Leonard BUNNELL and Ethel Bunnell, husband and wife, and Robert Bunnell, Defendants.
*463 Thomas F. Crawford, Law Offices of Robert M. Fellheimer, Doylestown, Pa., for plaintiff.
Eugene D. Sperazza, Thomas B. Helbig, Joseph A. Quinn, Jr., Hourigan, Kluger, Spohrer & Quinn, P.C., Wilkes-Barre, Pa., for defendants.
This case arises out of an incident wherein plaintiff dove into defendants' pond and struck his head on a rock. Presently before the court is defendants' motion for summary judgment. For the reasons set forth below, the motion will be denied.
The parties are in substantial agreement over a number of underlying facts. Defendants Leonard and Ethel Bunnell, husband and wife, have since 1963 owned in fee simple a tract of land of approximately forty-two (42) acres which is located adjacent to Route 29 in Bridgewater Township, Susquehanna County, Pennsylvania. The land is largely unimproved and lies in a rural setting. The Bunnells originally used the land as a grazing pasture for horses and cattle, but the Bunnells no longer raise any animals on the land and currently utilize only about three (3) acres of the tract for farming purposes. No one lives on the property. The Bunnells reside approximately one mile away in Montrose, Pennsylvania.
In 1966, the Bunnells hired a contractor to build a one-and-a-half (1½) acre pond on their property in Bridgewater Township. A dam was also constructed at the southwest edge of the man-made pond, and water from the pond spills over the dam whenever the pond reaches a certain maximum depth. When the pond was being constructed, the contractor was unable to move a large rock from the site of the planned pond, and the rock now occupies an area in the pond near the east edge of the water. At least initially, the top of the rock protruded above the water level and was visible from the surrounding shore, and the Bunnells and their son, defendant Robert Bunnell, were at all relevant times aware of the existence and location of the rock. The pond is occasionally used for *464 swimming and fishing by acquaintances of the Bunnells and by neighborhood children. The Bunnells have never charged a fee for the right to enter upon or utilize the premises.
On June 23, 1985, Robert Bunnell invited a group of his friends to the Bridgewater Township property for a picnic/swimming party. Present at the picnic were Robert Bunnell, plaintiff Carl Capriotti, Joe Mulcarowitz, Tina Sherick and Cheryl Eckenrod. This group, with the possible exception of Cheryl Eckenrod, arrived at the pond between 11 a.m. and noon. No fee was charged for attending the party or for using the land or pond.
At this point, Robert Bunnell's recollection begins to differ dramatically from Carl Capriotti's version of events. Bunnell testified during his deposition that he, Capriotti and Mulcarowitz swam intermittently during the afternoon prior to 4:30 p.m. when Capriotti left temporarily to pick up Cheryl Eckenrod from her place of employment in order to bring her to the picnic (dep. tr. at 13). Bunnell stated that on the day of the picnic, the top of the rock in the pond protruded an inch-and-a-half to two inches above the water level and was plainly visible (dep. tr. at 21). Further, Bunnell maintained that he cautioned Capriotti and the others about the presence of the rock at least three times throughout the afternoon and that Capriotti acknowledged his warnings on at least one occasion (dep. tr. at 19-21 and 46-50).
In contrast, Capriotti testified in his deposition that he did not enter the water until approximately 5:00 p.m., at which time the accident in question occurred (dep. tr. at 27). He also indicated that he never left the pond area following his arrival there at midday and that Cheryl Eckenrod had accompanied him from the outset of the picnic (dep. tr. at 23-24, 27). Moreover, he asserted that prior to diving into the pond he visually inspected the water surface, and according to Capriotti, the rock did not protrude above the water surface and was not visible (dep. tr. at 26, 32). Capriotti was not asked during his deposition whether he had any reason to suspect, because of warnings from Robert Bunnell or otherwise, the existence and location of the rock, but the clear inference from his deposition testimony is that he would deny any knowledge of the rock prior to the time he dove into the pond.
It is undisputed from the deposition testimony of Robert Bunnell and Carl Capriotti that between 5:00 p.m. and 5:30 p.m. on June 23, 1985, Capriotti dove into the pond and injured his head, presumably on the above-described rock. He suffered contusions and abrasions and was taken to a nearby hospital. No deposition testimony or affidavits from any of the other individuals at the picnic has been submitted to the court.
Plaintiff commenced this action on June 19, 1987, alleging that defendants were negligent by, inter alia, failing to warn of or alleviate a dangerous condition. Plaintiff claims that as a result of his head injury, he experienced a concussion and seizures and continues to periodically experience headaches, numbness in his head and pain in his ears, eyes and neck.
*465 Defendants moved for summary judgment on December 31, 1987, arguing that they are entitled to judgment as a matter of law under the Recreational Use of Land and Water Act, 68 P.S. § 477-1 et seq. Defendants filed their supporting brief on January 7, 1988. They also submitted transcripts of the deposition testimony of plaintiff and of each of the three defendants, with accompanying exhibits attached thereto. Plaintiff filed a response and a brief in opposition on February 12, 1988.
No further documents have been forwarded to the court, and defendants' motion for summary judgment is now ripe for disposition.
68 P.S. § 477-4. However, the immunity provided by the Act is not absolute. Section 477-6(1) preserves landowner liability for "wilful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity," and section 477-6(2) retains the traditional negligence-based standard of care for those instances wherein a landowner has charged the plaintiff an admission fee for using the land. Moreover, the Pennsylvania Supreme Court has cautioned that the Act should be construed narrowly inasmuch as grants of immunity from suit are "out of harmony, generally, with the modern trend in tort law." Rivera v. Philadelphia Theological Seminary, 510 Pa. 1, 12, 507 A.2d 1, 7 (1986). Finally, since the Act is designed to encourage the opening up of large, private land holdings for outdoor recreational use by the general public, enclosed recreational facilities in urban areas are not covered by this legislation. Id. at 15, 507 A.2d at 8.
(3) the landowner did not willfully or maliciously fail to warn or guard against a dangerous condition, use, structure or activity, 68 P.S. § 477-6(1).
See Gallo v. Yamaha Motor Corp., U.S.A., 363 Pa.Super. 308, 317, 526 A.2d 359, 364 (1987).
In the present case, the parties agree that the Recreational Use of Land and Water Act applies and that the first two conditions noted above are satisfied. See plaintiff's brief in opposition at 3. Further, there is no contention or evidence that the defendants acted maliciously. The issue for determination, then, is whether the court can conclude as a matter of law that the defendants did not act willfully. If the defendants acted willfully in failing to warn Carl Capriotti about the rock or in failing to guard against his injuries, they are not entitled to immunity under the Act, and conversely, if they did not act willfully, they should enjoy immunity.
Both plaintiff and the defendants cite the decision in Livingston v. Pa. Power & Light Co., 609 F. Supp. 643 (E.D.Pa.1985), aff'd mem., 782 F.2d 1029 (3d Cir.1986), for guidance in interpreting the term "wilful" in Section 6 of the Recreational Use of Land and Water Act. In Livingston, the district court held that the defendant utility was immune under the Act from suit to recover for injuries sustained by a fifteen-year-old diver who was rendered a quadriplegic as a result of diving onto a rock in the defendant's lake. Specifically, the court rejected the plaintiff's contention that the defendant utility, which admittedly did not enforce its ban on swimming in the area of the lake where the plaintiff was injured and which had knowledge that swimmers ventured there, acted willfully in failing to warn or guard against a dangerous condition or activity. The court noted, "Knowledge that certain activities are occurring or that certain conditions exist cannot impute knowledge of specific dangers inherent in those conditions or activities to a landowner." 609 F. Supp. at 649. The court then observed, "The Pennsylvania Supreme Court has indicated that willful conduct in this context consists of a failure to disclose `dangerous conditions known to it (the possessor of the premises) and not likely to be discovered'" (emphasis in original) (quoting Kopp v. R.S. Noonan, Inc., 385 Pa. 460, 463, 123 A.2d 429 (1956)). 609 F. Supp. at 649. The court concluded, "Thus, willfulness under [68 P.S.] § 477-6 contains two elements: (1) actual knowledge of a danger (2) that is not obvious to those entering the premises." Id.
Here the record establishes, at the most, that PP & L suspected that swimming and diving in the lake may be dangerous, and for that reason did not encourage those activities. Under the Act it has no duty to take more affirmative action unless such dangers are not obvious. It is obvious, especially to an experienced swimmer and diver, that swimming and diving in an unfamiliar and rocky area is dangerous. Moreover, plaintiff William Livingston's deposition reveals that he knew the water level of the lake on the day of the accident, and that the depth of the water near the rock varied because he had swum around the rock and investigated the depth of the water before diving from the rock. He also knew that the area was rocky and the water dirty, making it difficult to see, e.g., whether or not there may have been a log submerged in the vicinity of the rock. (Plaintiff's deposition, pp. 58-69). Livingston also testified that he swam to the rock before taking his younger brothers there specifically to check for dangerous conditions. Although he did not see anything he considered dangerous, he also did not check every point around the rock. (Plaintiff's deposition, p. 79). Under *467 these circumstances, it cannot be said that a dangerous condition existed, whether or not known to PP & L, which was unlikely to be discovered.
609 F. Supp. at 649. Summary judgment was granted in favor of the defendant. See also Rosa v. United States, 613 F. Supp. 469 (M.D.Pa.1985) (Rambo, J.) (federal park attendant told eight-year-old child that she could not use her inner tube in a roped-off swimming area but that she could go outside the roped-off area in the inner tube, without informing the child that the water was deeper in the area to which she was directed; the child subsequently fell off the inner tube and drowned; after reviewing the definition of "willful" in various contexts, the court found that the United States' failure to guard or warn against an obvious danger was willful and that the United States could not, therefore, invoke the protection of Pennsylvania's Recreational Use of Land and Water Act); and Davidow v. United States, 583 F. Supp. 1170 (W.D.Pa.1984) (failure of federal park rangers to maintain a danger buoy forty (40) feet off a treacherous peninsula point during boating season was a willful failure to guard and warn against the danger at that location for purposes of Pennsylvania's Recreational Use of Land and Water Act). Cf. Klepper v. City of Milford, Kansas, 825 F.2d 1440 (10th Cir.1987) (interpreting the term "willful" in Kansas' recreational use statute).
In the present case, there is no dispute that the first prong of the test for willfulness set forth in Livingston, i.e., actual knowledge of the danger on the part of defendants, is satisfied. In short, defendants admit that they were aware of the existence and location of the rock in question prior to June 23, 1985. See, e.g., Leonard Bunnell dep. tr. at 14.
However, on the second prong of the Livingston test for willfulness, i.e., obviousness of the danger to plaintiff, there is much disagreement. If the record conclusively demonstrated that the rock protruded above the surface of the pond on June 23, 1985 and should have been visible to Carl Capriotti before he dove or that Capriotti was adequately warned about the rock by Robert Bunnell prior to the accident, the court could rule as a matter of law that defendants did not act willfully and are immune from plaintiff's lawsuit under the Recreational Use of Land and Water Act. But the present record simply does not permit such a finding. Whereas Robert Bunnell testified that the rock protruded above the surface of the pond and was visible, Carl Capriotti stated that he visually inspected the surface of the pond before diving and did not see the rock. Whereas Robert Bunnell testified that he warned Capriotti about the existence and location of the rock several times and that plaintiff acknowledged at least some of these warnings, Capriotti stated that he was unaware of the presence of the rock prior to his accident. The differing versions of events on the afternoon of June 23, 1985 from these two men are irreconcilable. The court reiterates that it has not received any deposition testimony or affidavits from any of the other individuals who attended the picnic.
There are, then, material fact disputes in the present case. Viewing the record in the light most favorable to plaintiff for summary judgment purposes, the court is unable to conclude as a matter of law that defendants did not act willfully or that they are entitled to immunity under the Recreational Use of Land and Water Act. Consequently, *468 defendants' motion for summary judgment will be denied.
 Plaintiff maintains that "when the pond was built, the water level was lower than it currently is, and the rock was visible" but that "in recent years, the water level in the pond has risen and covered the rock." See plaintiff's statement of material facts at ¶¶ 4-5. Plaintiff has not presented any evidence to the court in support of his contention that the depth of the pond rose over a course of years.
The only evidence in the present record concerning the water level in the pond in relation to the top of the rock is the deposition testimony of each of the three defendants and of the plaintiff, who swam in the pond, at most, on two separate occasions and who claims that he never saw the rock. Each defendant testified that he/she never saw the rock covered by water. See Leonard Bunnell dep. tr. at 8; Robert Bunnell dep. tr. at 21; Ethel Bunnell dep. tr. at 17. Of course, the important question in this case is whether the rock was covered by water on the date of plaintiff's accident, June 23, 1985, and neither Leonard nor Ethel Bunnell was near the pond on that date. Robert Bunnell also testified that when the pond reaches its maximum depth and water spills over the dam, the rock still protrudes above the surface of the pond, yet Robert Bunnell also stated that he could not remember any time when the pond actually rose to such a depth that its water flowed over the dam. See Robert Bunnell dep. tr. at 55-56, 62-63.
 Carl Capriotti testified in his deposition that two children of Tina Sherick also attended the picnic. Robert Bunnell could not remember whether any children were present. As noted later in this Memorandum, Robert Bunnell maintained that Capriotti left around 4:30 p.m. to pick up Cheryl Eckenrod from her place of employment and bring her to the picnic, while Capriotti asserted that Eckenrod accompanied him to the picnic when he first arrived in the early afternoon.
 The deposition testimony of Robert Bunnell and Carl Capriotti differs in one other respect. Bunnell claimed that Capriotti had never accompanied him to the pond prior to June 23, 1985 (dep. tr. at 6). Capriotti testified that he swam in the pond with Bunnell on July 4, 1984 (dep. Tr. at 13-15 and 24-25). According to Capriotti, he did not swim near the area of the pond where the rock is located or see the rock protruding from the surface of the water on the earlier date.
 The factual background in Livingston differs from the factual record in this case in key respects. For example, in the present case, the record contains no clear proof that the area of the pond into which Carl Capriotti dove could be fairly characterized as a "rocky area." Other than the rock previously described, the record mentions only one other rock in the pond. All indications are that the latter rock was submerged at all relevant times. Moreover, whereas the plaintiff in Livingston dove from a large rock, Capriotti denied any knowledge of the presence of any rocks prior to the time he dove into the pond on June 23, 1985.
 In addition, while the three defendants testified that they have never seen the rock covered by water, Capriotti stated that the rock was not visible when he and Robert Bunnell swam in the pond in July 1984, approximately one year before plaintiff was injured.


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Romans eat late in comparison to Americans.
Lunch or what the Romans call "Pranzo" begins after 1pm and goes to 3:30pm.
Dinner or what the Romans call "Cena" begins about 8pm and goes to 11pm.
Restaurants however opens earlier: for lunch around 12 or 12:30pm and for dinner around 7pm.
Be aware that if you walk in the place will seem empty.
One advantage of going earlier is that you always get a seat.
Even though the restaurant is empty, it may be difficult to get a waiter to pay attention to you, as they are often busy with set-up procedures.
Waiters also work in cycles with customers coming in at specific times. This means that if you are trying to get the bill when the restaurant has filled up and everyone around you is ordering dinner, it might be a little difficult to get the waiter's attention.
Roman dining is normally "a la carte", a series of courses that are each priced individually.
Eating in courses make sense to the Roman mind, as each course comes separately, spreading out your meal.
The waiter should present you with a menu and ask what you would like to drink. Normally it is water, "gassata" or with gas (usually slightly carbonated) or "Naturale". Then do you want red or white wine? You can always ask for the wine list, but the house wine in Italy is very good and usually very inexpensive. The wine comes in liter and quarter liter pitchers. You can always ask for Coca Cola and Died Coke is called Coca Cola Light.
There is usually a "Primo Piatto" or first plate, normally soup or pasta. Check out the price of the pasta on menus outside the restaurant before you enter, as that will help you estimate whether the restaurant is expensive. If the pasta prices fall between 5.000 and 10.000 lire, you have found an inexpensive restaurant. If the pasta falls between 10.000 and 15.000 lire you have found a restaurant with moderate prices and if its higher, then this is an expensive place to eat.
The "secondo piatto" or second plate is normally a choice between meat or fish. However if you want to eat lightly after your pasta dish, you can order a salad, an artichoke or even just a plate of spinach or eggplant.
What is important is to order a second course, not that this course has to be large, filling or expensive and a wonderful Roman salad with good tomatoes and different types of lettuce is a great substitute.
The "dolce" or dessert comes next. There are several popular deserts, usually Tiramisu, and various forms of "Tortas" or cakes and finally "gelato" or ice cream. Always ask if the dessert is "fatto in casa" or home made, as this will tell what is the very best thing to order in the restaurant.
"Macedonia di frutta" is a great way to end a meal, a fresh fruit cup that gives you your Vitamin C! Roman dessert are traditionally very light and filled with whipped cream, especially the cakes. You will be surprised how easy it is to eat them, even if you are feeling somewhat full.
Than there is coffee which is a separate course. This comes as a great surprise to Americans, especially as it is served after the desert is finished. It can be difficult to explain to a waiter to serve your coffee with your desert. He will probably roll his eyes, and you may not get it.
One thing you can have with your coffee is a "digestivo" or after dinner drink. The Romans have two classic ones that are very low in alcohol content and quite good. "Amaro" the Roman word for bitter is a dark colored drink made from all kinds of things, often fruits or vegetables and like a strong bitter taste, ask for Amaro Montenegro, which is flavored with vanilla. Everyone's favorite choice in Rome is Limoncello, a slightly sweet lemon drink that comes from the bay of Naples. Once a summer digestive, it has become so popular that it is now served all year.
Than comes the "dolorosa" or the bill. It is traditionally to leave a small tip. Round out the bill to the next even figure and then add 5% as a basic rule of thumb. So if the bill were 43.000 lire, than leave 50.000. If the bill were 75.000 lire then leave 85.000 lire.
Roman waiters are one of the great institution of the city. They can be very gracious and helpful, but as I have often seen tourist deal with them in rude and demanding ways, I am not surprised that they have built up a system of dealing with non-Italians who don't understand how to dine out in Rome. The basic rule is that if you want something ask, but don't presume it is supposed to be there.
The waiter will come with a menu, and often it is just one menu for the table. Americans are used to having a separate menu for each person, cut Italy people share. If you want another menu just ask. After you have ordered, even if you have ordered just the first course, the waiter may take the menu away. If you decide to order something else later, he will bring the menu back if you ask. Tables are often quite bare when you first sit down. If there are not enough glasses ask for more. The waiter will bring silverware often depending on what you order. The napkins will often come with the "coperto" or bread tray, and you will find them on top when the waiter put the coperto on the table. Romans do not eat butter with their bread but, if you want butter, ask and the waiter will go back into the kitchen and find some for you. Often there is no black pepper on the table but, if you ask, the waiter will bring some. Salads are usually dressed before they served, but you can ask for oil and vinegar and especially for balsamic vinegar. Often if the waiter has decided you are an American he will take your entire order all at once. Romans order a course at a time and, if is what you want, say so. Waiters take the whole order because they believe this what Americans Tourists want. If the waiter keeps asking for the whole order by saying "dopo" or after that, then say "vediamo dopo", which means "We will see, after that". Like many Americans you may want to order the whole meal after you have sat down. What you will discover is that the courses come either very quickly or very slowly. One advantage of ordering a course at a time, is that you eat a pace that you set, and not one set by your waiter. If you want the bill say "il conto per favore" which literally translates as "the count please". Most restaurants take credit cards but check when you first go in. If the restaurant takes credit cards they will be listed on the glass door of the restaurant. If they do not take credit cards you can find that printed in the menu.
A few suggestions about pizza in Rome.
While Americans love to have pizza for lunch, most Romans have their evening meal. This is because Romans have their principal or large meal at lunchtime. Many restaurants that have pizza ovens may only fire up them up in the evenings.
Other places, especially in the heart of central Rome where the tourists gather, will serve pizza at lunchtime. You almost always have to ask whether they serve pizza at lunchtime. The reason is that Rome becomes very hot as Spring and Summer arrive and pizza oven fills the restaurant with heat. So in the Summer when it is very hot the last thing a restaurant owner wants is to rise the temperature of the room. That is why pizza ovens are often fired up, only in the evenings, especially in the Summer time. Ordinarily pizzas are individually made are about the size of a large dinner plate. So don't think about sharing a pizza as they are not large enough. And even though the pizza may look bigger than it is first served, it is so thin and light that you will discover it is just enough for one person. Pizzas in Rome are designed with standard names that represent the toppings. So you can't ask for a pepperoni pizza. The most popular pizza in Rome is a Pizza Margherita which is your basic cheese and tomato pizza. As you read the names and the toppings, you will discover that they are clever and always very good. So Buon Appetito! It's difficult to compile a list of the best restaurants in a city like Rome. Everybody - locals, expatriates, even those who have chalked up only one visit-has favorites. What follows is not a list of all the best restaurants of Rome, but simply of is favorites. For the most part I've chosen not to review every deluxe spot known to all big spenders. Rather, we've tried to seek out equally fine (or better) restaurants patronized by some of the finest plates in Rome - but not necessarily by the fattest wallets.
Alberto Ciarla is the best on one of Trastevere's most expensive restaurant. In an 1890 building, set into an obscure corner of an enormous square, it serves truly elegant fish dishes. You'll be greeted with a cordial reception and a lavish display of seafood on ice. A dramatically modern décor plays shades of brilliant light against patches of shadow for a Renaissance chiaroscuro effect. Specialities include a handful of ancient recipes subtly improved by Signor Ciarla (an example is the soup of pasta and beans a delectable fish in orange sauce, savory spaghetti with clams and a full array of delicious fresh shellfish. The fillet of sea bass is prepared in at least three ways, including an award-winning version with almonds Main courses 20.000L-45.000; fixed-price menus 75.000-110.000L. Open: Mon-Sat 8:30pm-12:30am. Closed 1 week in Jan and 1 week in Aug. Reservation required. Credit cards: AE, DC, MC, V.
Although competition is fierce, we'll take a risk and say that Naples-born Enzo Martino consistently serves some of the best pizzas in Rome. He refers to his version as "The real thing"- a pie that's soft and thick like those that pop out of the oven in his southern hometown. When the weather's fair, diners- most often a young crowd - opt for a table outside, deep in the heart of Trastevere. Inside it's rather cramped, with a thrown-together décor of hanging utensils, shelves of wine bottles, and Neapolitan pinups on the wall. All the classics make an appearance: Neapolitana (fresh tomatoes and anchovies), Margherita (tomato and mozzarella), and Capricciosa (ham, eggs, artichokes, and olives). Enzo names one of the tastiest - fresh basil, fresh tomato, freshly grated Parmesan, and lots of mozzarella - after himself. Other than a limited selection of antipasti and salads, the choice here is almost exclusively pizzas and pastas. Pizzas 9.000L-12.000L; pastas 10.000L. Open Mon-Sat 6:30pm-midnight. Reservations not accepted. Credit Cards: No credit cards.
If you'd like traditional home cooking based on the best regional ingredients head here. La Cisterna, named for an ancient well from imperial times discovered in the cellar, lies deep in the heart of Trastevere. For more than 75 years it has been run by the Simmi family, who are genuinely interested in serving only the best as well as providing a good time for all. In good weather you can dine at sidewalk tables. If it's rainy or cold you'll be in rooms decorated with murals. In summer you can inspect the antipasti right out on the street before going in. From the on-site ovens emerges Roman-style suckling lamb that is among the finest in the district. It's amazingly tender and seasoned with fresh herbs and virgin olive oil. The fiery hot rigatoni a l'amatriciana is served with red-hot peppers, or you may opt for another delectable pasta dish, pappalini romana, wide noodles flavored with prosciutto, cheese, and eggs. The shrimp is grilled to perfection, and you can always rely on the chef selecting an array of fresh fish concocted into such dishes as flaky sea bass baked with fresh herbs for extra aroma and flavor. Main courses 20.000L-32.000L. Open Mon-sat 7pm-1:30am. Reservation recommended. Credit Cards: AE, DC, MC, V.
Abruzzi, which takes its name from the region east of Rome, is at one side of Piazza SS Apostoli, just a short walk from Piazza Venezia. The good food and reasonable prices make it a big draw for students. The chef offers a satisfying assortment of cold antipasti. With your starter, we suggest a liter of garnet-red wine; we once had one whose bouquet was suggestive of Abruzzi's wildflowers. If you'd like soup as well, you'll find a good "stracciatella": egg and Parmesan soup. A typical main dish is "vitella tonnata con capperi": veal in tuna sauce with capers. But the menu ranges far wider than that, a virtual textbook of classical Italian dishes, everything from a creamy baked eggplant with mozzarella to meltingly tender veal cutlets in the Milanese style: fried with potatoes. No one in Italy doest roast lamb better than the Romans, and the selection here is good-tender , grilled to perfection, seasoned with virgin olive oil and fresh herbs, and dished up with roast potatoes. Main courses 9.000L-22.000L. Open: Sun-Fri 12:30-3pm and 7:30-10:30pm. Closed 2 weeks in Aug. Reservation recommended. Credit Cards: AE, DC, MC, V.
In a grandiose palace, this likable, well-managed restaurant allows you to sample the flavors and herbs of Naples and southern Italy. You'll find a tempting selection of antipasti, featuring anchovies, peppers, capers, onions, and breaded and fried eggplant, all garnished with fresh herbs and virgin olive oil. Pastas are made daily, usually with tomato or oil-based sauces, always with herbs and usually aged crumbling cheeses, and perhaps garnished with squid or octopus. Try a zesty rice dish (one of the best is "sartù di riso", studded with vegetables, herbs and meats), followed by a hard-to-resist grilled octopus or a simple but savory "granatine" (meatballs, usually of veal, bound together with mozzarella). Desert anyone? A long-time favorite is "torta caprese", with hazelnuts and chocolate. It's so good you definitely need to save room for it. Main courses 20.000L-30.000L. Open: Mon-Sat 7pm-midnight. Reservations recommended. Credit cards: AE, DC, MC; V.
Part of the fun of this restaurant involves wandering through historic Rome to reach it. Inside, you'll find delicious food and an engaging mix of the Italian Renaissance with imperial ancient Rome, thanks to recycled columns salvaged from ancient monuments by 16th-century builders. Modern art and a hip staff dressed in black and white anchor the cuisine firmly to the late 20th century in ways that are always linked to the seasons. Examples include fettuccine with shellfish and parsley; carpaccio of beef, various risottos, including a version with black truffles, and grilled steaks and veal. Especially intriguing is whipped codfish resting on spikes of polenta, and tagliolini with cinnamon, prosciutto and lemon. If you appreciate fish, look for either the marinated and grilled salmon or a particularly subtle blend of roasted turbot stuffed with foie gras. Desserts are firmly rooted in fresh fruits of the season, usually incorporating such seasonal products as marinated pineapple, and fruit-studded house made ice creams. The restaurant's name, incidentally, translates as "divine mouthful". Main courses 24.000L-70.000L. Open: June-Sep, dinner only, Mon-Sat 8pm-1:30am Oct-May daily 12:30pm and8pm-1:30am. Reservation recommended. Credit cards: AE, DC, MC; V.
Passetto, dramatically positioned at the north end of Piazza Navona, has drawn patrons with its 1½ -century reputation for excellent Italian food. The stylish interior consist of a trio of high-ceilinged dining rooms, each outfitted with antique furniture and elaborate chandeliers and conveying a tasteful sense of the bourgeois Italy of a century ago. In summer, however, you'll want to sit outside looking out on Piazza Sant'Apollinare. The pastas are exceptional, including "farfalle passetto" (pasta with shrimp, mushrooms, and fresh tomatoes). One recommended main dish is "orata al cartoccio" (sea bass baked in a paper bag, with tomatoes, mushrooms, capers, and white wine. The paper bag keeps in the juices and aroma and no, it doesn't catch fire). Another house specialty is "rombo passetto" ( a fish similar to sole) cooked in cognac and pine nuts. An eternal Roman favourite is a Lamb in the style of Abruzzi (oven roasted with potatoes). Fresh fish is often priced by its weight, so tabs can soar quickly. Fresh vegetables are abundant in summer, and a favourite dessert is seasonal berries with fresh thick cream. Main courses 24.000L-50.000L. Open: Daily noon-4pm and 7pm-midnignt. Reservation recommended. Credit cards: AE, DC, MC; V.
We've never found better or fresher seafood than that served here in a 15th-century building attracting the most discriminating of Rome's fish fanciers. Don't be put off by the rough-and-ready service; come here for the great taste instead. Be prepared to pay for the privilege, as fresh seafood is quite expensive in Rome. Partners Alberto Quinzi and Enrico Gabrieli have earned their reputation on their simply cooked and presented fish. Everything tastes natural and fresh, and heavy sauces aren't used to disguise old fish as they are in many restaurants. In fact, the restaurant is known for its raw seafood, such as a delicate carpaccio of swordfish, sea bass, and deep-sea shrimp. The house specialty is spaghetti with lobster, but all sorts of fish are served, including sea urchins, octopus, sole and red mullet. You can check out what's available in a special display in ice at the entrance. Sometimes the headwaiters will prepare wriggling crab or scampi right on the grill before you: that way you know it's fresh. In summer French doors lead to a small dining terrace. Main courses 40.000L-60.000L. Open: Mon-Sat 7:30-11:30pm. Closed Aug. Reservation required as far in advance as possible. Credit cards: AE, DC, MC; V.
Yes, folks, this is one places in Rome claiming to be the birthplace of fettuccine Alfredo, which almost seems as well known in American today as it is in Italy. Douglas Fairbanks and May Pickford liked this dish so much they presented a golden spoon and fork to the owners when they parted with the recipe. Thus, a culinary legend was born. If you like something buttery and rich, you can still opt to order the dish that delighted these long departed silent screen stars. Although the fettuccine remains the best dish on the chef's menu, you can also try different pastas, notably a tagliolini allo scoglio, delectably concocted from fresh tomatoes and shellfish. We always enjoy the two filet mignons, one with a delectable sauce made from Barolo wine, the other from wine and Gorgonzola. Casanova, were he still around, would surely delight in the filet mignon dish named after him, prepared with wine sauce, freshly ground pepper, and foie fras. A final offering is the sautéed breast of turkey covered with thin slices of white truffles from Italy's Piedmont district, a truly delightful dish. Main courses 20.000L-35.000L. Open Dec-Apr Wed-Mon 12:30-3pm and 7:30-11:30pm; May-Nov daily 12:30-3pm and 7:30-11:30pm Reservation recommended. Credit cards: AE, DC, MC; V.
Opened in 1882, this is the most famous restaurant on Piazza Navona, a landmark for ice cream as well as more substantial meals. Yes it's crawling with tourists, but its waiters are a lot friendlier and more helpful than those at the nearby Passetto, and the setting can't be beat. There's a cozy bar on the upper floor with a view over the piazza, but most visitors opt for the ground floor café or restaurant. During warm weather try to snag a table on the piazza, where the people-watching is extraordinary. The chefs here draw their inspiration from the finest raw materials available on the Roman markets that morning. Therefore, the cuisine is fresh and spontaneous. The risotto with porcini mushrooms is worthy of the finest restaurants in Milan, where it is a Lombard specialty. The carpaccio of sea bass could be served in a three-star restaurant in Paris, and the roast duck with prosciutto wins many devote fan. One cook here confided to us, "I cook dishes to make people love me". If that's the case, try his saltimbocca (veal with ham) and roast lamb Roman style and you'll fall in love. No one will object if you order just a pasta and salad, unlike at other restaurants nearby. Their famous tartufo (ice cream disguised with a coating of bittersweet chocolate, cherries, and whipped cream) and other ice creams cost from 6.000 to 15.000L. Main courses 22.000L-32.000-l. Open Thurs-Tues 12:15-3pm and 7-11pm. Closed Dec-Feb. Reservations recommended. Credit cards: AE, DC, MC; V.
Da Mario is noted for its flavorful game specialties and excellent Florentine-style dishes (meats marinated in olive oil with fresh herbs and garlic and lightly grilled). The rich bounty of meats available during hunting season makes this a memorable choice, but even if you aren't feeling game (or don't enjoy eating it) you'll find this a convivial and quintessentially Roman "trattoria". A good beginning is the wide chunks of rabbit (leper), available only in winter. "Capretto" (kid). Beefsteaks, and roast quail with polenta are other good choices. The wine cellar is well stocked with sturdy reds, the ideal accompaniment for the meat dishes. For desert we heartily recommend the gelato misto, a selection of mixed velvety ice cream. You can dine in air-conditioned comfort at street level or descend to the cellars. Main courses 18.000L-26.000L; fixed-price menu 45.000L. Open Mon-Sat 12:30-3pm and 7:30-11pm. Closed Aug. Reservation recommended. Credit cards: AE, DC, MC; V.
Quirino is a good place to dine after you've tossed your coin into the Trevi Fountain. The atmosphere is typical Italian, with hanging Chianti bottles, a beamed ceiling, and wall murals. The food is strictly home cooking. We're fond of a mixed fry of tiny shrimp and squid rings that resemble onions rings. The selection of vegetarian pasta is prepared with the freshest ingredients available at the market on any given day. The pasta dishes are quite fabulous, especially our favorite -homemade pasta with baby clams and porcini mushrooms. The pasta alla Norma with fresh tomatoes and eggplant ha won the approval of many a demanding Italian opera star. A variety of fresh and tasty fish is always available and always grilled to perfection. For desert there's a yummy chestnut ice cream with hot chocolate sauce or homemade cannoli. Main courses 15.000L-30.000L; fish dishes 25.000L-30.000L. Open: Mond-Sat 12:30-3:30pm and 7-11pm. Closed 3 weeks in Aug. Credit cards: AE, MC, V.
This restaurant is made up of two separate parts, each aimed at differing degrees of culinary sophistication. The simpler of the two is a street-level pizzeria, where at least a dozen kinds of homemade pastas and pizza are offered along with freshly made salads and simple platters of such grilled Specialities as veal, chicken, steak, and fish. More urbane, and somewhat calmer, is the upstairs restaurant, where big windows, high ceilings, floors of glowing hardwood, and lots of exposed brick evoke a minimalism that's consistent with the modernity of the cuisine. Look for a fusion of Italian and Pacific Rim cuisine in such internationally inspired combination as spaghetti stir-fried in a Chinese wok with fresh, al dente vegetables; prawns and spring baby vegetables done tempura-style; buffalo mozzarella intriguingly entwined with tuna and arugula; Middle Eastern staples like chickpea paste (tabouleh); And stir-fried scallops with Italian Herbs. Main courses in street level pizzeria 15.000L-35.000L; main courses in upstairs restaurant 25.000L-55.000L. Open: Tues-Sun 1230pm and 8pm-2am. Reservations recommended. Credit cards: AE, MC; V.
This is one of those rare dining spots that's chic but actually lives up to the hype with truly noteworthy food. Young actors, shapely models, artists from nearby Via Margutta and even corporate types on expense accounts show up, trying to land one of the few sidewalk tables. To begin, we suggest a "misto di pasta" four pastas, each with a different sauce, arranged on the same plate. After consuming this dish, you will surely vouch for the skill of the chef. A worthy substitute would be thin, savory slices of Parma ham or perhaps the delectable prosciutto and wine- ripened melon (try a little freshly ground pepper on the latter). For your main course, specialities that win hearts year after year include lasagne verde, a rich, creamy selection, or tagliatelle alla Bolognese, a dish that is truly succulent. The chefs also turn out the town's most recommendable veal cutlets Bolognese topped with cheese. They're not inventive, simply superb. You may want to cap your evening by calling on the Rosati café next door (or its competitor, the Canova, across the street), to enjoy one of the tempting pastries. Main courses 22.000L-28.000L. Open: Tues-Sun 12:30-3pm and 8:15pm-1am. Closed 20 days in Aug. Reservation required. Credit cards: AE, DC, MC; V.
Ristorante Nino, off Via Condotti and a short walk from the Spanish Steps, is a mecca for writers, artists, and the occasional model. If you had a Tuscan mama mia, she might have cooked like the chefs here hearty, robustly flavored Tuscan home-style dishes that change with the season and have made Nino's famous. Beef, shipped in from Florence and a charcoal-broiled, is pricier than the rest of the menu items, but neither as a succulent nor as tender as that served at the better-known (and more expensive) Girarrosto Toscano. A plate of cannelloni Nino (the house version of the popular dish, consisting of meat-stuffed pasta is one of the chef's Specialities. Other good dishes include grilled veal liver, fagioli cotti al fiasco (beans boiled in white wine, salt, ground black pepper and herbs), Codfish alla livornese (codfish cooked with tomatoes and onions), and zucchini pie. The reasonably priced wine list is mainly Tuscan, with some especially good choices among the Chiantis. Main courses 22.000L-50.000L. Open: Mon-Sat 12:30-3pm and 7:30-11pm. Closed Aug. Reservations recommended. Credit cards: AE, DC, MC; V.

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Annette M. Wietecha, Attorney, U.S. Department of Jus- tice, argued the cause for the Federal Appellees. With her on the brief were Jonathan S. Cohen, Attorney, and Wilma A. Lewis, U.S. Attorney. R. Craig Lawrence and W. Mark Nebeker, Assistant U.S. Attorneys, entered appearances.
Steven J. Green, Dona S. Kahn and Mark D. Silverschotz were on the brief of appellees State of California and Califor- nia Franchise Tax Board.
Rogers, Circuit Judge: Bruce E. Gardner appearing pro se appeals the dismissal of his complaint alleging violations of federal and state law by federal and state authorities, primar- ily as a result of the disclosure of his tax returns and tax information, under Fed. R. Civ. P. 12 (b)(1), (2), & (6) and 41(b). For the reasons set forth in a companion case, Gard- ner v. United States, 2000 WL 562820, No. 99-5065 (D.C. Cir. May 19, 2000), the dismissal under Rule 41(b) cannot be affirmed. However, we conclude that the dismissal was proper under Rule 12(b) essentially for the reasons set forth in the district court's opinion of January 29, 1999. We need address only two of Mr. Gardner's contentions for, as the district court's opinion makes clear, his other contentions fail under well-settled law. We hold first, that the disclosure of Mr. Gardner's tax returns and tax information within the Internal Revenue Service was permissible under the tax administration exception to the nondisclosure requirements of 26 U.S.C. s 6103 (1994 and Supp. IV 1998), and second, that Mr. Gardner's exclusive remedy for the disclosures of his tax records is under the Internal Revenue Code, and not the Privacy Act, 5 U.S.C. s 552a (1994 and Supp. IV 1998). Accordingly, we affirm.
fully pursuing state and federal administrative remedies. We summarize the background to his contentions that the disclo- sure of his tax returns and tax information violated federal law and that he is entitled to relief under the Privacy Act as well as the Internal Revenue Code.
Briefly put, Mr. Gardner's supervisors in Sacramento, Cali- fornia, suspected as early as 1992 that he was not in full compliance with federal and state tax laws. When he agreed in 1994 to provide relevant information and then failed to do so, his supervisors obtained his federal tax returns and tax audit directly from IRS offices in Houston, Texas, and Fres- no, California, and his state returns and tax information from state agencies in California and Maryland, where he had lived while working for the IRS in the District of Columbia. Upon concluding that Mr. Gardner had taken several unsupportable positions on his federal income tax returns for 1990-92 and that he had not timely filed his Maryland income tax returns for 1988-90, his supervisors offered him a chance to resign. When he refused, they commenced disciplinary proceedings and his employment was terminated November 26, 1994, for failure to file proper federal and state income tax returns. Thereafter, his application for unemployment benefits was denied by the California Unemployment Insurance Appeals Board, and his challenge to his termination was rejected by the Merit Systems Protection Board. He then filed a forty- four count complaint in the district court alleging, among other things, that the Treasury Department, the IRS, and individual IRS employees violated the Internal Revenue Code and the Privacy Act through intra-IRS disclosures of his tax return information while he was under investigation by the IRS and during the state and federal administrative proceed- ings that he commenced after his employment was terminat- ed. Following the filing of dispositive motions by the defen- dants, the district court dismissed the complaint under Fed. R. Civ. P. 12(b) and 41(b).
court erred in dismissing his complaint under Rule 12(b). Most of his contentions raise issues that are well-settled in law adversely to him, and we need not repeat the district court's opinion.1 There are, however, two contentions that require some explication.
First, Mr. Gardner contends that the district court erred in ruling that the disclosure of his tax records fell within the exception to nondisclosure of s 6103(h)(1) for "tax administra- tion purposes." In making this contention he relies on our decision in National Treasury Employees Union v. Federal Labor Relations Board ("NTEU"), 791 F.2d 183 (D.C. Cir. 1986), and therein lies the need for clarification.
__________ 1 The district court lacked personal jurisdiction over the individ- ual IRS employees-appellees, because Mr. Gardner failed to allege the requisite contacts between these California and Texas residents and the District of Columbia under the Constitution and the Dis- trict's long-arm statute. See, e.g., International Shoe Co. v. Wash- ington, 326 U.S. 310, 316 (1945); D.C. Code Ann. s 13-423 (1995). Mr. Gardner's defamation claim against the United States is barred, because suits for libel or slander are prohibited under the Federal Tort Claims Act. 28 U.S.C. s 2680(h)(1994). The district court lacked subject matter jurisdiction of Mr. Gardner's claims for alleged violations of the Family Leave Act and the Whistleblower Protection Act, because he failed to allege that he had exhausted his administrative remedies, as required under the Civil Service Re- form Act. Hubbard v. EPA, 809 F.2d 1, 5 (D.C. Cir. 1987); Carducci v. Regan, 714 F.2d 171, 174-75 (D.C. Cir. 1983). Mr. Gardner's claims against the California state defendants were barred by the Eleventh Amendment, which prohibits suit against a state or a state agency in federal court absent their consent or clear congressional abrogation of immunity, neither of which was present here. See, e.g., Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54-55 (1996).
This general ban on disclosure provides essential protec- tion for the taxpayer; it guarantees that the sometimes sensitive or otherwise personal information in a return will be guarded from persons not directly engaged in processing or inspecting the return for tax administra- tion purposes. The assurance of privacy secured by s 6103 is fundamental to a tax system that relies upon self-reporting. Id. at 184. In recognition of competing concerns, however, the Code includes a number of exceptions. Two are relevant here.
__________ 2 In the district court, the federal appellees also relied on s 6103(l )(4)(B), which authorizes the Secretary of the Treasury to disclose returns and return information to Treasury Department employees for their use in an "administrative action or proceeding affecting the personnel rights" of an employee or former employee, see s 6103(l )(4)(B), (A)(i), and argued that, in addition, the chal- lenged disclosures were made pursuant to a good faith interpreta- tion of s 6103. The district court granted the motion to dismiss the complaint under Rule 12(b) without indicating which provision applied to which disclosures. In view of our disposition, we do not address these subjects.
exception of s 6103(h)(1) and (4) with respect to these disclo- sures.
that disclosures made in the context of administrative and judicial challenges to his termination "unquestionably encom- passed tax administration". Cf. United States v. Mangan, 575 F.2d 32, 40 (2d Cir. 1978). Given this reasonable con- struction of the broad language of s 6103(h)(1) and (4), it would seem that the disclosures of which Mr. Gardner com- plains were proper for purposes of enabling the IRS to conduct its internal investigation of his tax history, and to explain the basis for the termination of his employment in the subsequent administrative proceedings.
Mr. Gardner contends, however, that our decision in NTEU not only bars the wholesale disclosures that he alleges oc- curred here, but holds that the "tax administration" exception of s 6103(h)(1) is inapplicable to personnel matters, and thus to his case. Although there is some broad language in NTEU suggesting Mr. Gardner's point, properly read in context NTEU does not demonstrate error by the district court. To the extent that NTEU concluded that an employee grievance unrelated to the employee's tax compliance history could entail disclosure only upon proper authorization under s 6103(l )(4)(A) and thus implicitly concluded that the griev- ance was not a "tax administration" matter justifying s 6103(h)(1) disclosure, NTEU is not dispositive of whether the IRS may, as a matter of tax administration, disclose an employee's tax records to IRS officials as part of an internal investigation of the employee's compliance with the tax laws, or in subsequent proceedings relating to a resulting termi- nation decision.
The Secretary may disclose returns and return informa- tion-- (A) upon written request-- (i) to an employee or former employee of the Department of the Treasury, or to the duly authorized legal representa- tive of such employee or former employee, who is or may be a party to any administrative action or proceeding affecting the personnel rights of such employee or former employee; or (ii) to any person, or to the duly authorized legal represen- tative of such person, whose rights are or may be affected by an administrative action or proceeding under section 330 of title 31, United States Code.... 26 U.S.C. s 6103(l )(4).
4 In NTEU the court relied on IRS Delegation Order 184-85 (rev. 2, para. 1(e) (Mar. 21, 1982), which set forth the authorization procedure under s 6103(4)(A) and allowed only certain upper level officers to act as the Secretary's designees in granting permission to disclose tax information. NTEU, 791 F.2d at 184-85.
authorized in the precise manner indicated in s 6103(l )(4)(A)", id., this statement was not made with re- gard to the scope of the "tax administration exception" under s 6104(h)(1) or (h)(4), but merely reiterated the court's con- clusion that the type of disclosures at issue could not be made under s 6103(l )(4)(A) absent proper authorization. Id. at 184-85, 187.
Moreover, the court's implicit holding that the grievance proceeding at issue did not constitute "tax administration" has no bearing on the instant case. The disclosures in NTEU occurred in the course of an employee grievance proceeding against the IRS relating to the quality and quantity of the employee's work performance. As an adversarial personnel matter, it did not implicate the IRS' need to guard the integrity of its operations. By contrast, the disclosures that Mr. Gardner challenges, as in Rueckert and Hobbs, occurred in connection with the IRS' legitimate need to protect the integrity of its tax enforcement operations by ensuring that its employees were in compliance with the tax laws. Because the disclosures of Mr. Gardner's tax records were made for the limited purposes of determining whether he had failed to comply with the tax laws and in justifying the resulting decision to terminate his employment, they were integral to the IRS' need to ensure that its employees' conduct does not "undermine the integrity of [the IRS'] system of administer- ing the ... tax laws," Rueckert, 775 F.2d at 212, and thus the disclosures were proper under the "tax administration" ex- ception of s 6103(h)(1) and (4). Accordingly, the district court did not err in dismissing Mr. Gardner's disclosures claims under Rule 12(b).
of non-tax related information. Only the first category merits more than summary discussion.5 As to this category, the district court ruled that any claims regarding the disclosure of tax information are preempted by the Internal Revenue Code. This is a question of first impression for this court.
In dismissing Mr. Gardner's disclosure claims, the district court relied on Lake v. Rubin, 162 F.2d 113 (D.C. Cir. 1998). In Lake, the court held that taxpayers could not rely on the Privacy Act to obtain access to their tax records because the more specific provisions of the Internal Revenue Code, s 6103, controlled. Id. at 115-16. While Lake concerned access by taxpayers to their own records, the decision is instructive on whether s 6103 preempts Privacy Act claims regarding disclosure of taxpayer records by third parties.
__________ 5 In view of the plain language of the Internal Revenue Code, the district court correctly ruled that 26 U.S.C. s 7852(e) stripped the court of subject matter jurisdiction over Mr. Gardner's Privacy Act claims for expungement or amendment of his tax records. 26 U.S.C. s 7852(e) (1994). See also, e.g., England v. Commissioner, 798 F.2d 350, 351-52 (9th Cir. 1986). Similarly, the district court correctly ruled that the alleged disclosures of non-tax information, including "defamatory statements" made in state and federal ad- ministrative proceedings by IRS officials and intra-Treasury/IRS disclosures of Mr. Gardner's wage records, constitute "routine uses" exempt from Privacy Act protection. See 5 U.S.C. s 552a(b)(3); 57 Fed. Reg. 13900, 14058-59 (1992). Cf. Department of the Air Force v. Federal Labor Relations Authority, 104 F.3d 1396, 1401-02 (D.C. Cir. 1997).
gous to its precedent that the Freedom of Information Act does not govern the disclosure of information when another statute more specifically addresses the disclosure of that information through " 'comprehensive, carefully tailored and detailed' provisions 'designed to protect both the interest of' those seeking the information and the interest in 'confiden- tiality.' " Id. at 116 (citing Ricchio v. Kline, 773 F.2d 1389, 1395 (D.C. Cir. 1985)). That precedent is even more directly analogous to the instant case than it was to Lake, because it concerns the preemption of statutory provisions regarding disclosure to third parties by other, more specific provisions.
__________ 6 In Hobbs, the Fifth Circuit cited Sinicki v. United States Department of the Treasury, No. 97 Civ. 0901, 1998 WL 80188 (S.D.N.Y. Feb. 24, 1998), in which the district court had ruled that " '[s]ection 6103 should only implicitly repeal the Privacy Act to the extent it presents an irreconcilable conflict.' " Hobbs, 209 F.3d at 412 (quoting Sinicki, 1998 WL 80188, at *5).
addressed s 6103 preemption directly nor faced a situation in which the Privacy Act provided a remedy for conduct permis- sible under the Internal Revenue Code. See Taylor v. Unit- ed States, 106 F.3d 833, 836-37 (8th Cir. 1997); Long v. IRS, 891 F.2d 222, 224 (9th Cir. 1989).
Because our analysis in Lake, supported by decisions in the Fifth and Seventh Circuits, leads inexorably to the conclusion that the Internal Revenue Code preempts the Privacy Act for remedies for disclosure of tax information, we hold that s 6103 is the exclusive remedy for a taxpayer claiming unlaw- ful disclosure of his or her tax returns and tax information. The district court, therefore, did not err in dismissing under Rule 12(b)(6) Mr. Gardner's Privacy Act claims based on IRS disclosures of his tax returns and tax information.

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[236 U.S. 351, 352] Messrs. Frederic D. McKenney, Gordon Fisher, and A. P. Burgwin for appellant.
[236 U.S. 351, 355] Mr. William A. Glasgow, Jr., for the Buffalo, Rochester, & Pittsburgh Railway Company.
Solicitor General Davis and Mr. Blackburn Esterline, Special Assistant to the Attorney General, for the United States.
This case comes here by appeal from an order of the district court of the United States for the western district [236 U.S. 351, 356] of Pennsylvania, denying a motion for interlocutory injunction against the Interstate Commerce Commission. 214 Fed. 445.
The Buffalo, Rochester, & Pittsburgh Railway Company, hereinafter called the Rochester Company, filed its petition before the Interstate Commerce Commission against the Pennsylvania Company, averring that in the city of New Castle, Pennsylvania, there was a physical connection between the railroads jointly operated by the Rochester Company and the Baltimore & Ohio Railroad Company, and the terminal facilities of the Pennsylvania Company, at which joint traffic could be properly exchanged, and is exchanged between the railroad operated by the Rochester Company and the Baltimore & Ohio Railroad, so that traffic on the lines owned and operated by the Rochester Company, and from manufactories and industries reached by the terminal lines of said company in the city of New Castle, can be delivered to the Pennsylvania Company, and thus transported to its destination; that there are no joint routes or through rates in effect between the Rochester Company and the Pennsylvania Company by which traffic to and from industries upon the terminal line of the Pennsylvania Company in or near the city of New Castle may be carried, and although complainant had frequently requested the Pennsylvania Company to join in establishing the same, the Pennsylvania Company failed and neglected so to do; that the Rochester Company, upon interstate traffic carried by it to the point of physical connection with the road of the Pennsylvania Company, which traffic is destined to manufactories or industries upon the lines of the Pennsylvania Company in or near the city of New Castle, is ready and willing, and had offered, to pay the Pennsylvania Company its lawful and proper charges for receiving, carrying, and delivering such traffic, which charges it makes to other persons or companies for like services; [236 U.S. 351, 357] that the action of the Pennsylvania Company in declining to receive, carry, and deliver to the point of physical connection aforesaid, interstate traffic offered by the Rochester Company, subjects said company and shippers of interstate traffic over its lines, destined to the manufactories and industries upon the line of the said Pennsylvania Company, to an undue and unreasonable prejudice and disadvantage, and is in violation of 3 of the act to regulate commerce, [24 Stat. at L. 380, chap. 104, Comp. Stat. 1913, 8565], in that it constitutes a failure to afford reasonable, proper, and equal facilities to complainant with those afforded to other persons for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivering of property to and from their several lines; that there are no other through routes and joint rates in effect to which the Rochester Company and Pennsylvania Company are parties for the through transportation of interstate traffic carried by the Rochester Company, destined to the manufactories and industries on the lines of the Pennsylvania Company, in or near said city, nor are there any through routes or joint rates in effect between the companies for interstate traffic originating at the manufactories and industries on the lines of the Pennsylvania Company in or near New Castle, destined to points upon the line of the Rochester Company, or points which are reached by its connections; and that the failure and refusal of the Pennsylvania Company is forbidden by 15 of the act to regulate commerce. The Rochester Company prayed for an order commanding the Pennsylvania Company to cease and desist from such violations of the act to regulate commerce, and for such orders as might be deemed necessary, and that the Commission should establish through routes and joint rates on articles of merchandise tendered to the Pennsylvania Company at the point of physical connection above set forth for delivery on the lines of defendant's railroad, in or near [236 U.S. 351, 358] the said city of New Castle, and from the industries and manufactories on the lines of the above-named railroad in or near the city of New Castle to points on the line of the Rochester Company or its connections; said joint rates so established to be the maximum to be charged, and that the Commission prescribe a division of the same and the terms upon which such through route can be operated.
From the facts found by the Commission it appears that New Castle is a manufacturing city of much importance, having a population of about forty thousand people, situated near the center of the iron, steel, and ore industries of the Mahoning and Shenango valleys. The switching limits of New Castle in their greatest length are about 4 miles in extent, and included therein are about 100 industries. The Pennsylvania Railroad, the Baltimore & Ohio Railroad, the Pittsburgh & Lake Erie Railroad, Erie Railroad, and the Rochester Railroad all reach and [236 U.S. 351, 359] serve New Castle by their several lines of railroad. Each of the four roads has switching connections with the Pennsylvania Company, with interchange tracks and terminals within the switching limits. The Rochester road operates a line of railroad from Rochester and Buffalo, in the state of New York, to New Castle and Pittsburgh, in the state of Pennsylvania. It reaches New Castle from the town of Butler, Pennsylvania, over the rails of the Allegheny & Western Railroad, which are now jointly used by the Rochester Company and the Baltimore & Ohio Railroad, under a contract between them. The terminal facilities of the Pennsylvania Company at New Castle consist of depots, freight stations, yards, team tracks, and side tracks, together with spur tracks reaching 26 industries within the switching limits. Within the switching limits there are two points of connection with the lines of the Pennsylvania Company, and those jointly used by the Baltimore & Ohio and the Rochester road. One of these points is at Moravia street, near the center of the city, where the Pennsylvania Company has interchange yards with a capacity for 250 cars. This point is about 1,000 feet from the freight station of the Rochester road, where the latter road has two unloading tracks of ten cars' capacity each and a team track of twelve cars' capacity. The second point of connection is near the outer yards of the Pennsylvania Company, where there are ample facilities for interchange of traffic.
The Pennsylvania Company refuses all interchange of carload freight, whether incoming or outgoing, with the Rochester road within the switching limits of New Castle, but it does conduct such interchange with the Erie, the Pittsburgh & Lake Erie, and the Baltimore & Ohio roads. As to these roads the Pennsylvania Company has published its tariffs, and offers to receive, transport, and deliver to and from the lines of these three carriers carload shipments to and from about 128 industries within the [236 U.S. 351, 360] switching limits and immediate vicinity of New Castle, at a charge of $2 per car within the limits and a varying charge with a maximum of $5 per car without the limits. The industries on the tracks of the Pennsylvania Company within the switching limits, which receive carload freight from the Rochester road, or which may desire to ship such freight over the Rochester road, to points beyond New Castle, must dray their traffic to and from the depot or team track of the Rochester Company. Representatives of such industries testified as to the disadvantage to them resulting from the refusal of the Pennsylvania Company to perform switching service on traffic moving over the line of the Rochester Company.
The Commission found this practice to be an undue and unreasonable discrimination against the Rochester Company, and made an order requiring the Pennsylvania Company to desist therefrom. Commissioner Harlan, dissenting, was disposed to agree to an order fixing reasonable joint through rates for the use of the terminals of the Pennsylvania Company and over the rails of the Rochester Company, but disagreed with the order on the grounds made. The Pennsylvania Company then filed the bill in this case in the district court of the United States for the western district of Pennsylvania, and moved for a preliminary injunction, restraining the enforcement of the order. Answer was filed on behalf of the United States, and the Interstate Commerce Commission and the Rochester Company intervened, and, after hearing, the motion was denied, two judges concurring and one judge dissenting. 214 Fed. 445. From this action the Pennsylvania Company appeals, and the case is now before this court.
'That it shall be unlawful for any common carrier subject to the provisions of this act to make or give any undue [236 U.S. 351, 361] or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue due or unreasonable prejudice or disadvantage in any respect whatsoever.
This section forbids any undue or unreasonable preference or advantage in favor of any person, company, firm, corporation, or locality; what is such undue or unreasonable preference or advantage is a question not of law, but of fact. Texas & P. R. Co. v. Interstate Commerce Commission, 162 U.S. 197, 219 , 40 S. L. ed. 940, 947, 5 Inters. Com. Rep. 405, 16 Sup. Ct. Rep. 666; Interstate Commerce Commission v. Alabama Midland R. Co. 168 U.S. 144, 170 , 42 S. L. ed. 414, 424, 18 Sup. Ct. Rep. 45. If the order made by the Commission does not contravene any constitutional limitation, and is within the constitutional and statutory authority of that body, and not unsupported by testimony, it cannot be set aside by the courts, as it is only the exercise of an authority which the law vests in the Commission. Interstate Commerce Commission v. Delaware L. & W. R. Co. 220 U.S. 235, 251 , 55 S. L. ed. 448, 456, 31 Sup. Ct. Rep. 392; Los Angeles Switching Case (Interstate Commerce Commission v. Atchison, T. & S. F. R. Co.) 234 U.S. 294, 311 , 58 S. L. ed. 1319, 1327, 34 Sup. Ct. Rep. 814; Houston, E. & W. T. R. Co. v. United States, 234 U.S. 342, 359 , 58 S. L. ed. 1341, 1351, 34 Sup. Ct. Rep. 833.
It is to be remembered that in the aspect which the case [236 U.S. 351, 362] now presents, there is no question as to the terms which the Commission might prescribe, or the compensation which the Pennsylvania Company should receive for the service to be rendered. The sole question is whether the Commission exceeded its authority in requiring the Pennsylvania Company to cease and desist from what the Commission found to be a discriminatory practice.
In determining whether the Commission exceeded its authority under 3 of the act to regulate commerce, it is essential to consider the character of the service required in the present case. Section 3 was a part of the original act, and remains unchanged, but there are certain amendments to the act which are to be read in connection with 3 as if they were originally incorporated within the act. Blair v. Chicago, 201 U.S. 400, 475 , 50 S. L. ed. 801, 832, 26 Sup. Ct. Rep. 427. The act as amended June 29th, 1906 (34 Stat. at L. 584, chap. 3591, Comp. Stat. 1913, 8563), defines what is meant by common carriers-engaged in transportation by railroad-which are brought within the control of the act, and a railroad is defined to include all switches, spurs, tracks, and terminal facilities of every kind, used or necessary in the transportation of persons or property designated in the act, and also all freight depots, yards, and grounds used or necessary in the transportation or delivery of any of said property. Not only does the act define railroads, but it specifically defines what is meant by transportation, which is made to include 'cars and other vehicles and all instrumentalities and facilities of shipment or carriage, irrespective of ownership or of any contract, express or implied, for the use thereof, and all services in connection with the receipt, delivery, elevation, and transfer in transit, ventilation, refrigeration, or icing, storage, and handling of property transported.' It is made the duty of every carrier 'subject to the provisions of this act to provide and furnish such transportation, upon reasonable request therefor, and to establish through routes and just and reasonable rates applicable [236 U.S. 351, 363] thereto;' and on June 18, 1910 (36 Stat. at L. 545, chap. 309, Comp. Stat. 1913, 8563), it was additionally provided that the carrier should 'provide reasonable facilities for operating such through routes and to make reasonable rules and regulations with respect to the exchange, interchange, and return of cars used therein, and for the operation of such through routes, and providing for reasonable compensation to those entitled thereto.' See United States v. Union Stock Yard & Transit Co. 226 U.S. 286 , 57 L. ed. 226, 33 Sup. Ct. Rep. 83, and as to the character of such commerce, Illinois Central R. Co. v. De Fuentes, decided February 1, 1915 [ 236 U.S. 157 , 59 L. ed. --, 35 Sup. Ct. Rep. 274].
It follows that the provisions of 3 of the act must be read in connection with the amendments and subsequent provisions, which show that transportation as used in the act covers the entire carriage and services in connection with the receipt and delivery of property transported. There can be no question that when the Pennsylvania Railroad used these terminal facilities in connection with the receipt and delivery of carload freight transported in interstate traffic, it was subject to the provisions of the act, and it was obliged as a common carrier in that capacity to afford all reasonable, proper, and equal facilities for the interchange of traffic with connecting lines, and for the receiving, forwarding, and delivering of property to and from its own lines and such connecting lines, and was obliged not to discriminate in rated and charges between such connecting lines. By the amendments to the act, the facilities for delivering freight of a terminal character are brought within the terms of the transportation to be regulated.
The cars transported over the Rochester road are brought to a physical connection with the Pennsylvania road at a point where it receives carloads of freight from other roads and transports them over its connecting terminals to points of destination, and at that point in like [236 U.S. 351, 364] manner forwards over other railroads carloads of freight transported in interstate commerce, and destined for points on such other connecting railroads.
The Pennsylvania Company insists that these statutory provisions do not apply to it under the circumstances of this case, and that the Commission exceeded its authority in requiring it to desist from what the Commission found to be a discriminatory practice, for certain reasons which, as we understand them, may be reduced to three: (a) That upon the facts shown there is no discrimination in a real sense, and certainly none which warrants the making three: (a) That upon the facts shown there order requires the railroad company to give up the use of its terminals to another company, in violation of the last clause of 3; and (c) that the order is a taking of the railroad company's property in violation of the protection afforded to it under the Constitution of the United States, preventing the taking of property without due process of law, for the contention is that the effect of the order is to subject the Pennsylvania Railroad's property to the use of the Rochester Company without compensation.
That there is no discrimination in fact is rested upon the argument that with the other three roads the Pennsylvania Railroad has certain reciprocal arrangements in the Mahoning and Shenango valleys, by which these three roads interchange cars with the Pennsylvania Railroad. It is contended that this, more than the $2 per car, is the real inducement for the treatment of those railroads. But, as the Commission found, the amount of traffic exchanged between these three railroads is of a varying and differing quantity, and to ascertain the value of such service to the Pennsylvania Railroad would be a futile undertaking, [236 U.S. 351, 365] involving uncertain and speculative considerations as to the value of this and that service and the varying cost of performing such service at remote and different places. The statements in the record, presented to the Commission by the Pennsylvania Company, show the great difference in service of this character rendered by the three railroads and by the Pennsylvania Company for the different roads. For instance, it is shown that during 1911 the Baltimore & Ohio switched for the Pennsylvania 69 cars at New Castle, and in the valleys generally 4,185 cars, while the Pennsylvania Company switched for the Baltimore & Ohio 8,286 cars in New Castle, and in the valleys generally 8,900 cars. The Rochester Company switched for the Pennsylvania in the same year 406 cars in New Castle and 3,661 cars to points adjacent thereto. The Rochester Company moved for the Pennsylvania Company in New Castle 337 cars more than did the Baltimore & Ohio, and in gross totals, through and into adjacent regions, 187 cars less. The Pennsylvania Company moved nearly twice as many cars for the Baltimore & Ohio road as the Baltimore & Ohio did for it. The government therefore contends with much force that such reciprocal switching arrangements ought not to justify giving cars shipped over the Baltimore & Ohio Railroad a preference denied the cars shipped over the lines of the Rochester road, which cars enter New Castle on the same track and reach the same junction points. And, as we have said, the question of compensation is not here involved, and what compensation the Pennsylvania Company might require from the Rochester Company is not now to be determined. We agree with the Commission and the court below that the alleged reciprocal shipping arrangements do not remove the discriminatory character of the treatment of the Rochester road.
The objection that the railroad is raquired to give up the use of its terminals to another company is perhaps [236 U.S. 351, 366] the principal contention of the Pennsylvania Company, and is based upon the last clause of the second paragraph of 3, which provides that the section shall not be construed as requiring any common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business.
As we have heretofore shown, the act, as it now is, provides that transportation which must be furnished to all upon equal terms includes the delivery of freight as part of its transportation. While 3 remains part of the act in its original form, it must be given a reasonable construction with a view to carrying out all the provisions of the act and to make every part of it effective, in accordance with the intention of Congress.
In the present case we think there is no requirement in the order of the Commission amounting to a compulsory taking of the use of the terminals of the Pennsylvania Company by another road, within the inhibition of this clause of 3. The order gives the Rochester road no right [236 U.S. 351, 369] to run its cars over the terminals of the Pennsylvania Company, or to use or occupy its station or depots for purposes of its own. There is no requirement that the Rochester Company be permitted to store their cars in the yards of the Pennsylvania Company, or to make use of its freight houses or other facilities; but simply that the Pennsylvania Company receive and transport the cars of the Rochester Company over its terminals at New Castle in the same manner and with the same facilities that it affords to other railroads connecting with the Pennsylvania railroad at the same point.
The third and last objection is that the effect of the order of the Commission is to appropriate the property of the Pennsylvania Railroad without compensation, to the use of the Rochester Company, in violation of the Constitution of the United States. Certainly the railroad cannot maintain, in view of the provisions of the statute to which we have referred, that these terminal facilities are exempt from public regulation and under all circumstances subject to its own control, to be dealt with in such manner as it may see fit. This court recognized, in the case of United States v. Terminal R. Asso. 224 U.S. 383 , 56 L. ed. 810, 32 Sup. Ct. Rep. 507, that terminal facilities might be so used as to create monopolies, which it was within the power of Congress to control,-a power which it might exercise within the prohibitions and limitations of the Sherman act. So, in the present case, all that the order requires the Pennsylvania Company to do is to receive and transport over its terminals by its own motive power, for the Rochester Company, as it does for other companies, similarly situated, carload freight in the course of interstate transportation.
So here there is no attempt to appropriate the terminals of the Pennsylvania Railroad to the use of the Rochester Company. What is here accomplished is only that the same transportation facilities which are afforded to the shipments brought to the point of connection over tracks used in common by the Baltimore & Ohio Railroad and [236 U.S. 351, 372] the Rochester Company shall be rendered to the Rochester Company as are given to the Baltimore & Ohio Company under precisely the same circumstances of connection for the transportation of interstate traffic. All that the Commission ordered was that the Company desist from the discriminatory practice here involved, and in so doing we think it exceeded neither its statutory authority nor any constitutional limitation, and that the district court was right in so determining.
It follows that the order denying the application for temporary injunction was properly made, and the judgment must be affirmed.
The court now holds that this controversy involves merely a switching privilege and the duty of one railroad not to refuse such privilege to another; or, at all events, if it permits it to one, to allow it to other roads on terms of equality. By a necessary inference, therefore, the decision now made is concerned alone with that subject, and does not in any degree whatever, as a matter of law, involve the right of one railroad company to compel another to permit it to share in its terminal facilities. If I could bring my mind to understand the facts of the controversy as they are now appreciated by the court, there would be no difficulty whatever on my part in accepting the legal principle which is applied to them. But the difficulty which I have is in the premise of fact upon which the case is decided. In other words, I have found it impossible to escape the conclusion that instead of being one concerning a mere switching privilege, the case is really one involving the using of terminal facilities. Differing only, therefore, as to an appreciation of the facts, I am very reluctant to express a dissent,-a reluctance which is greatly increased by the consideration that the view [236 U.S. 351, 373] of the facts now taken by the court is the one which was adopted by the court below, and which was stated by the Interstate Commerce Commission. Strong, however, as is the admonition resulting from this situation, it is not strong enough to overcome the force of my conviction as to what the case really concerns, and to overcome the belief that it is my duty, at least, to state the fact of my dissent.

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