Chasse v. Chasen

• Decision Date: 29 March 1979
• Docket Number: No. 78-1103,78-1103
• Citation: 595 F.2d 59
• Parties: Gilman J. CHASSE et al., Plaintiffs-Appellants, v. Robert E. CHASEN, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 59

595 F.2d 59

Gilman J. CHASSE et al., Plaintiffs-Appellants, v. Robert E. CHASEN, et al., Defendants-Appellees.

No. 78-1103.

United States Court of Appeals,

First Circuit.

Argued Sept. 8, 1979.

Decided March 29, 1979.

William E. Persina, Associate Gen. Counsel, National Treasury Employees Union, Washington, D. C., with whom Robert M. Tobias, Gen. Counsel, Washington, D. C., was on brief, for plaintiffs-appellants.

Martin J. Ward, Gen. Atty., Office of the Regional Counsel, U. S. Customs Service, Boston, Mass., with whom John deRomoet, Regional Counsel, U. S. Customs Service, Boston, Mass., was on brief, for defendants-appellees.

Before KUNZIG, ^* Judge, U. S. Court of Claims, CAMPBELL and BOWNES, Circuit Judges.

KUNZIG, Judge.

This civilian pay case involves the right of certain employees of the United States Customs Service to bring suit to enforce the terms of a policy pronouncement concerning overtime issued by the Commissioner of Customs on November 8, 1968. Judge Edward T. Gignoux of the United States District Court for the District of Maine (Northern Division) held that the court was without subject-matter jurisdiction over the claim and dismissed the complaint. We affirm.

The five plaintiffs-appellants were customs inspectors employed by the United States Customs Service at Bangor International Airport in Maine. ¹ Each was a full time journeyman inspector. Prior to December 1, 1974, overtime tours of duty (those on Sundays, holidays, and during the hours of 12:00 midnight to 8:00 A.M. on weekdays) at the Bangor International Airport were only assigned to "when actually employed" (WAE) ² employees after each journeyman inspector had been given an opportunity to accept the special overtime. In calendar year 1974 each plaintiff earned at least $20,000 in overtime pay.

On December 1, 1974, defendant Ingalls, then Acting District Director for the Portland District, instituted a change in the overtime staffing policy at the Bangor International Airport. Under the new policy, two WAE inspectors were assigned for each journeyman inspector who worked that tour of duty. As a result of this policy change, the plaintiffs were not assigned to work on a number of overtime jobs on occasions when they were willing and able to do so. In calendar year 1975, no plaintiff received more than $10,107 in overtime pay.

Plaintiffs filed a grievance pursuant to the Customs Service's agency grievance procedure. They charged that the policy change instituted by the Acting District Director violated Customs Service Circular INS-2-MI issued by the Commissioner of Customs on November 8, 1968. The subject of that circular was listed as "assignment of personnel to inspectional activities." Plaintiffs argued that the policy change was inconsistent with section III.D.4. of the circular. ³ The grievance examiner found in favor of the plaintiffs, but his recommendation was rejected by defendant Martin who, as the Director of the Personnel Management Division of the Customs Service, had the final authority to decide such matters.

Plaintiffs then timely filed this action, alleging a violation of Customs Service Circular INS-2-MI, in the United States District Court for the District of Columbia. On defendant's motion the case was transferred to the United States District Court for the District of Maine (Northern Division).

Plaintiffs after amending their complaint, asserted four grounds for jurisdiction: (1) 28 U.S.C. §§ 2201, 2202 (Declaratory Judgment Act); (2) 28 U.S.C. § 1361 (Mandamus); (3) 28 U.S.C. § 1331(a) (laws of the United States); and (4) 28 U.S.C. § 1346(a)(2) (executive regulations). In dismissing the complaint for lack of jurisdiction, Judge Gignoux held that: (1) the Declaratory Judgment Act does not extend the subject matter jurisdiction of the court; (2) the Mandamus statute does not confer subject matter jurisdiction on the court where otherwise none exists; (3) Customs Service Circular INS-2-MI does not constitute one of the "laws of the United States" under 28 U.S.C. § 1331(a); and (4) Customs Circular INS-2-MI does not constitute a "regulation of an executive department" under 28 U.S.C. § 1346(a)(2).

In this court, plaintiffs have challenged only these latter two holdings ((3) and (4)). ⁴

We agree with Judge Gignoux that the Customs Service Circular at issue was not promulgated pursuant to the type of statutory authority necessary for a right to judicial enforcement. This policy pronouncement, or Circular, is therefore an insufficient basis for subject matter jurisdiction under either 28 U.S.C. § 1331(a) (laws) or § 1346(a)(2) (regulations), and plaintiffs' cause must fail. ⁵

Initially we note that for jurisdictional purposes the criteria which should be applied in determining whether Customs Service Circular INS-2-MI is one of the "laws of the United States," is the same as that which should be applied to determine whether the circular is "a regulation of an executive department." It is beyond dispute that validly issued administrative regulations or executive orders may be treated as "laws of the United States" under § 1331(a). See, e. g., Farmer v. Philadelphia Electric Company, 329 F.2d 3 (3rd Cir. 1964).

Fundamentally, the issue is whether this type of policy pronouncement is a proper basis for suit in the federal courts. It is obviously a question of degree. If, on the one hand, the Commissioner of Customs issued a simple flyer announcing the showing of free movies every Wednesday night, could the employees of the Customs Service bring suit in federal court to enforce the terms of that policy pronouncement if the movies were not shown? Clearly such a basis for suit was never contemplated. However, on the other hand, a policy pronouncement issued pursuant to a specific grant of statutory authority, and promulgated in accordance with the procedural and publication requirements of the Administrative Procedure Act (APA), 5 U.S.C. §§ 551-53 (1976), would clearly be a proper basis for suit in the federal courts. Our problem: where to draw the line?

Customs Service Circular INS-2-MI does not match either of these extremes. We are presented with the issue of where along the continuum between a mere flyer or leaflet and a formal regulation issued pursuant to specific statutory authority this Circular lies.

Plaintiffs argue that we need only focus on the regulatory nature of the pronouncement at issue almost as if there were magic in the mere use of the word "regulation." They contend that Circular INS-2-MI is clearly a regulation as the concept is generally described in the APA. Although plaintiffs admit that not all agency pronouncements are actionable in federal court, they contend that when an agency issues a document to the public which is regulatory in nature and issued pursuant to statutory authority, and the agency acts in violation of the policy stated in that document, the individuals harmed have rights to enforce the policy in federal court.

Defendants contend that any statutory authority which the Commissioner of Customs had to issue Circular INS-2-MI is too remote to make this policy pronouncement a proper basis for jurisdiction in the federal courts. They argue that even if the Commissioner of Customs had the statutory authority to issue this policy pronouncement as a binding regulation, it cannot serve as the proper basis for jurisdiction in the federal courts because it was not formally issued in accordance with the procedural and publication requirements of the APA.

The word "regulation" obviously has a different meaning in different legal contexts. See, e. g., Kephart v. United States, 75 F.Supp. 1020, 105 Ct.Cl. 646 (1948) (finding of Civil Service Commission is a regulation); But see Walsh v. Butcher & Sherred, 395 F.Supp. 597 (E.D.Pa.1975) (order of Securities and Exchange Commission is neither a regulation nor a law of the United States). The label attached to an agency pronouncement is not dispositive. See Piercy v. Tarr, 343 F.Supp. 1120, 1128 (N.D.Cal.1972). We agree with plaintiffs' common sense admission that not all agency policy pronouncements which find their way to the public can be considered to be regulations enforceable in federal court. However, plaintiffs' suggested distinction that only documents which are "clearly regulatory in nature" are enforceable in federal court does little more than restate the question it purports to answer.

In essence, the court concurs with the district judge that in deciding whether a particular agency policy pronouncement may properly serve as the basis of jurisdiction under either § 1331(a) or § 1346(a)(2), we examine: (I) the statutory authority for promulgation, and (II) the formality of the promulgation. We weigh these factors to decide whether the policy pronouncement may be used as a basis of a suit in the federal courts. ⁶

I.

The most instructive precedents in this general area of statutory authority are those cases which consider whether particular executive orders may be the basis of jurisdiction under § 1331(a). In Stevens v. Carey, 483 F.2d 188 (7th Cir. 1973), the court considered whether Executive Order 10988, 27 Fed.Reg. 551 (January 18, 1962), was an adequate jurisdictional base. In holding that it was not, the court ruled that it had not been issued pursuant to statutory authority which provided for the implementation of statutory policy by the President. The court considered the document to be an expression of suggested guidelines relating to federal employment, and noted that the order did not either expressly or by implication contemplate a judicial remedy for the violation of its provisions. In analyzing the same executive order, the court in Manhattan-Bronx Postal Union v. Gronouski, 121 U.S.App.D.C. 321, 350 F.2d 451 (1965), Cert. denied, 382 U.S. 978, 86 S.Ct. 548, 15 L.Ed.2d 469 (1966), stated that "(t)he President did not undertake to create any role for the judiciary in the implementation of this...