author: MORAN, District Judge.

text:
    Sherwin RUBENSTEIN, Petitioner, v. CITY OF CHICAGO, a municipal corporation, Respondent. Michael L. SHAKMAN, et al., Plaintiffs, v. The DEMOCRATIC ORGANIZATION OF COOK COUNTY, et al., Defendants.
    Nos. 84 C 8590, 69 C 2145.
    United States District Court, N.D. Illinois, E.D.
    July 18, 1985.
    Gary A. Weintraub, Chicago, Ill., for petitioners and plaintiffs.
    Donald Hubert, Donald Hubert & Associates, James D. Montgomery, Corp. Counsel, City of Chicago, Chicago, Ill., for respondent and defendants.

      . As part of the reorganization, however, the environmental lead office was transferred from Rubenstein's division to another department. Even after the lead section was removed, Rubenstein supervised a budget of over $1,000,000 and a potential staff of over 40 workers.

   MORAN, District Judge.

MEMORANDUM AND ORDER

This case presents the question whether the respondent City of Chicago violated the Shakman consent decree when firing the petitioner. The cross motions for summary judgment raise two issues: first, whether petitioner’s position is exempt from the decree and, second, if not, whether petitioner’s firing stemmed improperly from his political inclinations.

FACTS

Petitioner Sherwin Rubenstein had been an employee of the City for eighteen years when he was terminated from his job on September 26, 1984. He joined the City workforce as chief virologist within the Division of Laboratories of the Department of Health. In 1976 he was promoted to Assistant Director of Laboratories. As part of a restructuring of the Department of Health in 1980 Rubenstein was placed in charge of the newly established Bureau of Health Regulations.

The Bureau of Health Regulations was divided into three sections. The Institutional Care Section was responsible for enforcing ordinances relating to long term care facilities, hospitals, day care centers, emergency medical services attendants, proprietary medical clinics and proprietary laboratories. The Environmental Section responded to various environmental hazards such as pesticides and included a program designed to abate lead hazards in dwellings. The Complaint Section functioned as an intake mechanism for the over 7500 citizen complaints received each year by the Department of Health. Members of the complaint section handled the investigation of almost 1,000 of these complaints.

In 1983 the budget for Rubenstein’s bureau was $1,400,000 and he was budgeted for 66 workers. In 1984 his budget was about $1,300,000 and the Bureau was budgeted for 53 workers. Rubenstein himself was the eighth highest paid employee in the Department of Health, which has about 1700 employees. He did not hold a civil service position. Rather, he was classified as a member of the Senior Executive Service. Senior Executive Service employees serve at the discretion of the City department commissioners, do not have career service rights and may be terminated from their jobs without a hearing and without cause.

A May, 1980, description of Rubenstein’s position describes it as “responsible for the management and directly relating to the enforcement of Municipal Codes as they relate to the standards established for the City of Chicago’s Department of Health.” The document describes Rubenstein’s function as follows:

This position will coordinate the activities and efforts of immediate subordinate positions by motivating, developing and providing direction. This position will author regulatory ordinances or amendments to existing ordinances for City Council consideration. This position will plan, develop and review the effectiveness of programs that enforce Department of Health guidelines and Municipal Codes.
This position will respond to public, media or outside agency inquiries that ask for clarification of a bureau policy or program. This position will also attend various health-related meetings and conferences.

A section entitled “Position Latitude” reads as follows:

The questions or problems which this position must address, will usually entail the incumbent’s issuing of an interpretation, clarification, or recommendation on a misunderstood or problem regulatory policy, direction, or issue. Because this position also serves the technical consultant to the Department of Health and other city departments/agencies, the incumbent must exercise discretion and independent judgment when arriving at a decision. This position also has authority to hire and terminate Bureau personnel.

Rubenstein’s position, however, was- not without some limits.

If problems that may involve a shift or change affecting Department policy or procedures arise, they will be referred to the Deputy Commissioner. Any problems that involve disclosing of sensitive information would also be referred to the Deputy Commissioner.

The job description also states that Ruben-stein will be “in constant contact” with other ranking Health Department officials concerning not just technical matters but also “information pertaining to health code enforcement.” Rubenstein’s position was described as one with extensive contact with the City’s corporation counsel, the Department of Inspectional Services, and outside agencies and organizations.

In mid-1982 Rubenstein prepared his own description of his job. He listed eighteen position functions, which are set out in full in a footnote. The description states that Rubenstein “[w]ill author regulatory ordinances or amendments to existing Ordinances for City Council consideration. Will plan, develop, and review effectiveness of programs that enforce Department of Health guidelines and Municipal Codes.”

Rubenstein also wrote that his job entailed responding to inquiries from the public, media and outside agencies asking for clarification of a Bureau policy or program. He described himself as responsible for both interpreting and recommending changes in problematic regulatory policies, directions and issues. Rubenstein also indicated that his job functions included preparation of the Bureau’s budget, testifying before the City Council, “heavy public contact in matters dealing with complaints [and] emergencies,” and authority to hire, recommend promotions and terminations of Bureau personnel. In his deposition Rubenstein testified that 60 per cent of his duties were managerial, 10 per cent were technical, and 30 per cent were a combination of the two areas.

The record reveals that Rubenstein actually performed a wide range of tasks. Rubenstein was asked by other public officials to review and comment on proposed ordinances and amendments. He helped draft and revise ordinances. To some extent he served as a conduit for ideas and concerns from health industry and community groups. He testified before City Council and state legislative committees and regularly attended Board of Health meetings. Rubenstein also helped conduct at least one professional symposium.

Rubenstein’s bureau dealt with problems that unquestionably had political implications. For example, the institutional care section was involved with much publicized problems concerning the quality of care at nursing homes. The Bureau was also involved in the Tylenol poisoning problem. Consequently, Rubenstein in the course of his duties was interviewed on television ten to fifteen times and was mentioned or quoted in newspaper articles 20 to 25 times. He also played a behind-the-scenes role with respect to the media, writing speeches and helping draft press releases for the Commissioner.

As part of his work Rubenstein had extensive contact with management level officials both without and within the Department of Health. Because the Bureau’s work often came in reaction to pressing public health problems, he had contact with other public officials involved with these problems. This appears to have been the case not only with highly publicized public health problems but also when his bureau was responding to some of the individual citizen complaints.

The focus of the record, like the litigation, is on the aspects of Rubenstein’s job that may have made him a policymaker. There is no indication, however, that he did not play an active and important role in the day-to-day management of his office and in the operation of the Department of Health as a whole. His actual duties, in short, approximated the full range of those listed in the written descriptions of his job.

In early 1984 the Department of Health was reorganized by the incoming commissioner. The Bureau of Health Regulation was renamed the Division of Health Regulation. In his deposition Rubenstein described the difference between a bureau and a division as “predominantly in lines of reporting.” When Rubenstein headed the Bureau he reported to the deputy commissioner, who in turn reported to the commissioner. After the reorganization Ruben-stein reported to a Bureau chief, who reported to the deputy commissioner, who in turn reported to the commissioner. When asked what other differences resulted from the shift from a bureau to a division, Rubenstein replied that “[n]ot any other that were ever noticeable to me or explained to me.”

DISCUSSION

I.

The history of the Shakman litigation was recently summarized by the Seventh Circuit in Tomczak v. City of Chicago, 765 F.2d 633 (7th Cir.1984), and need not be recounted at length here. Essentially, the May 1972 consent decree enjoined the Shakman defendants from “conditioning, basing or knowingly prejudicing or affecting any term or aspect of government employment, with respect to one who is at the time a governmental employee, upon or because of any political reason or factor.” Shakman v. Democratic Organization of Cook County, 481 F.Supp. 1315, 1358 (N.D.Ill.1979) (reproducing decree).

In a judgment entered over a decade later, the district court held that public employers could apply to the court “for a determination that political party affiliation or activity are appropriate requirements for the effective performance of certain Governmental Employment positions” and that hiring and firing decisions for such positions should be exempt from the Shakman decree. Shakman v. Democratic Organization of Cook County, 569 F.Supp. 177, 182 (N.D.Ill.1983). In an appendix to the opinion the court listed approximately 1200 City positions exempt from application of the decree. Rubenstein’s position was one of the thirty-eight exempted positions in the Department of Health. The district court retained jurisdiction, however, to consider petitions requesting that a particular position be deleted from the appendix as no longer exempt. That provision is the basis of this court’s jurisdiction.

Enforcement of the Shakman decree has proceeded with two Supreme Court decisions as a backdrop: Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). These decisions are important here because they discuss the type of public employment positions for which the First Amendment does not bar personnel decisions based on the political affiliation of the employee.

The Elrod Court allowed the patronage-based dismissal of public employees who were policymakers “to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate.” 427 U.S. at 367, 96 S.Ct. at 2687. See also Shakman v. Democratic Organization of Cook County, 722 F.2d 1307, 1310 (7th Cir.), cert. denied, — U.S.-, 104 S.Ct. 279, 78 L.Ed.2d 258 (1983) (.Petition of Lindsey). The Court described the policymaker as one whose “responsibilities are not well defined or are of broad scope.” 427 U.S. at 368, 96 S.Ct. at 2687. An employee who “acts as an adviser or who formulates plans for the implementation of broad goals” is characteristic of a policymaker. Id.

In Branti, the Court shifted to a more functional approach. See Tomczak, 765 F.2d at 640. A public employment decision can be based on political affiliation if “the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the office involved.” 445 U.S. at 518, 100 S.Ct. at 1295. Political loyalty must be “essential to the discharge of the employee’s governmental responsibilities” in order for the employee’s dismissal to survive First Amendment scrutiny. Id.

In Tomczak, the Seventh Circuit outlined the test for exempt status under the Shakman decree:

[A]n employee’s position is unprotected if, first, there is room for principled disagreement in the decisions reached by the employee and his supervisors, and, second, he has meaningful direct or indirect input into the decisionmaking process.

765 F.2d at 641. The Tomczak Court reversed a lower court’s decision that the first deputy commissioner of the Department of Water was not exempt from the Shakman decree.

Tomczak illustrates the fact-specific approach that district courts must follow in weighing Shakman contempt petitions. However, the decision sets out several helpful guidelines. First, the district court must examine the powers inherent in a public employment position and not simply the functions performed by the present officeholder. At 640. See also Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139 (1982). Second, the Tomczak Court noted that offices devoted to the provision of services to all citizens may still require decisions that are political in nature:

The primary function of any local governmental entity is a provision of services such as police and fire protection, public schools, hospitals, transportation, and libraries, as well as quasi-utility functions such as water, garbage and sewage services. Elections often turn on the success or failure of the incumbent to provide these services, and, as campaigns develop, the opposing sides put forth varying proposals about how best to provide services. While the ultimate goal of all sides might be the same, there is clearly room for principled disagreement in the development and implementation of plans to achieve that goal.

At 641. Finally, the Court looked to specific characteristics of a job position, including (1) the size of the petitioner’s office staff; (2) petitioner’s salary; (3) the percentage of time petitioner devoted to planning functions; (4) the breadth of petitioner’s responsibilities; and (5) the extent of petitioner’s input into the Department’s policies and goals. Id. at 641-642.

II.

The court is well aware of the important constitutional considerations that underlie the Shakman decree. It seeks to avoid blazing a precedential trail that will permit the Shakman exemptions to unduly constrict the scope of the consent decree. This case is somewhat difficult because Ruben-stein’s position is not as high as the first deputy commissioner of the Department of Water, Tomczak, supra, or the superintendent of employment of the Chicago Park District. Petition of Lindsey, supra. Nevertheless, because Rubenstein’s position was devoted to matters of great political sensitivity, and because his position had a substantial role in the decisionmaking process, it is properly exempted from the Shakman decree.

Two important facts characterize Ruben-stein’s position (and the operation of the division he headed). First, it covered areas of high public visibility and concern. The efforts of the Institutional Care Section, for example, directly affected the conditions faced by thousands of Chicagoans in hospitals, nursing homes and other institutional care facilities. Second, much of Rubenstein’s work was reactive, coming in response to various public health crises, like the incidents of Tylenol poisoning and the rash of nursing home deaths. Thus, an important part of Rubenstein’s work was performed in the crucible of focused public attention and concern.

The nature of Rubenstein’s position thus made political loyalty even more essential than in Tomczak, supra, Lindsey, supra, and Vrdolyak v. City of Chicago, 604 F.Supp. 1325 (N.D.Ill.1984) (appeal pending). In each of those cases the work that the petitioner performed or supervised was important but routine. They typically did not engage in highly publicized crisis management of the sort Rubenstein was asked to perform.

Moreover, Rubenstein’s position sometimes thrust him into the media spotlight. In an age where it is said that television has replaced the precinct captain, even occasional media appearances can play a significant role in shaping voter perceptions of the quality of a mayoral administration.

Rubenstein’s position encompassed a broad range of duties. His work was both managerial and technical in nature, with the heavy emphasis on managerial duties. While Rubenstein’s duties were specified, they were not tightly circumscribed by written guidelines or regulations. His was an open-ended position and the open-endedness of the position was heightened by the reactive nature of the job to public health exigencies.

The open-endedness of Rubenstein’s position and the relatively high public visability of the important work of his division meant that there was much room for principled disagreement in the decisions he made and in the decisionmaking process in which he participated. Formulating proper responses to public health emergencies as well as determining the proper level and focus of enforcement efforts are politically sensitive decisions. Such public health decisions are a reflection of the political philosophy of a mayoral administration and an important test of administrative competence in the eyes of the public. Loyalty and political compatability with the incumbent administration are not unimportant qualifications in these circumstances.

The record shows that Rubenstein played a substantial role in decisionmaking on public health issues. He conveyed information from various health care groups to City decisionmakers. His participation in the decisionmaking process was not limited to supplying specific technical information. For example, as a result of his concerns about the operation of the Health Department, Rubenstein and another Health Department official met with the Mayor’s top political adviser to discuss the work of the Commissioner and his two deputies. Rubenstein also drafted ordinances and gave his opinions about ordinances sent to him for review. This suggests that his opinions were actively solicited and, presumably, relied upon.

At least before the Department was reorganized, Rubenstein was part of the inner circle of decisionmakers in the Department of Health. It is unclear if Rubenstein’s exclusion from the inner circle after the reorganization was a function of strained relations with higher officials or attendant with the renaming of his office as a division. Nevertheless, the reorganization did not affect many of the substantive functions of Rubenstein’s office. It is thus apparent that even after the reorganization Rubenstein’s position was situated as as to play an important decision making role, especially during public health crises. Moreover, the technical information developed in the Division of Health Regulations, and its many enforcement functions, ensured that the occupant of Rubenstein’s office will play a major decisionmaking role about even less pressing problems.

Rubenstein’s position also is accompanied by the indicia of an exempt position. His salary put him in the top one-half of one per cent of the Health Department workforce. He supervised a substantial staff of at least 40 employees, divided among three sections. His job was not covered by civil service restrictions. Cf Lindsey, 722 F.2d at 1308. He devoted the majority of his time to managerial activities.

Petitioner relies heavily upon Vrdolyak v. City of Chicago, 604 F.Supp. 1325 (N.D. Ill.1984) (appeal pending), but that case is distinguishable. First, Rubenstein was directly responsible for an office containing three sections. Vrdolyak's job, in contrast, was primarily as an assistant to a bureau director, and only as part of his job did he direct a single section. As an assistant, Vrdolyak’s position was less likely to play a major decisionmaking role. Second, Rubenstein’s position was more oriented towards crisis management than Vrdolyak’s. There is no indication, for example, that Vrdolyak’s work ever thrust him into the media spotlight. Third, unlike Rubenstein, there is no indication that Vrdolyak played an active role in the drafting and amending of City ordinances. Because of these substantive differences, the fact that Ruben-stein’s and Vrdolyak’s lines of bureaucratic communication to the department commissioner were of roughly equal length is not decisive. The proper focus is on the actual responsibilities attendant with a position and not its location in the organizational flow chart.

Petitioner also suggests that the policy-making functions of the Health Department were limited because the Board of Health was responsible for setting Department policy. The Board is appointed and meets monthly. City agencies, however, are all subject to oversight by, at a minimum, the Mayor and the City Council. The existence of oversight does not mean that the top members of City agencies do not have significant policymaking roles. See Tomczak, 765 F.2d at 642-43. Moreover, in Lindsey the petitioner’s agency was governed by an appointed commission. This fact did not prevent the court from determining that a high ranking position in the agency was exempt.

For all these reasons, Rubenstein’s position is properly exempt from the Shakman decree. Consequently, whether Ruben-stein’s firing was prompted by his political affiliation is a moot question. The circumstances of Rubenstein’s forced departure from City government are not especially appealing. Nevertheless, in the rough-and-tumble world of politics, high ranking public officials must be subject to replacement by each City administration. Elected officials have a right to assemble a cadre of dedicated, trustworthy and loyal administrators who can be relied upon to implement policy changes.

CONCLUSION

Respondent’s motion for summary judgment is granted. Petitioner’s motion for partial summary judgment is denied.

      . Rubenstein was also in charge of a code enforcement program relating to funeral establishments. Presumably because the inspectors came from another division, this function was not organized into a separate section under Rubenstein’s control.

      . Rubenstein outlined 18 position functions which were supposed to be listed in descending order of importance:
      1. Is responsible for management and direction of a Bureau directly related to the enforcement of Municipal Codes as they relate to

        the standards established for the Department of Health.
      2. Will serve as technical consultant to the Department of Health and other city departments/agencies in matters pertaining to health code enforcement.
      3. Will coordinate the activities and efforts of immediate sub-ordinate positions by motivating, developing and providing direction.
      4. Will author regulatory ordinances or amendments to existing Ordinances for City Council consideration. Will plan, develop, and review the effectiveness of programs that enforce Department of Health guidelines and Municipal Codes.
      5. Will respond to public, media or outside agency, inquiries that ask for clarification of a Bureau policy or program; and attend various health-related meetings and conferences.
      6. To provide effective leadership and develop measures for sub-ordinates and their staff to aide in adjusting to new changes and working as a cohesive unit.
      7. The incumbent will interpret, clarify or recommend on a misunderstanding or problem regulatory policy, direction or issue.
      8. Will serve as technical consultant to Department of Health and other city departments/agencies, etc., and exercise discretion and independent judgment when arriving at a decision.
      9. Will exercise the authority to hire, recommend promotions and terminate Bureau Personnel.
      10. Will be in direct contact with other departmental Administrators and Bureau Directors regarding information pertaining to health code enforcement and provide technical information and advice; will exchange legal questions and information with the City’s Corporation Counsel. Responsible for consulting with the Department of Inspectional Services in the development and establishing of inspectional procedures and assist other City, State and ■Federal Agencies as to health related information to be exchanged and consulted upon to include University, United States Food and Drug Administration and various other Health Service Organizations.
      11. Consult with Department Administrators and Bureau Directors to establish and enforce health care regulations/policies to ensure the safety of the public at large.
      12. Motivate, develop and provide direction for immediate subordinates to increase efficiency of the Bureau of Health Regulations.
      13. Interpret and clarify Department of Health policies or program for Department Administrators, Bureau Directors, or immediate sub-ordinates to ensure thorough understanding and intent of the policy or program and its proper implementation.
      14. Author regulatory ordinances or amendments to existing ordinances affecting Department of Health programs to ensure better health protection/care for the citizens of Chicago.
      15. Responsible for budget preparation and submission and oversee purchases and expenditures for the Bureau as a whole.
      16. Responsible for testifying before the City Council on Ordinances to be considered and passed by them.
      17. Heavy public contact in matters dealing with complaints, emergencies, and also as a guest speaker before interested organizations and civic groups.
      18. Spokesman for regulatory and technical information to the Media.

      . The Tomczak Court stressed that a petitioner need not have final decisionmaking power in order to be exempt. It recognized the important role played by public employees who are relied upon for policy recommendations and implementation efforts:
      In a further effort to demonstrate that plaintiff lacked decisionmaking authority plaintiff refers to the fact the City Council had to approve all construction plans proposed by the Department. Yet, plaintiff acknowledges that he was the first supervisor to review plans developed by the Department’s engineers. The executive branch of the municipal government is not always in agreement with the legislative branch, and the fact that policies with respect to new construction must be formulated by the Commissioner and Deputy Commissioner could have a significant impact on the administration’s ability to carry out its policies. Without the ability to entrust the furtherance of these policies to plaintiff, [plaintiff’s supervisor] could not ensure adequate support for the administration’s goal.
      At 642.

      . Respondent advises that the City Council has refused to approve or even consider the current mayor’s appointments to the Board of Health. While this delay may be an acceptable tactical ploy during political in-fighting, it illustrates that each administration needs to have discretion in hiring top echelon public officials. Otherwise, an administration would have no opportunity to reshape city operations.

      . Thus, the court need not consider petitioner’s motion to strike portions of various affidavits.


source: Caselaw Access Project

author: BARRINGTON D. PARKER, District Judge:

license: Public Domain

text:
    Raymond J. DONOVAN, Secretary of Labor, Plaintiff, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant.
    Civ. A. No. 84-2161.
    United States District Court, District of Columbia.
    July 19, 1985.

      Francis X. Lilly, Donald S. Shire, Joseph M. Walsh, Joshua T. Gillelan, II, U.S. Dept, of Labor, Washington, D.C., for plaintiff.
    Robert L. Polk, William B. Bircher, Carol A. Sigmond, Mark R. Pohl, Washington Metropolitan Area Transit Authority, Washington, D.C., for defendant.
   MEMORANDUM OPINION

BARRINGTON D. PARKER, District Judge:

Before the Court are cross-motions for summary judgment filed by the parties in the above-captioned matter. The resolution of this case turns upon whether the Washington Metropolitan Area Transit Authority (WMATA), which is tax-exempt, is required to contribute to a special fund under section 44(c)(2) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 944(c)(2) (Supp. 1985). Because the Court is convinced that the required contribution does not constitute taxation and that, in any event, WMA-TA’s exemption would not be applicable to workmen’s compensation contributions, the Court grants summary judgment for plaintiff.

I.

BACKGROUND

WMATA operates public transit facilities and services in the metropolitan Washington, D.C. area. It is a creature of an interstate compact ratified by the Congress. See D.C.Code 1-2431 (Supp.1984). In addition to declaring the purposes, functions, organization and operation of WMA-TA, the Compact also provides that WMA-TA “shall not be required to pay taxes or assessments upon any of the property acquired by it or under its jurisdiction, control, possession or supervision or upon its activities in the operation and maintenance of any transit facilities or upon any revenues therefrom and the property and income derived therefrom shall be exempt from all federal, State, District of Columbia, municipal and local taxation____”

WMATA, as an employer in the District of Columbia, is subject to the LHWCA, as extended by the District of Columbia Workmen’s Compensation Act, 45 Stat. 600, formerly codified at 36 D.C. Code §§ 501-502 (1973) (“DCWCA”). The LHWCA is designed to insure that eligible employees are compensated fairly for claims arising out of their employment and is to be liberally construed. Director, Office of Workers’ Compensation Programs, United States Department of Labor v. Perini North River Associates, 459 U.S. 297, 103 S.Ct. 634, 74 L.Ed.2d 465 (1983). As part of the scheme for funding of claims, section 44(c)(2) of the LHWCA requires that every insurer of an employer under the Act contribute to a “special fund,” the purpose of which is to provide supplemental compensation to claimants in specific instances.

From 1973 until the time this action was commenced, WMATA operated as a self-insurer under the LHWCA. See 33 U.S.C. § 932(a)(1) and (2). As required of all self-insurers, WMATA contributed to the special fund without protest from 1973 until the middle of 1983, when it refused to make any further payments. WMATA asserted in the middle of 1983 that its tax exemption under § 78 of the Compact excused it from liability under § 44(c)(2) of the LHWCA. The Court is called upon to determine whether this assertion is accurate and tenable.

II.

ANALYSIS

A. Contributions Under Section 44(c)(2) Do Not Constitute Taxation

WMATA argues in support of its contention that it has a tax-exempt status, that the contributions required by the LHWCA constitute a tax and not some other form of payment from which it would not be exempt. In support of this argument, it relies upon Massachusetts v. United States, 435 U.S. 444, 98 S.Ct. 1153, 55 L.Ed.2d 403 (1978). However, the Court concludes that defendant’s reliance on this case is misplaced. Massachusetts v. United States involved a determination whether a charge was a tax or a user fee under the Airport and Airway Revenue Act of 1970. The test enunciated in that case was specifically tailored to address the question of whether a “registration tax” imposed by the federal government constituted an abuse of the federal taxing powers so as to interfere with a state’s ability to perform essential services. The Court did not undertake to define a tax for general purposes and the specific factual and legal context in which that case arose makes it an undesirable precedent to govern the instant litigation. By contrast, several other eases indicate that an involuntary payment is a tax when it is assessed upon persons or property in order to raise general revenue to defray the public expense. Pace v. Hannibal, 680 S.W.2d 944 (Mo.1984); Nebraska Public Power District v. Hershey School District, 207 Neb. 412, 299 N.W.2d 514 (1980); Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578 (Tenn.1975). This general rule suggests that contributions used to supply a specific fund with a specific purpose — in this case providing supplemental benefits in second injury cases — are not “taxes” within the meaning of the WMATA Compact. The funds contributed under § 44(c)(2) of the LHWCA do not in a general sense finance the public expense. To the contrary, these funds are utilized only to provide supplemental benefits in second injury or upgraded compensation cases. As such, they hardly can be viewed as a tax, as generally defined.

B. Even if Contributions Under Section 44(c)(2) Constitute Taxation, Tax Exemption Does Not Apply

If the contribution into the special fund is not a tax, then there is no statutory exemption shielding WMATA from liability. However, even if the contribution were to be viewed as a tax, the statutory exemption would not apply in this case, based on the controlling statutory construction, legislative history, judicial interpretation and congressional policy.

1. Statutory Construction

By its very terms, the exemption does not shield WMATA from liability under LHWCA § 44(c)(2). It only protects WMA-TA from taxes and assessments on its property, its activities or its revenues. Contrary to defendant’s position, this is not an all-inclusive exemption, but rather one which is limited to specified areas. This is not to say that an exemption from taxes on property, activities and revenues is not a broad exemption. Such an exemption, however, is not so broad so as to preclude any taxation whatsoever. This statutory construction is consistent with the approach employed in this Circuit:

An intention on the part of the legislature to grant an exemption from the taxing powers of the state will never be implied from language which will admit of any other reasonable construction.

Washington Chapter of American Institute of Banking v. District of Columbia, 203 F.2d 68, 70 (D.C.Cir.1953). Therefore, the payments to the special fund, even if considered a tax, are not included in the exemption because the payments are not taxation of property, activities or revenues.

2. Legislative History

The legislative history on the statutory sections under consideration underscores that the intention of Congress was not to exempt WMATA from making contributions into the fund. The House Judiciary Committee Report provides in part:

Section 78. Tax Exemption. — Declares that the creation of the Authority and its purposes are for the benefit of the people of the signatory States and is for a public purpose and that the Authority and the Board will be performing governmental functions. Provides further that the property, activities, and revenues of the Authority and of the Board shall be exempt from all Federal, State, District of Columbia, municipal, and local taxation.

H.R.Rep. 89-1914, 89th Cong., 2d Sess. (1966).

Although the legislative history reiterates that the purpose of the Compact is to benefit the public, it also emphasizes that the exemption is not absolute, but is limited to property, activities, and revenues of WMATA. Congress easily could have provided a blanket exemption but it chose not to do so. The section 44(c)(2) contributions are an example of payments that do not qualify for exemption under WMATA Compact § 78.

3. Judicial Interpretation

Cases construing tax exemptions in similar contexts have reasoned that workmen’s compensation acts requiring contributions to finance the operation of the program do not permit exceptions to the contribution requirement, even where the exception is sought by a tax-exempt organization. In Port Authority of Allegheny County v. Smith, 33 Pa.Commw. 410, 382 A.2d 153 (1978), a state workmen’s compensation act required all insurers or self-insurers to contribute an annual assessment into a fund in order to finance the state workmen’s compensation program. The Port Authority, which was exempt by statute from paying “any taxes or assessments upon any property acquired or used by it,” paid the assessment under protest. After a Department of Labor Hearing Examiner determined that the legislature intended all insurers without exception to contribute into the fund, the Port Authority appealed to the Pennsylvania Commonwealth Court. Based on its application of statutory construction, the state court affirmed the decision of the Hearing Examiner. The statutory construction employed by the Pennsylvania court, 382 A.2d 155, is instructive for present purposes:

[T]he legislature did not exempt an authority from paying all taxes or assess-merits, but only those taxes or assessments upon property acquired or used by [it]____ The assessment payable here is calculated upon the total amount of compensation paid by each insurer or self-insurer in a given calendar year____ [W]e fail to see how this assessment is an assessment upon port authority property acquired or used in connection with any of [its] authorized purposes____(citations omitted).

In further response to the contention that immunity should attach based on the rule that public property devoted to public uses is immune from taxation absent a statute clearly expressing legislative intent that it shall not be immune, the court reasoned:

First, we are not construing a taxing statute in this ease. In issue here is a provision ... designed to relieve the general funds of the Commonwealth from the burden of costs in administering a humanitarian measure. Second, even if [the assessment] were to be viewed as a taxing statute, [it] cannot be said to impose a tax upon public property devoted to the authorized public purposes of the Port Authority. The assessment assessed here is upon the total amount of compensation paid by an insurer or self-insurer, which amount does not constitute “public property” as that concept has been enunciated in the case law cited.

Id. The two quoted passages illustrate not only that the exemption enjoyed by WMA-TA is not all-inclusive, but also that it is insufficient in this case to insulate WMA-TA from contributing to the workmen's compensation fund.

4. Congressional Policy

The Court also notes that permitting WMATA an exemption from contributing to the special fund is inconsistent with congressional policy. The purpose of paying benefits out of the fund is to spread the costs among all employer’s insurers. Had WMATA not been self-insured, its insurer would have had to contribute to the fund. All the other participants’ liabilities are increased due to WMATA’s refusal to pay. The Court concludes that WMATA’s refusal is in contravention of the statutory requirement that “[b]y insuring and keeping insured the payment of compensation under this chapter, the employer shall secure the payment of compensation.” 33 U.S.C. § 932(a)(1) (emphasis added).

Moreover, WMATA has abided by its other responsibilities under the LHWCA. It has not asserted that it is exempt from direct liabilities to workers in the case of injury, see 33 U.S.C. §§ 907-909 and 910(f), attorney’s fees, see 33 U.S.C. § 928, or liability imposed by statute for mishandling claims, see 33 U.S.C. §§ 914(g) and 930(e). Liability under § 944(c)(2) is merely an extension of these direct liabilities under the statute for employment-related injuries and death. Therefore, section 44(c)(2) assessments are no more taxes or assessments than are those parts of employers’ and carriers’ workmen’s compensation liabilities owed directly to injured workers, their survivors and their medical care providers.

III.

CONCLUSION

For the reasons articulated above, the Court concludes that the assessment against WMATA under the LHWCA is not a tax and that, even if it is viewed as a tax, it is not within the purview of the tax exemption provided by the WMATA Compact. The plaintiff’s motion for summary judgment should be granted. As is obvious from the body of this opinion, WMATA is not entitled to reimbursement for any amounts it has contributed to the fund in the past.

      . Liability for injuries arising' out of employment after July 26, 1982 is determined by successor legislation to the DCWCA. See D.C.Code §§ 36-301 et seq. (Supp.1984).

      . A primary purpose of § 44(c)(2) is to discourage discrimination against the disabled. Section 8(f) of the LHWCA protects employers of a disabled employee who suffers a second injury in the course of his employment from paying more than such an employer would pay had he hired a non-disabled worker. The employer is directly responsible only for the harm caused by the second injury. Any additional compensation is covered by the special fund, to which all employers’ insurers contribute. Thus, no employer is discouraged from hiring a disabled worker for fear of aggravated exposure in the event of a second injury.

      . Plaintiff notes that WMATA’s refusal to contribute to the fund prior to 1982 would have been a basis upon which WMATA’s status as a self-insurer could have been denied or revoked. Since 1982, no insurance requirement has been in effect with respect to employers. Therefore, WMATA’s status as a self-insurer no longer was in jeopardy, even upon refusal to comply with § 44(c)(2). Although WMATA asserts that its refusal to pay the assessment is based upon reevaluation of the propriety of compliance, the Court finds striking the coincidence in time between WMATA’s refusal to pay and the termination of its obligation to pay as a self-insurer.

      . Defendant also urges that In re Pan American Paper Mills, Inc., 618 F.2d 159 (1st Cir.1980), illustrates that contributions into a workmen’s compensation fund constitute taxation. The Court rejects this argument based on its view that the Pan American case is unpersuasive in a nonbankruptcy context. See infra, p. 1423, n. 8.

      . The Supreme Court held in Massachusetts v. United States, that a charge would be considered a user fee and not a tax if the charge (1) was imposed in a nondiscriminatory manner; (2) was based on a fair approximation of each pay- or's share of the cost of the benefit received; and (3) was not excessive in relation to the cost to the government of the benefits received by the payor.

      . Defendant notes correctly that taxes ordinarily are exacted for a public purpose. While compensation of injured workers is without question within the public interest, the Court views such contributions as less a legislative exactment than a part of the statutory dynamic between tort immunity for employers' and workmen’s compensation.

      . The Court treats the statutory use of the word "assessments" as signifying only a localized liability, Denver v. Tihen, 77 Colo. 212, 235 P. 777 (1925), and thus focuses its attention solely on whether a tax exemption exists.

      . Defendant places reliance on In re Pan American Paper Mills, Inc., 618 F.2d 159 (1st Cir.1980). The issue in Pan American was whether compulsory workmen’s compensation of the type existing in this case constituted a tax under the Bankruptcy Act. The court held that such payments were a tax because they were a “pecuniary obligation to defray the expenses of government.” Defendant urges that Pan American should govern the resolution of the present case. However, the Court notes, first, that Pan American is factually and legally distinguishable and, second, that Pan American and every case which has cited it involved the definition of “tax” in the specific context of the Bankruptcy Act. See, e.g., In re Payne, 27 B.R. 809, 815 (D.Kan.1983) (Pan American rejected a line of cases holding that workmen’s compensation contributions were not for a public purpose so as to constitute a tax, but rejected such cases only in the context of the bankruptcy act).


author: DOWD, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. John TOLCZEKI, Jr., Defendant.
    Civ. A. No. CR85-105.
    United States District Court, N.D. Ohio, E.D.
    July 29, 1985.
    Richard R. Lillie, Asst. U.S. Atty., Cleveland, Ohio, for plaintiff.
    Gordon S. Friedman, Friedman, Gilbert & Berezin, Cleveland, Ohio, for defendant.
   MEMORANDUM OPINION

DOWD, District Judge.

Before the Court is the Motion of the Defendant, John Tolczeki, Jr., to dismiss the indictment against him in Case No. CR85-105 on grounds that it “is contrary to the First, Fourth, Fifth and Ninth Amendments to the United States Constitution.” Defendant’s Motion is opposed by the Plaintiff, United States of America. For the reasons which follow, Defendant’s Motion is denied.

Defendant argues that 18 U.S.C. § 2252 violates the fifth amendment due process clause by failing to give adequate notice to persons potentially subject to it. Defendant argues that the statute encompasses persons, as violators of the statute, who have no intention of committing a criminal act. Defendant argues that this statute “turns a non-violation, private possession of sexually explicit pictures, into a federal offense merely by the presumably noncriminal act of sending the picture to another person through the mail,” without notice that the otherwise innocent possession is made criminal by such conduct. Defendant further argues that the statute is an overbroad restriction of first amendment rights since it “has the effect of denying access to the mails to particular persons who desire to share privately their enjoyment of a particular form of expression.” Lastly, Defendant argues that the statute unconstitutionally invades the individual’s right to privacy. Citing Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), Defendant argues that “[i]f one has the constitutional right to privately possess certain materials, it seems also that the person has the right to share that material privately with another.” Defendant also argues that the statute violates “a general expectation of privacy in the mails.”

In response, the Plaintiff argues that the strict three prong obscenity test set out by the Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), reh’g denied, 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128 applies to adult pornography, and not child pornography. Plaintiff points to New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), in support of its argument that the obscenity test for child pornography is not as rigorous, and states that Congress passed the statute in question, 18 U.S.C. § 2255, among others, in May of 1984 in response to the Ferber decision. Defendant states that under the statute the prosecution need not prove that a depiction of a minor engaged in sexually explicit conduct is obscene.

DISCUSSION AND LAW

Defendant’s claims that the statute fails to give adequate notice to persons who are potentially subject to it is essentially an argument that the statute is void for vagueness. That is, “that it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.” See United States v. Bryant, 716 F.2d 1091, 1095 (6th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 1006, 79 L.Ed.2d 238 (1984), citing Bouie v. Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964) and Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979). A particular criminal statute must provide fair warning as to what it actually prohibits. United States v. Rosenbarger, 536 F.2d 715, 721 (6th Cir.1976), cert. denied, 431 U.S. 965, 97 S.Ct. 2920, 53 L.Ed.2d 1060 (1977). When the challenged statute defines criminal offenses or impinges upon activities protected by the first amendment, a greater degree of precision is required. See Record Revolution No. 6, Inc. v. City of Parma, 638 F.2d 916, 927 (6th Cir.1980). That way, citizens are not “chilled” from exercising their constitutional right to freedom of expression. See Sovereign News Co. v. Falke, 448 F.Supp. 306, 406 (N.D.Ohio 1977). The standard ordinarily used to determine whether a statute is void for vagueness is whether men of common intelligence must necessarily guess its meaning. See id. at 406 n. 359, citing Broadrick v. Oklahoma, 413 U.S. 601, 607, 93 S.Ct. 2908, 2913, 37 L.Ed.2d 830 (1973); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). As stated by the Court in Smith v. Sheeter, 402 F.Supp. 624, 628 (S.D.Ohio 1975), “[t]he primary issue raised by the doctrine is whether the particular statute is sufficiently definite to give fair notice to one who would afford it sanctions, and ascertainable standards to the factfinder who must adjudicate guilt under it.”

The provisions of 18 U.S.C. § 2252 state, in relevant part, as follows:

(a) Any person who—
(1) knowingly transports or ships in interstate or foreign commerce or mails any visual depiction, if—
(A) the product of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct; or
(2) knowingly receives, or distributes any visual depiction that has been transported or shipped in interstate or foreign commerce or mailed or knowingly reproduces any visual depiction for' distribution in interstate or foreign comerce or through the mails, if—
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;
shall be punished as provided in subsection (b) of this section.

The Court finds the statute sufficiently specific and definite to give fair notice to potential offenders. The statute does not cause men of common intelligence to guess at its meaning and differ as to its application. See Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926), cited in Smith v. Sheeter, supra, at 629. Thus, the statute does not offend a standard of fairness by entrapping unwary individuals and encouraging arbitrary and capricious enforcement. See Smith v. Sheeter, supra.

The government points to evidence allegedly establishing, on a subjective analysis of the notice question, that this defendant knew his activities were proscribed by the standard in question. However, the Court notes that the defendant challenges the statute itself, not its subjective application to him, as to whether or not it provides any potential violators fair warning of its prohibitions. As stated by the Court in Record Revolution No. 6 v. City of Parma, 492 F.Supp. 1157, 1168 (N.D.Ohio 1980), “the determination whether a criminal statute provides fair warning of its prohibitions must be made on the basis of the statute itself and the other pertinent law, rather than on the basis of an ad hoc appraisal of the subjective expectations of particular defendants,” citing Bouie v. City of Columbia, supra, 378 U.S. at 355 n. 5, 84 S.Ct. at 1703 n. 5 (1964). Thus, it is irrelevant whether this particular Defendant had fair warning of the prohibitions of the statute in question. Rather, the question is whether the statute provides fair warning of its prohibitions to men of common intelligence, on an objective basis, which, as stated, the Court has found the statute does.

The Defendant argues that the statute is unconstitutional since it does not require mens rea, i.e., criminal intent to violate the law, even though it requires knowledge of one’s conduct. Defendant cites to the Court the recent case of Liparota v. U.S., — U.S. -, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985) for the proposition “that criminal offenses requiring no mens rea have a generally disfavored status.” In Liparota, the United States Supreme Court ruled on the question of whether proof of mens rea was required for a conviction under the criminal offense in question, the unlawful acquisition and possession of food stamps. Finding that the language and legislative history of the statute did not indicate a contrary purpose, the Court held that the statute in question required proof of mens rea, i.e., “that the defendant knew that his acquisition or possession of food stamps was in a manner unauthorized by statute or regulations.” Id. 105 S.Ct. at 2092.

Stating their respective positions, the parties addressed the issue as follows. The government argued that mens rea was not a prerequisite for conviction, and that in order to convict the defendant of the offense in question, it need only prove that the defendant “[1] knew that he acquired or possessed food stamps and ... [2] in fact that acquisition or possession was in a manner not authorized by statute or regulations.” Id. at 2087. Defendant argued in opposition that the statute required proof of mens rea, and that the government was required to prove that the defendant [1] knew he had “acquired or possessed food stamps and ... also ... [2] [knew] that he ha[d] done so in an unauthorized manner.” Id.

The Court stated that Congress had not explicitly specified the mental state required for conviction of the statutory offense in question. The Court wrote that “[although Congress certainly intended by use of the word ‘knowingly’ to require some mental state with respect to some element of the crime [in question], the interpretations proffered by both parties accord with congressional intent to this extent. Beyond this, the words [of the statutory provision in question] themselves provide little guidance.” Likewise, the Court found that the legislative history failed to clarify the congressional purpose or intent on the mens rea issue. Thus, the Court stated, absent a showing otherwise by the statutory language or legislative history, it believed the statute under consideration to require a showing that the Defendant knew that his conduct was unauthorized by statute or regulations. The Court wrote:

‘The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.’ Morissette v. United States, supra, 342 U.S. [246], at 250 [72 S.Ct. 240, at 243, 96 L.Ed. 288]____ Thus, in United States v. United States Gypsum Co., 438 U.S. 422, 438 [98 S.Ct. 2864, 2874, 57 L.Ed.2d 854], ... (1978), we noted that “[certainly far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement” and that criminal offenses requiring no mens rea have a “generally disfavored status.” Similarly, in this case, the failure of Congress explicity and unambiguously to indicate whether mens rea is required does not signal a departure from this background assumption of our criminal law.
This construction is particularly appropriate where, as here, to interpret the statute otherwise would be to criminalize a broad range of apparently innocent conduct____ Of course, Congress could have intended that [a] broad range of conduct be made illegal, perhaps with the understanding that prosecutors would exercise their discretion to avoid such harsh results. However, given the paucity of material suggesting that Congress did so intend, we are reluctant to adopt such a sweeping interpretation.
In addition, requiring mens rea is in keeping with our longstanding recognition of the principal that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” ... Although the rule of lenity is not to be applied where to do so would conflict with the implied or expressed intent of Congress, it provides a time-honored interpretive guideline when the congressional purpose is unclear. In the instant case, the rule directly supports petitioner’s contention that the government must prove knowledge of illegality to convict him [under the statutory provision in question].

Id. at 2088-2089.

This Court finds that the Liparota ease is distinguishable from the ease at bar. That fact is evident when this case is subjected to a Liparota-type analysis. To phrase the issue before this Court in terms similar to those used in Liparota, the government argues first that to be convicted under this statute, the offender merely need have knowledge of his conduct, i.e., knowingly transport, ship, receive, or distribute in interstate or foreign commerce, or mail, or reproduce for distribution in interstate or foreign commerce through the mails, the prohibited material. Second, the government argues that the conduct must be statutorily unlawful, and that the prosecution need not prove the offender knew of the statutory prohibition. The Defendant’s argument is that the omission of the mens rea element wrongly omits the morally blameworthy element of the charged crime, and thus argues that one should be convicted under the statute only if he knowingly transported, shipped, received, or distributed in interstate or foreign commerce, or mailed or reproduced for distribution in interstate or foreign commerce through the mails, the prohibited material, and, if he also knew that doing so was statutorily unlawful. Unlike the Court in Liparota, however, this Court does not face the dilemma that the interpretations proffered by both parties arguably accord with congressional intent enacting this statute. Rather, Congress indicated precisely the nature of its intent in legislating the statute in question.

In enacting the Child Protection Act of 1984, 18 U.S.C. § 2251 et seq., Congress found that:

(1) child pornography has developed into a highly organized, multi-million-dollar industry which operates on a nationwide scale;
(2) thousands of children including large numbers of runaway and homeless youth are exploited in the production and distribution of pornographic materials; and
(3) the use of children as subjects for pornographic materials is harmful to the physiological, emotional, and mental health of the individual child and to society-

See Pub.L. 98-292, § 2. The congressional intent in enacting this Act, as reflected in these findings, was clearly to eliminate and prevent the sexual exploitation of children.

The Court’s determination in New York v. Ferber, supra, a case decided after the 1977 Act, reflects the intent of Congress. In Ferber, the Supreme Court reviewed “a New York criminal statute which prohibits persons from knowingly promoting sexual performances by children under the age of 16 by distributing material which depicts such performances.” Id. 458 U.S. at 749, 102 S.Ct. at 3350. Recognizing that the exploitation of children in pornography is a serious national problem, see id., the Court wrote that “[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” Id. at 757, 102 S.Ct. at 3355. The Court noted that the United States and virtually all of the states had passed legislation proscribing child pornography, and addressed the reason for and purpose of the legislative enactments. “The legislative judgment, as well as the judgment found in the relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child.” Id. at 758, 102 S.Ct. at 3355. The Court continued:

[t]he distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation. Second, the distribution network for child pornography must be closed if the production of material which requires the sexual exploitation of children is to be effectively controlled.

Id. at 759, 102 S.Ct. at 3355 (footnote omitted).

The Child Protection Act of 1984 was passed as an amendment to The Protection of Children Against Sexual Exploitation Act of 1977. The 1984 Act significantly-eased the requirements for a conviction under 18 U.S.C. § 2252. Specifically, the 1984 Act eliminated the requirement that any person who engages in the prohibited conduct do so for the purpose of sale or distribution for sale, and further eliminated the requirement that the material involving the use of a minor engaged in sexually explicit conduct be obscene. These and other changes indicate the intent of Congress to strengthen its efforts to protect children from exploitation via child pornography by easing the requirements for conviction under the Act.

The ruling of the Seventh Circuit Court of Appeals in United States v. Langford, 688 F.2d 1088 (7th Cir.1982), cert. denied, 461 U.S. 959, 103 S.Ct. 2433, 77 L.Ed.2d 1319 (1983), lends support to a broad interpretation of the Act in order to carry out that congressional intent. In Langford, the Court interpreted the use of the word “purpose” in the 1977 Act. The Court wrote that the use of the word purpose did not require the appellant to have mailed obscene material with the intent to make a sale, but stated that the term encompassed and prohibited “any future plan or scheme of the commercial pornographer to sell or distribute the obscene prints for sale.” Id. at 1096. Further, the Court wrote that the appellant’s mailing of obscene negatives to a photography laboratory to process into prints came within the ambit of the statutory prohibition where the Court’s “review of the legislative history of the pornography statutes shows that Congress was concerned with the overall chain of commercial pornography.” Id. at 1097. Commenting on its expansive reading of the statutory use of the term purpose, the Court wrote, “[w]e hold it is clear that Congress intended to wipe out the entire spectrum of child pornography and in doing so saw fit to broaden • the scope of the legislation through the use of the term ‘purpose.’ A term intended to include each and every aspect of the business enterprise of peddling filth.” Id.

The Court finds that the language of the 1984 amendments do not indicate that they should be interpreted other than in the broad fashion in which the 1977 Act has been interpreted, i.e., to effect the clear purpose of the Act to eradicate child pornography. Indeed, as noted above, the 1984 amendments eased the requirements for conviction under the Act. Accordingly, the Court holds that a clear reading of the statute in question against the background of Congress’ express intent in enacting the statute, to eliminate the sexual exploitation of children in child pornography, indicates that Congress specifically omitted a mens rea requirement for conviction under the statute in order to establish a per se rule making it illegal for persons to knowingly transport, ship, receive, or distribute in interstate or foreign commerce, or mail, or reproduce for distribution in interstate or foreign commerce or through the mails the prohibited materials involving sexual exploitation of minors.

As to Defendant’s arguments that 18 U.S.C. § 2252 is an overbroad restriction of first amendment rights, the Court finds that, for the reasons set forth by the Supreme Court in New York v. Ferber, supra, 458 U.S. at 766-74, 102 S.Ct. at 3859-64, citing Broadrick v. Oklahoma, supra, in its review of a similar overbreadth challenge, the Court finds that 18 U.S.C. § 2252 is not unconstitutionally overbroad. As to Defendant’s claim that the statute unconstitutionally invades one’s right to privacy, it is clear that one “has a constitutionally protected right to possess obscene materials in his home.” See United States v. Thoma, 726 F.2d 1191, 1198 (7th Cir.1984), cert. denied, — U.S.-, 104 S.Ct. 2683, 81 L.Ed.2d 878, citing Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). However, the Defendant forfeited the protection of Stanley when he knowingly used the mails to send the prohibited material. See Thoma, supra, at 1198. Defendant’s contention that the statute invades his right to privacy is also without merit.

For the reasons above stated, Defendant’s Motion to Dismiss the Indictment is overruled.

      . Vacated and remanded on other grounds, 451 U.S. 1013, 101 S.Ct. 2998, 69 L.Ed.2d 384 (1981) and 456 U.S. 968, 102 S.Ct. 2227, 72 L.Ed.2d 840 (1982); aff'd, 709 F.2d 534 (1983).

      . Remanded, 610 F.2d 428 (6th Cir.1979); reh’g denied, 448 U.S. 912, 101 S.Ct. 28, 65 L.Ed.2d 1173 (1980); vacated and remanded on other grounds, 674 F.2d 484 (1982); cert. denied, 447 U.S. 923, 100 S.Ct. 3015, 65 L.Ed.2d 1116 (1980), 459 U.S. 864 and 883, 103 S.Ct. 142 and 179, 74 L.Ed.2d 120 and 146 (1982).

      . Reversed on other grounds, 638 F.2d 916 (6th Cir.1980). See footnote 1 for additional case history.

      . Defendant cites to the Court the case of U.S. v. Wulff, 758 F.2d 1121, 1125 (6th Cir.1985), for the proposition that the Court’s focus should not be upon whether scienter is an element of the charged offense, but on whether the absence of a requirement that some degree of scienter be proved violates the defendant’s right to due process. The Court notes first that the decision of the United States Sixth Circuit Court of Appeals in the Wulff decision preceded the decision of the United States Supreme Court in Liparota by approximately six weeks. Liparota specifically required that congressional intent in legislating was to be considered by the Court in interpreting whether the statutory offense in question required proof of mens rea. The strong congressional intent behind this statute indicates that the scienter requirement of 18 U.S.C. § 2252 satisfied the congressional purpose, and that the inclusion of a mens rea requirement demanded more proof than Congress desired.


text:
    Steven GUERRA, et al., Plaintiffs, v. Edwin MEESE, Attorney General of the United States, et al., Defendants.
    Civ. A. No. 85-1510.
    United States District Court, District of Columbia.
    July 31, 1985.

      Jane H. Aiken, Center for Applied Legal Studies, Washington, D.C., Elizabeth M. Fink, Brooklyn, N.Y., Margaret L. Ratner, Rafael Anglada-Lopez, Center for Constitutional Rights, Susan Tipograph, Resistance Law Office, New York City, Michael Deutsch, Chicago, Ill., for plaintiffs.
    Michael L. Martinez, Asst. U.S. Atty., Washington, D.C., for defendants; Michael A. Stover, U.S. Parole Com’n, Chevy Chase, Md., of counsel.
   MEMORANDUM OPINION AND ORDER

BARRINGTON D. PARKER, District Judge:

In this proceeding, seven prisoners presently incarcerated in various federal correctional institutions petition this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, or alternatively, a writ in the nature of mandamus, pursuant to 28 U.S.C. § 1361. Their incarceration followed convictions and sentences for criminal contempt before trials in the District Court, Eastern District of New York. The respondents are the Attorney General of the United States, the Director of the United States Bureau of Prisons, the Chairman of the United States Parole Commission, and the wardens of the several correctional institutions where the respondents are incarcerated.

The petitioners challenge a newly promulgated Parole Commission directive applicable to parole guidelines for persons convicted of criminal contempt. They allege that the directive has the effect of denying their release on parole and extending the period of their incarceration. They charge that the actions of the Parole Commission violate the constitutional prohibition against ex post facto laws, their rights under the Fifth and Sixth Amendments to the Constitution and the Administrative Procedure Act, 5 U.S.C. § 551, et seq.

The government initially raised the question of whether venue was proper in the District of Columbia. On June 13, 1985, a motion to transfer this proceeding to the various judicial districts where each petitioner was incarcerated was denied. The petitioners were granted limited discovery and an oral hearing on the merits was held on July 18, 1985. The parties agree that there are virtually no disputed material facts and thus the Court is called upon to determine issues of law.

For the reasons set out below the Court concludes that the Parole Commission directive may not be applied to petitioners.

I.

BACKGROUND

The seven petitioners were convicted and sentenced for criminal contempt under 18 U.S.C. § 401. Their convictions resulted from a refusal to testify before a grand jury, investigation of criminal terrorist activities of a Puerto Rican nationalist group, the Fuerzas Armadas de Liberación Nacional Puertorriguena (“FALN”). The grand jury was convened by the United States District Court, Eastern District of New York. The petitioners claim they are activists and they refused to cooperate with the investigation and to testify because of their political, religious and moral beliefs not because they were involved or associated with criminal or terrorist activities.

Petitioners Guerra, J. Rosado, Cueto, A. Rosado, and Romero were tried together in the Eastern District of New York in February, 1983, and were convicted of criminal contempt and sentenced to three years imprisonment in June, 1983. They began serving their sentences in April, 1984. Petitioner Fiallo was convicted in the Eastern District of New York in October, 1983, and was sentenced to two years imprisonment, which he began serving in June, 1984. Petitioner Miller was sentenced in April, 1984 to three years imprisonment following her conviction for criminal contempt. She began to serve her sentence in February 1985.

Petitioners are at various stages of the parole hearing appeal process. Guerra is the only petitioner who has exhausted the administrative process to the United States Parole Commission. The parties represented and agreed at the July 18 hearing that all of the petitioners have had an initial hearing, while only some have pursued the parole board’s decision to the intermediate appeal level, the regional parole board.

A.

Petitioners challenge a Parole Commission directive applied to the parole guidelines for an individual convicted of criminal contempt. The guideline for criminal contempt is found in 28 C.F.R. § 2.20 (chapter six, subchapter B, 618(a)). However, an additional directive formulated by the United States Parole Commission was appended to 28 C.F.R. § 220, 618(a). That directive, known as a “Notes and Procedures” (hereinafter “Notes and Procedures provision”), is found in the 1984 United States Parole Commission Rules and Procedures Manual, effective October 1, 1984. It provides:

[ [Notes and Procedures. ‘Criminal Contempt’ refers to conduct under 18 U.S.C. 402 (punishable by up to six months). If a criminal sentence of more than one year is imposed under 18 U.S.C. 401 for refusal to testify concerning a criminal offense, such conduct normally should be graded as if ‘accessory after the fact.’] ]

The Notes and Procedures provision to 618(a) was formulated internally by the Parole Commission and became effective April 1, 1984, after at least five of the petitioners had been sentenced. It was not submitted for public comment nor was it published in the Federal Register. Petitioners contend that but for this additional provision five of the petitioners would have been paroled as of this date.

Parole guidelines encompass two components: a salient factor score which determines the individual risk of parole violations and a severity offense score based on the seriousness of the offense committed. It is the latter factor, the severity offense scores for various offenses, which are set forth in 28 C.F.R. § 2.20. Petitioners contend that the Notes and Procedures provision of 28 C.F.R. § 2.20, 618(a) unjustifiably and unconstitutionally increases the severity of the offense of criminal contempt such that their term of imprisonment is unconstitutionally prolonged.

Criminal contempt where imposed in connection with a prisoner serving a sentence for another offense, add < 6 months to the guidelines otherwise appropriate.

They argue that the severity of their offense, criminal contempt, should be rated in Category Three, the category for misprison of felony, 28 C.F.R. § 2.20, 614. With a high salient factor score, a prisoner whose severity offense score is graded in Category Three will ordinarily be paroled after serving from 10-14 months. Instead, the severity of petitioners’ offenses was construed as the crime of accessory after the fact of the most serious offense the grand jury was investigating and their offenses were graded as Category Six and Category Five. Because accessory after the fact is graded as two categories below the underlying offense, 28 C.F.R. § 2.20, 104, most of the petitioners were graded in Category Six, two categories below the category for murder. 28 C.F.R. § 2.20, 201.

Petitioners were graded as accessories after the fact to murder because the Parole Commission decisions in the underlying cases reflect that the hearing examiners ultimately determined that the Eastern District of New York grand jury was investigating murder. The guidelines for a Category Six offense with a high salient factor score suggests that the petitioners should serve from 40-52 months. That determination effectively precludes release on parole for the petitioners, who will be required to complete the term of their sentences.

II.

ANALYSIS

A. Ex Post Facto

The petitioners argue that the application of the Notes and Procedures provision to their parole eligibility status, the provision becoming effective after at least five of them were sentenced, violates the constitutional prohibition against ex post facto laws. U.S. Const. Art. I, § 9, cl. 3. “Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981). Although Weaver dealt with a state “good-time” provision, the Supreme Court held that a law affecting parole eligibility may be an ex post facto violation. Id. at 31-32, 101 S.Ct. at 965-66.

The test for determining whether a statute violates ex post facto protections is that “it must be retrospective” and “it must disadvantage the offender affected by it.” Weaver, 450 U.S. at 29, 101 S.Ct. at 964. Accord Burnside v. White, 760 F.2d 217, 220 (8th Cir.1985).

The Notes and Procedures provision under consideration is not an unconstitutional ex post facto provision because petitioners cannot demonstrate that they meet the second prong of the Weaver test: proof of disadvantage. Prior to the promulgation of the Notes and Procedures provision, the existing parole guidelines, 28 C.F.R. § 2.20, 618(a), did not set a definite severity category for criminal contempt. The discretion afforded by that provision (as it indeed still exists in the Code of Federal Regulations) suggests that these petitioners were never guaranteed that their offense would be graded in any particular category. “A change merely in the manner in which the Board, now the Commission, exercises its discretion thus cannot offend the ex post facto clause.” Warren, 659 F.2d at 195. See also Richardson v. United States Parole Commission, 729 F.2d 1154, 1155 (8th Cir.1984) (per curiam); Hayward v. United States Parole Commission, 659 F.2d 857, 862 (8th Cir.1981), cert. denied, 456 U.S. 935, 102 S.Ct. 1991, 72 L.Ed.2d 454 (1982). Cf. Prater v. United States Parole Commission, 764 F.2d 1230, 1234 (7th Cir.1985) (“a number .of courts have held that such guidelines do not preclude or severely limit the exercise of discretion and therefore do not operate as ex post facto laws”). Based on these authorities, it cannot be said that the Notes and Procedures provision violates the ex post facto clause.

B. The Court’s Standard of Review 1. The Parole Commission’s Decision

The scope of judicial review of the Parole Commission’s decisions with respect to each individual decision regarding the petitioners is extremely limited. See 18 U.S.C. § 4203(b) (granting Commission power to grant or deny parole for prisoners); § 4218(d) (holding that the actions of the Commission under § 4203(b) are committed to agency discretion for purposes of review).

The appropriate standard for review of the commission’s decisions is whether there has been an abuse of discretion. * * * This means that a court may not substitute its own judgment for that of the commission, ... but may consider only whether there is a rational basis for the commission's decisions.

Bialkin v. Baer, 719 F.2d 590, 593 (2d Cir.1983) (citations omitted). See also Staege v. United States Parole Commission, 671 F.2d 266, 268 (8th Cir.1982).

Although this Court may question the validity of the Notes and Procedures provision per se, there does not appear to be a basis for overturning its application. In other words, if the Commission examiners had evidence before them that the Eastern District grand jury was investigating murder, the Notes and Procedures provision instructs the examiners normally to grade the severity of the offense as accessory after the fact. The petitioners’ difficulty with the provision should lie in its prima facie arbitrary classification rather than its rationality as applied. The petitioners have failed to demonstrate that the grand jury, from which the criminal contempt charges stemmed, was not investigating murder or serious bodily injury. Cf. Rosado, 728 F.2d at 92 (the grand jury was investigating bombings). Thus, the Court does not find sufficient justification on which to overturn the Commission decisions on the basis of the application of the Notes and Procedures provision of 28 C.F.R. § 2.20, 618(a).

2. The Parole Guideline

This Court, however, may review the Notes and Procedures provision to determine whether it is arbitrary or capricious.

This statutory restriction [over review of individual parole decisions] does not preclude either the district court or this court, however, from considering a claim that the guidelines for exercising discretion as promulgated and applied, violate the intent and directives of the Parole Act. Such an inquiry into the legality of agency action, as opposed to its appropriateness within legal bounds, is ‘uniquely appropriate for judicial determination.’

Garcia v. Neagle, 660 F.2d 983, 988 (4th Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1023, 71 L.Ed.2d 309 (1982) (emphasis in original) (quoting Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859, 875 (D.C.Cir.1970)). See also Farkas, 744 F.2d at 39.

A careful review of the Notes and Procedures provision of 28 C.F.R. § 2.20, 618(a), leads the Court to conclude that it is arbitrary and capricious and not in keeping with the policy of the Parole Commission and Reorganization Act, 18 U.S.C. § 4201 et seq., and thus, must not be applied to these petitioners. The Parole Act sets as one criteria for consideration of parole, “the nature and circumstances of the offense____” 18 U.S.C. § 4206(a). Moreover, the legislative history of the Act states that “[t]he constitutional test to be applied to parole is not one of right, but whether or not parole is administered in a fashion that is neither arbitrary nor capricious to the individual, nor unfairly jeopardizes the legitimate aim of society to control deviant behavior.” S.Rep. No. 369, 94th Cong., 1st Sess. 19, reprinted in 1976 U.S.Code Cong. & Ad.News, 335, 341. In the circumstances of this case, the Court concludes that the guideline is arbitrary and capricious because it does not relate to the offense for which petitioners were tried and sentenced.

The guideline is arbitrary and capricious because it is predicated upon an unconstitutional irrebuttable presumption that the petitioners were involved in the substantive offenses that the grand jury was investigating. Regardless of the reason that the petitioners refused to cooperate with the grand jury, the government is unable to show or point to any evidence that they were associated or connected with any criminal activities such as murder, bombings, or other terrorist activities or were ever charged with or tried with respect to any such activities. See also, e.g., Petitioners’ Exhibits D, F.

“Statutes creating permanent irrebuttable presumptions have long been disfavored under the Due Process Clauses of the Fifth and Fourteenth Amendments.” Vlandis v. Kline, 412 U.S. 441, 446, 93 S.Ct. 2230, 2233, 37 L.Ed.2d 63 (1973). See also Cleveland Board of Education v. LaFleur, 414 U.S. 632, 644, 94 S.Ct. 791, 798, 39 L.Ed.2d 52 (1974). Although the unconstitutional presumption in this case does not directly implicate a criminal conviction, see, e.g., Francis v. Franklin, — U.S. -, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), it does introduce an irrebuttable presumption into a procedure in which the petitioners have a great stake. Cf. Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972) (parolee has liberty interest in parole and is entitled to due process upon revocation). That element is contrary to the purpose of the Act, which is to provide rationality in parole decisions.

The vice of the regulation, therefore, is that it assumes to convert what in the view of the statute is a question of fact requiring proof into a conclusive presumption which dispenses with proof and precludes dispute. This is beyond administrative power. The only authority conferred, or which could be conferred, by the statute is to make regulations to carry out the purposes of the act — not to amend it.

Miller v. United States, 294 U.S. 435, 440, 55 S.Ct. 440, 442, 79 L.Ed. 977 (1935).

Moreover, a comparison of the two offenses, criminal contempt and accessory after the fact, demonstrates that it denies the petitioners their due process rights to be equated with the latter when they have only been convicted of the former, especially where no additional proceedings have been held. The power of the court to impose a sanction for criminal contempt for failure to comply with its orders is set forth in 18 U.S.C. § 401(3). Failure to obey a court order, in the case of petitioners’ refusal to obey the order to testify before the grand jury, is sufficient for a conviction of criminal contempt. Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958). See also United States v. Leyva, 513 F.2d 774, 777 (5th Cir.1975). In contrast, the parole regulations define an “accessory after the fact” to “refer[] to the conduct of one who, knowing an offense has been committed, assists the offender to avoid apprehension, trial, or punishment (e.g., by assisting in disposal of the proceeds of an offense).” 28 C.F.R. § 2.20, Chapter Thirteen, Sub-chapter B, ¶ 1. See also United States v. Lumpkin, 448 F.2d 1085, 1090 (D.C.Cir.1971) (what is required for aiding and abetting is a showing “that the accused knowingly associate himself in some way with the criminal venture, that he participate in it as in something that he wishes to bring about and that he seek by his action to make it succeed”).

The Court fails to see the rational connection between failure to comply with a court order to testify before a grand jury about particular crimes and the alleged crimes themselves. Cf. Lieberman v. Gunnell, 726 F.2d 75, 78 (2d Cir.1984) (reversing categorization of an offense for purposes of parole because “selling drug dilutents has no similarity to offenses against property and is closer in behavior to opiate offenses”); Kohlman v. Norton, 380 F.Supp. 1073, 1074 (D.Conn.1974) (“nothing in Lupo [v. Norton, 371 F.Supp. 156 (D.Conn.1974) ] permits the Board to rate offense severity according to criminal conduct that is not alleged”) (emphasis in original).

Defendants contend that the Notes and Procedures only codify a previous policy of the parole board as applied in Cavalieri v. Gunnell, C.A. No. B-83-712 (D.Conn. Dec. 29, 1983). (Respondents’ Exhibit M). See Respondents’ Answer to Interrogatory 2. In that case, the parole commission employed a pass-through analysis to equate criminal contempt to obstruction of justice to the underlying offense. Id. Slip Op. at 4-5. The Court does not view an unpublished judicial opinion as a binding indication of the Parole Commission’s firm policy. More importantly, petitioners have introduced evidence and convincingly shown that Cavalieri is inapposite because in that case there was an underlying judicial proceeding relative to the petitioner’s criminal involvement. Petitioners’ Exhibit E at 10, 12-13. The government has failed to show that there was any such proceeding which even arguably related to petitioners’ involvement in the underlying substantive crimes that were ever held relative to any of the petitioners. As such, the Court expresses no opinion as to the merits of applying the Notes and Procedures provision where such a proceeding has been held.

C. The Administrative Procedure Act

Petitioners contend that the Notes and Procedures provision was enacted in violation of the rulemaking requirement of the Administrative Procedure Act, 5 U.S.C. § 551 et seq. Although the Parole Commission has adopted the guidelines used in formulating parole decisions in accord with 5 U.S.C. § 553, the Notes and Procedures provision to be applied to 28 C.F.R. § 2.20, 618(a) was adopted only through internal mechanisms and not according to the procedures of § 553. See Respondents’ Answers to Interrogatories.

It is beyond doubt that the Notes and Procedures provision is designed to have a substantive effect on parole determinations. As such, the Court is unable to discern any difference between it and the formal guidelines in terms of the need to use formal rulemaking in its formulation and adoption. See 18 U.S.C. § 4218(b). The D.C. Circuit has clarified that parole guidelines “calculated to have a substantial effect on ultimate parole decisions” are not exempt from rulemaking under the APA. Pickus v. United States Board of Parole, 507 F.2d 1107, 1112-13 (D.C.Cir.1974). Further, the legislative history of the Parole Act recognizes that parole guidelines are subject to the APA. “Guidelines promulgated by the full Commission for parole decision-making are rules and regulations within the meaning of this definition.” S.Rep. No. 369, 94th Cong., 1st Sess. 20, reprinted in 1976 U.S.Code Cong. & Ad. News 335, 341 (citing Pickus, supra). See also H.R.Rep. No. 838, 94th Cong., 2d Sess. 26, reprinted in 1976 U.S.Code Cong. & Ad.News, 335, 359 (“The Parole Commission shall actively seek the counsel and comment of the corrections and criminal justice communications prior to promulgation of guidelines and shall be cognizant of past criticism of parole decision making”).

Thus, the Notes and Procedures provision applied to the petitioners’ parole decisions was enacted in violation of the rule-making provisions of the APA. However, the fact that the Parole Commission did not comply with the APA is not sufficient, in and of itself, to warrant petitioners’ immediate release on habeas corpus. “A prisoner has no right to release on parole; he has only a statutory right to have the board comply with the APA and its own rules and guidelines. A departure by the board does not necessarily make his custody illegal.” Brown v. Lundgren, 528 F.2d 1050, 1054-55 (5th Cir.1976), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 (1976).

In accord with the above Memorandum Opinion, it is this 31st day of July, 1985,

ORDERED, DECLARED AND ADJUDGED

1. That the Notes and Procedures provision of 28 C.F.R. § 2.20, 618(a) is declared invalid and shall not be applied by the Parole Commission where there has been no demonstration or showing in any underlying judicial proceeding that individuals convicted of criminal contempt have participated in the underlying substantive offenses; and

2. That respondents shall hold a further parole hearing for each petitioner by August 20, 1985 and shall not utilize the Notes and Procedures provision of 28 C.F.R. § 2.20, 618(a) in their determination of the release on parole decision. If by that date, no parole hearing is held, each petitioner who is denied such hearing shall be released forthwith; and

3. That the Notes and Procedures provision of 28 C.F.R. § 2.20, 618(a) was enacted in violation of the APA. Respondents are enjoined from applying that provision in any case unless and until the statutory rulemaking procedures are utilized.

      . Petitioners claim that their refusal to cooperate stemmed from political, moral, and religious reasons.

      . Their conviction was affirmed by the Second Circuit in United States v. Rosado, 728 F.2d 89 (2d Cir.1984). That opinion fully develops the factual background of those five convictions.

      . The government has appended to its response to the show cause order some parole documents relating to each petitioner. See Exhibits A-L to Government's Response.

      . 28 C.F.R. § 2.20, 618(a) states:

      . The guidelines provided by the parole commission are only guidelines and may be deviated from where there are justifiable reasons. However, the guidelines are followed in the large majority of cases. See Warren v. United States Parole Commission, 659 F.2d 183, 192 (D.C.Cir.1981), cert. denied, 455 U.S. 950, 102 S.Ct. 1454, 71 L.Ed.2d 665 (1982).

      . Petitioners Guerra, J. Rosado, Fiallo, Cueto, and A. Rosado have received severity offense ratings for Category Six. Respondents’ Exhibits B, E, G, I. Petitioners’ Exhibit A, July 9, 1985 Aff. of E. Fink at 2. Petitioner Miller received a severity offense rating in Category Five. Respondent’s Exhibit L.

      . The parole commission, in its initial notice of action, regarding petitioner Miller determined that the underlying offense to which she was to be categorized as accessory after the fact was detonation of explosives where serious bodily injury is intended. Thus, she received a severity offense rating in Category Five. Respondents’ Exhibit L. The guidelines suggest that she must serve from 24-36 months. Petitioners’ Exhibit B.

      . Petitioners Guerra, J. Rosado, Cueto, A. Rosa-do and Romero were sentenced on June 7, 1983. The regulation became effective through the issuance of a Memorandum on April 1, 1984.

      . Similarly, the Court finds that this provision in no way usurps the sentencing judge’s authority. No matter what the guidelines recommend, they cannot be used to incarcerate a prisoner beyond his or her sentence imposed by the sentencing judge. See United States v. Addonizio, 442 U.S. 178, 190, 99 S.Ct. 2235, 2243, 60 L.Ed.2d 805 (1979) ("the judge has no enforceable expectations with respect to the actual release of a sentenced defendant short of his statutory term”). Accord Farkas v. United States, 744 F.2d 37, 39-40 (6th Cir.1984).

      . The fact that the parole examiners may have, at some point, reached varying decisions as to the exact crimes under investigation, Fink Aff. at ¶ 5, does not supply sufficient evidence that their ultimate decision did not have a factual foundation.

      . For a discussion of the nature of criminal contempt and procedural protections afforded defendants in those cases, see Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968).

      . The proceeding was a Fatico hearing. United States v. Fatico, 579 F.2d 707 (2d Cir.1978), cert. denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 755 (1980).


author: IRVING BEN COOPER, District Judge.

text:
    Joseph ACOCELLA, Plaintiff, v. MONTAUK OIL TRANSPORTATION CORP., Defendant.
    No. 84 Civ. 8105.
    United States District Court, S.D. New York.
    Aug. 2, 1985.

      Law Offices of Thomas J. Hunt, Boston, Mass., Phillips & Cappiello, New York City, for plaintiff; Michael D. Tracey, Boston, Mass., George Cappiello, New York City, of counsel.
    Healy & Baillie, New York City, for defendant; John P. James, New York City, of counsel.
   MEMORANDUM

IRVING BEN COOPER, District Judge.

Defendant seeks an order compelling plaintiff to submit to an “interview and testing” by a “certified vocational rehabilitation counselor” (so named in the moving papers) pursuant to Fed.R.Civ.P. 26(a), 26(b)(1), and 35. Plaintiff opposes defendant’s motion on the grounds that such an order is not permissible under the rules cited by defendant and that the information sought is obtainable through other means.

Plaintiff, a merchant seaman who seeks to recover damages for alleged injuries sustained at sea, claims, inter alia, that his injuries will prevent future employment. If the jury finds in favor of plaintiff on the question of liability and if plaintiff is indeed prevented from obtaining future employment, he will be entitled to receive the total amount of wages he would have received during the remainder of his work life.

Defendant asserts that it may be called upon to demonstrate whether and to what extent plaintiff can mitigate his damages by obtaining alternative employment. In connection with this aspect of the defense, defendant wishes to have plaintiff interviewed and tested by a “vocational rehabilitation counselor.”

Defendant cites Fed.R.Civ.P. 26(a) and 26(b)(1) in support of its motion, but we fail to see in what respect Rule 26 applies to the demand for an “interview and testing” by a “vocational rehabilitation counselor.” Rule 26(a) simply lists the methods by which discovery may be obtained, including physical and mental examinations. Rule 26(b)(1) addresses the type of information which may be obtained through discovery.

At issue in defendant’s motion is not only the type of information sought but the appropriate method by which to obtain it. Defendant asserts in its supporting affidavit that it seeks information regarding plaintiff’s “medical, education and vocational history, and plaintiff’s ambition and motivation concerning alternate employment.” (Affidavit of John P. James, sworn to June 27, 1985, at 2-3) (“James Affidavit”)

In opposing defendant’s motion, plaintiff argues that defendant has had ample opportunity to obtain the information sought in discovery procedures already undertaken. Fed.R.Civ.P. 26(b)(l)(i) and (ii) reads in pertinent part:

The frequency or extent of use of the discovery methods ... shall be limited by the court if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; ____

In response to defendant’s requests, plaintiff has undergone one medical examination, one deposition, answered two sets of interrogatories and responded to a request for production of documents. Plaintiff asserts that defendant’s instant application is clearly belated. We agree.

Defendant responds that the requested “interview and testing” is essential because, unlike discovery previously obtained, it will afford the “vocational rehabilitation counselor” the opportunity to evaluate and develop relevant data regarding plaintiff’s future employability. Defendant insists that the relief it seeks is within the “broad scope” of Rule 35. (James Affidavit at 3)

Fed.R.Civ.P. 35 states in relevant part: (a) Order for Examination. When the mental or physical condition ... of a party ... is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician____ The order may be made only on motion for good cause shown____

Any type of physical or mental examination entails an invasion of personal privacy, but Rule 35 was adopted because “the need for such examinations in the interest of truth and justice” outweighs the consideration of personal privacy interests. 8 C. Wright & A. Miller, Federal Practice and Procedure § 2231 (1970) Concern for the protection of personal privacy is evident in the fact that the rule is limited in scope. It specifically and guardedly limits its applicability to an examination by a physician in cases where the physical or mental condition of a party is in controversy.

Defendant notes that it has retained the services of “DeSimone Rehabilitation Services” to conduct the “interview and testing.” According to defendant the “vocational rehabilitation counselors” are “fully qualified to render an opinion concerning plaintiff’s ability and aptitude to perform alternate employment and the vocational opportunities available to plaintiff____” (James Affidavit at 2) Defendant has not, however, alleged any facts indicating the qualifications — imperative educational requisites, performance, experience, etc., etc. —necessary to become a “certified vocational rehabilitation counselor.”

Even if it is conceded that a “vocational rehabilitation counselor” is an expert in vocational aptitude and “fully qualified” in that field, Rule 35 noticeably lacks a description of the type of person or scope of examination envisioned by the instant application. No authority is cited and we find none either supporting defendant’s argument that its suggested “interview and testing” is contemplated by the rule or any other authoritative source approving the relief sought here.

Clearly there is absolutely nothing in the moving papers before us even suggesting that the proposed “interview and testing” requires the service, in whole or part, of a physician to participate in the “physical or mental examination sought.” As noted earlier, plaintiff has already been examined by a physician at defendant’s request to determine his physical condition conceded by the parties to be in controversy. As to the need of a mental examination by a physician, nothing is even implied on this application.

Since nothing appears to the contrary, we take it for granted that a “vocational rehabilitation counselor” does not possess the qualifications of a physician. Finally, defendant has not persuaded us that it has met the “good cause” requirement of Rule 35. It is evident that defendant has had ample opportunity to obtain the information sought by discovery methods provided for by the Federal Rules of Civil Procedure.

Conclusion

On the basis of the foregoing, we conclude there is no legal authority authorizing the relief applied for herein. Accordingly, we are constrained to, and do, deny the motion.

So Ordered.