Alberio v. Hampton
| Decision Date | 23 May 1977 |
| Docket Number | Civ. No. 76-426. |
| Parties | Pedro J. ALBERIO, Ismael Rivera, Local 2577, American Federation of Government Employees, AFL-CIO, A.F.G.E., Plaintiffs, v. Robert E. HAMPTON, Chairman, Georgiana H. Sheldon, Vice Chairman, Ludwig J. Andolsek, Commissioner, United States Civil Service Commission, William E. Simon, Secretary of the Treasury, Vernon D. Acree, Commissioner of Customs, Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Raymond J. Malloy, Asst. Gen. Counsel, American Federation of Government Employees, AFL-CIO, Washington, D. C., for plaintiffs.
Julio Morales Sanchez, U. S. Atty. and Jesus A. Castellanos, Asst. U. S. Atty., D. Puerto Rico, San Juan, P. R., for defendants.
Plaintiff, Pedro J. Alberio, is a former Supervisory Customs Patrol Officer, U. S. Customs Service, San Juan, Puerto Rico, who was removed from his position with the Customs Service on August 27, 1975, for the alleged violation of Department of Treasury Minimum Standards of Conduct, Section 0.735.48, entitled "Giving Testimony", and Customs Conduct and Employees Responsibilities, Chapter 735, Subchapter 2, Part 12, entitled "Furnishing Testimony and Information." These charges were based upon allegations that he made false statements and representations in regard to an investigation into a matter within the jurisdiction of the Customs Service and the Immigration and Naturalization Service concerning fraudulent obtainment of visas and participation of Customs employees therein in violation of criminal statutes. In appealing his removal to the Federal Employee Appeals Authority (FEAA), Alberio informed said appellant authority that he wished to be represented by Coplaintiff Ismael Rivera, a National Representative of the American Federation of Government Employees, AFL-CIO (AFGE), a labor organization which acts as the exclusive representative of employees of the U. S. Customs Service in Puerto Rico. The FEAA determined that Mr. Rivera's representation of Alberio raised the question of conflict of interest. The FEAA determined that such a conflict would occur if Rivera, a National Representative of AFGE, were to represent Alberio, a supervisor, whose subordinates are members of the existing Bargaining Unit of the AFGE on matters of labor relations.
As a result of the F.E.A.A. determination, Plaintiffs sought injunctive, mandamus and declaratory relief from this Court for the alleged violation of their due process rights guaranteed under the Fifth and Sixth Amendments to the Constitution of the United States, rights under the Veteran Preference Act and Regulations, as well as rights protected under the First Amendment dispositions of freedom of expression and assembly. Jurisdiction is invoked pursuant to the provisions of Title 5, United States Code Section 702, et seq., and Title 28, United States Code, Sections 1331, 1346, and 1361.
Plaintiffs allege several grounds as basis for this Court's jurisdiction over their claim. Defendants, in turn, have challenged the Court's jurisdiction generally. Although Defendants' arguments regarding this Court's lack of jurisdiction under the provisions of 28 U.S.C. 1331 and 13461 are persuasive, the Court is nevertheless satisfied that it has jurisdiction pursuant to 28 U.S.C. 1361,2 which provides the following:
"The district court shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff."
Traditionally, mandamus relief was confined to purely ministerial duties. Its scope, however, has been gradually expanded to include suits by those who seek performance of constitutional duties owed them by Defendants who have a clear duty to perform said duties and where there is no other relief available. Burnett v. Tolson, 474 F.2d 877 (C.A. 4, 1973); Brown v. Schlesinger, 365 F.Supp. 1204 (E.D.Va., 1973); Garmon v. Warner, 358 F.Supp. 206 (W.D.N.C., 1973). In essence, the mandamus relief provided for by 28 U.S.C. 1361, has been expanded to include suits to compel an officer to perform a duty required by the Constitution. Ashe v. McNamara, 355 F.2d 277 (C.A. 1, 1965); Martinez v. Richardson, 472 F.2d 1121 (C.A. 10, 1973); State of Washington v. Udall, 417 F.2d 1310 (C.A. 9, 1969); Mollohan v. Gray, 413 F.2d 349 (C.A. 9, 1969); Pence v. Morton, 391 F.Supp. 1021 (D.Alaska, 1975); Murray v. Vaughn, 300 F.Supp. 688 (D.R.I., 1969); Knoll Associates, Inc. v. Dixon, 232 F.Supp. 283 (S.D.N.Y., 1964); Harms v. Federal Housing Administration, 256 F.Supp. 757 (D.Md., 1966); Walker v. Blackwell, 360 F.2d 66 (C.A. 5, 1966); Udall v. Oil Shale Corp., 406 F.2d 759 (C.A. 10, 1969), rev'd on other grounds sub nom. Hickel v. Oil Shale Co., 400 U.S. 48, 91 S.Ct. 196, 27 L.Ed.2d 193 (1970). Plaintiffs in the present suit base their claim upon asserted constitutional rights and the denial thereof by Defendants. They seek relief by way of requiring that Defendants recognize said constitutional rights. Jurisdiction is, therefore, afforded under 28 U.S.C. 1361.
The parties to this action submitted a stipulation of all the facts relevant in the case.
The Court, having considered said stipulation and all other matters raised by the record, makes the following findings of facts:
1. Pedro J. Alberio is a citizen of the United States residing in Guaynabo, Puerto Rico. He was a Civil Service employee of the United States Customs Service, with a preference eligible ten point disabled veteran rating and was assigned to the District of Puerto Rico until his discharge on August 27, 1975.
2. Ismael Rivera is a citizen of the United States, residing in Bayamon, Puerto Rico. He is employed by the American Federation of Government Employees, AFL-CIO, as National Representative for the Puerto Rico and Virgin Islands area.
3. Local 2577, American Federation of Government Employees, AFL-CIO, hereinafter referred to as "Local 2577" is an autonomous labor union local, chartered by the American Federation of Government Employees, AFL-CIO, hereinafter referred to as AFGE.
It is an unincorporated voluntary association whose membership consists of employees, including supervisors, employed in the Puerto Rico District of the United States Customs Service. It acts as the exclusive representative for bargaining unit employees in the San Juan District of the United States Customs Service.
4. The American Federation of Government Employees, AFL-CIO, is an unincorporated voluntary association with headquarters in Washington, D.C., and operates under a charter issued in 1932 from the AFL-CIO for the purpose of representing civilians employed by the Federal Government.
5. Defendants Robert E. Hampton, Georgiana H. Sheldon, and Ludwig J. Andolsek, are, respectively, the Chairman, Vice-Chairman and Commissioner of the United States Civil Service Commission, an independent agency of the United States Government. Defendant Commissioners are empowered to administer the Civil Service Laws and other related personnel statutes of the United States, and to implement these laws with rules and regulations which protect and preserve the integrity of the Civil Service system; to take such action as may be necessary, by direction to federal agencies or by report to the President or otherwise, and to preserve the integrity of these laws and regulations and the Federal Civil Service system generally.
6. Defendant William E. Simon at all times material herein, was the Secretary of the Treasury, an executive department of the United States Government, and in such capacity he is empowered to supervise and direct said Department. He had full authority over all personnel employed by that Department and its constituent Bureaus and Services, and was responsible for proper interpretation and implementation of personnel policies in accordance with such laws and Civil Service Commission regulations.
7. Defendant Vernon D. Acree, at all times material herein, was Commissioner of Customs, appointed by the Secretary of the Treasury, and as such was the head of the United States Customs Service which is an organizational entity within the Department of the Treasury. He had responsibility and authority to direct the activities and personnel policies of that entity, to supervise and direct its employees, and to implement by proper regulation and interpretation the personnel statutes and regulations of the Civil Service Commission and the Department of the Treasury.
8. Plaintiff Pedro J. Alberio was employed by the United States Customs Service in its Puerto Rico District from August 6, 1961 until the effective date of his discharge, August 27, 1975.
9. By notice letter dated June 26, 1975, Plaintiff Alberio was advised that he would be removed from his position of Supervisory Customs Patrol Officer, GS-11, for alleged violation of Department of Treasury, Minimum Standard of Conduct, Section 0.735.48, entitled "Giving Testimony" and Customs Conduct and Employees Responsibilities, Chapter 735, Subchapter 2, Part 12, entitled "Furnishing Testimony and Information." These charges were based upon allegations that he made false statements and representations in regard to an investigation into a matter within the jurisdiction of the Customs Service and the Immigration and Naturalization Service concerning fraudulent obtainment of visas and participation of Customs employees therein in violation of criminal statutes. By letter dated August 20, 1975, from Albert F. Bazemore, Regional Commissioner, Customs Service, Plaintiff Alberio was notified that the reasons for discharge in the June 26, 1975, notice letter were found by the Regional Commissioner to be fully supported by the evidence and warranted his removal as proposed to promote the efficiency of the service, his removal to be effective August 27, 1975. The removal notice letter of August 20,...
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Alvarez Ricardo v. Medina
...reliance upon 28 U.S.C. § 1346(a)(2) is misplaced. Richardson v. Morris, 409 U.S. 464, 93 S.Ct. 629, 34 L.Ed.2d 647 (1973); Alberio v. Hampton, 433 F.Supp. 447, 449 f.n. 1 (D.P. R.1977); Wham v. United States, 458 F.Supp. 147, 150 (S.Carolina 1970). It has been held that when exercising jur......