1983, against the Board of Regents of the University of Michigan and alleges that her constitutional rights were violated when the University failed to reclassify her as an in-state student for purposes of tuition assessment. Defendant moved to dismiss, or alternatively, for summary judgment. Several hearings, including an evidentiary hearing, were held on this matter. For reasons discussed herein, defendant’s motion for summary judgment, is granted.

I. BACKGROUND

Plaintiff moved to Ann Arbor, Michigan, on August 25, 1982, in order to attend the University of Michigan Law School. Plaintiff had never before lived in Michigan, and was admitted as an out-of-state student. On September 16, 1983, plaintiff filed an Application for Resident Classification for University Purposes in order to pay tuition at the reduced resident rate. Plaintiff’s application for reclassification reveals the following facts: Plaintiff had continuously resided in Michigan for slightly more than one year when she applied for reclassification. Prior to her move to Ann Arbor, plaintiff lived in Washington, D.C. for nearly one year, and spent the three years before that, exclusive of summers, attending college in Oberlin, Ohio. Plaintiff’s summers during college, her first year of college, and her high school years were spent in Atlanta, Georgia. Plaintiff was supported entirely by her father, a Georgia resident, during the years 1979-1981. During 1981-1982, plaintiff was self-supporting. In 1982-1983, plaintiff provided approximately 70% of her financial support, the balance coming from her father. Plaintiff’s application for reclassification included a one-half page, hand-written statement indicating that she “came to Michigan with the intent of establishing [her] home [and believes that she] will continue to live, go to school and work in Michigan for the foreseeable future.”

By letter dated November 9, 1983, Larry Katz, Assistant Registrar for the University of Michigan, denied plaintiff’s application for reclassification. The substantive portion of this letter states:

The regulations create a rebuttable presumption that one who comes to the University from outside Michigan shall be assessed student fees at the non-resident rate. To rebut the presumption, the regulations require an applicant to demonstrate that any previous domicile has been abandoned and that a Michigan domicile has been established. In order to establish a Michigan domicile, the applicant must be in continuous physical residence in this state; must intend to make Michigan a permanent home, not only while in attendance at the University but indefinitely thereafter as well; and must have no domicile or intent to be domiciled elsewhere.
After reviewing your application, it is my determination that the evidence which you submitted in support of your application is insufficient to overcome the presumption of non-residence. I must, therefore, deny your petition.

The letter also described the appeals procedure available to plaintiff, which she pursued. Again, by letter dated December 21, 1983, the Residency Appeals Committee denied plaintiff’s appeal stating that “it is the judgment of the Residency Appeal Committee that you have not demonstrated by sufficient evidence that you are entitled to resident reclassification under the [University’s residency] regulations; therefore, it denies your appeal.” Both letters indicated that plaintiff was eligible to apply for reclassification for any subsequent term, although plaintiff apparently declined to do so.

II. DISCUSSION

Plaintiff argues that defendant, while acting under color of state law, violated her rights under the due process and equal protection clauses of the fourteenth amendment to the United States Constitution. U.S. CONST, amend. XIV, § 1. Her argument has three parts: First, plaintiff contends that she has a constitutional right to a statement of the reasons why the University denied her application for reclassification, and that the conclusory form letters she received from the Assistant Registrar and the Appeals Committee do not satisfy this requirement. Second, plaintiff argues that she was denied substantive due process because the decision to deny her application was arbitrary and capricious. Finally, plaintiff argues her application was treated differently than other students’ applications in violation of the equal protection clause. I will address each argument in turn.

A. Procedural Due Process

The fourteenth amendment to the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. CONST, amend. XIV, § 1. Plaintiff clearly alleges a property interest in her tuition rates, thus triggering the procedural protection of the due process clause. However, “[o]nce it is determined that due process applies, the question remains what process is due.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). While due process is a flexible concept and the process which is due will vary with the facts of each case, the Supreme Court has articulated guidelines for analyzing due process questions:

[O]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). See also Frumkin v. Board of Trustees, 626 F.2d 19, 21 (6th Cir.1980); Jaksa v. The Regents of the University of Michigan, 597 F.Supp. 1245, 1248 (E.D.Mich.1984). At least three courts have undertaken this analysis and concluded that a university has no constitutional obligation to provide a detailed statement of reasons for denial of residency status. Lister v. Hoover, 706 F.2d 796 (7th Cir.1983); Black v. Sullivan, 561 F.Supp. 1050 (D. Maine 1983); Michelson v. Cox, 476 F.Supp. 1315 (S.D.Iowa 1979). I similarly conclude that the University did not violate the due process clause when it failed to provide plaintiff with a detailed statement of reasons.

First, I must consider the nature of plaintiff’s interest in the University’s refusal to reclassify her as a Michigan resident. It is important to note at the outset what is not at stake in this litigation. Plaintiffs interest in practicing law is not implicated, cf. Willner v. Committee on Character and Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963), nor does plaintiff have a fundamental right to attend law school, see San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). All that is at stake here is the difference between instate and out-of-state tuition for a maximum of two years. This interest, though entitled to protection under the Constitution, is not the sort of interest requiring the maximum protection available under the due process clause. See Lister v. Hoo ver, 706 F.2d at 804 (appended District Court opinion); Michelson v. Cox, 476 F.Supp. at 1321.

Second, I must consider whether the procedures currently used for deciding applications for reclassification adequately protect against erroneous results, and whether a detailed statement of reasons would reduce that risk. Initially, plaintiffs application is considered by Larry Katz, Assistant Registrar, and his two assistants, and a consensus opinion is reached. On appeal, a five-member Residency Appeal Committee considers the application de novo. In sum, eight people at two stages of review evaluate applications for reclassification, thus minimizing the risk of erroneous disposition of an application for reclassification. Further, it is difficult to see how a statement of reasons would reduce this risk, given the “ ‘nebulous’ nature of the required administrative determination; that is, the bona fides of the expressed domiciliary intent of a full-time University student seeking a preferential tuition rate.” Black v. Sullivan, 561 F.Supp. at 1062. The University’s letter rejecting plaintiff’s application makes clear that plaintiff failed to rebut the presumption that she remains an out-of-state resident. The University’s residency regulations similarly make clear what sort of evidence could rebut that presumption. In light of this information available to plaintiff, “[ejxhaustive detailing of the reasons for denying reclassification would be of dubious value in view of the highly subjective nature of the subject matter under inquiry.” Black v. Sullivan, 561 F.Supp. at 1063. Accordingly, I hold that under the procedures currently employed by the University, the risk of error is relatively slight, and that risk would not be reduced noticeably by requiring such a statement.

Finally, I must consider the state’s interest and the added fiscal and administrative burden if the University were required to issue statements of reasons for denial of applications for reclassification. Clearly, Michigan has a “legitimate interest in protecting and preserving the quality of its colleges and universities and the right of its own bona fide residents to attend such institutions on a preferential tuition basis.” Vlandis v. Kline, 412 U.S. 441, 453, 93 S.Ct. 2230, 2237, 37 L.Ed.2d 63 (1973); Kelm v. Carlson, 473 F.2d 1267, 1270 (6th Cir.1973); Michelson v. Cox, 476 F.Supp. at 1320. This interest, moreover, is “of broad significance because it implicates not only the financial resources of the state but also the opportunity of all [state] high school graduates to obtain a college education.” Lister v. Hoover, 706 F.2d at 803.

Requiring the University to issue detailed statements of reasons for denial of each application for reclassification would impose a significant administrative burden on the University. The University receives a substantial number of applications for reclassification each term. For example, in fall, 1983, the term in which plaintiff filed her application, 703 applications for residency status were filed, and nearly one half of those were rejected. Accordingly, the University would have had to issue over 300 statements explaining its reasons for denying residency status. These statements, moreover, would be difficult and time consuming to write. Because the question of a student’s intent to make Michigan his permanent home is “subject to no formula, but rather depends on the facts of each case,” Hooban v. Boling, 503 F.2d 648 (6th Cir.1974), cert. denied, 421 U.S. 920, 95 S.Ct. 1585, 43 L.Ed.2d 788 (1975), it would be very difficult to articulate the precise weight recorded each factor in the University’s decision. This is a demanding task, and given the larger number of applications the University receives each term, such a requirement would impose a significant administrative, as well as financial, burden. Lister v. Hoover, 706 F.2d at 804; Michelson v. Cox, 476 F.Supp. at 1322.

After careful consideration of the three factors relevant to determining what process is due, I hold that the University has no constitutional obligation to provide plaintiff with a detailed statement of the reasons her application was denied. Due process is a flexible concept and involves balancing the competing interests of the parties. Mathews v. Eldridge, 424 U.S. at 334, 96 S.Ct. at 902. Here, plaintiff’s interest is relatively slight. While it is true that, to plaintiff, a significant amount of tuition money is involved, her claim does not involve a fundamental or essential right. Plaintiff’s interest, moreover, is adequately protected through the procedures which the University currently employs. Finally, the University has a substantial interest in administering its tuition and residency policy. Such management of the University’s own internal affairs is “an essential function traditionally immune from interference.” Lister v. Hoover, 706 F.2d at 804. Accordingly, as I balance the competing interests of the parties to this litigation, I hold that the University has given plaintiff the process that is due under the fourteenth amendment.

B. Substantive Due Process

Plaintiff argues that the University deprived her of her substantive due process rights when it denied her application for reclassification as a Michigan resident. Plaintiff does not contend that the Residence Regulations of the University of Michigan are unconstitutional, and in fact, the Michigan Court of Appeals implicitly approved these regulations. Hauslohner v. Regents of the University of Michigan, 85 Mich.App. 611, 272 N.W.2d 154 (1978). Rather, plaintiff apparently contends that she presented enough evidence to compel the conclusion that she is a Michigan resident, and the University’s failure to grant her application was arbitrary or capricious.

The due process clause protects individuals from arbitrary and capricious state action. In order to establish that the University’s actions were arbitrary or capricious, plaintiff must establish that “there is no rational basis for the University’s decision, ... or that the decision ... was motivated by bad faith or ill will____” Stevens v. Hunt, 646 F.2d 1168, 1170 (6th Cir.1981). See also Black v. Sullivan, 561 F.Supp. at 1061 (A “decision may not be ‘wholly unsupported’ by fact, and its rationale may not be either trivial or irrelevant.”). My task, moreover, is not to decide “whether the University’s decision was unwise, but whether it was ‘so irrational that it may be branded “arbitrary.” ’ ” Black v. Sullivan, 561 F.Supp. at 1064 (quoting Kelley v. Johnson, 425 U.S. 238, 248, 96 S.Ct. 1440, 1446, 47 L.Ed.2d 708 (1976)). Under the facts of this case, I conclude that the University’s decision to deny plaintiff’s application for reclassification was neither arbitrary nor capricious.

The Residence Regulations of the University of Michigan (approved by the Board of Regents, March 15, 1974) provide in part:

1. Since normally a student comes to The University of Michigan for the primary or sole purpose of attending the University rather than to establish a domicile in Michigan, one who enrolls in the University as a non-resident shall continue to be so classified throughout his attendance as a student, unless and until he demonstrates that his previous domicile has been abandoned and a Michigan domicile established.
2. No student shall be eligible for classification as a resident unless he shall be domiciled in Michigan and has resided in Michigan continuously for not less than one year immediately preceding the first day of classes of the term for which classification is sought.
3. For purposes of these regulations, a resident student is defined as a student domiciled in the State of Michigan. A non-resident is defined as one whose domicile is elsewhere. A .student shall not be considered domiciled in Michigan unless he is in continuous physical residence in this state and intends to make Michigan his permanent home, not only while in attendance at the University, but indefinitely thereafter as well, and has no domicile or intent to be domiciled elsewhere.
4. The following facts and circumstances, although not necessarily conclusive, have probative value in support of a claim for residence classification:
a. Continuous presence in Michigan during periods when not enrolled as a student.
b. Reliance upon Michigan sources for financial support.
c. Domicile in Michigan of family, guardian or other relatives or persons legally responsible for the student.
d. Former domicile in the state and maintenance of significant connections therein while absent.
e. Ownership of a home in Michigan.
f. Admission to a licensed practicing profession in Michigan.
g. Long term military commitments in Michigan.
h. Commitments to further education in Michigan indicating an intent to stay here permanently.
i. Acceptance of an offer of permanent employment in Michigan.
Other factors indicating an intent to make Michigan the student's domicile will be considered by the University in classifying a student.
5. The following circumstances, standing alone, shall not constitute sufficient evidence of domicile to effect classification of a student as a resident under these regulations:
a. Voting or registration for voting.
b. Employment in any position normally filled by a student.
c. The lease of living quarters.
d. A statement of intention to acquire a domicile in Michigan.
e. Domicile in Michigan of student’s spouse.
f. Automobile registration.
g. Other public records, e.g. birth and marriage records.

Plaintiff applied for reclassification several weeks after she became eligible to do so. See Regulation 2. In support of her application, plaintiff asserts that her car is registered and insured in Michigan, she has a Michigan’s driver’s license, she votes in Michigan, she has a Michigan bank account, she paid taxes as a Michigan resident, and she worked for one summer in Michigan. Under Regulation 5, these facts, standing alone, are insufficient evidence of plaintiff’s intent to make Michigan her permanent home. Plaintiff’s evidence is not persuasive because “all of these indicia of domiciliary intent are readily established by students having no intention to remain in [Michigan] beyond graduation.” Black v. Sullivan, 561 F.Supp. at 1063. If these facts were sufficient to rebut the presumption that one who enrolls in the University as a non-resident remains a nonresident, then the University .would be required to

reclassify as a resident every student who, after attending the University for a year, makes a self-serving declaration that he intends to reside in [Michigan] permanently and performs a series of “objective” acts, some of which are required by law and all of which are customarily done by some non-resident students who do not intend to remain in [Michigan] after graduation. This would, in effect, create a presumption that any such student is a bona fide [Michigan] resident, thus seriously jeopardizing the University’s nonresident tuition program and consequently its entire financial structure. It would remove the tuition decision from the hands of the University and place it in the student’s.

Michelson v. Cox, 476 F.Supp. at 1320.

Moreover, plaintiff failed to present any persuasive evidence of domiciliary intent. Unlike plaintiff’s evidence, the facts and circumstances which the University finds probative of domiciliary intent, see Regulation 4, could not practically be offered by a student who intends to leave Michigan after graduation. See Black v. Sullivan, 561 F.Supp. at 1063 (“Certain circumstantial evidence of domiciliary intent is appropriately considered either conclusive, because the game is simply not worth the candle, e.g., marriage to a [state] resident, or particularly persuasive, because its production for tuition-rate purposes is impractical, e.g., preadmission affiliations with [this state].”) (footnote omitted). While it is true that the evidence plaintiff offered is consistent with an intent to remain in Michigan, it is equally consistent with an intent to leave Michigan upon graduation. Therefore, plaintiff failed to rebut the presumption that a student who comes to Michigan solely or primarily to attend the University remains a non-resident. Accordingly, the University’s decision to deny plaintiff’s application for reclassification is well supported by the evidence, and I am unable to conclude that it is arbitrary or capricious.

C. Equal Protection

Plaintiff alleges that the University has deprived her of “the equal protection of the laws.” U.S. CONST, amend. XIV, § 1. Specifically, plaintiff argues that “there may be whole groups of students who pay instate tuition without being reclassified from out-of-state to instate residency status because of their arrangement with the University of Michigan as teaching assistants____ Because the University wants to attract graduate students and has a financial incentive to make aid to them as inexpensive as possible, they may be impermissibly circumventing the residency regulations.” (Plaintiff’s Brief on Legal Issues at 8, Filed December 31, 1984). Because these students may pay tuition at a reduced rate and plaintiff does not, she argues that the Residency Regulations have not been applied in an evenhanded and consistent manner. I disagree.

Larry Katz testified that all students are classified as residents or non-residents for tuition purposes, and there is no evidence that different criteria apply to different classes of students. Katz indicated, however, that graduate student teaching assistants may have a contractual arrangement with the University enabling them to pay only a portion of the tuition they would otherwise be required to pay. Clearly, the University may permissibly contract in this manner with those it employs as teaching assistants. More to the point, however, such an arrangement has no bearing on plaintiff’s case. She is not a teaching assistant, nor is there any evidence that she provides valuable services to the University which could even arguably entitle her to a tuition reduction or credit. Thus, plaintiff is not similarly situated to those teaching assistants to whom she compares herself. Accordingly, her equal protection argument is without merit.

III. CONCLUSION

After carefully balancing the competing interests in this case, I hold that plaintiff is not entitled to a detailed statement of the reasons her application for reclassification was denied, and therefore, the University complied with the procedural requirements of the due process clause. I further hold that the University’s decision not to reclassify plaintiff as a Michigan resident was neither arbitrary nor capricious. Finally, I hold that plaintiff’s claim of denial of equal protection is without merit. I do not find, however, as the University suggests, that plaintiff’s case is so “frivolous, unreasonable or without foundation” to entitle the University to attorney’s fees under 42 U.S.C. § 1988 (1982).

Accordingly, for the reasons discussed herein, IT IS ORDERED that defendant’s motion for summary judgment shall be and hereby is GRANTED.

      . Plaintiff brings this suit under 42 U.S.C. § 1983 (1982), which provides in part:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

      . To support her argument that plaintiff is entitled to a statement of reasons, she cites a number of cases where the Supreme Court held that the due process clause required such a statement. See Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Willner v. Committee on Character and Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963). From these cases, plaintiff concludes that she is entitied to a statement of reasons. This reasoning, however, fundamentally misperceives the nature of the due process clause. It could hardly be more clear that due process is a flexible concept, and the process which is due in one context may not be due in another. In each of the cases cited above, the plaintiffs interest in the government’s action was significantly more profound than this plaintiff’s interest. Goss v. Lopez involved school suspensions, Wolff v. McDonnell involved prison discipline, Morrissey v. Brewer involved parole revocation, and Willner v. Committee on Character and Fitness involved bar certification. Accordingly, plaintiffs reliance on these cases, and others where the plaintiff's interest is greater, is misplaced.

      . Such a presumption is clearly constitutional: "[I]t is neither arbitrary nor unreasonable for [a university] to place a strong burden of proof as to change of residence on a former out-of-state student who claims ... residency lest such claim be founded only upon the student's desire to escape the tuition surcharge.” Kelm v. Carlson, 473 F.2d 1267, 1270-71 (6th Cir.1973). See also Hooban v. Boling, 503 F.2d 648, 650 (6th Cir.1974), cert. denied, 421 U.S. 920, 95 S.Ct. 1585, 43 L.Ed.2d 788 (1975) (”[T]he rebuttable presumption of out-of-state status do[es] not violate the Equal Protection Clause ____") (citing Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973)).

      . To the extent that a University rule, regulation, or practice distinguishes between teaching assistants and non-teaching assistants for tuition purposes, such a distinction would not violate the equal protection clause. This distinction does not involve a fundamental right, cf. Starns v. Malkerson, 326 F.Supp. 234 (D.Minn.1970), affd. without opinion, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971), and therefore will be found constitutional if it is rationally related to a legitimate state purpose. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Here, a state's providing higher educational opportunities to its residents is clearly a legitimate state purpose, and reducing the tuition of teaching assistants as a means of attracting them to the University is rationally related to that purpose. Therefore, a distinction between teaching assistants and non-teaching assistants for tuition purposes would not violate the equal protection clause.


source: Caselaw Access Project

author: JOYCE HENS GREEN, District Judge.

license: Public Domain

text:
    John D. HEMENWAY, Plaintiff, v. John HUGHES, et al., Defendants.
    Civ. A. No. 84-0222.
    United States District Court, District of Columbia.
    Feb. 5, 1985.

      John D. Hemenway, pro se.
    Nathan Dodell, Asst. U.S. Atty., Washington, D.C., for defendants.
   MEMORANDUM OPINION AND ORDER

JOYCE HENS GREEN, District Judge.

This matter is before the Court on the defendants’ motion for summary judgment. The plaintiff, John D. Hemenway, seeks the release of certain information under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA) (the Act), allegedly held by the Bureau of Public Affairs at the United States Department of State (also Department, or State Department). The defendants State Department, John Hughes, Assistant Secretary of State for Public Affairs, and Alan Romberg, Deputy Assistant Secretary of State for Public Affairs, have moved for summary judgment on the grounds that they have carried out an adequate search and released all information not covered by FOIA exemptions. Because the Court concludes that the Department of State has satisfied the requirements of the Act and complied adequately with the plaintiff’s request, summary judgment is granted in favor of the defendants.

I.

In April 1983, John Hemenway submitted a FOIA request to the State Department for a “List of Persons Accredited to attend the Department of State press briefings, their news affiliation and citizenship.” The plaintiff informed that Department that the information was “held by the Bureau of Public Affairs” and was “unclassified.” In September of the same year the plaintiff wrote to the State Department again, stating that because he had received no response to his initial letter he assumed that the request had been denied. The plaintiff also explained that he intended to treat this second letter as a formal appeal of the “de facto denial.”

On September 27, 1983, the Department of State acknowledged Hemenway’s second letter and informed the plaintiff that it had not had an opportunity to review his request for information. Two months later, the defendant wrote to Hemenway again, this time informing him that his request had been denied because the information sought fell within two FOIA exemptions — 5 U.S.C. § 552(b)(2) and (b)(6). In December 1983, Hemenway wrote to the Department explaining that he wished to appeal formally the denial. On January 3, 1984, with no response forthcoming, Hemenway notified the Department Appeals Officer that he intended to file suit in federal court.

In March 1984, the Department released to Hemenway a document entitled “List of Correspondents 1983”. The document listed the names of all foreign correspondents accredited by the State Department, the news organizations that they represented, and the office telephone numbers and addresses for those organizations. The home telephone numbers and addresses of the correspondents were included in the original list, but were deleted by the Department from the copy received by Hemenway. Also included in the document was a geographical list of foreign correspondents that set out accredited correspondents and their respective news organizations country by country. In a letter accompanying the List of Correspondents, the Department stated that:

This list does not contain all of the information which you described, such as the citizenship of the correspondents. The only portions deleted are home telephone numbers and home addresses (and office phone numbers and addresses, if they are the same as the home numbers and addresses). These excisions have been made pursuant to FOIA exemption (b)(6), in that release of this information would be a clearly unwarranted invasion of the correspondents’ personal privacy.

In their motion for summary judgment the defendants argue that the release of the List of Correspondents fulfilled their obligations under FOIA. The defendants point out that in the request letter the plaintiff asked for a “List of Persons Accredited to attend the Department of State press briefings, their news affiliation and citizenship.” In an affidavit attached to the motion for summary judgment, defendant Hughes states that although the released list does not contain information about citizenship, “the Department does not maintain any list which contains such [citizenship] information.” Thus, the defendants argue, the list was reasonably responsive to the plaintiff’s request.

In the alternative the defendants insist that even if the list was not fully responsive, the Department is not under an obligation to release the requested information about citizenship because it is exempt from disclosure under 5 U.S.C. § 552(b)(6). The files containing the citizenship information, the defendants maintain, are similar to the type of medical and personnel files expressly protected by the (b)(6) general privacy exemption. To permit release would constitute a “clearly unwarranted invasion of personal privacy.” Defendants’ Memorandum in Support of Motion for Summary Judgment at 5.

In his opposition memorandum, the plaintiff contests both of these arguments. First, the plaintiff points out that citizenship information is routinely included in the applications that foreign correspondents are required to file when they apply for accreditation with the Department. According to the plaintiff, then, citizenship information was readily available to the defendants at the time the request was made, even if it was not contained in the form of a “list”. Second, the plaintiff contends that as a matter of law citizenship information should not fall within the (b)(6) “personal privacy” exemption to FOIA.

II.

Unlike other civil actions, a decision to grant or deny summary judgment in a FOIA suit does not hinge on the existence of a genuine issue of material fact. See Fed.R.Civ.P. 56. Rather, summary judgment will be granted on the basis of agency affidavits “when the affidavits describe ‘the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.’ ” Miller v. Casey, 730 F.2d 773 (D.C. Cir.1984), quoting Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981). It is against this standard, therefore, that the affidavit and arguments submitted by the defendants must be evaluated.

A.

The defendants are correct in pointing out that FOIA requires a requester to “reasonably describe” the records sought, see 5 U.S.C. § 552(a)(3). The agency faced with the request is not required to manufacture or compile new documents from disparate data sources within its files, but the agency must bear in mind that “the fundamental objective of FOIA is to foster disclosure, not secrecy”, Chrysler Corp. v. Brown, 441 U.S. 281, 290 n. 10, 99 S.Ct. 1705, 1712 n. 10, 60 L.Ed.2d 208 (1979), quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976), and to provide information to the people on matters of public concern so as to “ensure an ‘informed electorate ... vital to the proper operations of a democracy.’ ” Dismukes v. Dep’t of Interior, Civil Action No. 84-0757, Dec. 19, 1984 (D.D.C.1984), quoting S.Rep. No. 813, 89th Cong., 1st Sess. 2-3 (1965); H.R.Rep. No. 1497, 89th Cong., 2d Sess. 5-6 (1966) (emphasis added), U.S.Code Cong. & Admin.News 1966, 2418. Thus, although a requester should not be permitted to alter the substance of his request once it has been made, see Miller v. Casey, 730 F.2d 773, 776-77 (D.C.Cir.1984); Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1354 n. 12 (D.C.Cir.1983), the agency must be careful not to read the request so strictly that the requester is denied information the agency well knows exists in its files, albeit in a different form from that anticipated by the requester. To conclude otherwise would frustrate the central purpose of the Act.

In this instance the request made by the plaintiff was ambiguous. The plaintiff asked for “the List of Persons Accredited to attend the Department of State press briefings, their news affiliation and citizenship.” Clearly the request reasonably could be interpreted to ask either for a single list of accredited persons complete with citizenship information, or — as the plaintiff argues — for a list of accredited persons and any additional information the agency might have dealing with citizenship and news affiliation. Mindful that the plaintiff knew that the application forms containing the citizenship information existed at the time the request was made, and mindful that reference to those forms would have made the request clearer, the Court nevertheless cannot conclude that the plaintiff’s demand for citizenship information fell outside the scope of the initial request. One need not get involved in a semantic debate over the meaning of the word “list” to understand what information the plaintiff wanted. Because the defendants had reasonably clear notice of what the plaintiff sought, the defendants had an obligation to provide any files containing citizenship information that they had, provided that the information was not covered by an exemption. It is to this remaining issue — the question of exemption — that attention now focuses.

B.

5 U.S.C. § 552(b)(6) exempts from disclosure all “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy”. Accordingly, to succeed under this exemption, an agency must establish that (1) the information requested is contained in “personnel and medical files” or “similar files”, and (2) that disclosure would constitute a “clearly unwarranted invasion of personal privacy.” Department of State v. Washington Post Co., 456 U.S. 595, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982); Simpson v. Vance, 648 F.2d 10, 12 (D.C.Cir.1980).

In Department of State v. Washington Post Co., the Supreme Court made clear that Exemption 6 should not be limited “to a narrow class of files containing only a discrete kind of personal information.” 456 U.S. at 602, 102 S.Ct. at 1961. The Court specifically rejected the lower court’s position that “similar files” must be limited to those containing intimate details about an individual. Id. at 602-03 n. 5, 102 S.Ct. at 1961-62 n. 5. Instead, the Court held that the exemption must be interpreted broadly; to survive the initial inquiry the agency need only establish that the records in question apply to “a particular individual”. Once this showing is made, the reviewing court must then move on to the second inquiry: whether the release of the information would constitute “a clearly unwarranted invasion of that person’s privacy.” Id. at 598, 600, 602-03, 102 S.Ct. at 1959, 1960, 1961-62.

Here, the citizenship information sought by the plaintiff allegedly is contained in an accreditation application form stored in Department files. In addition to citizenship information, the application form lists the correspondent’s name, employer, position, current government press passes, criminal record (felonies only), date and place of birth, Social Security number, home and office addresses, and home and office telephone numbers. The information requested by the application form is no different from the type of information normally found in personnel files. Whether the information is precisely the same as that which would be found in a personnel file is immaterial, for the information is sufficiently “personal to [a] particular individual,” Washington Post, 456 U.S. at 602 n. 4, 102 S.Ct. at 1961 n. 4, to meet the threshold “similar files” inquiry.

The central question that remains is whether the release of the citizenship information constitutes a “clearly unwarranted” invasion of the correspondents’ privacy. In drafting Exemption 6, House sponsors explained that “[t]he limitation of a ‘clearly unwarranted invasion of personal privacy’ provides a proper balance between the protection of an individual’s right of privacy and the preservation of the public’s right to government information by excluding those kinds of files the disclosure of which might harm the individual.” H.R.Rep. No. 1497, 89th Cong., 2d Sess. 5, 11 (1966), U.S.Code Cong. & Admin.News 1966, 2428. This concern for “balancing interests” was reiterated in the Senate Report: “The phrase ‘clearly unwarranted invasion of personal privacy’ enunciates a policy that will involve a balancing of interests between the protection of an individual’s private affairs from unnecessary public scrutiny, and the preservation of the public’s right to governmental information.” S.Rep. No. 813, 89th Cong., 1st Sess. 3 (1965). The Senate Report went on to note that although balancing was not always easy, a “workable formula” was possible:

It is not an easy task to balance the opposing interests, but it is not an impossible one either. It is not necessary to conclude that to protect one of the interests, the other must, of necessity,- either be abrogated or substantially subordinated. Success lies in providing a workable formula which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure.

S.Rep. No. 813 at 3. See also Department of Air Force v. Rose, 425 U.S. at 371, 372-74, 96 S.Ct. at 1603, 1604-05.

In this instance careful balancing of the interests of both parties weighs in favor of exempting the requested citizenship information from disclosure. An individual’s citizenship, like medical records, religious and sexual preferences, or nationality, is not a matter that is normally exposed to public view. A passport — which the plaintiff correctly notes contains citizenship information — is not a document that a member of the general public might inevitably see in the course of everyday life, or indeed would be entitled to see. Although a passport must be shown to a government official to ensure safe passage across international borders, the degree of intrusion required in that situation is far less than that required by the “open access” approach advocated by the plaintiff. Indeed, where international travel is involved, the intrusion is limited only to that required to maintain national security and identify non-nationals. An individual might be required to show his passport to a government official while living in a foreign country, but information contained in the passport is not disseminated to the public at large.

Under certain circumstances it is not inconceivable that revelation of one’s citizenship could place an individual in jeopardy. Nationals from some countries face persistent discrimination within particular communities in this country. Similarly, nationals from certain parts of the world are potential targets for terrorist attacks. The risk of harm might significantly, increase if the public retained open access to citizenship information. It is precisely these concerns that are contained in the affidavit of Assistant Secretary John Hughes. Defending the use of the exemption here, Secretary Hughes notes that:

A substantial number of the correspondents accredited to the Department are citizens or nationals of countries other than the United States. Many of the correspondents, in the course of their professional duties, are required to travel internationally, including travel to countries whose relations with the countries of the correspondents’ nationalities (including correspondents who are citizens of the United States, where applicable) may be unfriendly or in flux. Such situations are particularly likely to arise because news correspondents are often subject, given the nature of their work, to being sent precisely to those areas of the world where conflict and disorder are current. In such circumstances the nationality of the individual could well become a basis for personal harassment or jeopardy to life or limb, or for refusal of entry which causes professional damage to a news correspondent. Jeopardy, in many areas today, may come from terrorist or dissident groups, rather than from public authorities. Such groups frequently seek out targets which will gain publicity for causes; these are not necessarily individuals against whom the groups have specific grievances. Attacks on news correspondents of certain nationalities would logically have that effect.

Affidavit of John Hughes at 2-3 (emphasis added). See also Washington Post, 456 U.S. at 597-98 n. 2, 102 S.Ct. at 1959-60 n. 2 (acknowledging the State Department’s concern for the safety of Iranian officials claiming U.S. citizenship).

Notwithstanding the affidavits submitted by journalists Allan C. Brownfield and Charles Lester Kinsolving which, based on evidence of personal and professional experience, downplay the danger posed by disclosure of citizenship information, the concerns expressed by the Assistant Secretary of State are not insignificant. Surely it is not irrational to conclude, as defendant Hughes does, that by the nature of their work certain correspondents may be susceptible to harassment or bodily harm. Indeed, it would be imprudent to disregard these concerns.

At the same time, however, it is the responsibility of the Court to ensure that the government provides the “fullest responsible disclosure.” S.Rep. No. 813 at 3. Were it the case that the defendants had issued a blanket denial for all information, the plaintiff’s position would be more persuasive. Yet precisely the opposite is true. The defendants have released a list of accredited correspondents with their office telephone numbers and addresses. As a practical matter, therefore, the defendants have provided the plaintiff with more information than he originally sought. Armed with this information, the plaintiff is free to call any of the correspondents directly and request citizenship information. In effect, then, the Department has placed Hemenway in a position where he may now pursue his inquiry as he sees fit. If an individual correspondent has reason to believe that he might be jeopardized by the release of such information, he is free to decline to respond. Conversely, if release poses no danger and in the eyes of a given correspondent does not place his or her family in jeopardy, he/she can volunteer release of this information. Thus, in the same way that an individual ordinarily should retain the choice whether to make public information about his religious and sexual preference or ethnic background, the decision to release citizenship information here is also left to the individual’s own discretion.

Viewed in this light, the defendants’ partial release of information skillfully protects the interests of all while still providing substantial disclosure. Given the pressures associated with modern international politics, a blanket release of citizenship information, made without regard to the interests or concerns of individual correspondents, would constitute a “clearly unwarranted invasion of personal privacy” that might result in the type of “harm to the individual” that Congress clearly hoped to avoid. The response fashioned by the defendants — the release of the List of Correspondents — provides the proper balance between the individual’s right to privacy and the public’s right to know that the Congress struggled to achieve when it drafted Exemption 6.

III.

For the reasons stated above, the Court concludes that the affidavit submitted by the defendants describes “the justifications for nondisclosure” with sufficient detail and logic, see Miller v. Casey, supra, to permit a grant of summary judgment in favor of defendants.

Accordingly, the defendants’ motion for summary judgment is, this 5th day of February 1985, hereby granted. This cause stands dismissed with prejudice.

      . In one section of the released document correspondents are listed by geographic region. Thus, as a practical matter a relatively accurate but general assumption about the correspondents’ citizenship might be ascertained from the list without further investigation.


author: ANNA DIGGS TAYLOR, District Judge.

text:
    STEPHEN SLOAN REALTY COMPANY, a New York Corporation, Plaintiff, v. 555 SOUTH WOODWARD ASSOCIATES, Bruce H. Miller, James O. Thompson, Individually and d/b/a 555 South Woodward Associates, an unregistered Michigan Co-Partnership, Lawrence Gechter, Herbert Sillman and Bruce Thai, jointly and severally, Defendants.
    Civ. A. No. 83 1555.
    United States District Court, E.D. Michigan, S.D.
    Feb. 6, 1985.

      Jonathan Miller, Southfield, Mich., for plaintiff.
    Thomas J. Tallerico, Detroit, Mich., for defendants.
   MEMORANDUM OPINION AND ORDER

ANNA DIGGS TAYLOR, District Judge.

Plaintiff Stephen Sloan Realty Corporation has filed a complaint, alleging breach of contract, breach of fiduciary duty and intentional interference with contractual relations, against 555 South Woodward Associates (S.W. Associates) and its representatives Bruce Miller and John Thompson, as well as against Lawrence Gechter, Herbert Sillman and Bruce Thai, who are professional accountants. The action arises from a March 22, 1982 Agreement of Sale into which plaintiff entered with S.W. Associates for plaintiffs purchase of an apartment, office and commercial development called the 555 South Woodward Buildings.

Section 18(c) of the agreement allowed plaintiff until May 21, 1982 to obtain a written commitment on a mortgage. The same paragraph provided that if plaintiff should fail to acquire a mortgage commitment by May 21, 1982, the contract would be terminated but plaintiff would still retain a right of first refusal for one hundred twenty days following termination.

The deadline for plaintiffs acquisition of the mortgage commitment was extended in writing on two occasions. On May 25, 1982, S.W. Associates gave plaintiff a written extension to June 7, 1982; and, on June 11, 1982 the deadline was extended to July 15, 1982. These extensions were made without reference to plaintiffs original right of first refusal.

Plaintiff was unable to obtain a written commitment by July 15, 1982. However, negotiations between plaintiff and representatives of S.W. Associates continued. In August, 1982 plaintiff engaged a New York law firm to prepare a draft agreement for further negotiations with S.W. Associates at a September meeting. On September 14; 1982, plaintiff had that meeting with S.W. Associates’ representatives in Detroit. The parties were unable to reach an agreement on that date and there were no further negotiations, thereafter. In February of 1983, defendants Gechter, Sillman and Thai acquired their interest in the property. A few months later, plaintiff brought suit in this court for breach of his right of first refusal.

PROCEDURAL HISTORY

On August 29, 1983, this court heard argument on defendants’ motion to dismiss or for summary judgment. For reasons stated on the record, the court granted defendants’ motion as to Count II, which claimed breach of a fiduciary duty. But the court denied the motion as to the two remaining counts, because plaintiff, by affidavit, declared that at the last meeting of these parties, in September of 1982, there had been an oral agreement to extend the right of first refusal. In his affidavit plaintiff stated that defendant Miller attended the September meeting and that plaintiff and he orally agreed that the termination date and the right of first refusal would be extended. Defendants denied that any such agreement was made. The court determined that a genuine issue of material fact had been raised as to whether or not an agreement to extend the right of first refusal had been made, and that the remaining two counts must therefore be tried. The court did not grant the motion on the basis of the Statute of Frauds, which defendants also argued, either.

Now that discovery has been completed, defendants have filed another motion for summary judgment on those same remaining counts of the complaint. Defendants contend now that although plaintiff had stated in his earlier affidavit that an agreement had been made, at a subsequent deposition plaintiff’s testimony about the “extension” meeting made it clear that no agreement was made. At the deposition, plaintiff indicated that he had stated at the September, 1982 meeting, at his departure, that the option was still in existence and that S.W. Associates’ representatives should notify him if another deal developed. Plaintiff acknowledged that no one had responded to his remark. No other persons present at the meeting recalled that the subject of the right of first refusal has been mentioned at all. Defendants say that, based upon these undisputed facts, they are entitled to summary judgment as to Count I. No agreement can be attributed to the September 14, 1982 meeting.

Defendants also claim that they are entitled to summary judgment on Count III, in which plaintiff alleges that defendants Sill-man, Gechter, and Thai interfered with contractual relations between plaintiff and S.W. Associates. Defendants argue that since the original agreement automatically terminated on July 15, 1982, the option expired at the latest in September of 1982, and defendants did not acquire the buildings until February 24,1983, they could not have interfered with plaintiff’s contract. Defendants could not have usurped plaintiff’s opportunities or engaged in unfair competition with plaintiff for the same reason.

Additionally, defendants suggest that, should the court find that the right of first refusal did not expire until one hundred twenty days after July 15, 1982, the right was terminated by implication on November 12, 1982. And the court notes that even if the extension was agreed upon as plaintiff claims on September 14, 1982, it would have expired by its own terms one hundred twenty days later — and the sale to defendants on February 24, 1983, was one hundred sixty three days later.

Plaintiff’s position, nevertheless, is that as a consequence of his July 14th meeting with Miller and attorneys in New York, a lengthy proposed agreement was prepared in August for him to present, and the parties met again in September. According to plaintiff, when he and S.W. Associates failed to reach an agreement on September 14, 1982, the agreement was terminated on that date and he retained a right of first refusal until January 14, 1983. He contends that the February sale violated his option because Miller had decided to sell the property to the codefendants at some time before the option expired in January.

Plaintiff claims that defendants’ motion should be denied because there are substantial factual issues regarding the agreements to extend the March agreement; as to whether the entire contract, including the right of first refusal, was extended; and whether Gechter, Sillman and Thai interfered with contractual relations. Plaintiff contends that the entire contract was extended, and that he had relied upon the right of first refusal to protect his creative, unique, and inventive financing concepts from seizure by others. He further claims that defendants Gechter, Sillman and Thai knew about the right of first refusal because they insisted that S.W. Associates include a clause in their contract that S.W. Associates would idemnify and hold them harmless from plaintiff’s potential claims of right of first refusal. Moreover, he claims that the accountant defendants did in fact usurp his unique financing concepts.

The court finds that there are no genuine issues of material facts remaining in this case to warrant a trial. First, there is no issue as to whether the option agreement was extended to February 24, 1983, the date on which defendants entered their sale agreement. It was not, even assuming plaintiff’s gloss on the facts. “A party opposing the motion [for summary judgment] must present facts of a substantial nature, and may not rely on conclusions of law____” The mere hope that evidence may surface is not sufficient to have a trial. Provenzino v. Merchants Forwarding, 363 F.Supp. 168, 175 (E.D.Mich.1973). It is evident that plaintiff recognized that the contract was terminated on July 15, 1982 because he wrote defendant Miller on July 19, 1982 and requested that plaintiff’s counsel and defendant Thompson extend the contract for another fifteen days. The mere fact that defendant S.W. Associates agreed to meet with plaintiff in August and in September and did meet with plaintiff during those months, without more, does not indicate that the contract was still enforceable. The undisputed facts of record establish that the parties’ contract was not extended beyond July 15, 1982, and plaintiff was unable to proffer any evidence to the contrary at the hearing before this court. The consent of both parties to a contract is needed to modify that contract. A meeting of the minds is a prerequisite to modification after an agreement has been made. Wells v. 10-X Manufacturing Co., 609 F.2d 248, 256 (6th Cir.1979). The statement of one party that a contract is still in force does not constitute an extension agreement. Moreover, as stated before, even an extension of plaintiff’s option for one hundred twenty days beyond September 14th does not reach the February 24th breach of which defendants are accused. The extension language does not preclude thoughts of another possible sale.

Paragraph 18(e) of the March 22, 1982, contract provided that:

within sixty (60) days after the date that the Seller executes this Agreement, the Purchaser shall obtain a written commitment from the holder of the Mortgage ... The failure of the Purchaser to obtain such a commitment shall terminate this Agreement ... In the event Seller receives another offer to purchase within one hundred twenty (120) days after termination of this Agreement ..., Seller shall be required to notify Purchaser____

Plaintiff has not come forward with affidavits or other source documents to raise any issue of fact that an offer to purchase was received during the term of his option. His contract was not, therefore, breached.

Plaintiff’s claim of interference with contractual relations must also fail. Intentional interference with another’s contractual rights is an actionable tort. Marwil v. Baker, 499 F.Supp. 560, 572 (E.D. Mich.1980). To prevail on such a theory, the plaintiff must show that “a contract existed, that it was breached, that the [defendants] instigated the breach and that [they] did so without justification.” Trepel v. Pontiac Osteopathic Hospital, 135 Mich. App. 361, 374, 354 N.W.2d 341 (1984); Derosia v. Austin, 115 Mich.App. 647, 653-54, 321 N.W.2d 760 (1982). Defendants Gechter, Sillman and Thai undisputedly secured rights to the buildings on or about February 25, 1983, long after plaintiff’s contract with S.W. Associates had been terminated. The undisputed facts support that argument, whether the option expired on July 15,1982, or September 15,1982, or whether it was revived for another one hundred twenty days thereafter.

Finally, plaintiff’s claim that defendants Gechter, Sillman and Thai usurped his unique financing concepts must, if indeed it is a claim separate and apart from the others, fail. To protect his unique financing concepts, plaintiff has stated that he negotiated the one hundred twenty day right of first refusal. Once that period had expired, however, he cites us to no law which would prohibit defendants from using concepts which he might have put on the table. Moreover, the contract which the defendants later entered undisputedly was not a reiteration of his unsuccessful, allegedly unique, ideas. And finally, the ideas to which plaintiff has claimed title include at least two (condominium conversion and use of the transaction as a tax shelter) which are by no means unique, nor were they in 1982 or February of 1983.

IT IS HEREBY ORDERED that defendants’ motion for summary judgment as to Counts I and III of the complaint is granted and plaintiff’s complaint be and hereby is dismissed.

IT IS SO ORDERED.


author: KATZ, District Judge.

text:
    Howard WAGMAN on his own behalf, Seymour A. Freedman, on his own behalf, and Bernard G. Segal, Frances S. Sheerr, Richard C. Sheerr and The Glenmede Trust Company, as Co-Executors of the Estate of Stanley Sheerr, deceased v. David B. CARMEL.
    Civ. A. No. 84-3600.
    United States District Court, E.D. Pennsylvania.
    Feb. 6, 1985.

      David H. Pittinsky, Carl G. Roberts, Donna M. Albani, Philadelphia, Pa., for plaintiffs.
    Jay F. Gordon, Phillips, Nizer, Benjamin, Krim & Ballon, New York City, H.L. Montague, Jr., Berger & Montague, P.C., Philadelphia, Pa., for defendant.
   MEMORANDUM AND ORDER

KATZ, District Judge.

This action arises out of a contract between the parties forming a joint venture to acquire and develop real property located in the Township of Egg Harbor, New Jersey. Plaintiffs seek a declaratory order from this Court stating that a majority in interest of the members of the Atlantic City Joint Business Adventure have the right to sell the entire property of the venture and that no members constituting a minority in interest have a right of first refusal with respect to the proposed sale. Plaintiffs and defendant have filed cross motions for summary judgment and stipulated to the relevant facts. The parties represent that there are no disputed material facts. I find that the plaintiffs are entitled to summary judgment.

On January 4, 1965 the parties or their predecessors in interest executed the Atlantic City Joint Business Adventure Agreement (hereinafter “Agreement”). The Agreement was amended three times, once in 1971, again in 1973 and finally in 1980. The purposes of the joint venture include the acquisition, improvement, leasing, operation and sale of property located in Egg Harbor, New Jersey. Each of the members of the joint venture owns an interest in an undivided portion or share of the venture’s property equivalent to the interest of that member in the venture as a whole. Under the Agreement and subsequent amendments thereto a member’s undivided portion ’ or share of the venture property is “co-extensive” with that member’s interest in the venture itself. According to Paragraph 8 of the December 31, 1980 Amendment to the Agreement, “Transfers of such interest in the PROPERTY and of related Membership interests hereunder may not be made separately; a transfer of the Membership interest herein shall effect a transfer of the related interest in the PROPERTY and vice versa.” Record title to the property is held by a trust.

Under the original Agreement, all actions of the joint venture required the unanimous consent of its members. In 1971 this provision was amended to eliminate the necessity of unanimous consent and instead to require only a majority vote. Article I, Section 2(c) now provides that “[a]ll actions of the Joint . Business Adventure shall be authorized by a majority in interest of the Members... All members respectively agree to be bound by and to execute and deliver all such instruments and do all such things as may reasonably be required of them to carry out actions agreed upon by the Members...”

Article V, entitled “Changes in Membership” contains the provision chiefly at issue in this action. As amended in 1980, Article V, section 1 prohibits a member from selling or otherwise disposing of his interest in the joint venture unless the other members unanimously consent thereto or unless the Agreement so provides. Section 3 provides that a member may sell his entire “Membership interest” to a third party subject to the right of first refusal of the other Members and of the venture itself. Section 3 provides that “[wjithin thirty (30) days of the receipt of such written notice [of the proposed sale to a third party], the other Members of the Adventure may elect to purchase all, but not less than all of the interest being sold by the selling Member upon the same terms and conditions as the offer received by the selling Member____” In the event that no Member asserts his right in thirty days to purchase the membership interest, the venture itself may purchase the interest. Should neither the other members nor the venture assert a right of purchase, the third party may purchase the interest subject to the requirement of executing appropriate documents agreeing to be bound by all of the terms and conditions of the Agreement.

Article VII, section 1 of the Agreement provides that it shall be interpreted in accordance with the laws of the Commonwealth of Pennsylvania.

Since 1980, members of the joint venture have sought a purchaser for the Egg Harbor property. In 1981-1982 the members received an offer to purchase the property by the Rouse Company. By letter, dated March 25, 1982, the defendant objected to the proposed sale to Rouse and asserted his alleged right of first refusal. The sale to Rouse was never consummated. Further negotiations with other potential purchasers have also failed to result in an agreement to sell the property. Plaintiffs allege in their complaint that the defendant’s assertion of a right of first refusal has thwarted all of their efforts to sell the Egg Harbor property since it has created uncertainty over their power to convey good title.

Plaintiffs, all original members of the joint venture or the original members’ successors in interest, seek an order by this Court declaring that a majority may agree to sell the venture’s property free from any individual member’s right of first refusal. Plaintiffs argue that the majority rule language in Article I governs the sale of the venture property and that all members are contractually bound to take all steps necessary to implement decisions arrived at by the majority. They further assert that the right of first refusal provision applies to the sale of individual membership interests in the ongoing venture and therefore not to the sale of the entire venture property. Defendant responds by arguing that a majority of the venture’s members may not force him to sell his interest since he owns an undivided share in the venture property as a tenant in common. Furthermore, since the sale of the venture property also results in a sale of membership interests, the defendant asserts that the first right of refusal provisions in Article V govern, thereby allowing him the option of purchasing his co-venturers’ interests.

In their cross motions for summary judgment, plaintiffs and the defendant ask this Court to construe the provisions of the Agreement in accordance with their positions as outlined above. Summary judgment is appropriate in cases where a court is asked to construe contractual clauses that are clear and unambiguous despite the parties’ differing views as to what consequences flow from those provisions. See Landtect Corp. v. State Mutual Life Assurance Co., 605 F.2d 75, 79-80 (3d Cir. 1979); County of Erie v. American States Insurance Co., 573 F.Supp. 479, 483 (W.D. Pa.1983), aff'd, 745 F.2d 45 (3d Cir.1984); C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2730.1 (1983). All parties in this case assert in their cross motions for summary judgment that the contractual provisions are clear and that no material facts are in dispute. I find from my analysis of the contract that the provisions involved in this dispute are clear and unambiguous and that giving them legal effect through construction is a matter for the Court. Cf. Ram Construction Co. v. American States Insurance Co., 749 F.2d 1049 at 1052-1053 (3d Cir.1984).

I

The first issue this Court must decide is whether a majority of the members in interest of the joint venture may alienate the venture’s property. The 1971 Amendment to the Agreement as well as subsequent amendments clearly state that “all actions” of the venture shall be authorized by a majority vote. No exception is made anywhere in the Agreement requiring unanimous consent for the sale of the venture’s property. To the contrary, paragraph 2 of the 1973 Amendment provides that “[a]ll provisions of the Agreement which are inconsistent with this paragraph [providing for majority rule] are hereby rescinded____” Therefore, the Agreement clearly provides that a majority may agree to sell the property of the joint venture.

Defendant’s argument that he cannot be forced to sell the property due to his status as a tenant in common is without merit. A tenancy in common is an estate in which there is a unity of possession, but separate and distinct titles. Each tenant has a right to possess the entire estate, but this right of possession is not exclusive. See J.M. Shober Farms, Inc. v. Merrill, 179 Pa.Super. 446, 448, 115 A.2d 384, 386 (1955); 14 Pennsylvania Law Encyclopedia, Estates in Property, § 41 at 26 (1959). Ordinarily, although a tenant in common may freely sell or otherwise dispose of his own interest in jointly held property, he may not act so as to prejudice the rights of his co-tenants. For example, a tenant in common may not unilaterally bind his co-tenants to an agreement concerning the use, control, or title to the joint property. See McKinley v. Peters, 111 Pa. 283, 3 A. 27 (1885). Nevertheless, a tenant in common may bind his co-tenants to an agreement affecting the ownership of the tenancy property if he or she has been authorized to enter into such an agreement or if the other co-tenants later ratify the agreement. See Caveny v. Curtis, 257 Pa. 575, 580, 101 A. 853 (1917); McKinley v. Peters, 111 Pa. 283, 286, 3 A. 27 (1885); Browning v. Cover, 108 Pa. 595, 599 (1885); 4A Powell on Real Property 633 (1982). Thus, tenants in common can agree that the property may be sold by majority vote.

By agreeing to the 1971 Amendment, the defendant has contractually authorized and empowered a majority of the joint venture to sell his interest in the venture’s property along with their own, provided that the sale is one of the permissible activities of the venture. Article I expressly includes the sale of venture property as a purpose of the joint venture. All members have agreed to be bound by and to execute and deliver all instruments and to do all things required to implement the decisions of the majority. Defendant may not now avoid the contractual obligations to which he has freely consented. There is no allegation of bad faith or fraud in either the contract or the proposed sale of the property.

II

This Court further construes the clear and unambiguous provisions of Article V as not granting to any member a right of first refusal with regard to a proposed sale of the entire venture property. A joint venture agreement is a contract to which all of ordinary rules of contractual construction apply. See Richardson v. Walsh Construction Co., 334 F.2d 334 (3d Cir.1964). Under Pennsylvania law, a contract is construed or interpreted so as to give meaning to the intent of its signatories.

“It is well established that the intent of the parties to a written contract is to be regarded as being embodied in the writing itself, and when the words are clear and unambiguous the intent is to be discovered only from the express language of the agreement.” Steuart v. McChesney, 498 Pa. 45, 48-49, 444 A.2d 659, 661 (1982). In addition, a contract should be construed as a whole, whenever possible, giving legal effect to all of its parts. See Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1131 (3d Cir.1969); Atlantic Richfield Co. v. Razumic, 480 Pa. 366, 372-73, 390 A.2d 736, 739 (1978).

The clear and unambiguous language of Article V indicates that the parties intended to make the right of first refusal applicable only to the sale of individual membership interests in the ongoing joint venture and not to a transaction which would bring the venture to an end. The right of first refusal is contained in the Article entitled “CHANGES IN MEMBERSHIP.” This heading along with the provisions in Article V that a purchaser of a membership interest execute appropriate documents agreeing to be bound by all of the terms and conditions of the Agreement as would an original member clearly show that the parties contemplated that the right of first refusal would apply to proposed sales of interests in the joint venture where the venture continued following sale.

Construing the right of first refusal as being effective only when a member proposes to transfer his or her interest in the ongoing joint venture is consistent with the usual purpose of such a clause in real estate joint venture agreements. Each joint venturer has an interest in maintaining some control over the transferability of interests in the enterprise. For example, a member whose role it is to develop the property may want to be assured that the other members whom he relies upon to provide investment capital have sufficient economic capacity to make additional contributions. Likewise investor-members want to make sure that one who purchases the developer’s interest has sufficient experience and ability to guide a successful project. All members will be wary of allowing transfers of membership interests to persons who are incompatible or whose reputations would be likely to reflect unfavorably upon their own. See Bell, The Real Estate Joint Venture, Real Estate Review, Fall 1983, at 34; Leon, Designing The Real Estate Joint Venture to Work, Real Estate Review, Spring 1973, at 33, 40; Leon, Some Basic Non-Tax Considerations in Preparing Real Estate Joint Venture Agreements in Joint Ventures in Real Estate 42 (1972) (Practising Law Institute, Real Estate Law and Practice Course Handbook No. 61).

Therefore, the right of first refusal contained in Article V of the Agreement applies only to the proposed sale of membership interests in a venture that will continue after the transfer. In this case, however, the sale of the venture’s property will effectively end the venture, itself. In Richardson v. Walsh Construction Co., 334 F.2d at 336, the Third Circuit defined a joint venture under Pennsylvania law as follows:

A joint venture is an association of persons or corporations who by contract, express, or implied, agree to engage in a common enterprise for their mutual profit. The essential elements of a joint venture are: (a) a joint proprietary interest in, and a right to mutual control over, the enterprise; (b) a contribution by each of the parties of capital, materials, services or knowledge; and (c) a right to participate in the expected profits.

A joint venture is distinguished from a partnership in that it is usually formed to undertake a single business transaction rather than a general and continuous business enterprise. See Beavers v. West Penn Power Co., 436 F.2d 869, 872 (3d Cir.1971); McRoberts v. Phelps, 391 Pa. 591, 599, 138 A.2d 439, 444 (1958); West v. People’s First National Bank & Trust, 378 Pa. 275, 282, 106 A.2d 427, 431 (1954). If no date is fixed by contract, a venture continues until its purpose is accomplished or has become impracticable. See April Enterprises, Inc. v. KTTV, 147 Cal.App.3d 805, 195 Cal.Rptr. 421, 428 (1983); Sheridan v. McBaine, 660 S.W.2d 188, 194 (Mo. App.1983), Jaeger, Joint Ventures: Membership, Types and Termination, 9 Am.U. L.Rev. 111, 127 (1960).

In the instant case, the purpose of the Atlantic City Joint Business Adventure terminates once the property located in the Township of Egg Harbor is sold. The joint venture was formed solely for the purpose of acquiring, developing, managing, and selling this property. Therefore the sale of the property will complete the venture’s business; all that will remain is the winding up of the business and the distribution of profits.

Since the right of first refusal contained in Article V is activated only upon the proposed sale of a member’s interest to a third party under circumstances where the venture will continue following sale, I find that it is not activated by a proposed sale of the entire property. Therefore, the defendant has no right to purchase the Egg Harbor Property should a majority of the Atlantic City Joint Business Adventure agree to sell it to a third party.

      . Harrity v. Continental—Equitable Title & Trust Co., 280 Pa. 237, 124 A. 493 (1924) does not support a different result. In Harrity, the Pennsylvania Supreme Court, in construing an agreement between members of a real estate syndicate, concluded that a specific grant of authority by the members to a trustee to sell the property had precedence over a clause providing that disputes between members of the syndicate be settled by majority vote. Defendant Carmel argues that the right of first refusal provisions contained in Article V of the Agreement like the grant of power to sell to the trustee in Harrity indicates that the majority rule provision does not govern a sale of the property. I find, however, that unlike the facts of Harrity, no provision in Article V conflicts with or take precedence over the majority rule clause in Article I, at least with respect to the sale of the entire venture property. Article V does not require unanimous agreement prior to the sale of the entire venture property. An individual member has no right of first refusal with respect to the sale of the entire venture property. See infra at 1017.

        . Article V, Section 2 of the Agreement, as amended in 1980, also demonstrates the importance the venturers placed upon having restrictions over who becomes and remains a member of the joint venture and an owner of the venture property. This section provides that "a transfer of the Membership interest [in the joint venture] ... shall effect a transfer of the related interest in the PROPERTY and vice versa.” Thus a member who sells his membership interest in the joint venture must also transfer his interest in the venture’s property. Likewise, a member who sells his tenancy in common interest in the real property must also give up his voting interest in the joint venture, itself.

      . The Agreement also specifically indicates that the joint venture will be liquidated upon the sale of the venture property. Article III, Section 4 provides that "upon a sale of the PROPERTY or upon the dissolution of the Adventure, assets and funds of the Adventure shall be distributed. ..”

      . Following oral argument on the cross motions for summary judgment, defendant's counsel submitted an alternative proposed order to this Court for the purpose of "accommodat[ing] ... the concept of fairness____" This proposed Order provides that a majority in interest of the joint venture may authorize a sale of the venture property and that a minority member may assert a right of first refusal with regard to the entire property. In construing an agreement, a court may not, as the defendant seems to suggest in his proposed order, rewrite clear and unambiguous contractual provisions to achieve a result that arguably may be more fair to the parties. See Brokers Title Co. v. St. Paul Fire Marine Insurance Co., 610 F.2d 1174, 1181 (3d Cir.1979). The right of first refusal clause in Article V of the Agreement refers to sales of membership interests in an ongoing joint venture and not to a sale of the entire venture property. The parties freely bargained for this clause and this Court will not substitute its judgment of what is fair for theirs. If the parties wanted to achieve the result suggested by defendant’s proposed alternative order, they could have included such a clause in their contract. This Court notes that similar clauses have been widely used in real estate joint venture agreements in the past. See, e.g., Nellis et al, Form of Joint Venture Agreement, in Realty Joint Ventures 1983, 411, 442 (1983) (Practising Law Institute, Real Estate Law and Practice Course Handbook No. 235) (Right of First Refusal on All Joint Venture Assets clause).


author: LIMBAUGH, District Judge.

text:
    Louis Wade DANNEMAN, Plaintiff, v. Mayor Vincent C. SCHOEMEHL, Jr., and Warden Gilmore, Defendants.
    No. 84-2766 C (5).
    United States District Court, E.D. Missouri, E.D.
    Feb. 7, 1985.

      Louis Danneman, pro se.
    James J. Wilson, City Counselor, St. Louis, Mo., for defendants.
   ORDER

LIMBAUGH, District Judge.

IT IS HEREBY ORDERED that defendants’ motion to dismiss be and is GRANTED pursuant to Rule 12(b)(6). Plaintiff has alleged that on October 27, 1984, while incarcerated in the City Jail in St. Louis, Missouri, he discovered insects in his food. He filed his suit against Warden Gilmore and Mayor Vincent Schoemehl.

Plaintiff fails to allege any personal participation on the part of defendant May- or Schoemehl or Warden Gilmore. Plaintiff also fails to allege that either defendant failed to properly train, supervise or in some manner control the actions of the persons directly involved in the incident complained of by plaintiff. The doctrine of respondeat superior does not apply to claims arising under § 1983. Pearl v. Dobbs, 649 F.2d 608, 609 (8th C 1981); Careaga v. James, 616 F.2d 1062, 1063 (8th C 1980), cert den. 449 U.S. 851, 101 S.Ct. 140-141, 66 L.Ed.2d 62 (1980).

It has been held that an isolated instance of contaminated prison food does not rise to the level of a constitutional violation cognizable under § 1983. Freeman v. Trudell, 497 F.Supp. 481 (D.Mich. 1980); Lovern v. Cox, 374 F.Supp. 32 (D.Va.1974); Sinclair v. Henderson, 331 F.Supp. 1123, 1126 (D.La.1971). This Court agrees.

The Court has carefully reviewed plaintiff’s complaint and is convinced that there are no set of facts which plaintiff can plead entitling him to relief in this Court. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Haggy v. Solem, 547 F.2d 1363 (8th C 1977).


author: MacLAUGHLIN, District Judge.

text:
    Lars JOHANSSON, President, Pseudorabies Class Action Committee, Plaintiff, v. BOARD OF ANIMAL HEALTH, Attorney General of Minnesota, Defendants.
    Civ. No. 4-84-1089.
    United States District Court, D. Minnesota, Fourth Division.
    Feb. 8, 1985.

      Lars Johansson, pro se.
    Hubert Humphrey, III, Atty. Gen., State of Minn., and John K. Murphy, Sp. Asst. Atty. Gen., St. Paul, Minn., for defendants.
   MEMORANDUM AND ORDER

MacLAUGHLIN, District Judge.

This matter is before the Court on defendants’ motion to dismiss for failure to state a claim upon which relief can be granted. The motion to dismiss will be granted.

FACTS

The plaintiff in this action, Lars Johansson, is a farmer who raises swine. In the title of plaintiff’s complaint, plaintiff indicates that he is president of the Pseudorabies Class Action Committee. No motion has been made for class certification under Federal Rule of Civil Procedure 23. The defendants in this case are the Minnesota Board of Animal Health (Board), which is a state agency organized under Minn.Stat. §§ 35.02-.063 (1984), and the Attorney General of Minnesota.

The controversy in this case surrounds the Board’s efforts to combat pseudorabies (PRV). PRV is a highly contagious and infectious herpes virus which affects swine. PRV started to regularly appear in Minnesota hogs in 1975, and the disease has become an increasingly serious problem. The Board estimates that the economic loss to Minnesota hog producer from PRV currently is approximately $1 million per month. Report of the Hearing Examiner, In the Matter of the Proposed Adoption of Rules of the State Board of Animal Health Governing the Control of Pseudo-rabies, April 6, 1984, at 4-5.

In 1979, the United States Department of Agriculture adopted regulations to prohibit the interstate movement of swine with PRV. 9 C.F.R. §§ 85.1-.13 (1984). The federal rules did not require that states adopt their own quarantine programs, but the movement of a state’s swine in interstate commerce would be greatly restricted if a state did not adopt a quarantine program at least as strict as the federal standards. 9 C.F.R. § 85.7 (1984).

Accordingly, the Board established a quarantine program for Minnesota in 1979. See Minn.Rules §§ 1705.2060-.2320 (1983). The program required that veterinarians report all cases of PRV to the Board. Once a hog is found to have PRV, the entire herd is quarantined. At this point, the hogs can still be sold for slaughter, but they cannot be sold for breeding. Thus, one method for removing the quarantine was to sell all the hogs for slaughter. Another method for removing the quarantine is for a farmer to remove all the reactors (i.e., hogs who had PRV) from the herd. The farmer then must test the remaining hogs at least 30 days later. If the test indicated that none of the remaining hogs had PRV, then the quarantine was lifted. The farmer had to bear the costs of this testing. See Minn.Rules §§ 1705.-2070, .2080, .2100, and .2120 (1983).

In April of 1982, plaintiff’s hogs were quarantined, and he allegedly lost approximately $180,000 to $200,000 because of the quarantine. Plaintiff’s hogs were intended for breeding, and the quarantine impacts farmers raising breeder hogs much more drastically than farmers raising hogs for slaughter. This disparate impact results, in part, because the price of a breeder hog is higher than the price of a slaughtered hog. Once quarantined, any hog may still be sold for slaughter. Thus, a farmer who has quarantined hogs which were raised for slaughter can still sell them for nearly the same price the farmer originally expected to receive. By contrast, the quarantine forces the farmer to sell breeding hogs for slaughter, which causes the farmer to receive much less income than originally anticipated.

Plaintiff does not allege that he currently has hogs under quarantine, but plaintiff does seek a declaratory judgment invalidating the current rules concerning PRV quarantines. The Board adopted new PRV quarantine rules on July 23, 1984. Minn. Rules §§ 1705.2400-.2530 (Supp.1984). The Board promulgated these rules pursuant to a 1983 Minnesota law requiring the Board to:

adopt rules to implement a program to control pseudorabies in swine, including pseudorabies testing of breeding swine

and restricted movement of feeder pigs. 1983 Minn.Laws ch. 367, § 1, codified at Minn.Stat. § 35.255 (1984). These rules essentially adopted the earlier 1979 rules. One difference, however, is that the new rules require an additional test before the Board will lift the quarantine. After the infected hogs are removed from the herd, a farmer must test the' remaining hogs 30 days later and again 30 days after the initial test. Minn.Rules § 1705.2440, subp. 1(B) (Supp.1984).

The current rules also provide that feeder pigs (pigs which will eventually be slaughtered) can be sold to a feed lot which is already quarantined. Minn.Rules § 1705.2430, subp. 3(B) (Supp.1984). Finally, a farmer can obtain the removal of a quarantine if the farmer can establish that the initial diagnosis of PRV was the result of the hogs receiving a PRV vaccination. Minn.Rules § 1705.2440, subp. 2 (Supp. 1984).

After the current rules were adopted, plaintiff went to the Legislative Commission to Review Administrative Rules (LCRAR) to challenge them. LCRAR held hearings on August 2,1984 and October 10, 1984. The LCRAR refused to suspend the PRV regulations, but it did recommend that the requirement of a second test be abandoned. Defendants state that the Board is proceeding to implement that recommendation.

His efforts in front of the LCRAR proving unsuccessful, plaintiff filed this lawsuit on October 24, 1984. Plaintiff seeks a declaratory judgment against the state of Minnesota, which would hold that the PRV rules are invalid. Plaintiff asserts that the rules are “ineffective, discriminating, and non-protective.” Plaintiff also claims that the rules unconstitutionally take private property. In addition to the declaratory relief, plaintiff requests a moratorium on all foreclosures against property owners who are, or have been, subjected to the PRV quarantine. Plaintiff finally seeks redress from the state for all grievances caused by the quarantine, and asks that the Court require the state to establish a claims committee to effectuate that goal.

DISCUSSION

Unquestionably, the inherent police power of a state allows a state to establish quarantines to control disease in animals. See, e.g., Smith v. St. Louis and Southwestern Ry. Co., 181 U.S. 248, 255-58, 21 S.Ct. 603, 605-606, 45 L.Ed. 847 (1901). States can even destroy diseased cattle if essential for public safety. E.g., Lawton v. Steele, 152 U.S. 133, 136, 14 S.Ct. 499, 500, 38 L.Ed. 385 (1894). The means used by the state, however, cannot go beyond the necessities of the case or unreasonably burden constitutional rights. Reid v. Colorado, 187 U.S. 137, 151, 23 S.Ct. 92, 97, 47 L.Ed. 108 (1902).

Equal Protection

Plaintiff alleges that the PRV rules are discriminatory, and the Court construes this to be an equal protection argument. Plaintiff makes two major points in this regard. First, plaintiff notes that the economic impact of the PRV rules falls much more heavily on owners of breeder hogs than on owners of hogs raised for slaughter. Defendants do not contest that this disproportionate impact occurs. Yet, defendants argue that the only classification which the PRV rules make is between diseased and healthy swine.

Even though the impact of the PRV rules is disproportionate, the Board’s classification (or failure to distinguish between owners of breeder and slaughter hogs) comports with the deferential standard of review courts use in equal protection challenges to state economic regulations. “States are accorded wide latitude in the regulation of their local economies under their police powers ____” City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511 (1976) (per curiam). In the area of economic regulation, classifications which have a rational relationship to some legitimate state interest will not be invalidated under the equal protection clause. E.g., Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 461-62, 101 S.Ct. 715, 722-723, 66 L.Ed.2d 659 (1981); Dukes, 427 U.S. at 303, 96 S.Ct. at 2517.

Here, defendants’ classification based on whether the hogs are diseased or not, is entirely rationale. Perhaps plaintiff desires that the Board make a further classification between breeder and slaughter hog owners. Such a classification might allow the farmer another method to remove the quarantine, or another outlet for sale of breeder hogs. The Board could rationally conclude, however, that such distinctions to ameliorate the PRV rules’ disproportionate impact on breeder hog owners would hinder the PRV rule’s effectiveness in combating the disease.

Another point plaintiff raises which might be classified as an equal protection argument concerns the use of the PRV vaccine to improperly avoid the quarantine. If a PRV test indicates the presence of the disease, a farmer can avoid the quarantine by establishing that the results occurred because the hogs received the PRV vaccine. Minn.Rules § 1705.2440, subp. 2 (Supp.1984). Plaintiff asserts that upon their veterinarians’ discovering PRV, many farmers will proceed to vaccinate their herds and will not report the presence of the disease. Apparently, the veterinarians aren’t reporting the disease either. If the Board later discovers the presence of PRV in the herd, the farmer can often establish to the satisfaction of the Board that the vaccination caused the positive PRV test results. Thus, plaintiff concludes that the honest farmer is hurt while many dishonest farmers have infected, although undetected, herds.

Plaintiff is no doubt correct that the above described situation, if it exists, is unjust. Nevertheless, the solution to this unjustice is not for the Board to relieve honest farmers from complying with quarantine rules simply because dishonest farmers do not comply. Neither is the Board making an irrational classification which denies plaintiff equal protection. True, the Board’s rules may solve only a portion of the PRV problem because dishonest farmers circumvent the rules, but states can legitimately adopt regulations which only partially address the problem sought to be combatted. E.g., Clover Leaf Creamery, 449 U.S. at 466, 101 S.Ct. at 725; Williamson v. Lee Optical Co., 348 U.S. 483, 488-89, 75 S.Ct. 461, 464-65, 99 L.Ed. 563 (1955).

Taking

Plaintiff’s next major argument is that the PRV rules result in a taking of property without just compensation, in violation of the United States Constitution. Presumably, plaintiff’s argument is that the taking results from the reduction in value caused by the PRV rules. Defendants, on the other hand, state that the contraction of the disease, and not the PRV rules, is what actually causes plaintiff to lose money.

Defendants also rely on a variety of case law to negate plaintiff’s taking claim. In Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568 (1928), the Supreme Court upheld a state statute which required owners to destroy their infected red cedar trees, but the statute did not provide for compensation of the owners. The goal of the statute was to protect apple orchards from the disease red cedar rust. The Supreme Court reasoned that the state could constitutionally decide to destroy one type of property if it was necessary to save other property which the legislature concluded was more valuable. Miller, 276 U.S. at 279, 48 S.Ct. at 247. Here, the Board is not ordering the outright destruction of hogs, but Miller indicates that a state could do so without committing a taking.

Defendants further point to a number of state quarantine programs which have withstood constitutional challenges, including allegations of illegal takings. In Nunley v. Texas Animal Health Commission, 471 S.W.2d 144 (Tex.Civ.App.1971), for example, the plaintiff challenged Texas’ quarantine program to control brucellosis in cattle. The program, like the PRV rules, required that diseased cattle be sold for slaughter. The court acknowledged that the cattle, if healthy and used for breeding, would be worth twice as much as their value for slaughter. Nunley, 471 S.W.2d at 147. Nevertheless, the court concluded that the program’s reducing the value of cattle by requiring their sale for slaughter did not constitute a taking. Nunley, 471 S.W.2d at 150-51. Although not cited by defendants, Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) also supports defendants’ argument by analogy. In Penn Central, the Supreme Court held that a substantial reduction in property value caused by zoning ordinances did not constitute a taking. Penn Central, 438 U.S. at 131, 98 S.Ct. at 2662. Similarly, the PRV rule may cause a substantial reduction in value of the diseased hogs, but the hogs still have some value as they can be sold for slaughter.

Another case upholding a state quarantine of brucellosis infected cattle is Conner v. Carlton, 223 So.2d 324 (Fla.), appeal dismissed, 396 U.S. 272, 90 S.Ct. 481, 24 L.Ed.2d 417 (1969). In Conner, the quarantine required the slaughter of diseased cattle and provided for only a minimal compensation ($12.50 per animal) from the state. The court concluded that even where the minimal payment did not completely compensate farmers, no taking had occurred. Conner, 223 So.2d at 328. As is evident in Conner, quarantine programs which have withstood constitutional challenges often include systems for at least minimal payments to farmers. See also, Burt v. Arkansas Livestock and Poultry Commission, 278 Ark. 236, 644 S.W.2d 587 (1983). The Minnesota program for control of tuberculosis, paratuberculosis, and brucellosis also provides set payments to farmers for slaughter cattle. Minn.Stat. § 35.-09 (1984). These payments are reduced by compensation farmers receive from the United States Department of Agriculture. Minn.Stat. § 35.09 (1984).

Apparently, plaintiff’s request for a claims committee would entail establishing a system whereby farmers would receive some payments for their slaughtered swine. Such a system might be a salutory measure by the legislature, but the failure to provide such payments does not rise to the level of a constitutional deprivation. The court in Griffin v. State, 595 S.W.2d 96, 100 (Tenn.Crim.App.1980) held that the state may constitutionally require the destruction of diseased animals without compensation as long as the state is not actually appropriating the animals for its own use. The Supreme Court of Iowa has also declared that the payment of compensation to the owner of diseased livestock destroyed by the state is a mere gratuity. Loftus v. Department of Agriculture of Iowa, 211 Iowa 566, 232 N.W. 412, 420 (1930), appeal dismissed for want of a substantial federal question, 283 U.S. 809, 51 S.Ct. 647, 75 L.Ed. 1427 (1931).

Substantive Due Process

Plaintiff’s final argument is that the quarantine program is ineffective and non-protective. Defendants argue that such claims do not rise to the level of a federal question and that plaintiff’s recourse is under the state statute which allows agency rules to be challenged in state district court. Minn.Stat. § 14.44 (1984). Defendants’ position would be correct if plaintiff were arguing only that the quarantine program could be improved. However, plaintiff most likely is arguing not only that the quarantine program could be improved, but also that the program is totally irrational and arbitrary. This latter claim amounts to a substantive due process attack under the fourteenth amendment.

Challenges to economic regulations on the basis of substantive due process are extremely difficult. Just like economic regulations challenged under the equal protection clause, regulations challenged under the due process clause are subject to the very lenient scrutiny of the rational basis test. E.g., Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 124-25, 98 S.Ct. 2207, 2213, 57 L.Ed.2d 91 (1978). In order to be valid, the economic regulation must have only some rational relationship to a legitimate state interest. Exxon, 437 U.S. at 124-25, 98 S.Ct. at 2213. The fact that a regulation is not the best possible regulation, or that the regulation leaves much room for improvement are not justifications for a court invalidating the regulation. See Ferguson v. Skrupa, 372 U.S. 726, 731-32, 83 S.Ct. 1028, 1031-32, 10 L.Ed.2d 93 (1963). Defendants also add that courts should defer to the experience and judgment of administrative agencies “where reasonable minds may differ as to which of several remedial measures should be chosen .... ” Mourning v. Family Publications Service, Inc., 411 U.S. 356, 371-72, 93 S.Ct. 1652, 1661-62, 36 L.Ed.2d 318 (1973).

In sum, plaintiff has pointed out some legitimate concerns concerning the PRY quarantine rules, but none of these concerns rise to the level of a constitutional violation. In the absence of a constitutional violation, the Court cannot sit as a “superlegislature” reviewing the wisdom of legislative and administrative measures. See Ferguson, 372 U.S. at 730-31, 83 S.Ct. at 1031. The Court concludes that the PRV rules are rationally related to combat-ting PRV.

Based on the foregoing, IT IS ORDERED that defendants’ motion to dismiss for failure to state a claim upon which relief can be granted is granted.

LET JUDGMENT BE ENTERED ACCORDINGLY.

      . Plaintiff's complaint does not set out these allegations, but the newspaper articles plaintiff attached to his complaint do contain this information.

      . Humans can safely consume cooked meat from hogs infected with PRV.

      . LCRAR conducts public hearings on agency rules and it has the power to suspend the enforcement of agency rules. Minn.Stat. § 14.40 (1984).

      . The LCRAR did recommend that its staff investigate the possible ethical violations by veterinarians who do not report cases of PRV.

      . Even if the Court were inclined to order defendants to pay damages to farmers, the eleventh amendment and the doctrine of sovereign immunity might make such an order impossible. See, e.g., Edelman v. Jordan, 415 U.S. 651, 664, 94 S.Ct. 1347, 1356, 39 L.Ed.2d 662 (1974).