author: EDWARD J. GARCIA, District Judge.

text:
    Julise M. JOHNSON, Plaintiff, v. Verne ORR, et al., Defendants.
    Civ. No. S-84-1257 EJG.
    United States District Court, E.D. California.
    March 14, 1985.

      Donna Hitchens, American Civil Liberties Union, Roberta Achtenberg, Lesbian Rights Project, San Francisco, Cal., for plaintiff.
    Talmadge R. Jones, Deputy Atty. Gen., Sacramento, Cal., for California Air National Guard.
    Donald B. Ayer, U.S. Atty. by Gregory G. Hollows, Asst. U.S. Atty., Sacramento, Cal., for U.S. Air Force Reserve.
   MEMORANDUM OF DECISION

EDWARD J. GARCIA, District Judge.

This action came on for hearing on November 7, 1984, on plaintiff’s motion for a preliminary injunction. Plaintiff’s motion seeks an order requiring the United States Air Force Reserve and the California Air National Guard to reinstate her as an officer pending the final disposition of this lawsuit. Plaintiff was discharged pursuant to Regulation 36-014, 118.a.(9) of the Air National Guard Regulations which mandates the separation of homosexuals as unfit for military service. Plaintiff was discovered by defendants to be a homosexual through a letter that she wrote to her commanding officer in which she so identified herself. Plaintiff challenges her discharge as an unconstitutional abridgment of her right to free speech under the First Amendment to the United States Constitution. Alternatively, plaintiff challenges her discharge from the California Air National Guard as violative of Article I, Section 8, Clause 16 of the United States Constitution which, plaintiff maintains, precludes federal defendants from mandating the involuntary discharge of an officer in the California Guard.

The parties do not dispute the facts leading up to the plaintiffs discharge. Plaintiff was commissioned as an officer in the California Air National Guard on September 2, 1981. On that same date she was “federally recognized” and appointed as an officer in the United States Air Force Reserve with assignment to the United States Air National Guard. She served until August 15, 1984 when she was honorably discharged at the rank of First Lieutenant. Plaintiff has documented that throughout her service in both the Air Force and the National Guard, she received excellent performance evaluations. Defendants do not dispute plaintiff’s excellent service record, but instead base the discharge action on plaintiff’s admitted homosexuality.

On June 24, 1983, plaintiff sent the following letter to her commanding officer:

Dear Col. Henderson
As you know, I have been a commissioned officer in the California Air National Guard since September 2, 1981. I have enjoyed my service in the Guard and, as my record reflects, I have served the Guard well in my position as administrative officer of the 234th CMBTCS. I am writing this letter as information for the record and to prevent any problems from arising in the future.
I am a lesbian and that will remain my political and sexual preference. However, my homosexuality does not in any way conflict with my ability to perform my military duties. I do not and will not advocate homosexuality to anyone while on military duty. I will continue to carry out my assignments and fulfill my commitments to the California Air National Guard.
Thank you for the opportunity to address this issue and “clear the air.” Please retain this letter in my permanent file.
Sincerely,
Julise M. Johnson

On July 5, 1983, plaintiff was notified that an administrative discharge was being initiated pursuant to Regulation 36-014. An administrative board of officers (an efficiency board) was convened by the Air Force on December 20, 1983 to determine whether the plaintiff should be discharged. Following a hearing on the matter, the Board reached the following findings and recommendations:

The Board finds:
1) no conclusive proof of homosexual activity by the respondent; 2) that the respondent stated she was a homosexual. The Board determines that the respondent should not be retained in the Air National Guard of the United States nor as a reserve of the Air Force. The Board recommends that the respondent be awarded an honorable discharge. You will be given a copy of the transcript of the proceedings of this Board, less such documents previously furnished you in connection with these proceedings.

Plaintiff was honorably discharged on August 15, 1984. Plaintiff now moves for a preliminary injunction requiring the defendants to reinstate her.

The tenor for review in this case was ably described in ben Shalom v. Secretary of Army, 489 F.Supp. 964, 971 (E.D. Wisc.1980) as follows:

The courts are extremely reluctant to interfere with the military’s exercise of direction over its internal affairs. This is particularly so when the military makes personnel changes, pursuant to its regulations, through its promotion or discharge processes. Dilley v. Alexander, 603 F.2d 914, 919-20 (D.C.Cir.1979); Pauls v. Secretary of Air Force, 457 F.2d 294 (1 Cir.1972).
Restricted judicial review is not, however, the equivalent of no judicial review. Courts will review, without hesitation, cases in which it is alleged that the military violated the Constitution, applicable statutes, of its own regulations. Dilley v. Alexander, supra, at 920; Harmon v. Brucker, supra, 355 U.S. [579] at 579, 78 S.Ct. [433] at 433 [2 L.Ed.2d 503 (1958)]; Mindes v. Seaman, supra [453 F.2d 197, 199 (5th Cir.1971)].
“It is established, of course, that the federal courts have the power and the duty to inquire whether a military discharge was properly issued under the Constitution, statutes, and regulations.” Matlovich v. Secretary of Air Force, supra, at 859 [591 F.2d 852, 859 (D.C.Cir.1978)]; Sanders v. United States, supra, at 814 [594 F.2d 804, 813 (Ct.Cl.1979)]; Hodges v. Callaway, supra [499 F.2d 417 (5th Cir. 1974)].

It is in that context that this court proceeds to review plaintiff’s discharge for the purpose of the instant request for a preliminary injunction.

In order for plaintiff to prevail on her motion she must meet the requirements established by the Ninth Circuit for issuance of a preliminary injunction. “The moving party meets its burden by demonstrating either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions have been raised and the balance of hardships tips sharply in its favor.” Lopez v. Heckler, 725 F.2d 1489, 1498 (9th Cir.1984); Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, 753 (9th Cir. 1982); Beltrans v. Meyers, 677 F.2d 1317, 1320 (9th Cir.1982); Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1201 (9th Cir. 1980). Plaintiff fails to meet her burden under either test.

Plaintiff has not shown a probability of success on the merits. Rather, the free speech issue raised in this case appears to be specious. Plaintiff contends that her involuntary discharge was solely the result of the fact that she informed her group commander that she considered herself to be a lesbian. Because there was never any allegation that plaintiff engaged in homosexual activity or that her performance as an officer has ever been inadequate, plaintiff contends that her discharge was based on her assertion of a personal identity. Accordingly, plaintiff characterizes her termination as a violation of her rights to free speech and freedom of association as guaranteed by the First Amendment of the Constitution of the United States. However, this court views plaintiffs self-assertion of her homosexuality as nothing more than an admission of a fact, and such fact may serve as a lawful basis for discharge, see, Beller v. Middendorf, 632 F.2d 788 (9th Cir.1980), and Watkins v. U.S. Army, 721 F.2d 687 (9th Cir.1983). The Ninth Circuit in Beller upheld the Navy’s right to discharge three individuals on the basis of their admissions to homosexual activity. In Watkins, the Ninth Circuit rejected the assertion of an estoppel theory (based on length of exemplary performance and actual knowledge by the Army of the plaintiff’s sexual preference) to bar the Army’s application of regulations that prohibit reenlistment of homosexuals. The plaintiff in Watkins was not allowed to reenlist solely because he was an admitted homosexual. Although the Watkins court did not have before it the specific issue of the regulations’ constitutionality, the court noted that such issue appeared to have been resolved in Beller v. Middendorf, supra

Plaintiff’s First Amendment argument draws a distinction between homosexual activity and statements of homosexual preference. She refers to the findings of the Efficiency Board which specify that there was no conclusive proof of homosexual activity and, instead, relied upon plaintiff’s statement that she was a homosexual. Plaintiff then turns to the pertinent language of Regulation 36-014 which was used to support her discharge. The relevant subsections are 8.a(9)(a) and (b) which provide as follows:

(9) Homosexuality.
(a) Homosexuality is incompatible with military service. The presence in the military environment of persons who engage in homosexual conduct or who, by their statements, demonstrate a propensity to engage in homosexual conduct, seriously impairs the accomplishment of the military mission. The presence of such members adversely affects the ability of the armed forces to maintain discipline, good order, and morale; to foster mutual trust and confidence among service members; to ensure ihe integrity of the system of rank and command; to facilitate assignment and worldwide deployment of service members who frequently must live and work under close conditions affording minimal privacy; to recruit members of the armed forces; to maintain the public acceptability of military service; and to prevent breaches of security.
(b) The basis of separation may include preservice, prior service, or current service conduct or statements. A member will be separated if one or more of the following approved findings is made:
2. The member has stated that he or she is a homosexual or bisexual unless there is a further finding that the member is not a homosexual or bisexual.

Plaintiff correctly points out that subsection 9(b)(2) mandates the discharge of any individual who states that he or she is either homosexual or bisexual. As such, plaintiff argues that the subsection regulates pure speech and is therefore facially unconstitutional. Plaintiff relies on the holding of the Tenth Circuit in National Gay Task Force v. Board of Education of The City of Oklahoma, 729 F.2d 1270 (10th Cir.1984) prob. juris, noted, — U.S.-, 105 S.Ct. 76, 83 L.Ed.2d 24 (1984), which invalidated a state statute that provided for the dismissal of any teacher who engaged in homosexual conduct but yet defined such conduct to include “advocating ... encouraging or promoting public or private homosexual activity ...” Plaintiff cites the following passage of National Gay Task Force:

The First Amendment protects ‘advocacy’ even of illegal conduct except when ‘advocacy’ is ‘directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’ Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969). The First Amendment does not permit someone to be punished for advocating illegal conduct at some indefinite future time. Hess v. Indiana, 414 U.S. 105, 109, 94 S.Ct. 326, 329, 38 L.Ed.2d 303 (1973).
‘Encouraging’ and ‘promoting,’ like ‘advocating,’ do not necessarily imply incitement to imminent action. A teacher who went before the Oklahoma legislature or appeared on television to urge the repeal of the Oklahoma anti-sodomy statute would be ‘advocating,’ ‘promoting,’ and ‘encouraging’ homosexual sodomy and creating a substantial risk that his or her speech would come to the attention of school children or school employees if he or she said, T think it is psychologically damaging for people with homosexual desires to suppress those desires. They should act on those desires and should be legally free to do so.’ Such statements, which are aimed at legal and social change, are at the core of First Amendment protections. As in Erznoznik [v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975) ] the statute by its plain terms is not easily susceptible of a narrowing construction. The Oklahoma legislature chose the word ‘advocacy’ despite the Supreme Court’s interpretation of the word in Brandenberg. Finally, the deterrant effect of [the statute] is both real and substantial. It applies to all teachers, substitute teachers, and teachers aides in Oklahoma. To protect their jobs they must restrict their expression. See Erznoznik, 422 U.S. at 217, 95 S.Ct. at 2276. Thus, the [statute’s] proscription of advocating, encouraging, or promoting homosexual activity is unconstitutionally overbroad.

National Gay Task Force v. Board of Education of the City of Oklahoma, supra 729 F.2d at 1274.

Plaintiff then argues that the restrictions imposed in the present case are even more sweeping than those prohibited by the Oklahoma statute invalidated in National Gay Task Force. She argues that she was terminated merely for making a statement about who she considers herself to be. However, plaintiff’s latter argument shows why the purported First Amendment issues of this case are specious. The statute invalidated in National Gay Task Force clearly involved advocacy. As plaintiff correctly points out her discharge was based on her statement (i.e. admission) that she considers herself to be a lesbian. She did not “advocate, encourage or promote anything.” Instead, she made an admission. Having made that admission, the regulation in question provides for her discharge. The letter or statement which plaintiff relies on simply serves as evidence of an admitted fact which formed the basis of her involuntary discharge. Her admission is apparently now being asserted to create a First Amendment “exclusionary rule” to bar the use of her statements as evidence of her homosexuality, a rule that this court is not prepared to create. Plaintiffs discharge was not based on her advocacy of ideas, actions or conduct but rather, was based solely on her admission of a fact.

Furthermore, even if the content of plaintiffs speech was being censored by the regulation, plaintiff fails to show a likelihood of success on the merits or even a serious question as to the issue of whether such speech is protected in light of the Supreme Court’s ruling in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The court in Connick considered the question of First Amendment protection for statements by public employees. The court determined that certain written statements by an Assistant District Attorney were addressed to a private dispute between herself and the District Attorney and therefore not protected speech. The court considered the “speech” in question to concern matters only of personal interest and not of public concern and therefore beyond the protection of the First Amendment. The court noted that public employees do not relinquish First Amendment Rights to comment on matters of public interest by virtue of their government employment, and reemphasized the Constitution’s special concern with threats to the right of citizens to participate in political affairs and explained those concerns as follows:

The First Amendment “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498 [1957]; New York Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964). ‘[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.’ Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 215-16, 13 L.Ed.2d 125 (1964). Accordingly, the Court has frequently reaffirmed that speech on public issues occupies the ‘highest rung of the heirarchy of First Amendment values,’ and is entitled to special protection. NAACP v. Claiborne Hardware Co., [458] U.S. [886], [913-15], 102 S.Ct. 3409, 3426, 73 L.Ed.2d 1215 (1982); Carey v. Brown, 447 U.S. 455, 467, 100 S.Ct. 2286, 2293, 65 L.Ed.2d 263 (1980).

Connick v. Meyers, supra at 1689. The court continued its analysis by noting its holding in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) that the First Amendment precludes the dismissal of a public employee (a high school teacher) for openly criticizing the the policies of the School Board. However, the court pointed out that crucial to the decision in Pickering was a subject matter of “legitimate public concern.” The court in Connick held that “Pickering, its antecedents and progeny, lead us to conclude that if Myers’ questionnaire cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for her discharge. When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.” Connick v. Meyers, supra, 103 S.Ct. at 1689-90. The court was careful to qualify its holding so as not to suggest that matters not touching upon public concern are totally beyond the protection of the First Amendment. Rather, the court stated that “we hold only that when a public employees speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.”

This issue of private expression was also considered in Rowland v. Mad River Local School Dist., Montgomery County, Ohio, 730 F.2d 444 (6th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 1373, 84 L.Ed.2d 392 (1985) in the context of a high school guidance counselor who was fired after telling other employees of her bisexual preference. The Sixth Circuit examined the facts of the case and determined that, in light of Connick, supra, the counselor’s First Amendment right to freedom of speech was not violated. In applying the Connick test the court emphasized that the counselor’s disclosures were made in the context of confidential discussions. She requested that revelations be kept confidential. The court therefore found that “Ms. Rowland’s own treatment of the issue of her sexual preference indicates that she recognized that the matter was not one of public concern. Her statements, like those of the plaintiff in Connick, were made as part of an individual effort to avoid unfavorable action by her employer.” Rowland, supra at 449.

The court finds in this case that plaintiff Johnson’s letter to her commanding officer was a communication by an employee upon a matter personal to herself and was not a communication or advocacy of a citizen upon matters of public concern. Plaintiff’s letter was particularized to herself, described her own homosexuality and stated that such sexual preference did not interfere with the performance of her duties. The letter did not seek to inform the public in general or to advocate public policy changes. Rather, the letter specifically stated “I do not and will not advocate homosexuality to anyone while on military duty.” As such, the letter appears to fall under the Supreme Court’s ruling in Con-nick, and may not be used as a basis for a First Amendment barrier to the discharge of the plaintiff for her admitted homosexuality.

In support of her argument that the letter constitutes “speech” on a matter of public concern, plaintiff relies on the two district court decisions of ben Shalom v. Secretary of Army, supra, and Matthews v. Marsh, Jr., Civ. No. 82-0216P (Me.1984). In both cases, discharges under substantially similar regulations were found to be unconstitutional. In ben Shalom, the court found the interests of the Army to be substantially outweighed by the chill imposed by the regulation on the First Amendment liberties of soldiers. The court in Matthews found “content discrimination” by a regulation that “eliminates entirely a particular subject of expression from the vocabulary of service persons because of the Army’s concerns that others will react negatively.” The Matthews decision found some difficulty fitting the plaintiff’s lesbian admission into either the category of “a citizen speaking upon matters of public concern” (Pickering) or “an employee speaking upon matters of only personal interest” (Connick). The court noted that such self-identification was undoubtedly a matter of significant “personal interest” but further noted that the issue of discrimination against homosexuals in employment, especially in the military, is a matter of intense public debate. The court found the admission in Matthews not to be directed to the plaintiff’s employment situation and therefore sufficient to surmount “the Con-nick hurdle to judicial evaluation of the balance struck between citizen and governmental interests.”

The court has considered the reasoning applied in Matthews but is not able to apply that analysis to this ease. Here plaintiff Johnson wrote a letter that related specifically to her employment situation and ruled out advocacy as her intent. This court fully agrees with the observation in Matthews that discrimination against homosexuals in employment is a matter of intense public debate and especially with respect to the military. Furthermore, had plaintiff Johnson made a speech espousing “or denouncing” either side of the debate it would certainly appear that her comments would be protected by the First Amendment. However, plaintiff Johnson did not make such a speech.

In ben Shalom v. Secretary of the Army, supra, a district court invalidated, on First Amendment grounds, a prior version of the Army’s regulation on homosexuality as infringing on the right “to meet with homosexuals and discuss current problems or advocate changes in the status quo or to receive information and ideas about homosexuality.” ben Shalom, supra 489 F.Supp. at 974. However, for the reasons stated above, this court is also unable to apply the analysis of the ben Shalom decision to plaintiff Johnson’s case.

Plaintiffs Article I, Section 8 Argument

In addition to her First Amendment arguments, plaintiff contends that Article I, Section 8, Clause 16 of the United States Constitution precludes the federal defendants from mandating the involuntary discharge of an officer in the California Guard. This Section defines the respective powers reserved to the federal government and those delegated to the states with respect to organizing the militia. The specific Clause in question vests in the federal government the power:

to provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline proscribed by Congress.

Plaintiff asserts, apparently correctly, that the National Guard is no more than a modern-day militia and therefore Clause 16 makes it clear that only the states have authority to appoint officers. Plaintiff goes on to argue that only the states have the authority to terminate from service an officer of the National Guard. Otherwise, it is contended, the reservation of Clause 16 would be meaningless. Plaintiffs argument continues that as a member of the National Guard, she is an employee of the State of California, relying on Maryland v. United States, 381 U.S. 41, 85 S.Ct. 1293, 14 L.Ed.2d 205 (1965). Plaintiff then proceeds to evaluate her involuntary discharge in light of the laws of the State of California.

Assuming plaintiff’s statement of California law to be correct, this court is still unable to find that plaintiff has shown either a likelihood of success on the merits or that serious questions have been raised as to the application of California law to her discharge from the California Air National Guard.

Article I, Section 8, Clause 16 of the United States Constitution very clearly reserves to the states the power to appoint officers. However, at issue in this case is not the appointment of an officer to the California Air National Guard. Rather, what is at issue is the involuntary discharge of an officer who has admitted a certain fact which under the regulations in question require her discharge. Therefore, what appears to be in issue is the authority to discipline a member of the militia. Clause 16 specifically vests in the federal government the power “to provide for organizing, arming, and disciplining, the militia ...” and reserves to the state only “the appointment of the officers, and the authority of training the militia according to the discipline proscribed by Congress.’’ (emphasis added). Therefore, Article I, Section 8, Clause 16 of the Constitution does not prevent the application of federal regulations to the plaintiff’s status as an officer of the California Air National Guard.

Balance of Hardships and Irreparable Harm

The Supreme Court has held that “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitute irreparable injury.” Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Under such a per se rule concerning irreparable injury, plaintiff clearly would be entitled to a preliminary injunction had she been able to show a likelihood of success on the merits, or at least that serious questions have been raised. However, plaintiff has failed to show “a loss of First Amendment freedoms, for even minimal periods of time.” As previously discussed, this court is unable to find an abridgment of the plaintiffs First Amendment Freedoms. The text of her letter to her commanding officer admits a fact. Plaintiff is a lesbian. Because of that admission, the letter was used as evidence to support her involuntary discharge pursuant to the regulations excluding homosexuals from military service. The letter addresses facts private in nature and does not purport to advocate anything of a public nature. As such, it does no more than establish clearly and uncategorically that plaintiff is a homosexual. Accordingly, the letter fails to overcome the rule in Connick v. Myers supra.

Plaintiff has failed to show probable success on the merits of her lawsuit or that serious questions have been raised as to either her First Amendment free speech arguments or her Article I, Section 8 arguments. Accordingly, her motion for a preliminary injunction must be and is hereby DENIED.

IT IS SO ORDERED.

      . See also, Rich v. Secretary of the Army, 735 F.2d 1220 (10th Cir.1984), which held that the Army’s policy of excluding homosexuals did not violate either the equal protection or due process guarantees of the Fifth Amendment. Rich also rejected a First Amendment challenge to the policy stating "... plaintiff was not discharged for advocating homosexuality or merely associating with homosexuals. Rather the Army discharged him because during enlistment he falsely denied having engaged in homosexual activity." Rich, supra at 1229. The court found any effect by the policy on First Amendment rights to be only incidental and outweighed by the special needs of the military and ”[t]he fundamental necessity for obedience, and the consequent necessity for imposition of discipline, [which] would be constitutionally impermissible outside it. Parker v. Levy, 417 U.S. 733, 758, 94 S.Ct. 2547, 2563 [41 L.Ed.2d 439] (1974) ... But cf. Matthews v. Marsh, No. 82-0216 (D.Me. April 3, 1984) (where no homosexual activity is shown, excluding person from R.O. T.C. program because she stated she was a homosexual violated First Amendment) appeal docketed, No. 84-1482 (1st Cir. June 15, 1984).” Rich, supra at 1229.

      . The Ninth Circuit in Watkins noted that "A court, however, is justified in using its power to compel military personnel to disobey regulations which the court has determined are repugnant to the Constitution or to statutory authority. See Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); cf. Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958) (per curiam) (holding that a court may review a decision of the Secretary of the Army to determine whether he acted in excess of his statutory authority). That is not the case here. Although Watkins’ complaint included claims that the Army regulations in question are repugnant to the Constitution, the district court declined to rule on any constitutional question. Moreover, we note that this court has upheld similar regulations in Beller v. Middendorf, 632 F.2d 788 (9th Cir.1980), cert. denied, 452 U.S. 905, 101 S.Ct. 3030, 69 L.Ed.2d 405 (1981).

      . If plaintiff were successful in only raising serious questions, but could not show a likelihood of success on the merits of her lawsuit, she would also have to show that the First Amendment interests in question sharply outweigh the interests of the military in applying its regulations regarding discharge of homosexuals to her.


source: Caselaw Access Project

author: DONALD E. O’BRIEN, Chief Judge.

license: Public Domain

text:
    Carol DEDRICK, et al., Plaintiffs, v. Ted WALLMAN, et al., Defendants.
    Civ. No. 79-360-E.
    United States District Court, S.D. Iowa, C.D.
    April 2, 1985.

      Mark W. Bennett, Des Moines, Iowa, for plaintiffs.
    John Parmeter, Asst. Atty. Gen., Des Moines, Iowa, for defendants.
   MEMORANDUM OPINION

DONALD E. O’BRIEN, Chief Judge.

A hearing was held on the parties’ post-trial briefs in Des Moines, Iowa on January 18, 1985. In this order, the Court will decide certain legal issues and then counsel will apply these legal rulings to the individual inmates’ situation on a person-by-person basis. Should the parties be unable to agree as to the application of the law to a particular inmate’s factual situation, then the Court will make a determination with respect to that inmate.

I. Liberty Interest.

The State concedes that disciplinary proceedings which result in a loss of “good time” or the imposition of solitary confinement , affect a “liberty interest” which is protected by the Due Process Clause. The State contends that no liberty interest is implicated when the only sanction imposed for a major rules violation is “administrative segregation.” The State further contends that inmates sentenced to life imprisonment are entitled to no due process protection during disciplinary proceedings because they have no “liberty interest” at stake. The plaintiffs contend that both the Due Process Clause itself and State rules and regulations regarding the imposition of punitive sanctioris create the requisite liberty interest.

The Court will not address whether or not the Due Process Clause itself gives rise to a liberty interest because the Court finds that the rules and regulations of the Iowa Department of Social Services Division of Correctional Institution in force and effect during the period pertinent in this lawsuit place substantive limitations on the discretion of prison officials with reference to imposing disciplinary sanctions on inmates. In other words, prison officials may impose administrative segregation as a disciplinary sanction “only on the occurrence of certain acts or events”, Jones v. Mabry, 723 F.2d 590, 593 (8th Cir.1983), namely, a violation of certain disciplinary rules by the inmate. Quite simply, an inmate has a liberty interest in not being punished with the imposition of administrative segregation until he or she has been convicted of a rules violation.

Plaintiffs’ Exhibit 32, commonly known as the 804 Policy, is entitled Policy and Procedure Guidelines: Procedure for Discipline and Control of Inmates. Rule 804(C), entitled Procedures for Determining Alleged Rule Violations, provides in part:

10. At the conclusion of testimony the hearing authority shall, with or without the inmate present, review the testimony and.make findings of fact and a decision of guilt or innocent, based on the evidence given. If the inmate did not commit the rule violation, he shall be reinstated to his original status and his record made to show such. If he did commit the rule violation, a dispositional authority, which may be the same as or different from the hearing authority, may impose one or more of the following sanctions:
1— Reprimand.
2— Loss of privileges, such as commissary, movies, television, radio, recreation activities, etc.
3— Confinement to own cell with or without job assignment, after work or on weekends.
4— Transfer to maximum security section (but not isolation).
5— Transfer to any institution in the Bureau (must be in accordance with Section 813-A).
6— Confinement in isolation for not more than ten days.
7— Withholding or forfeiture of the reduction of sentence awarded for good behavior. In addition, the inmate may be scheduled to additional program, therapy, counseling services, etc.

In addition, Rule 804(E), entitled Failure to Provide Minimum Due Process to Inmates Charged with Rule Violations, provides in full:

If an alleged rule violation is not adjudicated in accordance with the due process procedures set forth in this Section, no punishment may be imposed for such rule violation, and all records of the alleged violation, including the reporting officer’s incident report, shall be expunged from the inmate’s treatment and legal files and from any other records which may be subject to review by the Board of Parole.

While Rule 804(C)(10) does not specifically refer to the imposition of “administrative segregation”, the Court finds that sanction (4) grants the hearing authority the power to impose administrative segregation. Before this sanction can be imposed by the dispositional authority, a specific substantive condition must occur; the inmate must be guilty of a rule violation.

In ruling that administrative segregation imposed for punitive reasons implicates an inmate’s liberty interest, the Court is not ruling that administrative segregation can never be imposed except when the due process requirements of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), are met. The Court recognizes that the term “administrative segregation” has been used as a catchall phrase with different meanings at different points in time. Administrative segregation could have been imposed during the period covered by this lawsuit as a non-punitive measure without the full procedural protections set forth in Rule 804(C). For example, under Rule 804(B)(2)(b), if

there is reasonable cause to believe that the inmate is (1) dangerous to himself, (2) dangerous to others, (3) in serious danger from others or (4) otherwise a threat to security and good order of the institution

administrative segregation may be imposed in a summary fashion. The imposition of administrative segregation under Rule 804(B)(2)(b) is one example of the use of administrative segregation which is not covered by this Court’s ruling because today this Court is addressing only administrative segregation which is imposed as punishment for disciplinary rules violations.

This Court has reviewed the decision by Judge Hanson in Rhinehart v. Brewer, supra, in which inmates at ISP were found to have a liberty interest at stake in disciplinary proceedings which imposed “administrative segregation” as punishment. The key to Judge Hanson’s determination that a liberty interest was at stake appears to be the disciplinary nature of the proceedings. The undersigned is convinced that emphasizing discipline and punishment is the proper form of analysis when addressing the issue of whether a liberty interest is at stake.

Were this Court to adopt defendants’ position as to the liberty interest issue, serious problems would result. For example, when a hearing committee imposed as a disciplinary sanction only administrative segregation and the inmate had no good or honor time to lose, no due process would attach to that disciplinary proceeding. Thus, prison officials could decide in proceedings which were procedurally defective to impose only administrative segregation and thereby avoid constitutional requirements. Furthermore, unless prison officials entered the disciplinary proceeding with their minds made up as to the sanction to be imposed, they would not know what procedures would be due the inmate under the Constitution. The only sensible position is to hold that inmates have a liberty interest as a result of Rule 804 which is affected when they are placed in administrative segregation as a disciplinary sanction, i.e., punishment, for a rule violation. It would appear that this holding would apply to the progeny of Rule 804, the “Red Rule Book” and the “Blue Rule Book.”

Since Rule 804 gives rise to a state created protectable liberty interest, the Court need not consider whether lifers have an independent liberty interest at stake when facing disciplinary proceedings.

Having held that the 804 Policy of the Department of Social Services, Division of Correctional Institutions, gives rise to a state created liberty interest, the Court will proceed to apply that holding to the three institutions which are affected by this lawsuit.

1. Iowa State Penitentiary. The Court holds that inmates at ISP have a liberty interest in avoiding sanctions for major rule violations. As a result, when the defendants seek to impose administrative segregation upon an inmate as a punitive sanction, the procedural protections of the Due Process Clause are implicated.

2. Iowa State Men’s Reformatory. Inmates at the Iowa State Men’s Reformatory have a liberty interest in avoiding sanctions for major rule violations. Accordingly, inmates have a liberty interest in avoiding Level A and Level B solitary confinement and Level DD-1, DD-2 and DD-3 disciplinary detention when these types of confinement are imposed for disciplinary reasons.

3. Iowa Correctional Institution for Women. Similarly, inmates at the Iowa Correctional Institution for Women have a liberty interest in avoiding “disciplinary cottage confinement” and “administrative segregation” when these types of confinement are imposed for disciplinary reasons.

II. Adequacy of Factual Findings.

In Wolff v. McDonnell, 418 U.S., at 564, 94 S.Ct. at 2978, the Supreme Court addressed the process which was due inmates in disciplinary actions and held “that there must be a ‘written statement by the fact-finders as to the evidence relied on and the reason’ for the disciplinary action.” This holding is reflected in Rule 804(C)(12), which provides in full:

The inmate shall be immediately advised of the decision, the disposition, and the reasons for the disposition, and shall be furnished a written statement of the fact findings as to the evidence relied upon and the reasons for the disciplinary action taken within five working days after the hearing. In those cases where personal or institutional safety may be jeopardized by including certain items of evidence in the written statement furnished the inmate, these items may be deleted. The statement shall indicate that such omissions have been made.

The question before this Court is the adequacy of the written statements about such evidence and reasons by the hearing committee. As it involves the interpretation of the Due Process Clause and Wolff v. McDonnell, this question is one of federal law.

The Seventh Circuit has addressed the issue of the adequacy of the written statement required by Wolff v. McDonnell in Hayes v. Walker, 555 F.2d 625, 633 (7th Cir.1977), cert. denied, 434 U.S. 959, 98 S.Ct. 491, 54 L.Ed.2d 320 (1977); Chavis v. Rowe, 643 F.2d 1281, 1286-87 (7th Cir. 1981); Redding v. Fairman, 717 F.2d 1105, 1114-16 (7th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1282, 79 L.Ed.2d 685 (1984), and in each case held that certain written statements did not meet the due process requirements of Wolff. The Iowa Supreme Court relied on Hayes v. Walker, supra, when it held that the statement:

Reasons for Decision: Fichtner stated the report is not true and that he did not say anything to the officer. He stated the only time he said anything was when they were approaching a bridge. He denies threatening the officer.
Found guilty based on the officer’s report.

Fichtner v. Iowa State Penitentiary, 285 N.W.2d 751, 754 (Iowa 1979), was too terse and thus violated plaintiff’s due process rights under Wolff. The Court notes that the disciplinary decision at issue in Fichtner occurred during the time period covered by this lawsuit.

The parties have asked the Court to examine the adequacy of the written statements in the following three categories: (1) Cases where reasons for the specific sanction are not explained; (2) cases where an admission is made; and (3) cases where the officer’s report is incorporated by reference.

A. Incorporation of Officer’s Report.

In Hayes v. Walker, 555 F.2d, at 633, the Seventh Circuit stated:

The Institutional Adjustment Committee failed in the present case to give an adequate statement as to the evidence relied on or reasons for the action taken. Rather than pointing out the essential facts upon which inferences were based, the Committee merely incorporated the violation report and the special investigator’s report. This general finding does not insure that prison officials will act fairly. Nor will this finding protect against subsequent collateral effects based on misunderstanding of the initial decision.

The Iowa Supreme Court relied on this holding in Fichtner when it decided that the statement “found guilty based on the officer’s report” was too terse. The rationale for such a holding is to “protect the inmate against collateral consequences and to insure that prison officials acted fairly.” Chavis v. Rowe, supra, at 1287. In addition, the written statement protects an inmate’s substantive due process right not to be found guilty except by an appropriate quantum of evidence. Id.

The Court finds these reasons convincing and holds that, consistent with the line of cases from the Seventh Circuit, reference to the officer’s report does not adequately provide inmates with a written statement as to the facts relied on and the reasons for the Committee’s conclusions.

B. Admissions by Inmate.

The defendants contend that where the factual findings indicate that the inmate admitted to doing the acts charged, there exists an adequate statement of the evidence relied on. Based on the decision in Redding v. Fairman, supra, that two of the eighteen summaries were adequate because those summaries indicated-the fact that the inmate admitted the conduct charged, this Court holds that defendants’ position has some merit. However, merely stating the conclusion that the inmate made an admission is not sufficient because it does not indicate the conduct which the inmate said he did. It is critical to this Court that in Redding v. Fairman, the summaries contained the substance of the statements made by the inmates. Thus, where the written statement contains a finding setting forth the substance of the inmate’s statement and the statement contains enough information to show the inmate is guilty of the rules violation, it is constitutionally adequate.

For example, the disciplinary decision entered on June 27, 1979 against Mark Vos, Exhibit 25, found the inmate guilty of disobeying an order by having contraband cigarettes. The document entitled “Adjustment Committee Reports” states:

The resident states he just forgot that he had the cigarettes in his pocket.

This written statement adequately sets forth the substance of what the inmate said and is adequate, assuming the inmate received a copy, under Redding v. Fairman, supra.

C. Reasons for Specific Sanction.

Wolff requires that the written statement set forth “the reasons for the disciplinary action taken.” Plaintiffs urge this Court to interpret this phrase to mean that the defendants must state the reason for imposing a particular sanction. Defendants contend that it is enough if the statement clearly indicates that the inmate has been found guilty of a specified rule violation. See Picard v. State, 339 N.W.2d 368, 372-73 (Iowa 1983).

Plaintiffs argue that specificity is needed because of the wide range of possible penalties for major rule violations. Requiring an explanation of the degree of sanction would further the goal in Wolff of assuring fair administrative decision making. Furthermore, plaintiffs argue, where multiple rule violations are charged, it is important to create a record which would allow subsequent adjustment in the event that some of the charges are thrown out on review.

The Court holds that the written statement required by Wolff must contain the specific reasons for imposing the particular punishment. See Craig v. Franke, 478 F.Supp. 19 (E.D.Wis.1979); Green v. Nelson, 442 F.Supp. 1047, 1058 (D.Conn.1977). See also Redding v. Fairman, 717 F.2d, at 1115 n. 4. In other words, a statement that an inmate has been found guilty of a rules violation is not a specific enough statement of the reasons for the disciplinary action taken.

III. Remedy.

The question of the proper remedy is the final issue presently before the Court. Plaintiffs urge the Court to expunge from their records the determinations of misconduct which do not meet the procedural due process requirements of Wolff. Defendants argue that expungment is an extreme remedy which should not be invoked in this case, but rather the defendants should be given the opportunity to supplement the decisions to make them adequate.

A person who violates 42 U.S.C. § 1983 “shall be liable to the party injured in an action at law, suit in equity, or other proper proper proceeding for redress.” This provision gives the Court the authority to fashion an equitable remedy for individuals who have been deprived of federally protected rights. Typically, a federal court, sitting as a court of equity, is given wide discretion when fashioning effective equitable relief.

The equitable remedy of expunction is extreme, but is appropriate where an individual’s constitutional rights have been denied. The following discussion will focus on the case law dealing with expunction in the context of prison disciplinary proceedings.

Where an inmate has been denied procedural due process during institutional disciplinary hearings, the equitable remedy of expungment may be available. See Bradley v. Coughlin, 671 F.2d 686, 690 n. 9 (2nd Cir.1982). A deprivation of [constitutional] procedural protections, however, does not automatically result in an expungment of the record.

Coles v. Levine, 561 F.Supp. 146, 153 (D.Md.1983), aff'd 725 F.2d 674 (4th Cir. 1984). Under the methodology adopted by the Seventh Circuit in Hayes v. Thompson, 637 F.2d 483, 493 (7th Cir.1980), a district court, once it determines that a prisoner’s due process rights were contravened in establishing his guilt of a rules violation, should proceed to the question of whether the constitutional deficiency was harmless. If the constitutional deficiency was harmless, then expunction is not proper. While the court in Hayes v. Thompson did not elaborate on the meaning of the phrase “harmless error,” the decision of the district court in McCall-Bey v. Franzen, 585 F.Supp. 1295 (N.D.Ill.1984), makes clear that harmlessness is not determined with reference to whether or not the particular disciplinary sanction would have been imposed even if the inmate had been , given due process. In McCall-Bey v. Franzen, the court stated:

[Violations resulting in harmless error do not require expunction. Hayes, 637 F.2d at 493.
In the case at bar, the unconstitutional conduct of [Warden] Lane justifies ex-punction of the guilty finding from McCall-Bey’s prison records. Given the adverse collateral consequences to plaintiff, the Court cannot find the constitutional violation was harmless error. Thus, McCall-Bey’s prison records should be expunged of the guilty finding and adverse collateral consequences on the record should be neutralized by expunction, explanation or other appropriate means.

Id., at 1300. The error in McCall-Bey was that the written statement of the fact findings contained in a disciplinary summary was constitutionally inadequate.

In view of the foregoing, the Court concludes that the harmlessness of a procedural due process error in the context of the written statement requirement of Wolff v. McDonnell must be determined by referring to the reasons underlying the written statement requirement. Written records of the proceedings (1) protect an inmate from collateral consequences based on a misunderstanding of the original proceeding, (2) insure that administrators, faced with possible scrutiny by the public, state officials, and the courts, will act fairly, and (3) prevent disadvantage to an inmate in propounding his own cause to or defending himself from others. Wolff v. McDonnell, 418 U.S., at 565, 94 S.Ct. at 2979.

A. Inadequate Statement Concerning Guilt Determination Stage.

When considering written statements which are inadequate as to the evidence relied on and/or the factual findings which were made to support the determination of guilt, there is indeed continuing harm to the inmate because the records may be misunderstood in subsequent use and because the inmate is disadvantaged in defending himself against such use. See McDonnell v. Wolff, 483 F.2d 1059, 1064 n. 7 (8th Cir.1973), aff'd in part, rev’d in part, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The argument that a supplemented record would avoid these potential harms is not compelling under the facts of this case. The Court seriously doubts whether these additions to the record would be accurate in fact; it is almost certain that they would be post hoc rationalizations. Thus, the Court concludes that errors of this type which occurred in the written decisions issued during the period covered by this lawsuit are not harmless and expunction will be required. See Hayes v. Thompson, supra; Ware v. Heyne, 575 F.2d 593 (7th Cir.1978); McCall-Bey v. Franzen, supra. See also Powell v. Ward, 487 F.Supp. 917, 934-36 (S.D.N.Y.1980), modified, 643 F.2d 924 (2d Cir.1981), cert. denied, 454 U.S. 832, 102 S.Ct. 131, 70 L.Ed.2d 111 (1981) (expunction as remedy for civil contempt).

B. Inadequate Reasons for Specific Sanction Imposed.

Defendants argue, in effect, that where the constitutional deficiency is the failure to provide specific reason as to why a particular sanction was chosen, expunction is inappropriate when the potential harm to the inmate is weighed against the utility to the state of maintaining the records. In support of this position, defendants cite Craig v. Franke, 478 F.Supp. 19, 21-22 (E.D.Wis.1979), wherein the court stated:

Under Wolff and Hayes, plaintiff was thereby deprived of his right to procedural due process. Thus, while Mr. Craig is not entitled to an order directing that the conduct report be expunged from his records, to guard against any subsequent misunderstandings, he is entitled to an order directing the committee to add to the report a statement of its reasons for imposing three days of adjustment segregation.

The critical question becomes what potential for harm exists by the retention of records which are constitutionally adequate in other respects but are inadequate because the records do not state the reasons for imposing a particular sanction. Because the inmates have already served the disciplinary “sentences” at issue, the potential for harm arises only when the records are relied upon in making decisions about the inmate’s future rights and privileges. Powell v. Ward, 487 F.Supp., at 935 n. 16. The potential for harm occurs when the record allows the decision maker considering it to draw unwarranted inferences. Specifically, when the decision maker reviewing the record draws inferences which are harsher than those it would have drawn had written reasons for why the particular sanction was imposed been provided, the inmate is harmed. Consequently, the concern is to what degree prison officials rely on the nature and amount of punishment imposed in the past when making decisions about an inmate’s future rights and privileges. In view of the other information contained in the decisions, the Court does not believe such reliance is great. The factual findings as to what conduct the inmate did and the finding he violated a rule are the more critical factors. Furthermore, to the degree that there is reliance on the nature and amount of punishment imposed, it is not clear that the inmate would be treated less harshly where there is a written statement of the reasons underlying the chosen punishment. Indeed, it seems just as likely that a written statement would harm the inmate as help him. In other words, it does not necessarily follow that the inmate would be in a better position with reference to the future use of the disciplinary decision had the Constitution been followed.

When balancing the potential for unwarranted harm to the inmate and the potential for post hoc rationalizations against the interest of the state in relying on records which comply with procedural due process requirements as far as the guilt determination stage is concerned, the Court will not order expunction of the determinations of misconduct where the only constitutional deficiency is failure to give written reasons for why the particular sanction was chosen. The Court has considered expunction from the records of just the nature and amount of punishment imposed, but prison officials faced with partial records of that type may draw harsher inferences and, as a result, impose greater restriction on an inmate’s future rights and privileges than they would with the information viewable.

The remedy for this category of due process violation shall be that the State shall supplement the disciplinary decisions with a statement of its reasons for imposing the particular sanction. When supplying these written statements of the reasons for the specific sanction, the State would be well advised to consider the following statement by the court in Green v. Nelson, 442 F.Supp. 1047, 1058 (D.Conn.1977):

[T]he entire text of the reasons for the action taken consists of three words: “Seriousness of offense.” This clearly fails the specificity requirements. Cf. Candarini v. Attorney General of the United States, 369 F.Supp. 1132, 1137 (E.D.N.Y.1974) (pro forma reasons for denial of parole unconstitutional).

At this point the Court is not ruling that all disciplinary proceedings which result in any degree of sanction for a major rule violation must satisfy the due- process requirements of Wolff For example, whether prison officials must comply with Wolff before imposing a reprimand, Rule 804(c)(10)(l), for a major rule violation is a question this Court explicitly leaves open. However, when administrative segregation is imposed as discipline at ISP or the corresponding sanctions at the other institutions are imposed, the process due is that which is required by Wolff If after reviewing the facts presented by the individual reports the parties believe those facts require the Court to address the process which is due when lesser sanctions are imposed, then the parties may apply to the Court for such a ruling and reference the factual situations to which the ruling would apply.

IV. Summary.

The parties shall proceed to apply the Court’s legal rulings to the factual situation presented by the individual inmate’s history. A summary of the Court’s legal rulings is as follows:

1) All inmates, including “lifers,” have a liberty interest in not being punished through the imposition of sanctions for major rule violations.
2) Officer’s report shall not be incorporated by reference in the context of determining the adequacy of the written statement requirement of Wolff.
3) Written statements which contain the substance of an inmate’s admission shall be deemed constitutionally adequate. The mere conclusion that an admission was made is not adequate.
4) The written statement must contain specific reasons for imposing the particular sanction.
5) Where the written statement is inadequate under the above standards, ex-punction shall be the remedy EXCEPT where the only inadequacy is the failure to give specific reasons for imposing the particular sanction. In these situations, the State will be allowed to supplement the misconduct determination.

Counsel for the parties will be given 21 days from the date this opinion is filed to meet and apply the above rulings to the factual situations presented.

IT IS THEREFORE ORDERED that counsel for the parties will meet and work out an agreement on how the legal standards set forth in this opinion should be applied to individual inmates’ situations. The parties shall report to the Court within 21 days from the date this opinion is filed. Furthermore, the extent to which the standards set forth in this opinion will apply to the present-day situation at the various institutions will be discussed with counsel when the Court meets with them again before judgment is entered in this case.

      . A statutory right. I.C.A. §§ 246.39, .41, .43.

      . I.C.A. § 246.31.

      . The exact parameters of “administrative segregation” in Iowa’s correctional system are unclear and, in this Court’s experience, have changed over time. See Kirby v. Keiser, Civil No. 80-108-E (S.D.Iowa Aug. 9, 1984) (order by Judge O’Brien denying State’s post-trial motion). See also Kelly v. Brewer, 378 F.Supp. 447 (S.D. Iowa 1974) aff’d in part, reversed in part, 525 F.2d 394, 399-400 (8th Cir.1975); Rhinehart v. Brewer, Civil No. 77-244-2, slip op. at pp. 4, 8 (S.D.Iowa Oct. 4, 1977) (memorandum and order by Judge Hanson).

      . This lawsuit challenges the written decisions rendered in prison disciplinary hearings conducted during the two-year period ending August 9, 1979.

      . The importance of the punitive nature of a proceeding when considering whether Rule 804 creates a protected liberty interest can be seen in Lyon v. Farrier, 727 F.2d 766 (8th Cir.1984).

      . Recently the Eighth Circuit held that the regulations of the Arkansas Department of Corrections create a protectable liberty interest that “inmates will not be confined to administrative segregation until one of the conditions in the regulations exists." Hayes v. Lockhart, 754 F.2d 281, 282-83 (8th Cir.1985).

      . According to the parties’ stipulation filed November 23, 1983, the two types of disciplinary confinement in use at the Iowa State Penitentiary (ISP) are presently labeled "disciplinary detention" and “disciplinary segregation." These types of confinement were called "solitary” and "administrative segregation” during the time covered by this lawsuit. Thus, the label "administrative segregation” is of no great moment. Rather, it is the actual reasons behind the implementation of the status which are important. See Kelly v. Brewer, 378 F.Supp., at 449 n. 2.

      . Cf. McCall-Bey v. Franzen, 585 F.Supp. 1295, 1300 (N.D.Ill.1984) (Illinois Administrative Regulation 804 does not create a different liberty interest from that recognized in Wolff).

      . Because of the period of time which has gone by since the disciplinary decisions were rendered — some may be over seven and one-half years old — the Court holds that prison officials shall be barred from reinstituting disciplinary proceedings for the incidents covered by the expunged decision. Compare Cuevas v. Scurr, Civil No. 79-131-1 (S.D.Iowa August 29, 1979) (Stuart, J., held that the prison’s own rules prohibit a second disciplinary proceeding) with Blue Rule Book, p. II-G-69 (that prohibition relaxed in certain situations).

      . The dominant consideration in requiring prison officials to be specific about their reasons for choosing a particular punishment is to protect the inmate from arbitrary and unfair punishment. Redding v. Fairman, 717 F.2d, at 1115 n. 4. This is particularly true in the instant case where prison officials had wide latitude in determining the amount of punishment to be imposed.

      . Where a disciplinary decision is properly obtained, it is undoubtedly harmful to the inmate to have that decision on his record. Where the decision is accurate, that harm to the inmate is warranted. The "harm” this Court is concerned with is unwarranted harm, i.e., that which would not exist if there had not been a constitutional violation.

      . Expunction may be the appropriate remedy where experience shows that this type of violation is not deterred by merely requiring the record to be supplemented.

      . If the State finds this remedy burdensome, this decision does not foreclose it from choosing expunction.


author: JAMES McGIRR KELLY, District Judge.

text:
    Walter C. BECKWITH v. INTERNATIONAL MILL SERVICES, INC., et al. Frank J. VALENTI v. INTERNATIONAL MILL SERVICES, INC., et al. Jay C. BUMPERS v. INTERNATIONAL MILL SERVICES, INC., et al.
    Civ. A. Nos. 84-1083, 84-1218 and 84-1219.
    United States District Court, E.D. Pennsylvania.
    April 8, 1985.

      George P. Wood, Norristown, Pa., for plaintiff.
    Harry Shargel, Philadelphia, Pa., for defendants.
   MEMORANDUM AND ORDER

JAMES McGIRR KELLY, District Judge.

Presently before the court is a summary judgment motion filed by the defendants. This matter involves three related age discrimination suits filed by the plaintiffs. Their complaints aver a pattern and practice of discrimination against employees in the protected age group of forty (40) to seventy (70) years old. The plaintiffs filed a seven count amended complaint but have agreed to voluntarily dismiss four of the counts. The remaining counts are the subject of defendants’ motion. The plaintiffs originally filed separate actions against the three defendants, but because the cases presented common issues of fact and law, I ordered their consolidation in the interest of promoting judicial efficiency. See Valenti v. International Mill Service, Inc., et al., No. 84-1218, slip op., September 28, 1984. FACTS

Messrs. Bumpers and Beckwith were employed by the Clarence A. Hackett Corporation (Hackett) beginning in 1954 and 1959 respectively. Hackett was a wholly owned subsidiary of International Mill Services, Inc. (IMS) until 1984 when Hackett merged into IMS. IMS is a wholly owned subsidiary of IU International Corporation (IU). Neither Bumpers or Beckwith worked for the parent corporation, IU. Mr. Valenti was employed by IMS beginning in 1963 and continued there until his termination. Count I of the complaint states alleged violations of Section 4(A) of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. (ADEA). Count II maintains defendants violated the Pennsylvania Human Relations Act (PHRA). Count III alleges violations of the Employee Retirement Income Security Act, 29 U.S.C. § 1140 (ERISA). This summary judgment motion goes to all of the remaining counts.

DISCUSSION

The purpose of a summary judgment motion is to test the merits of the action and determine prior to trial whether the parties have a basis for relief or defense. It is axiomatic that such a motion is not a substitute for trial and if the record, when examined in the light most favorable to the non-moving party, shows any materials facts or inferences that are in dispute, the motion should be denied. Fed.R.Civ.P. 56(a). Tomalewski v. State Farm Life Insurance Co., 494 F.2d 882, 883, 884 (1974). It is with this understanding that the court begins its discussion of defendants’ motion.

A. Is IU as a parent corporation an “employer”, subject to the liability of its subsidiary, within the meaning of 29 U.S.C. § 630(b)?

Section 630(b) defines employer as “[a] person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year ... The term also means (1) any agent of such a person ...” The plaintiffs did not work directly for IU, thus, the parent corporation can only be defined as an employer if its subsidiary acted as its “agent” under Section 630(b)(1). Agency connotes a master’s control over the servant and thus the inquiry must be focused upon whether some nexus exists between the parent IU and the subsidiary IMS to indicate that IMS is not an independent enterprise, but rather totally under the control and domination of IU. Courts have generally applied one of three tests to determine the extent a parent has assumed control over a subsidiary. They are (1) the integrated enterprise test; (2) the alter ego test; and (3) the mere instrumentality test. See Berkowitz v. Allied Stores of Penn-Ohio, Inc., 541 F.Supp. 1209, 1214 (E.D.Pa.1982). The integrated enterprise test has been specifically applied to ADEA cases. It is directed towards determining whether nominally separate corporations should be considered a single employer. To ascertain if the corporations function as one integrated enterprise, the court assesses the interrelations of the operations, the common management, centralized control of labor relations and common ownership or financial control existing between the parent and the subsidiary. Radio & Television Broadcast Technicians Local Union 1264 v. Broadcast Services of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965).

Plaintiffs have deposed both the President of IMS and the Executive Vice President of IU (who is also the Chairman of the Board of IMS). The depositions of the senior management structure of the parent and the subsidiary does not establish that the two corporations function as one integrated enterprise. First, IMS is but one of over one hundred (100) subsidiaries that are owned by the parent corporation. The IMS operation employs over 30,-000 full time personnel while IU’s headquarters operates with but a few hundred. There is no evidence to show that the labor force or the management of these two concerns are interrelated. The fact that the Executive Vice President of the parent corporation is also the Chairman of the Board for IMS is not enough to show that the IMS management structure is integrated into IU Corporation. The depositions of the senior management personnel of these two companies did not reveal that IU managers dictate the manner and method of IMS operations. There are regularly scheduled meetings between the two companies to review business results, plans, and objectives but no evidence has been produced to show that IMS management acts to rubber stamp the objectives of its parent corporation. It appears to the court that the subsidiary develops its own operating budget independent of IU. IU has authority to approve or reject it, but this fact is not enough to label IMS as a puppet organization whose every movement is controlled by the puppet master, IU. The depositions also revealed that IU’s management was not involved with the decision to terminate these three employees. Simply stated, there is no evidence to suggest either IU’s involvement in the termination or an inference of involvement through the integrated enterprise theory.

The ADEA does not impose liability upon the parent corporation merely because the termination decision of their subsidiary may have been illegal. The burden rests upon the plaintiff to show IMS is not independent of IU. Plaintiffs have failed to meet that burden, therefore, the parent corporation’s motion for summary judgment as to Count I of the amended complaint will be granted.

B. Plaintiffs Valenti and Beckwith may not maintain an action against the defendants under the Pennsylvania Human Relations Act.

The above named plaintiffs did not file charges with the commission within the statutorily mandated time period of ninety (90) days from the date of the alleged discriminatory act. Their claims under PHRA are barred and the defendants’ motion on this issue will be granted.

C. Are there facts to support a claim under 29 U.S.C. § 1140?

Section 1140 of ERISA makes its unlawful for an employer to terminate a worker for the purpose of interfering with the attainment of pension benefits. The burden is upon the plaintiffs to establish this motive.

Plaintiffs have stated during their depositions that they have no proof other than their own beliefs that they were terminated to save money vis-a-vis the vesting of their pension benefits. The plaintiffs can only show that had they continued in their employment they would have received a greater pension benefit. It does not automatically follow that the motive for their termination was to prevent them from receiving greater retirement benefits. Since plaintiffs have been unable to come forward with any evidence to support this cause of action, the court will grant summary judgment for the defendants on Count III of the amended complaint. By disposing of these remaining motions, the issue has been narrowed to focus upon whether the two remaining defendants, IMS and Hackett, based the decision to terminate the plaintiffs on age. The parties shall proceed to trial on this issue. Additionally, the defendants have filed a motion to strike the demand for a jury trial contending that they have no right to a jury trial in an action brought under ERISA (Count III). Since summary judgment as to the ERISA count will be granted in favor of the defendants, this motion to strike is rendered moot. An appropriate order follows.

      . Counts IV, V, VI, VII.

      . Summary judgment as to Count II was granted in favor of defendants and against Jay C. Bumpers, Bumpers v. International Mill Service, Inc., et al., 595 F.Supp. 166 (1984).

      . See Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476 (1970).

      . The alter-ego and the mere instrumentality test are not appropriate under these facts. The alter-ego test is derived from Zubik v. Zubik, 384 F.2d 267 (3d Cir.1967) where it was held that a court may disregard a parent corporation's existence when its subsidiary is its alter ego and where it is necessary to do so in order to prevent fraud, illegality or injustice. The mere instrumentality test is used when the parent controls a subsidiary to such a degree that it is but a mere instrumentality of the parent; and the parent is perpetuating a wrong through the subsidiary; and an unjust result will occur if the parent is allowed to be shielded by its separate corporate existence. Fanfan v. Berwind Corporation, 362 F.Supp. 793, 795 (E.D.Pa.1973).

      . This standard was first applied in labor cases and was later adopted in cases involving Title VII of the Civil Rights Act of 1964. See Williams v. New Orleans Steamship Association, 341 F.Supp. 613, 615 (E.D.La.1972). The Supreme Court has held that ADEA and Title VII should be construed in similar fashion in view of their common statutory language and purpose, Oscar Meyer and Co. v. Evans, 441 U.S. 750, 756, 99 S.Ct. 2066, 2071, 60 L.Ed.2d 609 (1979), hence the application of these factors to the case at hand.