author: VOORHEES, District Judge.

text:
    Gordon K. HIRABAYASHI, Petitioner, v. UNITED STATES of America, Respondent.
    No. C83-122V.
    United States District Court, W.D. Washington.
    Feb. 10, 1986.

      Rodney L. Kawakami, Arthur G. Barnett, Camden M. Hall, Michael Leong, Craig Kobayashi, Daniel J. Ichinaga, Benson D. Wong, Seattle, Wash., for petitioner.
    Gene S. Anderson, U.S. Atty., Susan E. , Barnes, Asst. U.S. Atty., Seattle, Wash., Victor D. Stone, Richard L. Edwards, At-tys., General Litigation and Legal Advice Section, U.S. Dept, of Justice, Washington, D.C., for respondent.
   MEMORANDUM DECISION

VOORHEES, District Judge.

Petitioner has filed a petition for a writ of error coram nobis, seeking the vacation of his conviction in October, 1942, for failing to report on May 11 or 12, 1942, to a designated Civil Control Station in Seattle, as required by Civilian Exclusion Order No. 57, and his conviction for failing, on or about May 4, 1942, to abide by Public Proclamation No. 3, requiring him to remain within his place of residence between 8:00 p.m. and 6:00 a.m.

Petitioner seeks to have these two misdemeanor convictions set aside on the ground that the government knowingly suppressed evidence favorable to him or presented evidence which it knew, or should have known, was false in order to secure those convictions or to defend them on appeal.

Testimony at petitioner’s trial or at the evidentiary hearing on his petition indicated that at the time of the acts for which petitioner was convicted, he was a twenty-four year old senior at the University of Washington. He was at that time a native-born, American citizen, having been born in Seattle, Washington, on April 23, 1918. His parents had been born in Japan but had emigrated to the United States. His father had arrived in the United States in 1907, his mother in 1914. Both of his parents were nineteen when they came to the United States. They were married in this country. Neither had ever returned to Japan. Petitioner himself had never been to Japan and had never corresponded with any Japanese in Japan. Petitioner was educated in the public schools of King County and Seattle. He had been active in the Boy Scouts and had become a Life Scout and an Assistant Scoutmaster. He was also active in the Y.M.C.A. at the University of Washington. He had been vice president of that organization and had attended Y.M.C.A. conferences in other states as a representative of the University Y.M.C.A. He had never before been arrested on any charge. He testified at trial that his parents had taught him and his brothers and sisters that they were American citizens and how to conduct themselves as such; that he had not reported to the Civil Control Station nor remained in his residence during the curfew hours because of his honest belief that the evacuation and curfew orders were unconstitutional and violated his rights as an American citizen and that for him to obey them voluntarily would have been a waiver of his rights; that in the Boy Scouts and the Y.M.C.A. and at the University of Washington he had learned what was expected of him as an American citizen and what his rights were as an American citizen; and that he had at all times tried earnestly to conduct himself as a good American citizen.

At trial the Secretary-Manager of the University Y.M.C.A. testified that the petitioner had at all times conducted himself as a law-abiding American citizen, that he was a leader in the Y.M.C.A. and other student organizations and affairs; that he was well-respected by his fellow students; and that he bore a very fine reputation among the people of the community.

At trial there was evidence that petitioner had violated the curfew restriction on the single night of May 9, 1942.

After the issuance of Civilian Exclusion Order No. 57, which required petitioner to report on May 11 or May 12, 1942, to a designated Civilian Control Station in Seattle, he went with his attorney to the Seattle office of the F.B.I. and turned himself in. Although this is not clear on the record, petitioner must have stated to the F.B.I. that he was refusing to report to a control station. During his interview by an agent of the F.B.I. petitioner volunteered the information that for the past few nights in May he had not abided by the curfew restrictions imposed by Public Proclamation No. 3. The F.B.I. agent advised petitioner that no charges at all would be brought if he registered with the Civilian Control Station, but this, petitioner refused, as a matter of conscience, to do.

None of this testimony was challenged by the government either at petitioner’s trial or during the hearing upon petitioner’s application for a writ of error coram nobis. The government presented no evidence that petitioner was anything other than a law-abiding, native-born American citizen.

Petitioner was indicted in a two count indictment returned by a grand jury on May 28, 1942. Count I of the indictment charged that defendant had failed to report to a designated Civil Control Station on May 11 or May 12, 1942, as required by Civilian Exclusion Order No. 57, which was issued by the Military Commander of the Western Defense Command on May 10, 1942. Count II charged that on or about May 4, 1942, between 8:00 p.m. and 6:00 a.m. defendant.was not within his place of residence, as required by Public Proclamation No. 3, which was issued by the Military Commander of the Western Defense Command on March 24, 1942.

Petitioner was tried on October 20, 1942, and was found by the jury to be guilty on each count. On the following day petitioner was sentenced to serve three months on each count, the two sentences to be served concurrently.

Petitioner’s appeal was argued before the Supreme Court on May 10 and 11,1943. The sentence of confinement imposed upon petitioner was affirmed by the Supreme Court on June 21, 1943. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943).

In affirming the sentence imposed upon petitioner, the Supreme Court considered only the charge in the second count, the one that charged petitioner with violating the curfew restrictions of Public Proclamation No. 3.

In an opinion authored by Chief Justice Stone, the Supreme Court stated:

The conviction under the second count is without constitutional infirmity. Hence we have no occasion to review the conviction on the first count since ... the sentences on the two counts are to run concurrently and conviction on the second is sufficient to sustain the sentence. 320 U.S. 81 at 105 [63 S.Ct. at 1387], 87 L.Ed. 1774 at 1788.

In consequence, the conviction of petitioner on the first count (the failure by him to report to a Civil Control Station) has never been reviewed upon appeal. (His conviction on both counts had been appealed by him to the United States Circuit Court for the Ninth Circuit, but that court certified the entire record to the Supreme Court and did not itself act upon the appeal.)

In determining whether petitioner’s convictions should be vacated, the Court has carefully considered the record of petitioner’s trial, the arguments made by the government in the brief submitted by it to the Supreme Court, the reasoning of the Supreme Court in its affirmance of the sentence imposed upon petitioner, the testimony of those who were called as witnesses at the hearing upon petitioner’s petition, the voluminous exhibits which were admitted into evidence at the hearing, and the arguments made by counsel for petitioner and for the government in their post-hearing briefs.

The Court will first consider the conviction of petitioner for his failure to report to a designated Civil Control Station on May 11 or May 12, 1942.

The background of Civilian Exclusion Order No. 57 is, in brief, as follows: after the attack on Pearl Harbor on December 7, 1941, President Franklin D. Roosevelt issued Executive Order 9066, on February 19, 1942. That order authorized the Secretary of War or his designees to prescribe military areas from which any or all persons might be excluded. On February 20, 1942, Secretary of War Henry Stimson delegated his authority under Executive Order 9066 to Lieutenant General John L. De-Witt, the Commanding General of the Western Defense Command.

On March 2,1942, General DeWitt issued Public Proclamation No. 1. The proclamation divided the states of Washington, Oregon, California and Arizona into two military areas. The western portions of Washington, Oregon and California and the southern portion of Arizona were designated as Military Area No. 1. The balance of each of those states was designated as Military Area No. 2. On March 21, 1942, the President signed Public Law No. 503, which had been enacted by Congress. That law made it a misdemeanor knowingly to disregard restrictions made applicable by a military commander to persons in a prescribed military area.

On March 24, 1942, General DeWitt issued Civilian Exclusion Order No. 1. That order affected about fifty Japanese families, residing on Bainbridge Island, Washington, and provided for their evacuation from that island one week later. Thereafter, further exclusion orders were issued from time to time for the various zones in Military Area No. 1.

The order which affected petitioner was Civilian Exclusion Order No. 57, issued by General DeWitt on May 10, 1942. That order provided that from and after May 16, 1942, all persons of Japanese ancestry were excluded from a designated geographical area (this area included petitioner’s place of residence) and required a responsible member of each family and each person living alone to report on May 11 or May 12, 1942, to a designated Civil Control Station in Seattle. The instructions which were posted with the exclusion order made it plain that reporting was for the purpose of receiving further instructions and that the excluded individuals were thereafter to be sent to an Assembly Center.

Because petitioner refused to report to the Civil Control Station, he was indicted for the crime of failing to comply with Exclusion Order No. 57, and was tried, convicted and sentenced for that offense.

Petitioner’s appeal was heard by the Supreme Court on May 10 and 11, 1943. Shortly before that hearing, General De-Witt transmitted to the Secretary of War and to General George C. Marshall, the Chief of Staff, printed copies of a document entitled “Final Report: Japanese Evacuation from the West Coast 1942.” It included a printed letter of transmittal to the Chief of Staff, dated April 15, 1943. That letter stated in part:

“The evacuation was impelled by military necessity. The security of the Pacific Coast continues to require the exclusion of Japanese from the area now prohibited to them and will continue for the duration of the present war.”

Chapter II of the report entitled “Need for Military Control and for Evacuation” contained the following statements:

“Because of the ties of race, the intense feeling of filial piety and the strong bonds of common tradition, culture and customs, this population [the Japanese population] presented a tightly-knit racial group. It included in excess of 115,000 persons deployed along the Pacific Coast.... While it was believed that some were loyal, it was known that many were not. It was impossible to establish the identity of the loyal and the disloyal with any degree of safety. It was not that there was insufficient time in which to make such a determination; it was simply a matter of facing the realities that a positive determination could not be made, that an exact separation of the ‘sheep from the goats’ was unfeasible.”
“He [the Commanding General of the Western Defense Command] had no alternative but to conclude that the Japanese constituted a potentially dangerous element from the viewpoint of military security — that military necessity required their immediate evacuation to the interior.”

On April 19, 1943, Edward J. Ennis sent a memorandum (Ex. 35) to Solicitor General Charles Fahy relative to the briefs to be filed with the Supreme Court on behalf of the United States in United States v. Hirabayashi, United States v. Yasui and United States v. Korematsu. Ennis was at the time the director of the Alien Enemy Control Unit of the Department of Justice and was in charge of the preparation of the briefs for the Supreme Court in those three cases. In pertinent part that memorandum read as follows:

“In my opinion minor differences of presentation of the Court’s own authorities on the legal question of the war power, due process and martial law will have little influence on their decision in view of their own familiarity with this material and their scrutiny of the applicable law. The effective area for assisting the Court is in the presentation of the factual material. In this connection the War Department has today received a printed report from General DeWitt about the Japanese evacuation and is now determining whether it is to be released so that it may be used in connection with these cases. The War Department has been requested to furnish any published materials which may be helpful. I will continue further and so far as possible to document the facts which are not in the record but which may be judicially noticed on the constitutional question.”

Coincidentally, on that same date Assistant Secretary of War John J. McCloy had a telephone conversation with Colonel Karl R. Bendetsen relative to General DeWitt’s Final Report, which had just been received by the War Department in Washington, D.C. Colonel Bendetsen was at the time in charge of the Wartime Civil Control Administration of the Western Defense Command. The typed transcript (Ex. 66) of that conversation reveals that Mr. McCloy was more than a little exercised because the Final Report had been printed in final form and distributed without any prior consultation by the Western Defense Command with the War Department about its contents. Mr. McCloy was particularly disturbed that General DeWitt had stated in his report that the security of the West Coast would continue to require the exclusion of the Japanese for the duration of the war.

Thereafter, on April 26, 1943, Brigadier General James W. Barnett sent a message (Ex. 67) to General DeWitt which in pertinent part was as follows:

“Bendetsen informs me he conferred on final report in Washington today. He was given oral directive to revise the report with the assistance of Capt. Hall. He made the point that he was in no position to do this since it was your report. Bendetsen told me that he could recommend the acceptance of some parts of the suggested revision but that two points went to the fundamental concept of evacuation. The principal one of these was that loyalty could not be determined and for that reason mass evacuation was ordered. He requested instructions. I told him it was your report and that the War Department could not tell you what to say. He had made that point and said that the instructions he received were to make a draft of the proposed revision for presentation to you for acceptance or revision. If you have additional instructions I will transmit them to Bendetsen by telephone.”

On April 27, 1943, General DeWitt responded to the message from Brigadier General Barnett with the following message (Ex. 68):

“My report as signed and submitted to Chief of Staff will not be changed in any respect whatsoever either in substance or form and I will not repeat not consent to any repeat any revision made over my signature. Higher authority may of course prepare and release whatsoever they so desire as views of that authority but statements in my signed report of evacuation are mine and so submitted. Submission of prepared revisions for presentation to me for acceptance or revision will accomplish nothing as final word on subject so far as I repeat I am concerned has been said.”

On May 3, 1943, Colonel Bendetsen sent the following message (Ex. 70) to General DeWitt relative to conferences between himself and Assistant Secretary of War McCloy:

“Mr. McCloy stated that he strongly desired to avoid creating the impression that he had any wish to prescribe what the Commanding General should say or not say in the final report. He did say, however, that he thought it could be improved upon. Following this vein, he expressed an earnest desire to have transmitted to the CG the nature of his specific suggestions with an explanation of why he felt the making of revisions conforming to these suggestions would result in improvement.”
“In brief, Mr. McCloy’s suggestions cover three points:
“a. In paragraph 2 of the letter of transmittal the statement appeared that the necessity for exclusion of all Japanese from the Pacific coast ‘will continue for the duration of the present war.’ He said he could see no objection to a statement to the effect that exclusion will be essential so long as any military necessity exists therefor, but he said no one could foresee what the situation would be a year or two hence, and therefore he felt it stultified the report to make such a statement. He drew a parallel to the fact that in the last war a formal state of war continued in existence until 1921, although hostilities had ceased on November 11, 1918.
b. “The second objection was to that portion of Chapter II which said in effect that it is absolutely impossible to determine the loyalty of Japanese no matter how much time was taken in the process. He said that he had no objection to saying that time was of the essence and that in view of the military situation and the fact that there was no known means of making such a determination with any degree of safety the evacuation was necessary.” (Emphasis in the original.)
c.. His other comments related to certain changes in style and tone, which were orally described as designed to eliminate redundancy. These were indicated by him with blue pencil. In a number of cases he made comments on changes in tone which he believed were calculated to eliminate unnecessary pointedness with regard to certain sins of omission on the part of the Department of Justice. He said he felt this could be accomplished without in any way departing from an accurate factual account.

On May 5, 1943 General DeWitt sent the following message (Ex. 71) to Brigadier General Barnett:

“Have no desire to compromise in any way govt case in Supreme Court and do not understand how substance and form of report as submitted can have this effect. Both you and Bendetsen know my crews [views] and my attitude. Do not understand MeCloy’s proposal. Report is now factual and I solemnly see my views and actions determined as necessary at time of evacuation weakened or undermined if report changes. I cannot conscientiously change or put into separate document proposals for future disposition of evacuees without by my own act invalidating my assigned mission and responsibilities thereunder. If time permits send Bendetsen by air to Anchorage reporting to me from there so he will know where to meet me and I can be fully informed and settle the matter.” (Emphasis in the original)

On May 9, 1943, Colonel Bendetsen sent the following message (Ex. 72) to Brigadier General Barnett:

“General DeWitt directs that final report of evacuation be revised as indicated by Colonel Bendetsen to Major Moffitt in Major Moffitts copy of report together with style changes given to Major Mof-fitt orally ... You are prohibited from submitting to Assistant Secretary of War any drafts of amended report. Further the revised report will not be given to anyone until DeWitt finally approves. All copies heretofore sent to the War Department (not including inclosures) will be called in by you and you will have War Department records of receiving report destroyed inasmuch as such revision as is finally sent to War Department will have a later dated transmittal letter....”

Exhibits 73 and 74 relate to the changes in the Final Report suggested by the War Department. Fifty-five changes were listed. The proposed changes most relevant to this proceeding were these:

Page iii, paragraph 2, second sentence: Eliminate the words “and will continue for the duration of the present war.” Page iii, paragraph 2, end of the second sentence: Insert “The surprise attack at Pearl Harbor by the enemy crippled a major portion of the Pacific Fleet and exposed the West Coast to an attack which could not have been substantially impeded by defensive fleet operations. More than 120,000 persons of Japanese ancestry resided in colonies adjacent to many highly sensitive installations. Their loyalties were unknown, and time was of the essence.”
Page 9. Strike the following: “It was impossible to establish the identity of the loyal and the disloyal with any degree of safety. It was not that there was insufficient time in which to make such a determination; it was simply a matter of facing the realities that a positive determination could not be made, that an exact separation of the ‘sheep from the goats' was unfeasible.”
And replace with the following:- “To complicate the situation, no ready means existed for determining the loyal and the disloyal with any degree of safety. It was necessary to face the realities — a positive determination could not have been made.”

On June 5,1943, General DeWitt issued a revised version (Ex. 85) of his final report on the Japanese evacuation. In that version of the report the underlined portions of the following statements were either deleted from or added to the original version of the Final Report:

Page iii, paragraph 2: “The security of the Pacific Coast continues to require the exclusion of Japanese from the area now prohibited to them and will continue for the duration of the present war.” (Deleted from the original version.)
Page iii, paragraph 2: “More than 120,-000 persons of Japanese ancestry resided in colonies adjacent to many highly sensitive installations. Their loyalties were unknown, and time was of the essence.” (Added to the original version.)
Page 9. “It was impossible to establish the identity of the loyal and the disloyal with any degree of safety. It was not that there was insufficient time in which to make such a determination; it was simply a matter of facing the realities that a positive determination could not be made, that an exact separation of the ‘sheep from the goats’ was unfeasible.” (Deleted from the original version and replaced by the following sentence.)
Page 9: “To complicate the situation, no ready means existed for determining the loyal and the disloyal with any degree of safety. It was necessary to face the realities — a positive determination could not have been made.” (Added to the original version.)

On June 21, 1943, the Supreme Court handed down its decision, affirming the conviction of petitioner on the count charging curfew violation.

That General DeWitt did in fact believe that it was impossible to separate the loyal Japanese from the disloyal ones, is borne out by the transcripts of two telephone conversations which took place a few months before the publication of the initial version of the Final Report.

The first was a conversation between General DeWitt and Major General A.W. Gullion, the Provost Marshal General, on January 14, 1943. The subject matter of the conversation was the possibility that the Western Defense Command might be called upon to make thirty thousand or more loyalty investigations of individuals in the relocation centers. In the transcript (Ex. 63) of that telephone conversation the following appears:

DeWitt: I don’t see how they can determine the loyalty of a Jap by interrogation ... or investigation.
Gullion: They’ve got a questionnaire that the Navy — some psychologist over there in the Navy sold to them.
DeWitt: There isn’t such a thing as a loyal Japanese and it is just impossible to determine their loyalty by investigation — it just can’t be done ...

The other was a conversation just four days later between General DeWitt and Assistant Secretary of War McCloy. General DeWitt was disturbed that he had been instructed to prepare for about 30,000 loyalty investigations. In the transcript (Ex. A-84) of that conversation the following appears:

DeWitt: Because I feel that I wouldn’t be loyal to you or honest to you if I didn’t say that it is a sign of weakness and an admission of an original mistake. Otherwise — we wouldn’t have evacuated these people at all if we could determine their loyalty.
McCloy: I don’t know whether we are at one on that—
DeWitt: I know we are not one on it—
McCloy: We evacuated them from the West Coast because we thought the front was immediate. We couldn’t sort them out immediately.

It is further borne out by his statement in the original version of the Final Report that the security of the Pacific Coast required the exclusion of the Japanese from that area for the duration of the war. This can only be interpreted to mean that in his opinion the loyalty of a person of Japanese extraction could not be determined no matter how long the war might last.

In its brief to the Supreme Court in petitioner’s appeal the government did not take the position that it was impossible to separate the loyal Japanese residents from those who were not. Rather, it was a lack of time that prevented that separation.

On page 35 of its brief the government stated:

“The classification was not based upon invidious race discrimination. Rather, it was founded upon the fact that the group as a whole contained an unknown number of persons who could not readily be singled out and who were a threat to the security of the nation and in order to impose effective restraints upon them it was necessary not only to deal with the entire group, but to deal with it at once." (Emphasis added)

On page 61 it stated:

“The grave emergency called for prompt and decisive action.”

On page 62 it stated:

“What was needed was a method of removing at once the unknown number of Japanese persons who might assist a Japanese invasion, and not a program for sifting out such persons in the indefinite future.” (Emphasis added)

On page 63 it stated:

“The operative fact on which the classification was made was the danger arising from the existence of a group of over 100,000 persons of Japanese descent on the West Coast and the virtually impossible task of promptly segregating the potentially disloyal from the loyal.” (Emphasis added)

The opinion of the Supreme Court in Hirabayashi vs. United States, reflected the court’s acceptance of the government argument that the lack of time to separate the loyal from the disloyal justified action directed toward all individuals of Japanese ancestry. In its opinion the court stated:

“Whatever views we may entertain regarding the loyalty to this country of the citizens of Japanese ancestry, we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it.” (Emphasis added) 320 U.S. 81 at 99, 63 S.Ct. at 1385.

The position taken by the government with respect to the efficacy of loyalty hearings was set forth in a post-argument memorandum filed by Solicitor General Fahy with the Supreme Court on May 14, 1943. That memorandum stated in relevant part:

“Our position is not that hearings are an inappropriate method of reaching a decision on the question of loyalty. The Government does not contend that, assuming adequate opportunity for investigation, hearings may not ever be appropriately utilized on the question of the loyalty of persons here involved. It is submitted, however, that in the circumstances set forth in our brief, this method was not available to solve the problem which confronted the country. The situation did not lend itself, in the unique and pressing circumstances, to solution by individual loyalty hearings. In any event, the method of individual hearings was reasonably thought to be unavailable by those who were obliged to decide upon the measures to be taken.”

A great deal of additional documentary evidence was submitted by both petitioner and the government, but the evidence, outlined above, goes to the very heart of the issue before the Supreme Court, that is, the military necessity for the exclusion order. It demonstrates that General DeWitt ordered the exclusion of everyone of Japanese ancestry from the West Coast because of his belief that it was impossible to separate loyal Japanese from those who might be disloyal no matter how much time was devoted to that task.

General DeWitt's reason for ordering the exclusion was made known to the War Department in the original version of his Final Report. From the changes in that report which were insisted upon by the War Department there can be no doubt that the War Department was aware of, but did not agree with, General DeWitt’s belief that it was the impossibility of separating the loyal from the disloyal Japanese that made their exclusion from the West Coast a military necessity.

A copy of the original version of the Final Report was never made available to the Justice Department. In consequence, all through the course of petitioner’s appeal, that department was unaware of General DeWitt’s stated reason for the exclusion of the Japanese from the West Coast. The Justice Department assumed and argued to the Supreme Court that the military necessity arose out of a lack of time to make a separation rather than out of an impossibility of making that separation.

Although the Justice Department did not knowingly conceal from petitioner’s counsel and from the Supreme Court the reason stated by General DeWitt for the exclusion of the Japanese, the government must be charged with that concealment because it was information known to the War Department, an arm of the government.

It is petitioner’s position that the concealment by the government of the reasons stated by General DeWitt for the exclusion of the Japanese from the West Coast was a suppression of evidence which requires the vacation of petitioner’s convictions.

Whether this action by the government warrants the vacation of petitioner’s convictions requires the Court to consider whether a conviction may be set aside under a writ of error coram nobis and, if so, the requirements that must be met by one seeking the remedy of that writ.

A writ of error coram nobis is a seldom-used remedy, but if a petition for a writ of error coram nobis is found to be meritorious, a conviction may be set aside even though the petitioner has fully served his sentence on that conviction. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954); Holloway v. United States, 393 F.2d 731, 732 (9th Cir.1968). Petitioner is not foreclosed, therefore, from availing himself of this remedy even though he long ago served the sentence which was imposed upon him.

In order for a writ of error coram nobis to be available to petitioner with respect to his conviction on the failure to report count, he must meet a number of requirements:

1. His petition must be brought in the court in which he was convicted. United States v. Morgan, 346 U.S. 502, 507 n. 9, 74 S.Ct. 247, 250 n. 9, 98 L.Ed. 248 (1954).

2. A more usual remedy must not be available to him. James v. United States, 459 U.S. 1044, 103 S.Ct. 465, 74 L.Ed.2d 615 (1982) (Brennan, J., dissenting from denial of petition for writ of certiorari).

3. He must demonstrate that he suffers present adverse consequences from his conviction sufficient to satisfy the case or controversy requirement of Article III. United States v. Dellinger, 657 F.2d 140, 144 n. 6 (7th Cir.1981).

4. He must show that there are valid reasons for his not having attacked his conviction earlier. Maghe v. United States, 710 F.2d 503 (9th Cir.1983).

5. He must demonstrate that the error of which he complains was of the most fundamental character. United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 253, 98 L.Ed. 248 (1954); United States v. Taylor, 648 F.2d 565, 570 (9th Cir.1981).

6. Finally, he must demonstrate that it is probable that a different result would have occurred had the error not been made. United States v. Dellinger, 657 F.2d 140, 144 n. 9 (7th Cir.1981).

In the present action the first requirement is clearly met. Petitioner brought his petition in the Western District of Washington, the district in which he was convicted.

The second requirement is also met. Petitioner’s right to appeal from his conviction was exercised and exhausted long ago. His right to petition for habeas corpus relief is unavailable because he is no longer in custody. The writ of error coram nobis is at this time the only remedy available to him.

The requirement that petitioner must demonstrate that he presently suffers adverse consequences from his conviction is less clear. Understandably, misdemeanor convictions do not carry with them the adverse consequences that flow from felony convictions. Although it is highly unlikely that his 1942 conviction on the failure to report count would ever be used to impeach his credibility in any future civil or criminal trial, nonetheless it could be so used in jurisdictions, and there are some, which permit that use of misdemeanor convictions. It is true, too, that if petitioner were ever convicted for any other crime, a sentencing judge would be advised of that 1942 conviction and could properly take that conviction into consideration in fashioning an appropriate sentence. As was said in Holloway v. United States, 393 F.2d at 732: “Coram nobis must be kept available as a post-conviction remedy to prevent ‘manifest injustice’ even where the removal of a prior conviction will have little present effect on the petitioner.”

The Court is of the opinion that petitioner has adequately demonstrated that he presently suffers adverse consequences from his conviction in 1942 of the crime charged in the first count of the indictment.

With respect to the requirement that petitioner must present valid reasons for his not having attacked his conviction earlier, the government argues that all of the factual material presented on behalf of petitioner has been a matter of public record for nearly forty years and that petitioner is hence bound by the doctrine of laches from seeking to overturn his convictions. The government particularly relies upon the book Americans Betrayed by Morton Grodzins, which was published in 1949.

The Court has read with care all of the excerpts from the Grodzins book which the government presented as an exhibit and which it asked the Court to consider. At no place in those excerpts is there any reference to the statements made by General DeWitt in the initial version of his Final Report. In none of the other publications submitted by the government is there any such reference.

Although it is true that at least one copy of the initial version of the Final Report survived, petitioner cannot be faulted for not finding and relying upon that version long before he brought this action in early 1983.

Ms. Aiko Herzig-Yoshinaga, a professional researcher, testified that it would have been exceedingly difficult for a lay person to locate that copy of the initial version of the Final Report. Although she had been employed as an archival researcher on the staff of the Commission on Wartime Relocation and Internment of Civilians between June 1981 and June 1983, she testified that it was not until the end of 1982 that she became aware of the existence of the initial version and then only because she had for-tuitiously observed that copy on the desk of an archivist in the Modern Military Section of the National Archives and, upon examining it, recognized its wording to be different from that of the published version.

There is no evidence in the record that petitioner actually knew, or had reason to know, of the existence of the initial version of the Final Report prior to the time that Ms. Herzig-Yoshinaga happened upon it in the National Archives. Petitioner did not unduly delay the commencement of this action after he learned of the existence of the initial version of the Final Report.

The Court' finds, in consequence, that petitioner has presented valid reasons for not having sooner brought his petition for writ of error coram nobis.

The requirements that the error of which the petitioner complains be of the most fundamental character and that, absent the error, it is probable that a different result would have occurred will be considered together.

The error of which petitioner complains is that, during the pendency of his appeal before the Supreme Court, neither he nor his counsel was informed by the government of the reason given by General De-Witt in the original version of his Final Report for the exclusion of all persons of Japanese ancestry from the West Coast. That statement was in essence that the military necessity, requiring the exclusion, was the impossibility of separating the loyal persons from the disloyal ones no matter how much time was devoted to that task.

It was General DeWitt who made the decision that military necessity required the exclusion of all persons of Japanese ancestry from the West Coast. The central issue before the Supreme Court in the appeal of petitioner from his conviction on the first count was whether exclusion was in fact required by military necessity. Nothing would have been more important to petitioner’s counsel than to know just why it was that General DeWitt made the decision that he did. The attorneys for the Justice Department assumed, and argued to the Supreme Court, that it was the need for prompt action that made the exclusion a military necessity. The statements by General DeWitt in his Final Report belied that assumption. His statement was that it was not time that made the exclusion necessary but rather the impossibility of determining whether any particular individual was or was not loyal.

The disclosure of that information to petitioner’s counsel and to the Supreme Court would have made it most difficult for the government to argue; as it did, that the lack of time made exclusion a military necessity. At the hearing on petitioner’s petition Edward Ennis, who was in charge of the preparation of the brief for the government, testified that the whole thrust of the government’s argument before the Supreme Court was that there was not sufficient time to make a differentiation between the loyal Japanese and those who might be disloyal. When asked what he would have done had he learned in March or April, 1943, of General DeWitt’s statement, he answered that it would have presented “a very serious problem” and that it would have been “very dangerous” to take that position before the Supreme Court.

Had the statement of General DeWitt been disclosed to petitioner’s counsel, they would have been in a position to argue that, contrary to General DeWitt’s belief, there were in fact means of separating those who were loyal from those who were not; that the legal system had developed through the years means whereby factual questions of the most complex nature could be answered with a high degree of reliability. Counsel for petitioner could have pointed out that with very little effort the determination could have been made that tens of thousands of native-born Japanese Americans — infants in arms, children of high school age or younger, housewives, the infirm and elderly — were loyal and posed no possible threat to this country. More time might have been required to consider the loyalty of those who had spent their adult lives in truck gardening or farming or fishing, but a great number of those, too, could have been rather quickly found to be loyal and of no possible threat.

Had counsel for petitioner known and been able to present to the Supreme Court the reason stated by General DeWitt for the evacuation of all Japanese, it is this Court’s opinion that the Supreme Court would have felt impelled to consider and to rule upon petitioner’s appeal from his conviction on the failure to report count rather than confirming petitioner’s sentence by simply affirming his conviction upon the curfew count. If the asserted ground was known by the Supreme Court to be the impossibility of separating the loyal from the disloyal, the Supreme Court would have found itself in an area of inquiry where its collective wisdom and its collective experience were far greater than that of General DeWitt. The justices of the Supreme Court were intimately familiar with the process of factual determinations. If the military necessity for exclusion was the impossibility of separating the loyal from the disloyal, the Supreme Court would not have had to defer to military judgment because this particular problem, separating the loyal from the disloyal, was one calling for judicial, rather than military, judgment.

The Court finds that the failure of the government to disclose to petitioner, to petitioner’s counsel, and to the Supreme Court the reason stated by General DeWitt for his deciding that military necessity required the exclusion of all those of Japanese ancestry from the West Coast was an error of the most fundamental character and that petitioner was in fact very seriously prejudiced by that non-disclosure in his appeal from his conviction of failing to report. In consequence, petitioner’s conviction on the failure to report count must be vacated.

With respect to petitioner’s conviction on the curfew count, the Court has made the same analysis with respect to the requirements for the granting of a writ of error coram nobis. With respect to that conviction, the Court finds that it is unable to set aside the conviction of petitioner of violating the curfew order on a single day in May of 1942. After considering the arguments made in the government’s brief before the Supreme Court with respect to the curfew violation and the lengthy opinion of the Supreme Court affirming that conviction, the Court is not persuaded that the non-disclosure of the statement made by General DeWitt with respect to the military necessity for exclusion was an error of the most fundamental character with respect to the curfew count or that the nondisclosure was actually prejudicial to petitioner with respect to that count.

Even though the curfew order was burdensome with respect to native-born Japanese since it lumped them in with alien Germans, alien Italians, and alien Japanese, the burden was nevertheless relatively mild when contrasted with the harshness of the exclusion order. Under the curfew order, petitioner and all others subject to that order, were permitted to live in their own homes, to continue to work at their places of employment, to travel back and forth from their homes to their places of employment, and, between six in the morning and eight in the evening, to move freely about so long as they remained within a distance of five miles from their places of residence. In addition, the curfew order was a temporary restriction. It was promulgated on March 24, 1942, and was, as a practical matter, relatively short lived. As soon as the exclusion orders became effective, the curfew order was supplanted by them.

By the time the petitioner’s appeal had been heard by the Supreme Court, the curfew order had long since been replaced by the exclusion and relocation orders. The Court is persuaded that petitioner’s conviction on the curfew count would without question have been affirmed by the Supreme Court even though the Supreme Court had been made aware of the reason given by General DeWitt for his ordering the exclusion of those of Japanese ancestry from the West Coast. His reason for the exclusion did not significantly undermine the earlier issuance of the curfew order. The Court must hence deny the petition of petitioner that his conviction on the curfew count be vacated.

Accordingly, the petition of petitioner that his conviction on Count I of the indictment be vacated is GRANTED. His petition that his conviction on Count II of the indictment be vacated is DENIED.


source: Caselaw Access Project

author: PHILIP PRATT, District Judge.

license: Public Domain

text:
    Lorne Donald DAVEY, Plaintiff, v. Richard TOMLINSON, Maynard Hopson, William Hudson, Steven Dest and City of Detroit, Defendants.
    Civ. No. 83-CV-2977-DT.
    United States District Court, E.D. Michigan, S.D.
    Feb. 10, 1986.
    As Amended May 15, 1986.

      Peter J. Rogissart, Livonia, Mich., for plaintiff.
    Thomas H. Peterson, III, City of Detroit Law Dept., Detroit, Mich., for defendants.
   MEMORANDUM OPINION AND ORDER

PHILIP PRATT, District Judge.

This is a federal civil rights action based on the alleged unlawful arrest, detention, and prosecution of the plaintiff, Mr. Lome D. Davey. Plaintiff seeks damages against several Detroit Police Officers as well as the City of Detroit.

I.

The complaint, filed on July 22, 1983, states that plaintiff was driving his car on July 22,1981, in an alleyway near the intersection of Appleton and Grand River in Detroit. The plaintiff was then stopped and arrested by Detroit Police Officer Richard Tomlinson. Plaintiff argues that his arrest was without a warrant and without probable cause. Furthermore, plaintiff states that he was “pushed ... over the hood of his automobile and handcuffed ... and forced” into a police car. Complaint at 1111-13.

Plaintiff also alleges that Officer Tomlin-son and Officers Maynard Hopson and William Hudson, called as back-up to the scene where plaintiff was arrested, entered into a conspiracy to deprive plaintiff of his constitutional rights. Another unnamed officer, plaintiff argues, threatened to kill him and was also a member of the conspiracy.

The remaining allegations in the complaint, those contained in paragraphs 19-31, allege state law claims for false arrest, false imprisonment, malicious prosecution, negligence, and gross negligence.

Plaintiff’s arrest apparently stemmed from a citizen complaint about someone exposing himself in the Sixteenth Precinct area of Detroit. A resident of that area, Cynthia Teal, stated that she saw someone parked outside of her home at 8:00 a.m. on July 22, 1981. She testified:

I opened the front door and I looked out and I saw a baby blue Cutlass ... it was chilly out and I noticed he didn’t have a shirt on. There were two little girls in the street and, apparently, he said something to them because they took off running....

Transcript at 34.

Ms. Teal further stated that the same man reappeared in the neighborhood several hours later. She said that he pulled up in front of her house. “[H]e had nothing on,” she said, “he was masturbating.” Transcript at 35. Later the same day, Ms. Teal testified, the man drove near her home on two other occasions. A neighbor then got the man’s license plate number, and Ms. Teal called it in to police. The Sixteenth Precinct dispatched Officer Tom-linson to investigate the matter.

After talking with Ms. Teal, Officer Tom-linson was patrolling the area when he spotted a car matching the description given by the neighbors. He stopped the car, saw that the driver was wearing only shorts and shoes, and then arrested him. See Police Incident Report. Plaintiff was subsequently charged with indecent exposure and acquitted by a Detroit Recorder’s Court jury. Michigan v. Davey, 81-53596 (Sept. 8, 1981). The present action followed.

II.

Plaintiff predicates jurisdiction on 42 U.S.C. §§ 1981, 1983, 1985(3), 1986, the first, fourth, fifth, sixth, eighth and fourteenth amendments to the United States Constitution. As a threshold matter, the court must determine whether jurisdiction is proper under the numerous statutory and constitutional provisions upon which plaintiff relies.

Plaintiff’s section 1981 claim cannot withstand scrutiny. That section, originally enacted as part of the Civil Rights Act of 1866, was aimed at abolishing slavery, its badges, and incidents. Winston v. Lear-Siegler, Inc., 558 F.2d 1266 (6th Cir.1977). The statute protects against race or alien based discrimination by providing all persons with the same rights as “white citizens.” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975).

In order to state a claim under section 1981, plaintiff must allege that he was treated differently because of his race. Long v. Ford Motor Co., 496 F.2d 500 (6th Cir.1974); German v. Killeen, 495 F.Supp. 822 (E.D.Mich.1980). These allegations should be supported by specific acts, practices, or policies which resulted in the alleged discrimination. United Black Firefighters of Norfolk v. Hirst, 604 F.2d 844 (4th Cir.1979).

In his complaint, plaintiff alleges that he was illegally arrested, roughed up, wrongfully charged with indecent exposure in Detroit Recorders Court, and eventually found not guilty by a jury. These allegations, considered against the backdrop of Rule 8(f), Fed.R.Civ.P., do not satisfy the requirements for a section 1981 claim. There is no claim or inference that plaintiff was treated any differently than a “white citizen.” Thus, plaintiffs section 1981 claim is unsupported by any facts or inferences and must be dismissed.

The same deficiencies plague plaintiffs section 1985(3) claim. That section makes actionable a conspiracy to deprive a person of the equal protection of the law. Unlike section 1983’s color of state law requirement, section 1985(3) applies only to private conspiracies predicated on “racial, or perhaps otherwise class-based, insidiously discriminatory animus.” Griffin v. Breckenridge, 403 U.S. 88, 101-02, 91 S.Ct. 1790, 1797-98, 29 L.Ed.2d 338 (1971); United Brotherhood of Carpenters & Joiners v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983). It is necessary to allege a conspiracy, the acts in furtherance thereof, and that the acts stemmed from a class-based animus. Place v. Shepherd, 446 F.2d 1239 (6th Cir.1971). The Court in Griffin stated:

The language [of the statute] requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, insidiously discriminatory animus behind the conspirators’ action.

403 U.S. at 102, 91 S.Ct. at 1798. No such animus being alleged here, the section 1985 claim must be dismissed.

Furthermore, there is nothing alleged to back plaintiff’s claim of a conspiracy. Plaintiff argues in conclusory fashion that defendants conspired to deprive him of his constitutional rights but does not go any further. There are no allegations of specific acts or the means by which defendants are alleged to have conspired. There is not enough to show a conspiracy. Copley v. Sweet, 234 F.2d 660 (6th Cir.1956).

Since a section 1986 claim, which plaintiff also asserts, is “designed to punish those who aid and abet violations of section 1985,” that claim cannot stand. Without a violation of section 1985(3), there can be no violation of section 1986. Browder v. Tipton, 630 F.2d 1149, 1155 (6th Cir.1980); Hahn v. Sargent, 523 F.2d 461 (1st Cir.1975); German v. Killeen, 495 F.Supp. at 829-30. (“A section 1986 claim is totally dependent upon section 1985 for vitality.”)

Moreover, the court is troubled by plaintiff’s shotgun approach at pointing to specific constitutional guarantees he contends were violated. There are no allegations or inferences which would suggest violations of the first, fifth, or sixth amendments. Furthermore, plaintiff’s claim under the eighth amendment must be dismissed. The eighth amendment prohibition against cruel and unusual punishment applies only to those convicted of criminal offenses. Since plaintiff was not convicted, any potential claim would be for deprivation of due process. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

III.

Plaintiff is left, therefore, with a statutory claim purporting to arise under section 1983. Count I of his complaint also alleges fourth and fourteenth amendment rights. As noted supra, plaintiff does allege several pendent state law claims.

IV.

This matter is now before the court on defendant’s motion to dismiss, or in the alternative, for summary judgment. A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint. Elliot Co., Inc. v. Caribbean Utilities Co., Ltd., 513 F.2d 1176 (6th Cir.1975). In a light most favorable to plaintiff, assuming all allegations are true, the court must determine whether the complaint states a valid claim for relief. At this juncture, plaintiff’s complaint must be liberally construed.

The U.S. Supreme Court said in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957):

In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Id. at 45-46, 78 S.Ct. at 102.

A complaint should set forth sufficient information to outline the elements of the claims asserted to permit inferences to be drawn. Rule 8, Fed.R.Civ.P.; Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). When considering a dismissal on the pleadings, district courts must scrutinize plaintiffs civil rights claims with special care. Lucarell v. McNair, 453 F.2d 836 (6th Cir.1972).

V.

Section 1983 of the Civil Rights Act provides a cause of action for the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws” by any person acting “under color of any statute, ordinance, regulation, custom, or usage, or any State or Territory.” 42 U.S.C. § 1983. The statute’s primary purpose, as the Supreme Court said in Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), is “the preservation of human liberty and human rights_” Id. at 636, 100 S.Ct. at 1408. See also Blackmun, Section 1983 and Federal Protection of Individual Rights — Will the Statute Remain Alive or Fade Away?, 60 N.Y.U.L. Rev. 1 (1985).

In Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980), the Court noted the requirements under section 1983.

By the plain terms of § 1983, two — and only two — allegations are required in order to state a cause of action under that statute. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law.

Id. at 640, 100 S.Ct. at 1923. See also Monroe v. Pape, 365 U.S. 167, 171, 81 S.Ct. 473, 475, 5 L.Ed.2d 492 (1961).

There is no dispute here that the officers involved acted under color of state law. Therefore, the sole question before the court is whether plaintiff has been deprived of a “federal right.” Gomez, 446 U.S. at 640, 100 S.Ct. at 1923. After reading plaintiff’s submissions, it is unclear whether he advances both procedural and substantive due process claims. The gist of his federal civil rights argument is that he was deprived of his fourth and fourteenth amendment rights when he was arrested and detained for the events giving rise to this action. Because plaintiff has not structured his argument as to the type of violation he asserts, the court will analyze his claims under both a procedural and substantive due process framework.

A. PROCEDURAL DUE PROCESS

When the fourteenth amendment comes into play, the deprivations plaintiff asserts “must be cognizable as protected liberty interests.” Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1153, 71 L.Ed.2d 265 (1982). In Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the Court said that liberty included the “freedom from bodily restraint.” Roth, 408 U.S. at 572, 92 S.Ct. at 2707. The definition of what constitutes a liberty interest has been narrowed by the Supreme Court in recent years. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). For the purposes of this motion, the court will assume that plaintiff has demonstrated that a protected liberty interest has been infringed.

The procedural due process analysis does not stop because plaintiff has shown that he may have been deprived of a protected liberty interest. Plaintiff must show that this interest has been infringed upon without due process of law. Bacon v. Patera, 772 F.2d 259, 263-64 (6th Cir.1985). In proceeding with such an argument, plaintiff can take one of two routes. First, he can show that the city had an established procedure or policy of making groundless arrests, detentions, or prosecutions. In the present case plaintiff has not made such allegations or submitted any evidence to suggest this sort of pattern or practice.

Or, second, plaintiff can make out his procedural due process claim by showing that defendants’ actions were only “random and unauthorized" conduct. If this is alleged, then plaintiff would have to show that state remedies are inadequate. Bacon, 772 F.2d 264; Wilson v. Beebe, 770 F.2d 578, 583-84 (6th Cir.1985).

In Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the Supreme Court limited the use of section 1983 in procedural due process cases. The Court held that there is no cause of action under the statute for random, unauthorized acts of state officials which deprive a person of property if the state provides an adequate post-deprivation remedy. The Sixth Circuit stated:

If the state does provide a remedy which meets this standard, then the deprivation, though under color of state law, is not without due process of law. The state remedy need not be as complete as that which would have been provided by section 1983. ‘Although the state remedies may not provide the respondent with all the relief which may have been available if it could have proceeded under section 1983, that does not mean that the state remedies are not adequate to satisfy the requirements of due process.’

Wilson v. Beebe, 770 F.2d at 583.

The court must ask whether the State of Michigan provided an adequate post-deprivation remedy here. Although the parties did not address this question, it appears that Mr. Davey has adequate remedies under state law. In this case, the state remedies would be a tort action based on false arrest, false imprisonment, malicious prosecution, and negligence — all of which have been filed as pendent state claims. Though the state may not permit Mr. Davey to recover attorney fees, which are available under section 1983, this does not render the state remedy inadequate. Beebe, 770 F.2d at 584. These remedies appearing adequate, Mr. Davey does not state a procedural due process claim. See Patera, 772 F.2d at 264; Beebe, 770 F.2d 578, 583-84.

B. SUBSTANTIVE DUE PROCESS

Although plaintiff does not spell out his position, he appears to advance both fourth and fourteenth amendment subtantive due process arguments. He argues that his fourth amendment right to be free from unreasonable search and seizure has been violated. Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977); Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977).

Plaintiff challenges his arrest here as having been made without a warrant and without probable cause. When an arrest is made without probable cause, the aggrieved person may bring an action under section 1983. Mann v. Cannon, 731 F.2d 54 (1st Cir.1984); Green v. Brown, 535 F.Supp. 1096 (E.D.N.Y.1982). However, if probable cause to “arrest has been established, [plaintiff] cannot recover for a violation of civil rights arising out of arrest.” Green, 535 F.Supp. at 1100; Vela v. White, 703 F.2d 147 (5th Cir.1983).

1. IMMUNITY

Before addressing the substantive section 1983 issue concerning probable cause, the court must first decide whether defendant(s) may be shielded by the doctrine of qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The U.S. Supreme Court has emphasized that the question of immunity is a “threshold” inquiry which should be resolved as early as possible. The question of immunity is purely a legal one. Id., Donta v. Hooper, 774 F.2d 716 (6th Cir.1985). In facing the immunity question, trial courts have been admonished to be wary to the possibility of frivolous litigation and the danger of allowing “insubstantial suits” against police officials to proceed to trial. Harlow, 457 U.S. at 809, 102 S.Ct. at 2733.

The doctrine of qualified immunity holds that “government officials performing discretionary functions, generally ■ are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. This is an objective standard, eliminating from consideration inquiry about the officer’s subjective state of mind, such as bad faith or malice. Id. at 816-18, 102 S.Ct. at 2737-38; Floyd v. Farrell, 765 F.2d 1 (1st Cir.1985).

Under this standard, the reasonableness of the official conduct is not measured against the official’s actual knowledge of constitutional standards and the probable constitutionality of his or her action, but rather against a relatively uniform level of ‘presumptive knowledge’ of constitutional standards.

765 F.2d at 4, citing Harlow, 457 U.S. at 815, 102 S.Ct. at 2736. The general rule in applying Harlow is that an officer’s qualified immunity “is pierced only if there clearly was no probable cause at the time the arrest was made.” Farrell, 765 F.2d at 5. The officers must establish that they acted in good faith and had a reasonable belief that their conduct was permissible. Flair v. Cox, 402 F.Supp. 818, 822 (M.D.Tenn.1975).

Traditional probable cause criteria have been applied to warrantless arrests although the standard may be different than for the issuance of an arrest warrant. Probable cause is defined “in terms of facts and circumstances ‘sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.’ ” Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 862, 43 L.Ed.2d 54 (1975). Stated another way:

Probable cause exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonably trustworthy information are sufficient to warrant a man of reasonable caution and prudence in the belief that the defendant is committing or has committed a crime.

Floyd, 765 F.2d at 5, citing State v. Lemire, 121 N.H. 1, 424 A.2d 1135 (1981).

In applying the Harlow test, the court must ask “whether another officer, standing in the officers’ shoes and having the same information the officers had, would reasonably have come to the conclusion that he had probable cause to arrest” Davey for indecent exposure. The undisputed facts support defendants’ position. There had been several sightings in the area of a man in a light blue Cutlass who had either exposed himself or was driving nude and masturbating. Police spoke with a witness, got a description of the suspect, his car, and the license plate number. An officer, armed with that information, was patrolling the area and stopped plaintiff who matched that description.

Under the teachings of Harlow, the court cannot probe the subjective beliefs or reasons the officers may have entertained. Rather the court must make an objective analysis of the officers’ actions in light of the facts known at that time. Thus, the evidence supports the conclusion that the officers acted in a reasonable manner and that their conduct was lawful.

It appearing that the officers were reasonable in their belief that a crime had been committed, the officers are immune from present section 1983 action.

Although plaintiff’s position in this matter is understandable because of the facts and his ultimate acquittal, the “Constitution does not guarantee that only the guilty will be arrested. If it did, section 1983 would provide a cause of action for every defendant acquitted — indeed, for every suspect released.” Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979).

Given the foregoing resolution of the immunity issue, the court need not address the city’s liability. From the court’s reading of the complaint, there is no nexus alleged between the acts complained of and the City of Detroit.

2. “SHOCKS THE CONSCIENCE” STANDARD

Plaintiff also seems to argue that this is "a ease which fits the other prong of substantive due process — official acts which ‘may not take place no matter what procedural protections accompany them.’ ” Beebe, 770 F.2d at 586, citing Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194 at 3208 n. 4, 82 L.Ed.2d 393 (1984). In his complaint, plaintiff states that he was “pushed ... over the hood of his automobile and handcuffed ... and forced” into the police car. Complaint at ¶ 13.

This type of substantive due process claim does not require a specific constitutional guarantee be violated other than the due process clause, but rather that the officials’ action “shocks the conscience.” See Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952). The Sixth Circuit has called this a “substantive due process right akin to the ‘fundamental fairness’ concept of procedural due process.” 770 F.2d at 586.

The “shocks the conscience” standard has its genesis in the Rochin case. There a suspect placed some capsules containing narcotics in his mouth as he was being arrested. Police took the suspect to the hospital where his stomach was pumped to recover the capsules as evidence. The Court found that this type of police conduct offended “canons of decency and fairness which express ... notions of justice_” 342 U.S. at 169, 72 S.Ct. at 208. Accord: Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973) (intentional assault upon prisoner with death threat).

Given the proper standard to apply in a Rule 12(b)(6) motion, this court concludes that plaintiff has stated a claim for a substantive due process violation under a Ro-chin analysis. See also Rutherford v. City of Berkeley, 780 F.2d 1444 (9th Cir.1986). It can be argued, however, that plaintiff is required to make a stronger factual allegátion when attempting to state a claim under a Rochin-type argument. Bearing in mind that this is a civil rights case, and that higher courts have admonished the district courts to be extremely cautious before dismissing such a case on the pleadings, this court will take the cautious approach and allow this single claim to stand.

Because plaintiff appears to have full redress with his state law claims, discussed infra, the court orders plaintiff to notify the court in writing within 20 days from the date of this order if he wishes to pursue this claim in the federal court. Failure to do so will result in a dismissal of this action. If plaintiff desires to continue his federal civil rights actions, discovery will proceed on this issue, and the court will entertain an appropriate motion to decide the viability of this claim when discovery is completed.

VI.

As to plaintiff’s state law claims, alluded to supra, the court dismisses these without prejudice under the authority of United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Plaintiff is free to attempt to pursue these in state court.

VII.

In sum, plaintiff’s section 1983 claims are dismissed for failure to state a claim upon which relief can be granted, with the sole exception of the Rochin -type claim he apparently advances. Plaintiff has the option of pursuing the matter with this court, as stated supra. Plaintiff’s state law claims are dismissed without prejudice.

IT IS SO ORDERED.

      . The testimony of Ms. Teal is taken from the Recorder’s Court trial of the plaintiff. The testimony is included in this opinion solely to give some factual background to this matter, and is not used for any substantive purpose.

      . By holding that the officers acted in a reasonable manner, the court is not making a probable cause determination. The court's inquiry is limited to that established in Harlow.

      . By allowing this claim to withstand defendants’ Rule 12(b)(6), Fed.R.Civ.P., motion, the court is not suggesting that it can do likewise if a summary judgment motion is brought. Rule 56, Fed.R.Civ.P.


author: BILLINGS, District Judge.

text:
    Dorothy M. BROW v. SECRETARY OF HEALTH & HUMAN SERVICES.
    Civ. A. No. 85-103.
    United States District Court, D. Vermont.
    Feb. 11, 1986.
    John M. Hall, Vermont Sr. Citizens Law Project, Vermont Legal Aid, Inc., St. Johns-bury, Vt., for plaintiff.
    Christopher B. Baril, Asst. U.S. Atty., U.S. Atty’s. Office, Rutland, Vt., for defendant.
   OPINION AND ORDER

BILLINGS, District Judge.

Plaintiff Dorothy M. Brow (“plaintiff”) has brought this action seeking a reversal of the decision by the Secretary of Health and Human Services (“Secretary”) that plaintiff was not entitled to Supplemental Security Income for the period March 2-31, 1984. On November 1, 1985, plaintiff filed a motion for summary judgment. The Secretary responded on December 20, 1985 by filing a motion for an order affirming the decision of the Secretary. Jurisdiction properly lies with this Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) (1983). For the following reasons, plaintiff’s motion is granted and defendant’s motion is denied.

I. FACTS

The facts underlying this action are not in dispute. Plaintiff is a recipient of Supplemental Security Income (SSI) benefits. On March 29, 1984 plaintiff submitted a statement to the Social Security Administration reporting the receipt in January, 1984 of an inheritance in the amount of $3,000.00.

To maintain eligibility for SSI benefits, an individual claimant’s resources must not exceed $1,500.00. 42 U.S.C. § 1382(a)(1)(B) (1983). In 1982, Congress amended 42 U.S.C. § 1382(c)(1) to provide that an individual’s eligibility to receive SSI benefit, based upon his or her resources and other criteria, would be determined on a monthly, rather than a quarterly, basis. Pursuant to these two statutory provisions, the Social Security Administration notified plaintiff that she had been overpaid $585.00 in SSI benefits because her resources exceeded $1,500.00 during the months January through March, 1984. Plaintiff did not dispute the overpayment for January and February, 1984, but challenged the overpayment determination for that portion pertaining to the period of March 2 through March 31. She maintained that she had “spent down” her excess resources below the $1,500 resource eligibility limit as of March 2, 1984. The Secretary did not then, nor does he now, dispute the fact that as of March 2, 1984 plaintiff’s resources were below the eligibility limit.

The Social Security Administration denied plaintiff’s request for a reconsideration of the March overpayment determination. After conducting a de novo hearing, the Administrative Law Judge (“AU”) found that the plaintiff’s overpayment included the month of March 1984. The AU based his decision on the internal Program Operations Manual System (“POMS”) § 01150.005.

It is undisputed that prior to April 1, 1982, POMS § 01150.005(C) provided for a pro-rata determination of benefits eligibility, allowing a beneficiary to continue receiving benefits for that portion of a given month during which an individual’s resources are below the allowable limit.

As of April 1, 1982, the Secretary amended § 01150.005. The new directive read:

Effective April 1, 1982, resource eligibility determinations are made only as of the first moment of the first day of each month. If an individual/couple is ineligible at the beginning of a month, changes in countable resources during the month never affect eligibility for that month. Therefore, in determining eligibility with respect to resources, look only at the amount of countable resources on the first day of the month. If the individual’s/couple’s countable resources exceed the allowable resource limit on the first moment of a month, the indi-vudal/couple is ineligible for as long as the excess resources are retained and through the month the individual’s/couple’s resources are reduced to within the statutory limit.

POMS § 01150.005(E).

The new provision thus created a “first day of the month” rule for determining continuing eligibility under the statutory resource limits. The ALJ held that the Secretary was entitled to determine the claimant’s eligibility for the month of March based upon POMS § 01150.005(E), as amended.

The Appeals Council approved the decision of the AU on February 19, 1985, rendering it the final decision of the Secretary and subject to review by this Court.

II. ISSUES

Defendant Secretary contends that the issue before this Court is whether there is substantial evidence in the record to support the Secretary’s decision that plaintiff exceeded the resource limitation for March 1984. According to the plaintiff, the issue is whether the Secretary’s decision denying plaintiff’s eligibility for March 2-31, 1984 was made in violation of law. Specifically, plaintiff presents two challenges to the Secretary’s reliance upon section 01150.005 of POMS to deny plaintiff’s eligibility for the entire month based upon a resource determination on the first of the month. Plaintiff alleges that POMS § 01150.005 is contrary to the plain-meaning and intent of the law, and that the challenged provision of POMS was promulgated in violation of the notice and comment requirements of the Administrative Procedure Act (APA). Thus, the issues before this Court are: (1) the Court’s scope of review in any action such as this; and (2) whether the application of POMS § 01150.005 to plaintiff was improper under the law. These issues are discussed seriatim.

III. SCOPE OF REVIEW

The Secretary’s contention that this Court is limited in its review to a determination of whether the findings of Secretary are supported by substantial evidence is derived from 42 U.S.C. § 405(g) (1983). This statute provides, inter alia, that the district court “shall have power to enter ... a judgment affirming, modifying or reversing the decision of the Secretary, with or without remanding the cause for a rehearing.” As the Secretary points out, § 405(g) states that the Court should uphold the findings of the Secretary “if supported by substantial evidence.” This latter provision is triggered, however, where the question before the court is one of fact. See Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.1984). As stated above, the facts in the present case are not in dispute, and the plaintiff maintains that the Secretary’s decision denying plaintiff’s eligibility for benefits for the entire month of March 1984 should be reversed as a matter of law. Nothing within § 405(g) confines the Court to reviewing all questions before it under the “substantial evidence” standard urged upon us by defendant. To the contrary, the statute on its face clearly grants the district court power to reverse the Secretary’s decision on matters such as those presently at issue, which involve questions of law. Id.

The district court’s scope of review of an agency’s action, such as that presently at issue, is further fleshed out in 5 U.S.C. § 706 (1977). See Noe v. Metropolitan Atlanta Rapid Transit Authority, 485 F.Supp. 501, 504 (N.D.Ga.1980), aff'd 644 F.2d 434 (5th Cir.), cert. denied 454 U.S. 1126, 102 S.Ct. 977, 71 L.Ed.2d 114 (1981). Section 706 provides that:

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.

More pertinently, under § 706 the reviewing court is directed to:

hold unlawful and set aside agency action, findings and conclusions found to be ... in excess of statutory jurisdiction, authority or limitations, or short of statutory right; [or] without observance of procedure required by law.

5 U.S.C. § 706(2)(C) and (D).

Thus, the court is well within its statutory scope of review in determining whether the Secretary’s decision denying plaintiff benefits for March 2-31,1984 was based on a POMS provision promulgated in violation of law.

IV. POMS AND ALLEGED VIOLATION UNDER THE ADMINISTRATIVE PROCEDURE ACT

Plaintiff alleges that § 01150.005 of POMS, under which the Secretary denied plaintiffs eligibility for benefits for March 2-31, 1984, was promulgated in violation of the Social Security Act and the APA. The Secretary counters that the “first-day” directive is in conformity with the Social Security Act, and is exempt from the notice and comment provisions of the APA as an “interpretative” rule. While it may be that the POMS provision at issue was promulgated in violation of the Social Security Act as well as other statutes, the merits of these arguments need not be reached here. This Court finds adequate grounds under the APA for reversing the Secretary’s decision as it applies to plaintiffs March 2-31, 1984 benefits.

The POMS “first-day” directive, upon which the Secretary’s decision was based, is clearly a rule within the meaning of 5 U.S.C. § 551(4) (1977). Therefore, unless it is specifically exempted under 5 U.S.C. § 553(a) or 553(b)(A)-(B) (1977), the POMS directive should have been promulgated pursuant to the notice and comment provisions of 5 U.S.C. § 553. These provisions require (1) advance publication in the Federal Register of the proposed rule or its substance; (2) opportunity for public participation through submission of written comments and (3) publication of the final rule, incorporating a concise statement of its basis and purpose, thirty days before its effective date. Batterton v. Marshall, 648 F.2d 694, 700 (D.C.Cir.1980).

The “first day” directive, like all other enunciations in the internal POMS manual, were not promulgated under the notice and comment provisions of 5 U.S.C. § 553. See Schweiker v. Hansen, 450 U.S. 785, 789, 101 S.Ct. 1468, 1471, 67 L.Ed.2d 685 (1981); Crowe v. Heckler, 614 F.Supp. 1389, 1395 (D.Vt.1985). The present issue thus devolves to whether the POMS “first day” directive is exempt from the APA’s notice and comment provisions.

As a preliminary matter it is noted that the Secretary is not generally exempt from the APA’s rule-making procedures. Section 553(a) contains a provision that would ordinarily exempt the Secretary from the APA:

This section applies according to the provisions thereof, except to the extent there is involved — _
(2) a matter relating to agency management or personnel or to ... grants [or] benefits ...

5 U.S.C. § 553(a)(2). Despite this general statutory exemption, the Secretary elected to abide by the rule-making provisions of the APA. See Statement of Policy, 45 Fed. Reg. 2532 (1971); Humana of South Carolina, Inc., v. Califano, 590 F.2d 1070, 1084 and n. 104 (D.C.Cir.1978); Herron v. Heckler, 576 F.Supp. 218, 119 (N.D.Cal.1983).

The Secretary does not argue that he is generally exempt from requirements of the APA under 5 U.S.C. § 553(a)(2). Instead, the Secretary contends on this appeal that the POMS “first-day” directive is exempt from the APA’s notice and comment requirements under 5 U.S.C. § 553(b)(A) because it is an “interpretative rule.”

The Court of Appeals for the Second Circuit has established some guidelines for determining whether a rule is “substantive” and therefore subject to the notice and comment requirements, or “interpretative” and therefore exempt from these requirements. According to the Second Circuit, the court is to make its determination on the basis of what the agency in question has done in the particular case at hand, rather than on the basis of labels the agency puts upon its given exercise of administrative power. See Lewis-Mota v. Secretary of Labor, 469 F.2d 478, 481-82 (2d Cir.1972). The Second Circuit rule of law for distinguishing “substantive” from “interpretative” rules is as follows: substantive rules change “existing rights and obligations,” and only rules that do not change “existing rights and obligations” are to be considered interpretative. See Donovan v. Red Star Marine Services, Inc., 739 F.2d 774 (2d Cir.1984); Viacom Int’l Inc., v. FCC, 672 F.2d 1034, 1042 (2d Cir.1982); Noel v. Chapman, 508 F.2d 1023, 1030 (2d Cir.), cert. denied 423 U.S. 824, 96 S.Ct. 37, 46 L.Ed.2d 40 (1975); Lewis-Mota v. Secretary of Labor, supra at 482 (employing a “substantive impact” test); Aluminum Company of America v. FTC, 589 F.Supp. 169, 178 (S.D.N.Y.1984). The Court of Appeals for the District of Columbia has established a somewhat clearer rule for distinguishing “substantive” and “interpretative” rules:

An interpretative rule serves an advisory function explaining the meaning given by the agency to a particular word or phrase in a statute or rule it administers. As this court explained in Gibson Wine Co. v. Snyder, 194 F.2d 329 (D.C.Cir.1952):
An interpretative rule is one which does not have the full force and effect of a substantive rule but which is in the form of an explanation of particular terms in an Act. If you had an expression in a statute such as “Interurban Railway,” the query might come up as to what is an “interurban railway.” A particular agency may adopt a rule defining an interurban railway. That, in a sense, may be called an interpretative rule.

Batterton v. Marshall, 648 F.2d 694, 705 (D.C.Cir.1980); See also Gosman v. United States, 573 F.2d 31, 39, 215 Ct.Cl. 617 (1978), and cases cited therein.

The POMS “first-day” directive is not an “interpretative” rule under either test. According to the POMS directive, claimants such as plaintiff are no longer eligible to receive SSI benefits on a pro-rata basis. That is, under POMS § 01150.005(E), claimants who are over the resource limit on the first day of the month but under the limit for the remainder of the month are ineligible for benefits for the entire month, even though they would have been eligible for some or most of the month’s benefits under the previous POMS directive. The existing right of claimants such as plaintiff to continue receiving benefits on a pro-rata basis was clearly changed by the promulgation of the POMS “first-day” directive. Although involving only a small sum of money, this change has had a substantial impact on low income people like plaintiff who are financially dependent upon SSI benefits. Moreover, the “first-day” directive is not in any way merely explanatory of a particular word or phrase within a statute or rule. 42 U.S.C. § 1382(a)(1)(B), supra at n. 1, states that eligibility shall be determined on a monthly basis; the “first-day” directive is not merely explanatory of this statute nor any of the other statutes or regulations cited by either party.

Two recent decisions are in accord with the conclusion that POMS provisions like the “first-day” directive are substantive, and not interpretative, rules and are therefore subject to the requirements of the APA. In McKenzie v. Heckler, 602 F.Supp. 1150 (D.Minn.1985), the district court held, among other things, that POMS §§ GN02610.005 and GN02610.045 were issued in violation of the notice and comment provisions of the APA. These POMS sections required the Social Security Administration to postpone calculating and paying retroactive disability benefits until after retroactive SSI benefits were paid. 602 F.Supp. at 1153. The prior practice had been to pay the retroactive disability benefits as soon as they were calculated. Id. at 1159. The McKenzie court held that the POMS provisions in question substantively changed the way in which the Social Security Administration processed benefits, and that therefore these provisions were substantive rather than interpretative rules. Id. at 1159-1160.

Similarly, in Herron v. Heckler, 576 F.Supp. 218 (N.D.Cal.1983), the court held that staff instructions contained within the Social Security Administration’s claims manual (the predecessor of POMS) were void and unenforceable as applied to the plaintiff for failure to comply with the notice and comment provisions of the APA. The provisions in question required the inclusion of certain non-home equity limitations within the $1,500 resource limit computation for SSI benefit eligibility mandated by 42 U.S.C. § 1382(a)(1)(B). The court held that the claims manual provisions were substantive rather than interpretative rules, and therefore subject to the requirements of the APA:

[The claims manual limitations] do not simply set forth the Secretary’s opinion as to what the governing statute and regulations “mean”; they create precise, objective limitations where none existed before. The claims manual provisions contain language not found in the governing statute and regulations.

576 F.Supp. at 231.

The case law cited by the Secretary in support of the proposition that the POMS “first-day” directive is an “interpretative” rule is wholly unpersuasive. For instance, in Zaharakis v. Heckler, 744 F.2d 711 (9th Cir.1984), plaintiffs challenged the Secretary’s decision to calculate SSI benefits on the basis of income from the second month preceeding the month in which eligibility for SSI benefits is established. Unlike the Secretary’s decision on review in the present case, however, the Secretary’s decision in Zaharakis constituted the “exercise of a limited option” expressly authorized by 42 U.S.C. § 1382(c)(1), and for that reason alone was held to be an interpretative rule. See 744 F.2d at 713. In the other cases cited by the Secretary, Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976) and Califano v. Jobst, 434 U.S. 47, 98 S.Ct. 95, 54 L.Ed.2d 228 (1977), the APA was not at issue. In both these cases the Court upheld specific statutory provisions of the Social Security Act in the face of challenges under the due process clause of the fifth amendment. See 427 U.S. at 507-516, 96 S.Ct. at 2763-2767; 434 U.S. at 50-58, 98 S.Ct. at 97-101.

In sum, the Secretary was required to follow the notice and comment provisions of the APA before promulgating the POMS “first-day” directive presently at issue. His failure to comply with the APA renders the challenged provisions as applied to this plaintiff void and unenforceable.

ORDER

Plaintiff's motion for summary judgment is GRANTED, and defendant’s motion for an order affirming the decision of the Secretary is DENIED. The Secretary’s determination that plaintiff was ineligible to receive benefits for the period January through March, 1984 is hereby REVERSED IN PART. This case is remanded to the Secretary for the sole purpose of recalculation of plaintiff’s overpayment in accordance with this decision.

SO ORDERED.

      . 42 U.S.C. § 1382(c)(1) (1983) states:
      An individual’s eligibility for a benefit under this subchapter for a month shall be determined on the basis of the individual’s ... income, resources, and other relevant characteristics in such month.

      . The parties dispute the amount of plaintiffs resources on March 1, 1984. The exact level of resources is immaterial, however; both sides agree that plaintiff's resources were above the statutory limit on March 1, 1984 and under the limit as of March 2, 1984.

      . This directive stated:
      C. Continuing Eligibility
      If an individual/couple is eligible at the beginning of a quarter, changes in countable resources during that quarter never affect eligibility for that quarter unless the resource limit changes because of a change in marital status. If the individual’s countable resources exceed the allowable resource limit on the first day of a quarter, he is ineligible so long as the excess resources are retained. If the individual's countable resources subsequently meet the allowable limit, he/she may again be eligible beginning with the month countable resources are within the limitation even if the month is the same month in which he first became ineligible.
      POMS § 00150.005(C)

      . Plaintiff contends that the "first-day" rule of POMS § 01150.005, as amended effective April 2, 1982, is contrary to the plain-meaning and intent of the Social Security Act. Citing 42 U.S.C. § 1382(a)(1)(B), supra, and federal regulations promulgated thereunder, see, e.g., 20 C.F.R. §§, 416.1201(a)-(b) and 416.1205(a); see also 20 C.F.R. §§ 16.1324, plaintiff argues that there is no authority for the POMS presumption that resources are available to an individual for support and maintenance for an entire month, despite the fact that those funds may have been expended after the first day of the month.
      The Court sees no need to reach the merits of this argument, since there is an adequate ground for reversing the Secretary’s decision under the APA.

      . Similarly, the POMS provision at issue herein may have been promulgated in violation of the Freedom of Information Act, 5 U.S.C. § 552(a). See McKenzie v. Heckler, 602 F.Supp. 1150, 1160 (D.Minn.1985); Herron v. Heckler, 576 F.Supp. 218, 232-233 (N.D.Cal.1983).
      It is not clear that plaintiff presents this argument on appeal. In any case, as already stated, there are other adequate grounds for reversing the Secretary’s decision.

      .This section defines a “rule" as:
      the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret or prescribe law or policy or describing the organization, procedure or practice requirement of an agency.
      5 U.S.C. § 551(4). The parties do not dispute the fact that the POMS "first-day” directive is a rule within the meaning of § 551(4).