Fields v. Harris, 80-0437-CV-W-5.

• Decision Date: 25 August 1981
• Docket Number: No. 80-0437-CV-W-5.,80-0437-CV-W-5.
• Citation: 522 F. Supp. 901
• Court: U.S. District Court — Western District of Missouri
• Parties: Jacki L. FIELDS, Plaintiff, v. Patricia Roberts HARRIS, Secretary, Health & Human Services, Defendant.

522 F. Supp. 901

Jacki L. FIELDS, Plaintiff, v. Patricia Roberts HARRIS, Secretary, Health & Human Services, Defendant.

No. 80-0437-CV-W-5.

United States District Court, W. D. Missouri, W. D.

August 12, 1981.

On Motion to Dismiss Constitutional Damage Claim August 25, 1981.

Elwyn Cady, Jr., Independence, Mo., for plaintiff.

Ronald S. Reed, Jr., U. S. Atty., Mark J. Zimmermann, Asst. U. S. Atty., Kansas City, Mo., for defendant.

ORDER

SCOTT O. WRIGHT, District Judge.

This law suit concerns the dismissal of the plaintiff from her job as a "Claims Folder Clerk" with the Mid-America Program Center of the Social Security Administration in Kansas City, Missouri. She was dismissed from her job for her purported assault of a co-employee on property leased by the United States Government. The plaintiff appealed her dismissal to the United States Merit Systems Protection Board. A final decision, upholding her dismissal, was entered by the Merit Systems Protection Board and sent to the plaintiff on March 19, 1979. The plaintiff commenced this suit on May 2, 1980.

In a coarsely drafted complaint, the plaintiff alleges that her dismissal from the Social Security Administration job violated her constitutional right of self-defense. The complaint stated that jurisdiction in this Court is authorized under the Mandamus and Venue Act, 28 U.S.C. § 1361, and under the Civil Service Back Pay Recovery Act, 5 U.S.C. § 5596. In a subsequent pleading filed by the plaintiff which is styled as a "Memorandum Brief in Support of Contentions," the plaintiff additionally states that jurisdiction is authorized by Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). The defendant has moved to dismiss or for summary judgment on the alternative grounds that this Court lacks subject matter jurisdiction, that the plaintiff's claim is barred by the applicable statute of limitations, or that it is entitled to a judgment as a matter of law.

With respect to the plaintiff's contention that this Court is authorized to hear her claim under the Mandamus and Venue Act and under the Civil Service Back Pay Act, the Court finds that it lacks jurisdiction under both Acts. With regard to plaintiff's third assertion that jurisdiction is authorized by Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), this Court, in an attempt to do substantial justice, presumes that the plaintiff intends to ground jurisdiction of this federal question under 28 U.S.C. § 1331. Accordingly, this Court finds that it lacks jurisdiction to hear the plaintiff's claim under either 28 U.S.C. § 1361 or 5 U.S.C. § 5596; but finds that it does have jurisdiction under 28 U.S.C. § 1331 to determine whether any constitutional rights of the plaintiff have been violated.

I. Lack of Jurisdiction Under 28 U.S.C. § 1361.

The plaintiff initially stated that this Court was authorized to hear her claim under the Mandamus and Venue Act, 28 U.S.C. § 1361. Section 1361 provides that a District Court shall have jurisdiction of any action in the nature of a mandamus to compel an officer or an employee of the United States to perform a constitutional or statutory duty owed to a plaintiff. The scope of Section 1361 has been limited to actions to compel the performance of "ministerial" duties that are compelled by law. McClendon v. Blount, 452 F.2d 381 (7th Cir. 1971); Rural Electrification Administration v. Northern States Power Co., 373 F.2d 686 (8th Cir. 1967), cert. denied, 387 U.S. 945, 87 S.Ct. 2079, 18 L.Ed.2d 1332. This limitation is based on the traditional dichotomy in the mandamus context between ministerial and discretionary administrative functions, and reflects the policy that this Court should not interfere with an officer's valid exercise of delegated power. See generally Wright & Miller, Federal Practice & Procedure § 3655 (1976 & Supp.1981). Mandamus is an extraordinary remedy and is not a substitute for an appeal where the claim is reviewable by the Courts of Appeals. Bruno v. Hamilton, 521 F.2d 114, 117 (8th Cir. 1975). Therefore, a mandamus action under Section 1361 should not be utilized to influence an officer's valid exercise of discretion. Rural Electrification Administration v. Northern States Power Co., supra, at 694 n. 14.

The plaintiff has stated in her complaint that the duty of the defendant to reinstate her in her "Claims Folder Clerk" position is "ministerial." The Court finds, however, that the decision to dismiss plaintiff from her job with the Social Security Administration was a discretionary administrative function for which mandamus is an improper remedy. McClendon v. Blount, 452 F.2d 381 (7th Cir. 1971). In McClendon, a post office employee challenged his dismissal in an action filed in district court against the Postmaster General. The postal employee had appealed his dismissal to the Civil Service Commission, the precursor of the Merit Systems Protection Board. The Commission upheld the postal employee's dismissal and, by its final decision, exhausted the employee's administrative remedies. McClendon, supra, at 382. Thereafter, the postal employee commenced an action in the nature of a mandamus seeking reinstatement, back pay and seniority. The McClendon court held that the Section 1361 action is not a proper remedy where the plaintiff seeks a direct retraction of action already taken, citing Rural Electrification Administration, supra, at 695 n. 14, because the act of dismissal is discretionary rather than ministerial. McClendon, supra, at 383. The postal employee's mandamus action was dismissed for want of jurisdiction.

This Court considers the McClendon decision to be persuasive authority with regard to the case at bar. The decision by the Social Security Administration to dismiss the plaintiff was wholly a matter of discretion. It is because the decision to dismiss an employee is discretionary that the decision is subjected to an elaborate administrative review system. The plaintiff has improperly characterized her dismissal as a "ministerial" function of the Social Security Administration. Since mandamus under Section 1361 is an improper remedy when a discretionary duty is involved, the plaintiff's Section 1361 action is dismissed for want of jurisdiction.

II. Lack of Jurisdiction Under 5 U.S.C. § 5596.

The plaintiff secondly states that jurisdiction is proper under the Civil Service Back Pay Recovery Act, 5 U.S.C. § 5596. The Back Pay Recovery Law, of which Section 5596 is a part, provides for the waiver of sovereign immunity of the United States in suits that contest the amount of back pay due government employees. Polos v. United States, 556 F.2d 903, 905-906 n. 5 (8th Cir. 1977). Section 5596 does not provide an independent grant of subject matter jurisdiction. American Federation of Government Employees v. Califano, 453 F.Supp. 550, 552 (D.D.C.1978). This section, in pertinent part, entitles an employee to back pay that has been withheld unjustly. 5 U.S.C. § 5596(b)(1). The aggrieved employee must timely take appeals or seek appropriate administrative review in order to protect her rights under the Back Pay Act. 5 U.S.C. § 5596(b)(1).

A claimant is only entitled to relief under Section 5596, if it is found by the "appropriate authority under applicable law" that back pay has been withheld unjustly. 5 U.S.C. § 5596(b)(1). This Court is an inappropriate "authority" for making that determination. The Civil Service Reform Act, effective on January 11, 1979, provides for exclusive judicial review of the Merit System Protection Board's decision to uphold the plaintiff's dismissal in either the Court of Claims or Courts of Appeals. 5 U.S.C. § 7703(b)(1).

This Court, therefore, finds that it lacks subject matter jurisdiction to hear plaintiff's claim under Section 5596 because the Back Pay Act does not bestow an independent basis of jurisdiction on this Court. The plaintiff's section 5596 action is, therefore, dismissed for lack of jurisdiction.

III. Jurisdiction Under Carlson v. Green

The plaintiff's final assertion of jurisdiction appears to allege that jurisdiction to hear her constitutional claim is grounded directly in the Bill of Rights. In a subsequent pleading, she more specifically states that jurisdiction is proper under the holding in Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). While neither the Bill of Rights nor the Carlson opinion establishes an independent basis of jurisdiction in this Court to hear the plaintiff's claim that her constitutional right of selfdefense has been violated by the defendant, this Court, in an attempt to do substantial justice under Rule 8(f) of the Federal Rules of Civil Procedure, finds that the plaintiff has alleged a federal question and assumes jurisdiction to hear that question under 28 U.S.C. § 1331. Jones v. Freeman, 400 F.2d 383, 387 (8th Cir. 1968). The Court, therefore, has jurisdiction to hear the plaintiff's claim that her constitutional right of selfdefense has been violated by the defendant. Accordingly, it is hereby

ORDERED that the defendant's motion to dismiss the plaintiff's 28 U.S.C. § 1361 and 5 U.S.C. § 5596 claims for lack of jurisdiction is granted. It is further

ORDERED that the defendant's motion to dismiss the plaintiff's 28 U.S.C. § 1331 claim is denied. It is further

ORDERED that a hearing on the validity of plaintiff's claim to a constitutional right of self-defense be commenced at 2:00 p. m. on Friday, August 14, 1981, in this Court.

On Motion To Dismiss Constitutional Damage Claim

MEMORANDUM AND ORDER

In an action pending before this Court, the plaintiff has alleged that her Constitutional right to self-defense was violated by the Social Security Administration when it dismissed her from her job with the Mid-America Program Center. The plaintiff alleges that a cause of action for damages may be inferred generally under the Bill of Rights, and specifically under the Second and Eighth Amendments, and that she...