Castro v. United States

• Decision Date: 06 April 1984
• Docket Number: Civ. No. 83-3001(PG).
• Citation: 584 F. Supp. 252
• Parties: Eligio CASTRO and Rafael Diaz Diaz, Plaintiffs, v. UNITED STATES of America, Federal Deposit Insurance Corp., in its capacity as a corporation, William Isaac, Defendants.
• Court: U.S. District Court — District of Puerto Rico

584 F. Supp. 252

Eligio CASTRO and Rafael Diaz Diaz, Plaintiffs, v. UNITED STATES of America, Federal Deposit Insurance Corp., in its capacity as a corporation, William Isaac, Defendants.

Civ. No. 83-3001(PG).

United States District Court, D. Puerto Rico.

April 6, 1984.

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Eligio Castro, pro se.

Osvaldo Carlo Linares, Asst. U.S. Atty., San Juan, P.R., Arthur L. Beamon, Ingeborg G. Chaly, MaryBeth Triano, Washington, D.C., for defendants.

OPINION AND ORDER

PEREZ-GIMENEZ, District Judge.

This case has a long and convoluted history; the present amended complaint is the tenth in a series of suits, by one or both pro se plaintiffs, against the Federal Deposit Insurance Corporation ("FDIC").¹ This and all previous actions appear to arise out of the FDIC's failure to renew plaintiffs' temporary appointments with the FDIC. Plaintiffs' amended complaint is based on a variety of disparate legal theories: The Federal Tort Claims Act; Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act ("ADEA"); 42 U.S.C. § 1983; the Civil Service Reform Act of 1978; 28 U.S.C. § 1331; and the First, Fifth and Fourteenth Amendments to the United States Constitution. Plaintiffs also seek a Declaratory Judgment upon the constitutionality of 5 U.S.C. §§ 3301, 3302, 3304 and 7511.²

Plaintiffs' application for a TRO was denied on February 21, 1984, and a hearing was held on plaintiffs' request for a preliminary injunction of February 24, 1984. That injunction was also denied in our Opinion and Order entered on March 27, 1984. The matter is presently before the Court on defendants' Motion to Dismiss and plaintiffs' opposition thereto.

Findings of Fact

1. Defendant FDIC is a corporation chartered under the laws of the United States of America—its chief function being the insurance of bank deposits and the supervision and examination of state-chartered insured banks which are not members of the Federal Reserve System. When appointed by the Comptroller of the Currency or authorized state banking Commissioners, the FDIC also acts as receiver for closed banks. 12 U.S.C. §§ 1811-1831d (1980 & Supp.1982).

2. Both plaintiffs were born in Puerto Rico.

3. Both plaintiffs held a series of successive, finite, long-term, temporary, excepted appointments with the FDIC in its San Juan Liquidation Office.

4. Plaintiff Castro was employed first as a translator and then as a bond clerk, from August 28, 1978, until the expiration of his last appointment on November 10, 1982.

5. Plaintiff Díaz Díaz was employed as a collector from February 12, 1979, until the expiration of his last appointment on December 12, 1982.

6. The FDIC's Liquidation Graded positions have been designated by the Office of Personnel Management ("OPM") as Schedule A in the excepted service pursuant to 5 U.S.C. §§ 3301, 3302 and 5 C.F.R. § 213.3133.

7. These temporary liquidation appointments do not confer competitive status, nor do they lead to career or career-conditional appointments without some further examination or qualification.

8. Liquidation Graded positions are temporary in nature because the positions are concerned with the work of liquidating the assets of and managing the affairs of closed banks. During an ongoing liquidation staffing needs are frequently reassessed and reductions are periodically necessary.

9. Individuals employed by the FDIC as Liquidation Graded appointees are apprised of their temporary status when initially hired, and the expected duration of their appointments is specifically designated on Standard Form 50.

10. During his last appointment plaintiff Castro was an LG-5 Step 4.

11. During his final appointment plaintiff Díaz Díaz was an LG-11 Step 2.

12. Neither plaintiff qualifies as a preference eligible under 5 U.S.C. § 2108.

13. Plaintiff Castro's successful completion of a civil service examination does not in and of itself confer competitive status upon him.

Conclusions of Law

With this background in mind, the Court will now consider each of the issues presented by defendants' Motion to Dismiss.

A. Federal Tort Claims Act

Plaintiffs in this action collectively seek $7,196,000 in damages under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), 2671-2680, for alleged violations of their statutory and constitutional employment rights. Assuming arguendo that plaintiffs have such statutory and constitutional employment rights, the United States cannot be made liable under the FTCA for claims that arise from a breach of federal law, Birnbaum v. United States, 588 F.2d 319, 322 (2d Cir.1978), ("recovery under the FTCA can only be predicated upon ... a state tort cause of action."), or for constitutional torts. Id. at 327 ("We do not believe that the FTCA comprehends federal constitutional torts in its reference to the `law of the place' under § 1346(b)."). Furthermore, since plaintiffs' employment claims are not cognizable under the FTCA, it is not necessary to reach the issue of whether plaintiffs exhausted their administrative remedies. Steinagel v. Jacobson, 507 F.Supp. 288, 290 (S.D.Ohio 1980); Wham v. United States, 458 F.Supp. 147, 151 (D.S.C.1978); Young v. United States, 498 F.2d 1211, 1218 (5th Cir.1974). The Steinagel court emphatically stated that "it is `beyond question' that claims based upon wrongful discharge under a contract of federal employment are `wholy alien' to the remedy provided for tortious conduct under the FTCA." 507 F.Supp. at 290. Rather, claims under the FTCA must be ones recognized by the law of the state in which the claims arose. 28 U.S.C. §§ 1346(b), 2674. Plaintiffs have alleged no state law violations in their amended complaint, and without any allegation of a cognizable tort there can be no relief, and plaintiffs' FTCA actions are therefore dismissed for lack of subject matter jurisdiction.

B. Title VII

Plaintiffs allege in their amended complaint that the FDIC's failure to renew their temporary appointments constitutes an act of discrimination based on national origin. They rely on Section 717 of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16 as a jurisdictional predicate for suit. Section 717 proscribes federal employment discrimination and establishes an administrative and judicial enforcement system. Section 717(c) permits an aggrieved employee to file a civil action in a federal district court to review his claim of employment discrimination. However, the Supreme Court of the United States has made it clear that "attached" to the right of filing a civil action "are certain preconditions." Brown v. G.S.A., 425 U.S. 820, 832, 96 S.Ct. 1961, 1967, 48 L.Ed.2d 402 (1976). Specifically, the Court stated in Brown v. G.S.A. that "initially, the complainant must seek relief in the agency that has allegedly discriminated against him." Id., (emphasis added). In other words, exhaustion of administrative remedies is a jurisdictional pre-requisite to bringing an employment discrimination suit under Section 717(c). Regulations promulgated pursuant to Section 717(b) describe in detail the administrative procedures available to a charging party. 29 C.F.R. Part 1613.

Although plaintiffs, on one hand, rely on Section 717 of Title VII³ as a basis for this Court's jurisdiction, they maintain, on the other hand, that they are not, by virtue of being excepted federal employees, entitled to the benefits of this provision. Their conclusion is correct but not for the reason they claim. "Title VII's coverage of executive agency employees is comprehensive, reaching excepted service as well as competitive service employees." Kizas v. Webster, 707 F.2d 524, 542 n. 95 (D.C. Cir.1983). See also Transcript pp. 12-13. Plaintiffs' Title VII claims are defective because neither plaintiff exhausted his administrative remedies. Plaintiff Castro never contacted an EEO counselor regarding his allegations of national origin discrimination, nor has he ever filed a formal complaint of employment discrimination. (Exhibit E)⁴ This is so despite the fact that he was apprised of his rights under Title VII as early as October 14, 1982. (Exhibit V) Plaintiff Castro, therefore, consciously chose not to pursue his administrative remedies. His total and deliberate bypass of the regulations governing the initiation of a Title VII suit cannot be excused and therefore bars his present court action. Brown v. G.S.A., supra; Kizas v. Webster, supra. Although plaintiff Díaz Díaz did initiate an age discrimination complaint (Exhibit F), none of his allegations made reference to discrimination on the basis of national origin. His charge of national origin discrimination is foreclosed because his judicial complaint does not parallel his earlier administrative charge. Ong v. Cleland, 642 F.2d 316, 320 (9th Cir.1981) ("The failure to raise an issue administratively subverts the procedures and policies of Title VII and justifies precluding its presentation in federal court."). See also Siegel v. Kreps, 654 F.2d 773, 778 (D.C.Cir.1981); Ettinger v. Johnson, 518 F.2d 648 (3d Cir.1975).

C. Age Discrimination in Employment Act

Plaintiffs also allege that their nonrenewal constitutes age discrimination. Under the Age Discrimination in Employment Act, 29 U.S.C. § 633a(d), a civil action is precluded unless the claimant first files an age discrimination complaint with the EEOC or notifies the EEOC of his intention to file a civil action at least 30 days prior to instituting suit. Since neither plaintiff in this action established his compliance with the 29 U.S.C. § 633a(d) requirement of filing a notice of intent to sue with the EEOC, their age discrimination complaint must be dismissed. Siegel v. Kreps, 654 F.2d at 778 n. 16 (D.C.Cir.1981); Montgomery v. Obear-Nester Glass Co., 15 FEP Cases 614 (E.D.Ill.1977).⁵

D. 42 U.S. § 1983

Beyond their Title VII and ADEA claims, plaintiffs also seek to recover under 42 U.S.C. § 1983. That action, however,...