author: CACHERIS, District Judge.

text:
    Jared J. SCHARF, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee.
    Cr. No. 85-00023-A.
    United States District Court, E.D. Virginia, Alexandria Division.
    April 3, 1985.

      Stephen Hart, Asst. U.S. Atty., Alexandria, Va., for plaintiff-appellee.
    Jared J. Scharf, White Plains, N.Y. pro se.
   MEMORANDUM OPINION

CACHERIS, District Judge.

The defendant-appellant, Jared J. Scharf, on appeal from the United States Magistrate’s ruling of December 20, 1984, challenges the constitutionality of the special assessment provision of Section 1405, of the Comprehensive Crime Control Act of 1984, Chapter XIV: Victims of Crime Act of 1984,18 U.S.C. § 3013 (Supp.1984) (“Victims of Crime Act of 1984”) as applied to the forfeiture of collateral in lieu of appearance for a petty offense. For the reasons set forth below, the special assessment of the Victims of Crime Act of 1984, 18 U.S.C. § 3013, is equally applicable to forfeiture of collateral and in addition, the current inconsistent application of the assessment constitutes an unconstitutional “chilling effect” on appellant’s right to trial.

I

Background

On October 19, 1984, appellant was charged with speeding. The violation notice stated that $40.00 could be posted as collateral and forfeited if the appellant elected not to appear for a hearing. A copy of the violation notice is attached as exhibit A.

On December 20, 1984, the appellant consented to trial before the U.S. Magistrate. Upon entry of a plea of guilty, the U.S. Magistrate imposed a $25.00 fine and a $25.00 special assessment under the recently enacted Victims of Crime Act of 1984,18 U.S.C. § 3013. The special assessment is not imposed on persons who post collateral.

Appellant timely noted his appeal, pursuant to Rule 7(b) of the Rules of Procedure for the Trial of Misdemeanors before United States Magistrates (“U.S. Magistrates’ Rules”), to this court. Appellant tenders the following arguments in support of his contention that the special assessment provision is unconstitutional: First, allowing a defendant to forfeit collateral, as opposed to appearing in court, is a violation of due process; second, the special assessment provision of the Victims of Crime Act of 1984 has a chilling effect upon appellant’s right of allocution; and third, the court abrogated an implied plea offer contained in the notice to appear, thus, depriving appellant of due process of law.

The Government, plaintiff-appellee, argues that the right chilled is not the constitutional right to trial, but the common law right of allocution found in Rule 32(a)(1)(C) of the Federal Rules of Criminal Procedure. The appellee further maintains that the statute does not make an unconstitutional distinction between petty offenders who post collateral and those who elect to appear and are convicted. Finally, the appellee maintains that the special, assessment is inapplicable to any forfeiture of collateral for a petty offense.

II

Conclusions of Law

The appellant has set forth numerous constitutional challenges to the application of the special assessment with respect to forfeiture of collateral in misdemeanor offenses. However, “[i]t is well settled that if a case may be decided on either statutory or constitutional grounds, this [c]ourt, for sound jurisprudential reasons, will inquire first into the statutory question.” Harris v. McRae, 448 U.S. 297, 306-307, 100 S.Ct. 2671, 2682-2683, 65 L.Ed.2d 784 (1980). Indeed, “[t]his practice reflects the deeply rooted doctrine ‘that [this court] ought not to pass on questions of constitutionality ... unless such adjudication is unavoidable/” Id. at 307, 100 S.Ct. at 2683 (quoting Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101 (1944)).

As always, with any issue of statutory construction, this court “ ‘must begin with the language of the statute itself/ ” Bread Political Action Committee v. FEC, 455 U.S. 577, 580, 102 S.Ct. 1235, 1237, 71 L.Ed.2d 432 (1982) (quoting Dawson Chemical Co. v. Rohm & Haas Co., 448 U.S. 176, 187, 100 S.Ct. 2601, 2608, 65 L.Ed.2d 696 (1980)). In short, this court’s task is to “interpret the words of [the statute] in light of the purposes Congress sought to serve,” namely, the establishment of a fund through special assessments to aid victims of crime. Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 118, 103 S.Ct. 986, 994, 74 L.Ed.2d 845 (1983) (quoting Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 608, 99 S.Ct. 1905, 1911, 60 L.Ed.2d 508 (1979)); quoted in United Hospital Center, Inc. v. Richardson, No. 84-1062, slip op. at 12 (4th Cir. Mar. 20, 1985).

The Victims of Crime Act of 1984, in pertinent part, provides for the following:

(a) The court shall assess on any person convicted of an offense against the United States—
(1) in the case of a misdemeanor—
(A) the amount of $25 if the defendant is an individual.

18 U.S.C. § 3013 (emphasis added). Thus, the assessment is imposed on, among other offenses, any misdemeanor conviction. As indicated earlier the special assessment has not been imposed on persons who elect to post collateral.

Notwithstanding the appellee’s concession that the forfeiture of collateral has the indicia of a conviction, it has opted not to impose the assessment because it “would have proven overly burdensome from an administrative perspective.” Government’s Brief at 8. Because of the lack of debate or discussion with respect to the Victims of Crime Act of 1984, this court is hampered in its interpretation of the applicability of the special assessment to forfeiture of collateral offenses. Nevertheless, the plain meaning of the statute is telling.

Rule 4(a) of the U.S. Magistrates’ Rules provides: “[w]hen authorized by local rules of the district court, payment of a fixed sum may be accepted in suitable types of misdemeanor cases in lieu of appearance and as authorizing the termination of the proceedings." Rule 29(H) of the United States District Court, Eastern District of Virginia, provides, in pertinent part, for the following:

(2) Upon the failure of the person charged with an offense or offenses to appear before the designated United States Magistrate for trial of the offenses listed in the orders heretofore mentioned, the collateral in the amount or amounts listed in said orders shall be forfeited to the United States and the posting of such collateral shall signify that the offender does not contest the charge nor request a hearing before the designated United States Magistrate.
(3) If the collateral is forfeited, such action shall be tantamount to a finding of guilt. Either the Clerk or United States Magistrate shall certify the record of any such conviction of a traffic violation or a traffic offense or other violation to the proper state authority as required by any applicable state statute.

(emphasis added).

To be sure, forfeiture of collateral constitutes a guilty plea despite the lack of notice on the ticket to its legal effect. See Exhibit A-l. It is persuasive that E.D.Va. Rule 29(H)(3) characterizes collateral forfeiture as “tantamount to a finding of guilt.” Similarly, this court’s local rule impowers the U.S. Magistrate to “certify the record of any such conviction____” Id. (emphasis added). And again, Rule 29(H)(3) provides, and the appellee concedes in its brief, the driver is assessed “points” by state authorities for the collateral forfeiture “conviction.”

As the Supreme Court has recognized, “the terms ‘convicted’ or ‘conviction’ do not have the same meaning in every federal statute.” Dickerson, 460 U.S. at 112 n. 6-7, 103 S.Ct. at 991 n. 6-7. For example, the term conviction applies “to one whose guilty plea has been accepted whether or not a final judgment has been entered” or “to persons against whom a formal judgment has been entered.” Id. (citation omitted). In finding one had been “convicted” within the meaning of the gun control statute at issue, the Dickerson Court summarized the essential factual elements to include: (a) “the charge of a crime,” (b) “the plea of guilty to that charge,” and (c) sentence or probation. Id. at 111, 103 S.Ct. at 990. Here, it is plain that under the collateral forfeiture, the purpose and legal effect is a “conviction.” See Id. at 112, 103 S.Ct. at 991 (“In some circumstances, we have considered a guilty plea alone enough to constitute a ‘conviction’____”).

Accordingly, under these circumstances, this court finds that a collateral forfeiture for a misdemeanor offense constitutes a conviction for purposes of the special assessment provision of the Victims of Crime Act of 1984. It is beyond question that the mailing of the collateral is a guilty plea, which is later certified as a conviction pursuant to the Eastern District of Virginia Rule 29(H)(3). It may well be true that there is an “administrative burden” in implementing the Victims of Crime Act of 1984, however, the express intent of the statute requires that the assessment be applied equally to misdemeanor collateral forfeiture and trial convictions.

Although, equal application of the special assessment in all misdemeanor cases effectively moots appellant’s constitutional challenges, this court feels compelled to undertake a brief analysis of the constitutionality of the current inconsistent implementation of the assessment. Primarily, appellant challenges the inconsistent application of the assessment as an impermissible chilling effect on his constitutional right to allocution. Notwithstanding this court’s decision that the right of allocution is not entitled to the protections afforded fundamental constitutional rights {see generally, Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962); United States v. De la Paz, 698 F.2d 695, 697 (5th Cir.1983)), arguably, there are sufficient grounds alleged which challenge the special assessment as an unconstitutional chilling effect on appellant’s right to trial.

As the Supreme Court has noted in United States v. Jackson, an accused’s Sixth Amendment right to a jury trial “cannot be pursued by means that needlessly chill the exercise of basic constitutional rights.” 390 U.S. 570, 582, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138 (1968). Although, Jackson dealt with the kidnapping statute and the death penalty, its reasoning has been applied to lesser offenses. See, e.g., Ludwig v. Massachusetts, 427 U.S. 618, 627 n. 4, 96 S.Ct. 2781, 2786 n. 4, 49 L.Ed.2d 732 (1976) (constitutional challenge of “two tier” trial court system for certain crimes, e.g., traffic offenses). The question that remains is “whether that [chilling] effect is unnecessary and therefore excessive.” Jackson, 390 U.S. at 582, 88 S.Ct. at 1216.

Clearly, the effect is “unnecessary” in that the statute requires the imposition of the assessment on all “convictions,” regardless of the alternative of collateral forfeiture. Indeed, the inconsistent application of the special assessment, when joined with the severe potential penalty imposed on a trial appearance of $500 and/or up to six months imprisonment, further compounds the chilling effect on the appellant’s exercise of his right to trial. As the court observed in United States v. Porter,

[t]he hearty (or foolish) souls who venture to trial face substantial penalties on the exercise of that right, since they face penalties so disparate that most reasonable people would have pleaded guilty, without regard to actual guilt.

513 F.Supp. 245, 249 (M.D.Tenn.1981) (fifteen dollar forfeiture versus a trial which carried the possibility of $500 fine and/or incarceration). In addition, it is particularly chilling on the appellant’s right to trial in that the violation notice lacks any notice of the assessment should he elect a trial. See Exhibit A, A-l. The appellant is put in the position of either paying a $40 forfeiture of collateral fine or appearing for trial and, if convicted, paying the special assessment plus a fine and/or imprisonment. Obviously, the course of least resistance is to post collateral.

Accordingly, this court finds that the inconsistent application of the special assessment needlessly chills the exercise of appellant’s basic constitutional right to a trial. Jackson, 390 U.S. at 582, 88 S.Ct. at 1216; see generally, Ludwig, 427 U.S. at 627 n. 4, 96 S.Ct. at 2786 n. 4 (Court found no constitutional infirmity in “two tier” system when “the same range of penalties [are] available at both tiers.”)

Given the unconstitutional application of the special assessment under the Victims of Crime Act of 1984, the court, therefore, feels that the appropriate remedy would be to refund the $25.00 assessment directly to the appellant.

An appropriate Order shall issue.

      . 36 C.F.R. § 50.31(b) (1984), operating a motor vehicle at a speed of 66 m.p.h. in a 50 m.p.h. zone.

      . By his appearance before the U.S. Magistrate, appellant subjected himself to a potential fine of $500 or imprisonment not to exceed six months or both. 36 C.F.R. § 50.5(a) (1984).

      . A conviction has been generally defined as: The final consummation of the prosecution including the judgment or sentence, or as is frequently the case, the judgment or sentence itself. The stage of a criminal proceeding where the issue of guilt is determined. Black’s Law Dictionary 301 (5th ed. 1979) (citation omitted).

      . See Fed.R.Crim.P. 32(a)(1)(C).

      . See U.S. Const, amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial____").

      . This court is cognizant that offering substantial benefits in return for a guilty plea is constitutionally acceptable. Corbitt v. New Jersey, 439 U.S. 212, 218-19, 99 S.Ct. 492, 497, 58 L.Ed.2d 466 (1978).


source: Caselaw Access Project

author: BUA, District Judge.

license: Public Domain

text:
    The PEOPLE OF the STATE OF ILLINOIS on the Relation of Patrick SCHOEPF and Patrick Schoepf, Plaintiffs, v. BOARD OF EDUCATION OF MORTON HIGH SCHOOLS, DISTRICT 201, COOK COUNTY, ILLINOIS and Kenneth Keeling, Defendants.
    No. 84 C 2999.
    United States District Court, N.D. Illinois, E.D.
    April 3, 1985.

      John 0. Tuohy, Edward V. Hanrahan, Chicago, III, for plaintiffs.
    R. Theodore Clark, Jr., James P. Osick, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, 111., for defendants.
   ORDER

BUA, District Judge.

Before the Court is defendants’ motion for summary judgment in their favor on plaintiff’s four-count complaint. For the reasons stated below, defendants’ motion for summary judgment is granted.

Summary judgment for a defendant is appropriate under Rule 56 of the Federal Rules of Civil Procedure “only if the pleadings, depositions and affidavits fail to disclose a genuine issue of material fact.” Gracyalny v. Westinghouse Electric Co., 723 F.2d 1311, 1316 (7th Cir.1983). In deciding the motion, the Court must “resolve all doubts against the party seeking summary judgment.” Id. Under Local Rule 12 of the Rules of the United States District Court for the Northern District of Illinois, a party moving for summary judgment, in addition to affidavits and other material referred to in Fed.R.Civ.P. 56(e), must submit a statement of material facts as to which there is no genuine dispute. Local Rule 12(e) (N.D.Ill.). The party opposing summary judgment must then file a “statement of genuine issues” setting forth material facts as to which there exists a genuine issue. Local Rule 12(f) (N.D.Ill.). To the extent that the “statement of genuine issues” fails to controvert the moving party’s statement of material facts, those matters are deemed admitted for purposes of deciding the Rule 56 motion. Id. Applying these standards, the following facts are assumed as true for purposes of this motion.

I. FACTS

Prior to March 1, 1983, plaintiff Patrick Schoepf was employed as a custodian by defendant Board of Education of Morton High Schools, District 201 (“Morton High School”). At all times relevant to plaintiff’s complaint, defendant Kenneth Keeling was employed as Assistant Superintendent and Business Manager of Morton High School. In Count I of his complaint, Schoepf alleges that Keeling wrongfully discharged him from his employment in violation of the fifth and fourteenth amendments to the United States Constitution; Schoepf seeks reinstatement to his job. Counts II and III are grounded upon the common law of libel and intentional infliction of emotional distress, respectively, and seek $100,000 in actual damages. Count IV seeks punitive damages in the amount of $100,000.

Schoepf was hired as a custodian at Morton West High School in 1981. Schoepf’s duties included sweeping, dusting, washing blackboards and walls, scrubbing and waxing floors, and emptying trash cans. Schoepf worked the 3:00 p.m. to 11:00 p.m. shift and was responsible for cleaning the school library. Schoepf and about five other employees had keys to the library.

In February of 1983, Keeling discovered that the Xerox machine in the library at Morton West High School, which operated on a pay-per-copy basis, was producing unusually low revenues. Keeling requested Dr. V.J. Downes, the Director of Library and Media Services, to investigate the cause of the lower-than-normal revenues. Downes reported to Keeling that since September of 1982, according to the counter on the Xerox machine, the machine should have produced about $500 more revenue than it had produced. Downes also reported that the library staff normally left the key to the Xerox machine in an unlocked cabinet behind the library desk. See defendants’ Statement of Material Facts, at 3; Schoepf Dep. at 20.

Keeling asked Downes to have her staff count the money in the Xerox machine each day at the close of school and to count it again when they returned to the library the following morning. Counting the Xerox machine money in this manner, Downes discovered that every morning when the money was recounted, several dollars in change were missing from the machine.

Keeling then advised Donald Ciner, the Principal of Morton West High School, about the money shortages from the library Xerox machine and requested Ciner to check the Xerox machine’s money box before he went home at night. On at least two occasions, having first counted the money in the Xerox machine at about 3:30 p.m., Ciner returned to the library at about 10:30 p.m. and discovered that money was missing from the machine.

In an effort to determine who was responsible for the money shortages, Keeling contacted the school’s truant officer, Mr. Czeehowski, a former police officer, to obtain powder which could not be detected except under a “black light.” Keeling and Ciner dusted $25 worth of dimes with the powder and placed the coins in the Xerox machine’s collection box during the daytime<hours of Tuesday, March 1, 1983. Following the close of school on the same date, Keeling remained in a library reading room in a position from which he could see the Xerox machine.

In the course of his duties on March 1, 1983, Schoepf entered and began to clean all areas of the library, including the area around the Xerox machine. Schoepf then saw the key to the Xerox.machine inside the lock of the machine. Attempting to clean the machine, Schoepf observed the coin box fall out of the machine and coins spill onto the floor. Schoepf picked up those coins, put them back into the coin box, locked up the coin box and put the key to the machine in the cabinet behind the library desk. Shortly thereafter, Keeling apprehended Schoepf near the door of the library and ordered him to accompany him to the principal’s office. On the way to the principal’s office, Keeling requested Ivan Fako, the custodial foreman and Schoepf’s immediate supervisor, to accompany them to the principal’s office.

In the principal’s office, Keeling told Schoepf that he had witnessed him taking money from the Xerox machine in the library. Schoepf denied taking the money. Keeling advised Schoepf that the coins in the machine had been treated with a special powder. Keeling asked Schoepf if he would be willing to put the coins that were in his pocket, or his hands, under a black light to determine whether or not the coins were the coins taken from the Xerox machine. Schoepf said that he would not put the coins or his hands under the black light. Keeling then ordered Schoepf to punch out and not to complete the remaining hours of his work shift. Keeling told Schoepf to give Fako his keys and not to return to work until he made an appointment to discuss the matter with Keeling in his office.

On Wednesday, March 2, 1983, Schoepf called Keeling’s secretary and scheduled an appointment to meet with Keeling at 2:30 p.m. on Thursday, March 3, 1983. Prior to the March 3 meeting, Schoepf contacted Dick Laat, his union steward, and fully advised Laat of the nature of the allegations against himself. On March 3, 1983, Schoepf also met with Ted Kawiecki, the head union steward, and Joe Belcaster, the union steward from Morton East High School, and again fully related to the union representatives the nature of the allegations against himself. Kawiecki and Laat accompanied Schoepf to the March 3, 1983 meeting in Keeling’s office to act as his witnesses.

At the March 3, 1983 meeting, Keeling advised Schoepf, Kawiecki and Laat that the purpose of the meeting was to discuss the money shortages from the Xerox machine in the library at Morton West High School. Keeling recounted that a large sum of money had been taken over a period of time and that he had personally observed Schoepf take the keys from the cabinet and take money from the machine. Schoepf again denied his involvement. Schoepf also stated that the keys to the Xerox machine were already hanging in the machine on the night of March 1, 1983. Clarence Pawlowski corroborated this, also stating that the keys were hanging in the machine on that night. Yet, Keeling insisted that on the evening of March 1,1983 the keys were in the cabinet.

During the March 3 meeting, Keeling told Schoepf that he would have to recommend Schoepf’s dismissal at the meeting of the Board of Education and that he would base his recommendation on having witnessed Schoepf taking money from the Xerox machine. Keeling further stated that the accusation of theft against Schoepf would appear in the newspapers. Keeling said that he would give Schoepf an opportunity to resign rather than have Keeling recommend his dismissal to the Board, but that if he did not hear from Schoepf by the end of Friday, March 4, 1983, he would ask the Superintendent of Schools to recommend Schoepf’s dismissal to the Board of Education.

On Friday, March 4, 1983, Schoepf had his mother call Keeling to ask if Keeling would allow Schoepf until Monday morning to submit his letter of resignation. Keeling granted Schoepf’s mother’s request and stated that, if she desired, he would have a short letter of resignation typed for Patrick to sign and send it home with his father, who also worked at Morton West High School. Pursuant to Schoepf’s mother’s request, Keeling prepared a short letter of resignation for Schoepf’s signature and gave the letter of Schoepf’s father. After Schoepf’s father met with Keeling (a meeting which Schoepf’s father requested), Schoepf’s father brought the letter of resignation home to Patrick for his signature. Patrick signed the letter and his father returned the letter to Keeling on Monday, March 7, 1983. Keeling gave Schoepf’s letter of resignation to the Superintendent. The Board of Education accepted Schoepf’s resignation at its March 14, 1983 meeting. Although Schoepf made an oral complaint to his union regarding the events of March 1, 1983, no grievance was ever filed by Schoepf or on his behalf. Furthermore, Schoepf never appealed the union’s decision that the complaint was an insufficient grievance.

At no time during the investigation of the money shortages from the library Xerox machine, during the meetings with Schoepf or any time thereafter, did Keeling (or any other representative of Morton High School) ever threaten to institute criminal prosecutions or criminal charges against Schoepf or anyone else. Defendants never brought (or attempted to bring) any criminal charges against anyone in connection with the money shortages from the library Xerox machine.

In February, 1984, Schoepf filed the instant lawsuit alleging violations of his constitutional rights, defamation and intentional infliction of emotional distress.

II. COUNT I

In Count I, plaintiff alleges that his resignation was coerced and in violation of his privilege against self-incrimination, his right to due process and his right to equal protection under the laws. This Court finds that there is no genuine issue of material fact as to these three constitutional claims and grants defendants’ motion for summary judgment on Count I.

A. The Privilege Against Self-Incrimination Claim

Plaintiff bases his allegation of violation of his privilege against self-incrimination upon his refusal to submit to a “black light” examination of his hands and his pocket change and his subsequently forced resignation. In National Acceptance Co. of America v. Bathalter, 705 F.2d 924 (7th Cir.1983), the Seventh Circuit reaffirmed that “... the state, in its role as employer, could insist on full disclosure of matters specifically and narrowly related to job performance and could discharge those refusing to disclose.” Id. at 928. “The discharges (held impermissible by the Supreme Court in prior decisions) were impermissible only because the state could not act simultaneously as prosecutor as well as employer, i.e. by insisting not only that its employees answer questions but also that those answers be made available for use against them in any subsequent criminal proceeding." Id. See also Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967); Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); Uniformed Sanitation Men Ass’n. v. Commissioner, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968).

Thus, in Grabinger v. Conlisk, 320 F.Supp. 1213 (N.D.I11.1970), the court found “that if a public employee refused to testify as to a matter concerning which his employer is entitled to inquire, he may be discharged for insubordination, but if he does testify, his answers may not be used against him in a subsequent criminal proeeeding.” Id. at 1218. Therefore, when the state requires an employee to disclose incriminating information for the use of considering the employee’s fitness for continued employment, and not for the use in a criminal proceeding, the disclosure remains privileged and there is no violation of the employee’s privilege against self-incrimination. If,- however, the state used the disclosure as a pretext to elicit information for use at a criminal proceeding, the privilege against self-incrimination would be violated.

Here, the Assistant Superintendent and Business Manager of Morton High Schools (and all other representatives of Morton High School) never threatened to institute any criminal prosecutions or criminal charges against the plaintiff or anyone else in connection with the taking of money from the library Xerox machine. Furthermore, no express waiver of Schoepf’s privilege against self-incrimination was ever requested or obtained by the defendants. Defendants acted entirely as Schoepf’s employers in March of 1983, and not as Schoepf’s prosecutors. Even if Schoepf did present his hands to the black light examination, the possibly incriminating disclosure would continue to be protected by the privilege against self-incrimination in a criminal proceeding.

Hence, this Court finds that plaintiff’s resignation as allegedly based upon his refusal to expose his hands and pocket change to black light examination did not violate plaintiff’s privilege against self-incrimination. As there is no genuine issue of material fact, this Court grants defendants’ motion for summary judgment as to the claim of a violation of Schoepf s privilege against self-incrimination.

B. Due Process Claim

Plaintiff argues that his employment with defendant school board constituted a property or liberty interest which could not be taken away from him without due process. This Court finds that plaintiffs resignation was voluntary and, thus, any due process rights to which he otherwise would have been entitled are waived. Accordingly, the Court grants defendants’ motion for summary judgment as to the due process claim.

Plaintiff has failed to demonstrate that his resignation was obtained by external coercion or duress. As Christie v. United States, 518 F.2d 584 (Ct.Cl.1975), notes, “[djuress is not measured by the employee’s subjective evaluation of a situation. Rather, the test is an objective one.” Id. at 587. (Citing McGucken v. United States, 407 F.2d 1349, 1351 (Ct.C1.1969); Pitt v. United States, 420 F.2d 1028, 190 Ct.Cl. 506, 513 (1970).) Therefore, the Court must ignore the plaintiff’s subjective state of mind and ignore the personal tragedies to which plaintiff was exposed. Thus, the issue presented is whether the plaintiff was objectively coerced into resigning or was he merely faced with “two unpleasant alternatives[?]” See Christie, supra, 518 F.2d at 587. Here, as in Christie, the plaintiff was merely faced with two unpleasant alternatives.

The court in Cosby v. United States, 417 F.2d 1345 (Ct.Cl.1969), found that “[e]ven where the employee is told that he must choose between resignation and separation, the subsequent choice of resignation is not coerced unless the employee can show that his superior knew or believed that the reasons for the proposed separation could not be substantiated.” Cosby, supra, 417 F.2d 1355. There is no evidence in the record to suggest that the defendants would not have reasonably considered Schoepf’s alleged theft from the Xerox machine good cause for discharge. Furthermore, there is no evidence in the record to suggest that Superintendent Keeling did not reasonably believe that the theft could be proved. Accordingly, Schoepf’s choice of resignation was not coerced under Cosby. There is no question of material fact that the defendants reasonably believed that Schoepf’s proposed separation could be substantiated by the events that occurred on March 1, 1983. Therefore, this Court finds that plaintiff’s resignation was made voluntarily and that any denial of due process claim has been waived. This Court grants defendants’ motion for summary judgment on this issue.

C. Equal Protection

The Court finds that plaintiff has failed to plead sufficient allegations of fact to assert a claim under the equal protection clause. There is no evidence in the record that suggests that anyone else was treated differently from Schoepf. Thus, there is no genuine issue of material fact as to the equal protection claim. This Court grants defendants’ motion for summary judgment of this issue.

III. REMAINING COUNTS II, III, AND IV

Since this Court grants summary judgment as to all the federal claims raised in Count I before trial, Counts II, III, and IV are dismissed without prejudice for lack of pendent jurisdiction. See Buethe v. Britt Airlines, Inc., 749 F.2d 1235, 1239-41 (7th Cir.1984).

IV. CONCLUSION

Defendants’ motion for summary judgment on Count I of plaintiff’s complaint is granted. Counts II, III, and IV are dismissed without prejudice for lack of pendent jurisdiction.

IT IS SO ORDERED.

      . According to the Keeling affidavit, at about 6:00 p.m., Keeling saw Patrick Schoepf enter the library and go behind the circulation desk. Keeling then heard Schoepf open a drawer behind the circulation desk and come back to the Xerox machine and open the machine’s coin collection box. Schoepf reached into the machine and put coins into his pocket. Keeling then observed Schoepf walk behind the circulation desk and close a drawer again. Schoepf, however, contradicts these allegations. For purposes of this motion, Schoepfs version is assumed as true.

      . In the Keeling affidavit, defendants submit that Kawiecki and Laat accompanied Schoepf to the meeting to act as Schoepf s union representatives. For purposes of this motion, however, the Court assumes Kawiecki and Laat were present at the meeting as witnesses, and not as Schoepf s union representatives.

      . Plaintiff claims that “questions about money shortages [bears] no relation to his job performance” and thereby insinuates that such inquiries are beyond the specific and narrow scope of permissible required disclosures. Plaintiffs Memoranda in Support of Their Answer to Defendants’ Motion for Summary Judgment, p. 3. The Court, however, refuses to accept this argument. An employer obviously has the right to question an employee about money shortages when the employee has had free access to the missing money or merchandise.

      . Thus, in Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), the Supreme Court found that when a New York police officer refused to sign an express waiver of his privilege against self-incrimination and as a result the commissioner of the city fired him, there was a violation of the plaintiffs privilege against self-incrimination.

      . Even assuming, however, that plaintiffs resignation was involuntary, plaintiffs due process allegation must fail since Schoepf failed to utilize the contractual grievance and arbitration procedures available to him under the collective bargaining agreement between the school and his union. See Lewis v. Hillsborough Transit Authority, 726 F.2d 664 (11th Cir.1983), cert. denied, — U.S.-, 105 S.Ct. 95, 83 L.Ed.2d 41 (1984). While this may be due to no fault of his own, plaintiff never filed a grievance, explicitly required by the contract, nor asked anyone at the union to file a grievance on his behalf.
      When the union steward determined that Schoepfs complaint had no merit as a grievance, Schoepf had the right, accorded by the contract, to appeal the decision of the steward to the union’s Grievance Committee. Thus, as an alternative holding, this Court finds that Schoepf failed to adhere to contractual grievance procedure and, therefore, waived any claimed due process rights against the defendants.


author: IRVING BEN COOPER, District Judge.

text:
    Eugene TRAYNOR, Plaintiff, v. Harry N. WALTERS, Administrator of the Veterans Administration; and the Veterans Administration, Defendants.
    No. 82 Civ. 4563 (IBC).
    United States District Court, S.D. New York.
    April 4, 1985.

      Legal Action Center of the City of New York, Inc., Néw York City, for plaintiff; Margaret K. Brooks, Richard C. Boldt, Catherine H. O’Neill, New York City, of counsel.
    Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for defendants; Carolyn L. Simpson, Asst. U.S.Atty., New York City, Dean Gallin, Joan Weber, Veterans Admin., Washington, D.C., of counsel.
   OPINION

IRVING BEN COOPER, District Judge.

Plaintiff seeks a declaratory judgment providing that the refusal of the Veterans Administration (“VA”) to consider rehabilitated alcoholics for extensions of veterans’ educational benefits pursuant to 38 U.S.C. §§ 1651-1662, violates the nondiscrimination provisions of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701-794, and the fifth amendment. Plaintiff also seeks individual and injunctive relief. Defendant moves to dismiss plaintiff’s action on the ground of lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) or, in the alternative, for summary judgment in accordance with Fed.R.Civ.P. 56. Plaintiff cross-moves for summary judgment.

I. THE FACTS

Plaintiff is a 43 year old veteran of the United States Army who suffered from alcoholism until 1974. It is not known exactly how or why this condition developed, but plaintiff’s deposition testimony reveals that both his father and brother imbibed to excess and that plaintiff himself first drank to the point of intoxication when he was between eight and ten years old. (D. 36-37; F. 3) During the time he was in high school, 1955-60, plaintiff consumed alcohol regularly on weekends and occasionally on weeknights. (D. 37-39; F. 3) Beginning in 1960, he began drinking more heavily and frequently. Sometime after 1964, plaintiff developed a pattern of daily absorption to the point of intoxication; he had grown to be dependent upon alcohol. (D. 11-17, 47; F. 3)

Due to the effect of the alcohol on him, plaintiff’s employment record is sporadic. In October 1963, plaintiff enlisted in the Army National Guard and served a six month period of active duty, during which time he completed basic training, from January through June 1964. (D. 9-10, 43; Ex. B-8 at 2; F. 2)

In December 1964, he was hired to work nights as a maintenance mechanic by Lincoln Center for the Performing Arts in New York City. (D. 10-11; F. 2) However, he drank liquor during work hours, frequently leaving the site altogether to go to nearby bars. As a result, he was transferred to the day shift where he could be more closely supervised, but he was discharge in late 1967 for intoxication on the job and for job performance problems caused by his alcoholism. (D. 11-18, 46-47; F. 3)

After he lost that position plaintiff was called back to active duty in the Army. He served from February 27, 1968 through August 27, 1969 (18 calendar months), primarily in West Germany. Unfortunately, plaintiff’s drinking habit continued while he served on active duty; this brought on suffering from seizures; sixty-five days were deducted from his active duty period due to alcohol-related rule violations. Plaintiff was honorably discharged with the rank of private effective August 27, 1969. (D. 23; Ex. C-l; F. 2)

Following his discharge, plaintiff returned to Queens, New York where he lived with his family. In the next four and one half years his alcoholism became progressively more severe. During this period he maintained a pattern of daily drinking, resulting in frequent seizures, loss of consciousness, delirium tremors, blackouts and gastrointestinal bleeding. Indeed, he was hospitalized five times in these four and one half years for treatment for saturated alcoholic disorders.

Although at an early age plaintiff was aware that he drank more than other people, it made him feel “more stable ... and more normal.” (D. 47-48, 53-54) His family and treating physicians told him he had a drinking problem, but he denied identifying himself as an alcoholic and persisted in believing that he was able to control or alter his drinking pattern. (D. 47-49, 54-55; F. 5-6)

In February 1974, after his last hospital stay, one of plaintiffs neighbors invited him to attend an Alcoholics Anonymous (“AA”) meeting. Plaintiff maintains that within two weeks of his first AA meeting he was able to recognize his drinking problem and his inability to control it. He became a member of AA and continued attending meetings daily (and on occasion in the evening) for more than a year. Astonishingly and commendably, plaintiff has not had a drink since February, 1974; he still continues to be an active participant in AA. (D. 26-29, 54; Ex. B-8 at 3, B-2 at 21; F. 6)

Shortly thereafter plaintiff began seeking employment. He worked in two temporary seasonal jobs before he obtained a permanent job as a maintenance mechanic with a photography concern in New York City in January 1976. He has been employed there full time since then and has been promoted to his present position as Supervisor of Maintenance. (D. 31-34; B-8 at 3-4; F. 6)

In the fall of 1977, plaintiff applied for admission to and was accepted by City College of New York (“CCNY”) in its bachelor’s degree program in mechanical engineering. In January 1978, plaintiff commenced his studies at CCNY attending school at night and working full time during the day.

Upon his admission to college, plaintiff applied for veteran’s educational assistance benefits pursuant to 38 U.S.C. § 1651 et seq. Defendants determined that he was entitled to receive the benefits made eligible by virtue of his service on active duty in the Army and his receipt of an honorable discharge. Based on the number of months plaintiff had served on active duty, the YA calculated that he was entitled to receive 24 months of educational assistance benefits.

However, as plaintiff knew, these benefits had to be absorbed before August 28, , 1979 in order to satisfy 38 U.S.C. § 1662(a)(1), which provides:

No educational assistance shall be afforded an eligible veteran under this chapter beyond the date 10 years after the veteran’s last discharge or release from active duty ...; except that, in the case of any eligible veteran who was prevented from initiating or completing such veteran’s chosen program of education within such time period because of a physical or mental disability which was not the result of such veteran’s own willful misconduct, such veteran shall, upon application ... be granted an extension of the applicable delimiting period for such length of time as the Administrator determines, from the evidence, that such veteran was so prevented from initiating or completing such program of education.

Pursuant to the statute, plaintiff was entitled to receive educational benefits from the date of his discharge, August 27, 1969, until August 28,1979, ten years later. However, by August 1979, plaintiff would have received only nine and one half of the 24 months of educational assistance benefits to which he was entitled. Consequently, in May 1979, plaintiff applied to the VA for an extension of his delimiting date (pursuant to 38 U.S.C. § 1662(a)(1)) on the ground that his history of, and gradual recovery from, alcoholism had prevented, him from initiating or pursuing his education until he first applied to CCNY. Plaintiff filed his claim in defendants’ regional office in New York City. (D. 63; Ex. B-l)

On August 9, 1979, defendants issued a “Rating Decision” denying plaintiff’s claim for a delimiting date extension; it stated in part that plaintiff’s “periods of hospitalization because of alcoholism are not for consideration, since they are a result of the veteran’s own willful misconduct.” (Ex. B-3)

Plaintiff appealed the rating decision to the Board of Veterans Appeals. (Ex. B-7) In his statement on appeal, plaintiff quoted the American Medical Association’s Manual on Alcoholism in support of his argument that alcoholism is universally recognized by the medical community as an illness capable of treatment. He contended further that the VA’s characterization of alcoholism ' as willful misconduct was “wrong in fact and in law,” and contradicted other federal agencies and statutes which recognize alcoholism as a disease. (Ex. B-7) A hearing was held in defendants’ regional office in New York City where plaintiff was represented by counsel and witnesses called to testify in his behalf. In its findings and decision on plaintiff’s appeal, the Board of Veterans Appeals upheld the original rating decision, stating:

We accept the premise that he may have been precluded from engaging in a program of education during the time he was an active alcoholic. We note that the simple drinking of alcoholic beverage is not of itself willful misconduct. However, the deliberated drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. While the medical community may view alcoholism as an illness for treatment purposes, it is our view that resort to alcohol, as shown in this case, is a willful misconduct condition. Therefore, the veteran may not be granted an extension of his delimiting period because of physical or mental disability brought about by his alcoholism, resulting from his own willful misconduct.

(Ex. B-9 at 4)

Plaintiff subsequently request a reconsideration of the decision by the Board of Veterans Appeals on the ground that the Board had erred as a matter of fact and law. (Ex. B-10) His request was granted and, on June 19, 1981, a hearing was held before an enlarged panel of the Board of Veterans Appeals in Washington, D.C. Its “Findings and Decision (Reconsideration)” was issued on November 9, 1981 and affirmed the original decision on appeal. (Ex. B-12)

Having exhausted his administrative remedies, plaintiff filed this action seeking declaratory, injunctive and individual relief. Defendants oppose the claims and argue that this Court has no subject matter jurisdiction over this action.

II. THE LAW

A. JURISDICTION

Defendants move to dismiss plaintiff’s action on the ground that this Court lacks subject matter jurisdiction. Defendants rely on 38 U.S.C. § 211(a), which reads in pertinent part:

[T]he decisions of the Administrator on any question of law or fact under any law administered by the Veterans’ Administration providing benefits for veterans and their dependents or survivors shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise.

Defendants contend that plaintiff’s complaint seeks to overturn a decision of the Administrator made in the interpretation and application of a particular statute, 38 U.S.C. § 1662(a)(1), to a particular set of facts. They further argue that plaintiff’s exclusive remedy was- his appeal to the Board of Veterans Appeals (38 U.S.C. §§ 4001-4009) and, once his case was decided by the Board, the decision was final and is not subject to review by this Court.

Plaintiff asserts that this Court has jurisdiction because plaintiffs challenge arises under the Constitution and laws of the United States. Specifically, plaintiff alleges that defendants’ procedures and regulations with regard to the extension of delimiting dates for alcoholics violate the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, and the equal protection and due process clauses of the fifth amendment.

Furthermore, as plaintiff correctly insists, jurisdictional limitations in statutes are to be interpreted narrowly in light of a basic presumption of judicial review which governs in the absence of clear and convincing evidence of congressional intent to the contrary. Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967); Rusk v. Cort, 369 U.S. 367, 379-80, 82 S.Ct. 787, 794, 7 L.Ed.2d 809 (1962); Kirkhuff v. Nimmo, 683 F.2d 544, 546 (D.C.Cir.1982).

In Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974), the Supreme Court held that § 211(a) did not preclude judicial review of the constitutionality of veterans’ benefits legislation; that any other holding would raise serious questions about the constitutionality of § 211(a). The Court held that § 211(a) is “aimed at questions arising in the administration of a statute” and noted that its purpose is two-fold:

(1) to insure that veterans’ benefits claims will not burden the courts and the Veterans’ Administration with expensive and time-consuming litigation, and (2) to insure that the technical and complex determinations and applications of Veterans’ Administration policy connected with veterans’ benefits decisions will be adequately and uniformly made.

415 U.S. at 367, 370, 94 S.Ct. at 1167 (emphasis in original)

Federal courts have since applied Johnson’s holding to constitutional challenges to VA regulations and to the authority of the VA to promulgate regulations. Devine v. Cleland, 616 F.2d 1080 (9th Cir. 1980); Wayne State University v. Cleland, 590 F.2d 627 (6th Cir.1978); finch v. Walters, 573 F.Supp. 346, 347 (E.D.Tenn.1983); Beauchesne v. Nimmo, 562 F.Supp. 250, 254 (D.Conn.1983). In short, judicial review of decisions of the VA is not precluded when the decision involves issues such as the constitutionality of a statute or a regulation.

To determine whether plaintiff’s claim arises under the Constitution and laws of the United States, we look to the allegations of the complaint. North American Phillips Corp. v. Emery Air Freight Corp., 579 F.2d 229, 233 (2d Cir.1978). Here, plaintiff challenges the VA’s interpretation of § 1662(a)(1) of the Veterans’ Educational Benefits statute which distinguishes between alcoholics with secondary organic disabilities, or those whose alcoholism is a secondary effect of an underlying psychological disorder, and alcoholics who do not suffer from these defects; the VA regulation permits consideration of an application for an extension of the delimiting date to the former group while denying it to the latter. Plaintiff claims that this regulation is violative of the Rehabilitation Act, 29 U.S.C. § 794, and the fifth amendment’s due process and equal protection guarantees. Since this decision requires us to examine constitutional and statutory questions and not merely issues of VA policy, we conclude, in accordance with the Supreme Court’s holding in Johnson, supra, that we are not precluded from exercising our jurisdiction in this matter by 38 U.S.C. § 211(a). Accordingly, defendants’ motion to dismiss for lack of jurisdiction is denied.

B. CONSTITUTIONAL CHALLENGE

Plaintiff claims that the VA’s regulations defining “alcoholism” deprive him of due process and equal protection of the laws as guaranteed by the fifth amendment.

As we have already stated, 38 U.S.C. § 1662(a)(1) prohibits an extension of the delimiting date for veterans’ educational benefits to any veteran whose physical or mental disability is the result of such veteran’s own “willful misconduct.” 38 C.F.R. § 3.1(n) defines the term “willful misconduct” as follows:

“Willful misconduct” means an act involving conscious wrongdoing or known prohibited action (malum in se or malum prohibitum)____
(1) It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences.
(2) Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct.
(3) Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death.

More specifically, 38 C.F.R. § 3.301(c)(2) defines the term “willful misconduct” as applied in the context of alcoholism in this manner:

(2) Alcoholism. The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results approximately [sic] and immediately in disability or death, the disability or death will be considered the result of the person’s willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin.

In Administrator’s Decision, Veterans’ Administration No. 988 (Aug. 13,1964), the VA recognized a distinction between alcoholism as a primary disorder and “alcoholism as secondary to and a manifestation of an acquired psychiatric disorder. If the latter condition is found the resulting disability or death is not to be considered as willful misconduct.”

It is apparent that the VA distinguishes between alcoholism as a primary disorder, on the one hand, and alcoholism as the secondary result of a psychiatric disorder and organic disabilities which result from chronic use of alcohol, on the other. Clearly, the former is classified as a disability caused by a veteran’s own willful misconduct; the latter is not.

In challenging the constitutionality of these regulations, plaintiff argues that the distinction between primary alcoholics and those whose alcoholism results from a diagnosable psychological disorder, or those who suffer from organic disabilities as a result of their alcoholism, creates two classes of alcoholics. He asserts that the classification of primary alcoholism as willful misconduct, resulting in the complete exclusion of primary alcoholics from consideration for extensions of delimiting dates, violates constitutional guarantees.

In Weinberger v. Salfi, 422 U.S. 749, 772, 95 S.Ct. 2457, 2470, 45 L.Ed.2d 522 (1974), the Supreme Court declared:

[A] noncontractual claim to receive funds from the public treasury enjoys no constitutionally protected status ... though of course Congress may not invidiously discriminate among such claimants on the basis of a ‘bare congressional desire to harm a politically unpopular group,’ ... or on the basis of criteria which bear no rational relation to a legitimate legislative goal.

It is clear that veterans’ educational benefits are noncontractual in nature; consequently, pursuant to the Supreme Court’s opinion in Weinberger, the test to be applied to defendants’ classification of primary alcoholics is whether there is a rational relation to a legitimate government purpose in the classification.

We have no hesitancy in concluding that there is a rational basis for this classification by the VA: In order to avoid the possibility of fraudulent claims by primary alcoholics whose disabilities are less easily proved, the VA has chosen to favor those who have clear-cut, medically demonstrable disabilities which existed during the time they were eligible for educational assistance benefits and which were the cause of their inability to begin or complete their education. (Ex. B-12 at 6)

Because we find a rational relation between the two classifications of alcoholics and the legitimate goal of the VA we find that plaintiffs challenge to the constitutionality of the VA’s “willful misconduct” regulations must fail.

C. STATUTORY CHALLENGE

Plaintiff further contends that the VA’s “willful misconduct” regulations violate the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-794. Specifically, he argues that he is a handicapped person within the meaning of the Act, and that he has been discriminated against solely on that basis.

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, provides in relevant part:

No otherwise qualified handicapped individual in the United States, as defined in section 7(6) of this Act shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency ... The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section.

In determining whether § 504 has been violated, our Court of Appeals has enunciated a four-part test requiring a plaintiff to demonstrate that: (1) he is a “handicapped individual” under the Act; (2) he is “otherwise qualified” for the program of benefits from which he has been excluded; (3) he has been excluded “solely” because of his handicap; and (4) the program from which he is excluded is subject to § 504. Doe v. New York University, 666 F.2d 761, 774-75 (2d Cir.1981). Once plaintiff makes out his prima facie case, the burden shifts to defendants, who must make a substantial showing that the regulation or practice is justified. Mere reasonableness will not suffice. New York State Association for Retarded Children v. Carey, 612 F.2d 644, 649-50 (2d Cir.1979).

We now proceed to examine each element of the four-part test. First, Congress has defined a handicapped individual as follows:

[T]he term “handicapped individual” means, for the purposes of titles IV and V of this Act [under which the instant case falls], any person who (i) has a physical or mental impairment which substantially limits one or more of such person’s major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.

29 U.S.C. § 706(7)(B).

After the enactment of § 504, the Department of Health, Education and Welfare (“HEW”) was designated the leading agency to promulgate regulations pursuant to Executive Order 11914 (issued April 28, 1976). The President instructed HEW to:

coordinate the implementation of Section 504 ... by all Federal departments and agencies empowered to extend Federal financial assistance to any program or activity. The Secretary shall establish standards for determining who are handicapped individuals and guidelines for determining what are discriminatory practices within the meaning of Section 504____ In order to implement the provisions of Section 504, each Federal department and agency empowered to provide Federal financial assistance shall issue rules, regulations, and directives, consistent with the standards and procedures established by the Secretary of Health, Education, and Welfare.

In the process of carrying out the Executive Order, HEW was faced with the question of whether alcoholics (and drug addicts) are “handicapped individuals” within the meaning of the Rehabilitation Act. The Secretary requested an opinion of the Attorney General of the United States; that opinion was released in 1977. (43 Op. Att’y Gen. No. 12 (April 12, 1977))

The Attorney General concluded that § 504 “does in general prohibit discrimination against alcoholics and drug addicts in federally assisted programs solely because of their status as such, just as it prohibits discrimination solely on the basis of other diseases or conditions covered by the Act.”

The opinion reviews the legislative history of the Rehabilitation Act. Specifically, it notes that the 1973 Act replaced the Vocational Rehabilitation Act, 29 U.S.C. § 31 et seq. (1970), which defined a handicapped person as one who had a physical or mental disability that impaired his employability but might reasonably be expected to benefit from the vocational rehabilitation services provided by the Act. The Rehabilitation Act continued the approach taken in the earlier statute with regard to vocational rehabilitation and preserved its definition of “handicapped individual.” See 29 U.S.C. § 706(7)(A). The opinion notes that alcoholics were considered handicapped under the 1970 Act; that the House Report on the 1973 Act reflects this fact and gives no indication that it intended to alter the meaning under the new Act. 43 Op. Att’y Gen. No. 12 (April 12, 1977).

The opinion further points out that the definition of “handicapped individual” was amended in 1974 to add what is now § 706(7)(B), which encompasses impairments that “substantially limit” one’s “major life activities” within the meaning of “handicapped individual.” The definition was broadened because the prior version, which only covered impairments to employ-ability, was not adequate for the purposes of the new, broader antidiscrimination provisions in the Rehabilitation Act. Among those provisions is § 504, which prohibits discrimination against handicapped individuals in any program or activity receiving Federal financial assistance. This includes programs in housing, health care and education, as well as employment.

Finally, the Attorney General notes that although there is considerable disagreement as to the precise nature of drug addiction and alcoholism, there is a substantial body of authority to support Congress’ conclusion that both are diseases which would be included within the meaning of “physical or mental disabilities.” The opinion concludes that it is certainly not irrational to read § 504 as including drug addicts and alcoholics, particularly in light of the legislative history of the Rehabilitation Act.

HEW’s guidelines implementing § 504 were promulgated in 1978. 43 Fed.Reg. 2132 (1978). As noted earlier, HEW was instructed to define the meaning of “handicapped individual,” and its regulations were to serve as the model which all other Federal agencies were to follow. The rule ultimately adopted explicitly includes alcoholics within the meaning of “handicapped person.” It reads as follows:

(a) “Handicapped person” means any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.
(b) As used in paragraph (a) of this section, the phrase:
(1) ... “physical or mental impairment” includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and drug addiction and acoholism.

43 Fed.Reg. 2137 (1978). (emphasis added)

In 1980, the VA adopted the HEW guidelines, specifically using the exact language quoted in its definition of “handicapped person.” 38 C.F.R. § 18.-403(j)(2)(i)(C). Therefore, in accordance with the first factor enunciated by our Circuit in Doe v. New York University, supra, at 774, plaintiff, an alcoholic, clearly comes within the category of “handicapped individual” under § 504 of the Rehabilitation Act.

The second factor for determination in Doe v. New York University is whether the plaintiff is “otherwise qualified” for the benefits program from which he has been excluded. An “otherwise qualified” handicapped person is one who is able to meet all of a program’s requirements in spite q/his handicap, as opposed to one who meets all of the requirements except as to limitations imposed by the handicap. Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979). With regard to educational benefits, the term “otherwise qualified” denotes one who “meets the academic and technical [i.e., nonacademic] standards requisite to admission or participation” with respect to educational programs, and one who “meets the essential eligibility requirements” for the receipt of other services.

It is undisputed that plaintiff meets the basic eligibility for and entitlement to educational assistance benefits under Chapter 34 of the Veterans’ Benefits Law. His armed services record and subsequent enrollment in a program of education at CCNY entitled him to educational benefits which he received until the end of his delimiting period. We are,, therefore, convinced that plaintiff is an “otherwise qualified” handicapped person.

We must next consider whether plaintiff was denied participation in the program solely on the basis of his handicap. The VA’s regulatory scheme defines primary alcoholism as willful misconduct per se. This policy resulted in the automatic exclusion of plaintiff from consideration for an extension of his delimiting date based solely on his history of alcoholism. Since plaintiff has demonstrated that he is an otherwise qualified handicapped person and that he was denied an extension due to his past alcoholism, it is apparent that plaintiff was denied an extension solely on the basis of his handicap.

The final factor we must consider under the Second Circuit test in Doe v. New York University is whether the veterans’ educational assistance program from which plaintiff has been excluded is subject to § 504. The section explicitly states that it covers “any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency.” 29 U.S.C. § 794. (emphasis added)

Furthermore, the VA regulations implementing § 504 specifically list the veterans’ educational benefits program as one of the programs to which § 504 applies. 38 C.F.R. 31, Appendix A to Subpart D (Statutory Provisions to Which this Subpart Applies) (1980). Consequently, it is clear that the Veterans’ Educational Assistance program is subject to § 504.

In sum, plaintiff has met his burden of proving that he is a handicapped person within the meaning of the Rehabilitation Act, that he is otherwise qualified to receive an extension of his delimiting date, that he was excluded from consideration for an extension solely on the basis of his handicap, and that the veterans’ educational benefits program from which he was excluded is subject to § 504; i.e., plaintiff has proven his prima facie case of discrimination under § 504 of the Rehabilitation Act, and the burden is on defendants to prove that the challenged regulations are justified in light of § 504. In so doing, defendants may not rest merely on an assertion that the challenged regulations and policy are reasonable; as noted earlier, defendants must make a substantial showing that the regulations are justified. New York State Association for Retarded Children v. Carey, supra, at 650.

Defendants argue that the willful misconduct bar is a narrow exception to the Rehabilitation Act. However, defendants fail to recognize that plaintiff is not challenging the willful misconduct language in the statute itself (38 U.S.C. § 1662(a)(1)), but the VA’s interpretation and policy reflected in its regulations which define primary alcoholism as willful misconduct. Therefore, in contrast to defendants’ assertion there is no conflict between two statutes, i.e., the willful misconduct statute, 38 U.S.C. § 1662(a)(1), and §» 504 of the Rehabilitation Act, 29 U.S.C. § 794.

Furthermore, we find that defendants fail to make a substantial showing that their regulations and policy are justified in light of § 504. Indeed, the VA policy of excluding those with a history of primary alcoholism from consideration for extensions of delimiting dates contravenes the Rehabilitation Act by discriminating against those rehabilitated alcoholics (a remarkable accomplishment) most deserving of aid.

Our opinion is bolstered by a recent decision in the Eastern District of Tennessee.In Tinch v. Walters, 573 F.Supp. 346 (E.D.Tenn.1983), the plaintiff, a veteran, was a rehabilitated alcoholic who challenged the same regulations and policy as the instant plaintiff. The Court found that no substantial justification for the VA’s policy was apparent, stating, “While the Court cannot find that the policies and regulations are unconstitutional, they are impaired by the application of the willful misconduct bar, and they are in violation of the Rehabilitation Act of 1973, as amended, specifically 29 U.S.C. § 794.” 573 F.Supp. at 348.

Similarly, we find that although defendants’ regulations challenged herein withstand constitutional scrutiny, they violate § 504 of the Rehabilitation Act, 29 U.S.C. § 794.

Accordingly, plaintiff’s application for a declaratory judgment is granted. Further, plaintiff’s motion for summary judgment is granted and the defendants’ motions to dismiss or for summary judgment are denied.

SO ORDERED.

      . Throughout this opinion, the letter "D.” followed by a number in parentheses indicates a particular page number in the transcript of defendants’ deposition of plaintiff. The letter “F.” followed by a number in parentheses indicates a particular page number in plaintiffs and defendants’ Joint Statement of Undisputed Facts pursuant to S.D.N.Y. R. 3(g). The same applies to an "Ex.” which refers to a specific exhibit.

      . His dates of hospitalization and summary of the diagnosed disorders for which he received treatment were as follows:
      (a) March 6-12, 1970: alcoholism with delirium tremors; seizure disorder; hematemesis;

        (b) May 3-11, 1971: alcoholism; gastrointestinal bleeding; hematemesis;
      (c) April 30-May 11, 1973: alcoholism; seizure disorder; alcoholic gastritis with bleeding;
      (d) August 29-September 1, 1973: history of alcoholism; convulsive disorder; alcoholic gastritis; gastrointestinal bleeding;
      (e) January 24-February 2, 1974: chronic alcoholism; gastrointestinal bleeding; delirium tremors.
      (D. 25-26; Ex. B-2, B-3, B-6 at 2, B-8 at 2-3, 7-8; F. 4-5)

      . Plaintiff stated that he did not think he was capable of working full time and going to school because he was "just really learning how to live again." (D. 62, 64) (emphasis ours)

      . However, the Attorney General was careful to point out that the inclusion of alcoholics and drug addicts within the definition of “handicapped individual” does not mean that they must be permitted to participate in a program, or be hired, if the manifestations of their condition prevent them from adequate participation in the program or performing the job in question. 43 Op. Att'y Gen. No. 12 (April 12, 1977).

      . See 43 Fed.Reg. 2137 (1978) (HEW regulations coordinating federal agency enforcement of § 504); 38 C.F.R. § 18.403(k) (VA regulations implementing § 504).