Berry v. Bean
| Decision Date | 06 December 1985 |
| Docket Number | Civ. No. H-85-4094. |
| Citation | 623 F. Supp. 977 |
| Parties | Sonja M. BERRY, et al., Plaintiffs, v. Wesley W. BEAN, Jr., etc., et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
Allen M. Lenchek and Gaffney, Anspach, Schember, Klimaski & Marks, Washington, D.C., for plaintiffs.
Thomas M. Barba, Staff Atty., Civ. Div., U.S. Dept. of Justice, Washington, D.C., and Alexander S. Nichols, Gen. Litigation Div., Office of the Judge Advocate Gen., Washington, D.C., and Charles P. Scheeler, Asst. U.S. Atty., Baltimore, Md., for defendants.
A black teenager is here seeking the right to continue to reside with her family on Andrews Air Force Base, Maryland. By Order of the Commander of the Base, Sonja Berry, who was then in high school and 18 years of age, was on March 25, 1985, barred from residing with her stepfather and brothers on the base.
This civil action was filed on October 2, 1985 by Sonja Berry and her stepfather, Robert L. Young, who is a Technical Sergeant in the United States Air Force and who has lived at Andrews Air Force Base with his family since 1983. Named as defendants in this case are Colonel Wesley W. Bean, Jr., Commander of the Base, and the Secretary of the Air Force. When suit was filed, Sonja Berry was living off the base in compliance with the Order. In this civil action, she and her father sought injunctive relief which would permit her to return and live with the other members of her family.
Shortly after this action was instituted, plaintiffs filed a motion for a temporary restraining order (hereinafter "T.R.O."). A hearing was held on that motion in open Court on October 24, 1985. After hearing argument of counsel, the Court in an oral opinion ruled that the motion should be granted and that Sonja Berry should be permitted to return to Andrews Air Force base to reside with her parent and the other members of her family for a period of 10 days. Thereafter, the T.R.O. was extended for an additional period of 10 days, and the Court met with counsel and scheduled a hearing on plaintiffs' motion for a preliminary injunction for today. When defendants would not agree to an extension of the temporary restraining order until the Court had ruled on plaintiff's motion for a preliminary injunction, another hearing was held in open Court, and the Court then ruled that the temporary restraining order should be so extended.
Memoranda and exhibits have been filed in support of and in opposition to the pending motion for a preliminary injunction. An evidentiary hearing was held, and both plaintiffs testified. With the agreement of counsel, the evidence relied upon by defendants was submitted by way of affidavits and exhibits. The Court has now had an opportunity to consider all the evidence presented in the light of counsel's arguments and the applicable authorities. For the reasons to be stated herein, plaintiffs' motion for a preliminary injunction will be granted. Findings of fact and conclusions of law pursuant to Rule 52(a), F.R.Civ.P., are contained in this opinion.
On March 2, 1985, Sonja Berry who was then an 18 year old High School student and a dependent of Technical Sergeant Robert Young, was in the early morning hours seated in a vehicle being operated by a male companion on Base property. Air Force Security Policeman Steve A. Scott stopped the vehicle after the driver had gone through a stop sign. The Police Officer detected an odor of marijuana smoke. Stubs of marijuana were found in the car, and the driver was charged with operating a vehicle under the influence of narcotics. Ms. Berry was questioned and admitted that she had smoked a joint on the way to the base. She was later charged with possession of marijuana. The Court finds from the evidence, however, that Sonja did not use marijuana on the base.
On March 13, 1985, Colonel Bean formally advised Sergeant Young in writing that his dependent had sponsored as her guest an individual who was operating a vehicle under the influence of marijuana and had admitted to the police that she had been smoking marijuana too. Colonel Bean stated that such conduct would not be tolerated, and he advised Sergeant Young that if any further incidents involving his dependent took place it would be necessary for Bean as the Base Commander to take more stringent measures, including restrictions and conditions on Sonja. Various counseling agencies were recommended to Sergeant Young to deal with the problem.
On March 25, 1985, without further notice to Sergeant Young, Colonel Bean issued to Sonja Berry a letter of expulsion. She was notified that she should depart from Andrews Air Force Base immediately and that she could not reenter the base except for court appearances and emergency medical care. The Bar Order further stated "This order is issued as a result of records available to this headquarters which reflect the following information: On 2 Mar. 85, you were cited for possession/use of a controlled/dangerous substance."
Sonja Berry did not comply with this Order, because she did not want to leave her family. After being charged with trespassing, she did finally comply, leaving the base in August, 1985 and not returning until the Court had issued the T.R.O. In August 1985, Sergeant Young approached Colonel Bean requesting that he rescind the Bar Order. Sergeant Young explained that the Bar Order caused hardship to his family by interfering with the daily care of a younger child. Sonja's mother, who had been married to Sergeant Young for 13 years, had died in 1984, and Sonja had thereafter assisted her stepfather in caring for a 12-year old child in the family.
Colonel Bean refused to rescind the Bar Order permanently, mainly because of Sergeant Young's attitude. He instead suggested to Sergeant Young that he move his entire family from the base. Colonel Bean did agree to permit Sonja to return to live with her family temporarily. On August 26, 1985, Colonel Bean temporarily suspended the Bar Order until October 1, 1985. Sonja did not then return because she had a job in Arlington, Virginia where she had been residing with her father's fiancee. When counsel's request that the Bar Order be permanently rescinded was denied by Colonel Bean, this civil action was instituted.
Whether to grant or deny a motion for a preliminary injunction is a decision committed to the sound discretion of the trial court. First Citizens Bank & Trust Co. v. Camp, 432 F.2d 481, 483 (4th Cir.1970). The proper standard to be applied in determining whether a preliminary injunction should issue is the flexible "balance of hardship" test enunciated in Blackwelder Furniture Co. v. Seilig Mfg. Co., Inc., 550 F.2d 189 (4th Cir.1977). Four factors must be considered by the Court as follows (550 F.2d at 193):
The two more important factors are those of probable irreparable injury to the plaintiff without a decree, as compared to the likely harm to the defendant if one is issued. If the balance is struck in favor of the plaintiff, it is enough that grave or serious questions are presented, and plaintiff need not show a likelihood of success. See 550 F.2d at 196. However, the Fourth Circuit in Blackwelder pointed out that the importance of probability of success increases as the probability of irreparable injury diminishes. 550 F.2d at 985. Thus, it is apparent that these two factors must be considered at the outset in relation to each other.
Insofar as the question of irreparable harm to the plaintiffs is concerned, this Court finds and concludes that the plaintiffs have met their burden on the record here. Defendants seek to bar a teenager from living with other members of her family with whom she has resided for many years. In addition, Sonja Berry seeks to attend a Community College located on Andrews Air Force Base. If she resides with her parent on the base she will qualify for resident tuition rates. Her intention is to attend this College and when not at school assist her stepfather in caring for the younger child in the family.
Breaking up this family unit for an indefinite period of time would undoubtedly cause great harm both to Sergeant Young and to his stepdaughter Sonja Berry, as well as to others in the family. If this Bar Order is not rescinded, this teenager, who is not employed, will be required to live on her own in the metropolitan Washington, D.C. area. Moreover, it appears that if she cannot live at Andrews Air Force Base, she would not be able to attend Community College on the base, a few blocks from Sergeant Young's home. Certainly she would suffer irreparable harm if she would not because of this Bar Order be permitted to be with and be supported by her parent and also further her education.
The harm to defendants on the other hand would be minimal. Defendants argue that Colonel Bean's authority would be diluted in the eyes of the military community if Sonja Berry is permitted to return to live with other members of her family. Any such dilution under the circumstances here would be insignificant. Indeed, it appears that Colonel Bean was prepared to rescind the bar order permanently had Sergeant Young's attitude been better. Colonel Bean has stated that had Sergeant Young shown concern "about Ms. Berry's drug abuse and a willingness to take responsibility for improving her behavior, I would seriously have considered rescinding the bar letter." In any event, in spite of Colonel Bean's concern about the dilution of his authority, the Bar Order was temporarily rescinded, and for a period of some 5 weeks from August 26, 1985 until October 1, 1985, Sonja was granted permission to return to the base and live...
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Berry v. Bean
...Bean only minimal harm. It also found Berry likely to succeed on the merits, and the public interest weighing in her favor. Berry v. Bean, 623 F.Supp. 977 (D.Md.1985). We reverse. The district court erred in finding plaintiffs likely to succeed on the merits. On the contrary, it is well-est......
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