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August 7, 1972

William Michael O'SHEA, Plaintiff,
Joseph J. BLATCHFORD, Director of the Peace Corps, Defendant

Gurfein, District Judge.

The opinion of the court was delivered by: GURFEIN

GURFEIN, District Judge.

This is a motion by the plaintiff William Michael O'Shea for summary judgment pursuant to Fed. R. Civ. P. 56. O'Shea is an engineer with an advanced degree in Asian studies who was a Peace Corps Volunteer from December 1968 to January 1970, when his services were terminated under the circumstances described below. He served as a science teacher in the Government Junior Secondary School in Kota Kinabalu, Sabah (North Borneo, Malaysia) from 1968 until his termination.

 The defendant is Director of the Peace Corps. The relief sought is: (1) a declaratory judgment that Peace Corps Manual Section 237.1 is unconstitutional on its face and as applied to the plaintiff; *fn1" (2) a declaratory judgment that his early termination was in violation of his rights under the Constitution and Peace Corps Manual Section 292; *fn2" (3) an order directing that the plaintiff be reinstated into the Peace Corps and reassigned to his volunteer post in Kota Kinabalu; (4) an order requiring the defendant to correct the plaintiff's record, expunging his "unlawful dismissal" and reflecting that his termination was unlawful; and (5) other and further relief. The defendant opposes the motion for summary judgment but makes no cross-motion.

 The facts are not in dispute. While O'Shea was a teacher in Borneo his work was excellent and he was well regarded by his superiors in the Peace Corps and by the Peace Corps staff and the residents of the host country. Soon after his arrival in Borneo O'Shea became troubled by the fact that several other Volunteers had been terminated for smoking marijuana, although O'Shea himself was concededly not a smoker. On December 1, 1969, he left Borneo for a month's vacation in the United States. In January 1970, while en route back to his post he stopped in Kuala Lumpur to speak with the Peace Corps Country Director for Malaysia, John Pincetich. He told Mr. Pincetich that he wished to do a survey among the Peace Corps Volunteers in Malaysia to get their opinions of the Peace Corps "regulation" prohibiting the use of marijuana and to gather statistics about its use or non-use by Volunteers. *fn3" The Country Director did not object to the survey, but suggested that it be limited to the Volunteers in Sabah and that the results be sent to Peace Corps/Malaysia and Peace Corps/Washington.

 O'Shea prepared a letter to accompany the survey for mailing to the Volunteers in Sabah. When he presented the material on January 14, 1970 to the Peace Corps office for such mailing, it came to the attention of Baudouin de Marcken, then the Associate Country Director for Malaysia, and it was never circulated. The letter included the following statement:

"Recently, while I was drunk, I had my first and only 'weed.' The next day, after I recovered from my alcohol hangover (the marijuana seemed not to effect [sic] me), I realized that I had, in the eyes of the Peace Corps, committed an extremely serious offense. And yet I didn't feel like a criminal."

 The plaintiff was called into de Marcken's office the next day and told that because of the foregoing portion of the letter the plaintiff was subject to being summarily terminated as a Peace Corps Volunteer, since he had violated the regulation pertaining to marijuana. The matter was put up to Leo Moss, the new Country Director, who ordered O'Shea's termination. *fn4" O'Shea was not given a written detailed decision, nor an opportunity to submit his own written statement; nor did the Country Director recommend consultation in Washington, in accordance with Section 292 of the Peace Corps Manual.

 The plaintiff went to Washington on his own initiative but obtained no relief. The "case summary" in the Peace Corps file reads in part:

The event which precipitated his abrupt departure was his intent to distribute to all Sabah PCV's *fn5" a mimeographed statement and questionnaire describing his single use of marijuana and soliciting each Volunteer's statement regarding use of marijuana and opinions on discrimination against Chinese students in Sabahan schools. Leading up to his proposed distribution of his questionnaire, however, was Michael's frequently voiced opinion over a period of several months that Peace Corps policy on drug use is both incorrectly based and unfairly implemented. He intended to use the results of his survey as part of an appeal to the Director of the Peace Corps for a major change in the policy. Michael undertook this project despite the fact that he is not himself a user of any drugs. The issue of discrimination against the Chinese was an afterthought.
Peace Corps/Malaysia took the position that they could not disregard Mike's openly written statement even though his performance as a Volunteer had been excellent and his assurance that he had no intention of ever using any drugs again was beyond question. They informed him that they were bound to enforce the policy requirement of termination since there exists no provision for "mitigating circumstances."

 O'Shea was officially terminated from the Peace Corps on March 6, 1970.

 The Peace Corps was created by the Congress in 1961 "to promote world peace and friendship through a Peace Corps" by making available United States citizens "to help the peoples of [interested] countries and areas in meeting their needs for trained manpower, and to help promote a better understanding of the American people on the part of the peoples served and a better understanding of other peoples on the part of the American people." 22 U.S.C. § 2501. "The President is authorized to carry out programs in furtherance of the purposes of this chapter, on such terms and conditions as he may determine." 22 U.S.C. § 2502. The statute also provides that "[the] service of a volunteer may be terminated at any time at the pleasure of the President." 22 U.S.C. § 2504(i).

 The President in turn delegated all his powers, except those specifically reserved to himself, to the Secretary of State. *fn6" The power conferred by the Congress on the President under § 2504(i) was not specifically reserved and, therefore, vested in the Secretary of State. When O'Shea's services as a volunteer were terminated in March of 1970 the Secretary of State had delegated to the Director of the Peace Corps the responsibilities delegated to him by the President. *fn7" Pursuant to the delegation, the Director promulgated regulations and rules including those governing termination procedures for volunteers.

 The Act creating the Peace Corps provided that "except as provided in this chapter, volunteers shall not be deemed officers or employees or otherwise in the service or employment of, or holding office under, the United States for any purpose." 22 U.S.C. § 2504(a). The regulations applicable to such volunteers provide in pertinent part: 22 C.F.R. § 301.735-1(c) -- "Any violation of the regulations in this part may be cause for disciplinary action"; § 301.735-2(b) -- "Moreover, no regular or special employee may engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, or other conduct prejudicial to the Government"; § 301.735-6(c)(1) -- "Employees are encouraged to engage in teaching, lecturing, and writing." There is a special requirement for clearance of submissions for publications "which are devoted to the Peace Corps' programs or to any other matter which might be of official concern to the U.S. Government." § 301.735-6(c)(3). There is a specific prohibition against gambling and ...

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