Dist. 2, Marine Engineers Beneficial Ass'n v. Adams
| Decision Date | 18 November 1977 |
| Docket Number | No. C 77-370.,C 77-370. |
| Citation | 447 F. Supp. 72 |
| Parties | DISTRICT 2, MARINE ENGINEERS BENEFICIAL ASSOCIATION, ASSOCIATED MARITIME OFFICERS, AFLCIO, Plaintiff, v. Brock ADAMS et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
Gerald B. Lackey, Green & Lackey, Toledo, Ohio, for plaintiff.
Thomas L. Dalrymple, Fuller, Henry, Hodge & Snyder, Asst. U. S. Atty., Toledo, Ohio, for defendants.
This cause came to be heard on three motions: Plaintiff's Motion for a Preliminary Injunction; Defendant Cleveland Tankers, Inc.'s Motion to Dismiss Complaint, filed pursuant to Rules 12(b)(1) and (2), Federal Rules of Civil Procedure; and the Defendant Government's Motion to Dismiss, filed pursuant to Rules 12(b)(1) and (6). A hearing on Plaintiff's Motion for a Preliminary Injunction was held on November 10, 1977, and this matter is now before the Court for determination.
Plaintiff, District 2, Marine Engineers Beneficial Association, Associated Maritime Officers, AFL-CIO, brings this action to enforce the provisions of 46 U.S.C. § 673, which states, inter alia:
In all merchant vessels of the United States of more than one hundred tons gross, excepting those navigating rivers, harbors, lakes (other than Great Lakes), bays, sounds, bayous, and canals, exclusively, the licensed officers and sailors, coal passers, firemen, oilers, and water tenders shall, while at sea, be divided into at least three watches, which shall be kept on duty * * * successively for the performances of ordinary work incident to the sailing and management of the vessel * * *.
Plaintiff also seeks enforcement of 46 U.S.C. § 689, which states:
The Commandant of the Coast Guard shall enforce sections 643, 660a, 672a, 673, and 710a of this title as to all vessels of the United States subject to said provisions of said sections through collectors of customs and other Government officers acting under the direction of the Coast Guard, and shall make such rules and regulations as he may deem necessary to carry out the provisions of said sections. (Emphasis added.)
Finally, plaintiff seeks enforcement of 46 C.F.R. § 157.20-5, promulgated pursuant to 46 U.S.C. §§ 673 and 689, supra, which states, in pertinent part:
Plaintiff's Complaint alleges that Defendant Cleveland Tankers, Inc. is presently operating the oil tankers M/V Saturn and M/V Jupiter on the Great Lakes without institution or utilization of a three-watch system for its licensed engineering officers, in violation of 46 U.S.C. § 673, and 46 C.F.R. § 157.20-5. Plaintiff further alleges that the Defendant United States Coast Guard and the commanding officers thereof have failed to enforce the provisions of 46 U.S.C. § 673, in violation of 46 U.S.C. § 689. Plaintiff seeks preliminary and permanent injunctive relief, and relief in the nature of mandamus. Jurisdiction is alleged pursuant to 28 U.S.C. § 1331, and 28 U.S.C. § 1361.
Defendant Government first asserts that Plaintiff MEBA lacks standing to bring this action because it has not alleged "injury in fact."
In Warth v. Sedlin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), the Supreme Court reaffirmed the long-standing principle that a plaintiff has standing to sue when he has suffered "threatened or actual injury resulting from putatively illegal action." The claimed illegal action by the Defendant Government in the instant case is the Coast Guard's alleged failure to enforce 46 U.S.C. § 673, as required by 46 U.S.C. § 689. Since § 673 was enacted for the protection of seamen, O'Hara v. Luckenbach S.S. Co., 269 U.S. 364, 46 S.Ct. 157, 70 L.Ed. 313 (1925), it appears to the Court that the licensed engineers on whose behalf this action is brought by MEBA1 have indeed suffered "threatened * * * injury" from the Defendant Government's alleged failure to enforce the statute. Accordingly, the Court finds that Plaintiff MEBA does have standing to maintain this action.
The Government further moves to dismiss Plaintiff's Complaint on the grounds that this Court lacks subject matter jurisdiction.
The Government asserts that the Court cannot maintain jurisdiction of this action under § 1331 because the action does not arise "under the Constitution, laws, or treaties of the United States." This argument is patently erroneous, as plaintiff's claim is based solely upon duties alleged to be imposed by federal statute, and therefore is properly maintained under § 1331.
The Government also attacks plaintiff's allegations of jurisdiction under 28 U.S.C. § 1361, which provides that:
The district courts 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 plaintiff.
The Government asserts that there is no duty owed by the federal defendants to the plaintiff, and that jurisdiction therefore does not lie under 28 U.S.C. § 1361.
The Government's argument appears to confuse the issue of the Court's subject matter jurisdiction with the merits of plaintiff's claim for mandamus relief. To invoke the Court's jurisdiction under 28 U.S.C. § 1361, a plaintiff must allege that the federal defendants are officers or agencies of the United States who owe him the performance of a clear, ministerial and non-discretionary duty. See Mattern v. Weinberger, 519 F.2d 150, 155-57 (3d Cir. 1975). The statute upon which the plaintiff bases its claim in the instant case states that the Coast Guard "shall enforce" § 673. Based upon the language of the statute, the Court finds that the plaintiff has made a sufficient showing of a statutory duty to permit § 1361 jurisdiction. This determination is not, of course, a decision on the merits of plaintiff's claim. See Andujar v. Weinberger, 69 F.R.D. 690 (S.D.N.Y.1976).
For the reasons stated above, the Court also determines that plaintiff has pleaded allegations sufficient to state a claim for relief against the federal defendants. Accordingly, the Government's Motion to Dismiss under Rule 12(b)(6) will be denied.
Defendant Cleveland Tankers has also moved to dismiss plaintiff's claims on the grounds that this Court lacks subject matter jurisdiction.
It is clear that plaintiff cannot predicate this Court's subject matter jurisdiction over its claims against Defendant Cleveland Tankers on 28 U.S.C. § 1361. Courts have unanimously held that § 1361 does not provide a basis for subject matter jurisdiction against private persons. See Network Project v. Corporation for Public Broadcasting, 398 F.Supp. 1332 (D.D.C.1975); Bucks County Bd. of Comm'rs v. Interstate Energy Co., 403 F.Supp. 805 (E.D.Pa.1975); Thomas v. DeVilbiss, 408 F.Supp. 1357 (D.Ariz.1973). Accordingly, it remains only for the Court to consider whether subject matter jurisdiction over plaintiff's claims against Defendant Cleveland Tankers can properly be predicated on 28 U.S.C. § 1331.
Defendant Cleveland Tankers correctly notes that plaintiff has failed to plead that the amount in controversy exceeds $10,000, as required by § 1331(a). Plaintiff, in response, asserts that a $10,000 amount in controversy may be inferred from the allegations that Defendant Cleveland Tankers is not complying with a law which has as its penalty provision, inter alia, a fine of $500. Plaintiff asserts that since Defendant Cleveland Tankers has allegedly operated without a three-watch system since March of 1977, it is subject to fines in excess of $10,000, and that this potential liability provides the requisite amount in controversy under § 1331(a).
The case law is clear, however, that where the plaintiff seeks injunctive relief, as does the plaintiff in the instant case, the amount in controversy is determined by the value to the plaintiff of the right he seeks to protect.2 Goldsmith v. Sutherland, 426 F.2d 1395 (6th Cir. 1970); Pennsylvania R. Company v. City of Girard, 210 F.2d 437, 439 (6th Cir. 1954). Plaintiff's pleadings make no attempt to demonstrate that the value in money of the right which it seeks to protect can be calculated or ascertained to exceed $10,000.3 Accordingly, the Court must dismiss without prejudice plaintiff's claims against Defendant Cleveland Tankers, Inc. for the reason that this Court lacks subject matter jurisdiction over said claims.
Plaintiff seeks a preliminary mandatory injunction requiring the defendants, their officers, agents, servants, employees and attorneys, and those present and in active concert with them, to perform their statutory duty pursuant to 46 U.S.C. § 689, by enforcing the three-watch requirement of 46 U.S.C. § 673, against the vessels Saturn and Jupiter.
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