Gonzalez v. Chasen

• Decision Date: 17 November 1980
• Docket Number: Civ. No. 80-2197.
• Parties: Emilio Cruz GONZALEZ, Plaintiff, v. Robert CHASEN et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

506 F. Supp. 990

Emilio Cruz GONZALEZ, Plaintiff, v. Robert CHASEN et al., Defendants.

Civ. No. 80-2197.

United States District Court, D. Puerto Rico.

November 17, 1980.

Carlos López de Azua, Hato Rey, P. R., for plaintiff.

Jose A. Quiles, U. S. Atty., Hato Rey, P. R., for defendants.

OPINION AND ORDER

GIERBOLINI, District Judge.

This is an action brought under 28 U.S.C. Section 1331, in which plaintiff seeks injunctive relief to prevent his proposed dismissal from the U.S. Customs Service. Plaintiff alleges that the removal is contrary to the Treasury Department's applicable regulations,¹ since according to said regulations none of the charges filed at the administrative level against plaintiff justify removal.

Defendants filed a motion for dismissal of the complaint alleging that this Court lacks subject matter jurisdiction because 28 U.S.C. Section 1331 does not apply to the present case. Section 1331(a) states that "the district courts shall have original jurisdiction of all civil actions (that) ... arises under the Constitution, laws or treaties of the United States ..."²

It has been firmly established that the reference in Section 1331(a) to "laws ... of the United States", means that there is jurisdiction of a claim arising under an Act of Congress or an administrative regulation or executive order made pursuant to an Act of Congress. Wright, Miller and Cooper, Federal Practice and Procedure: Jurisdiction, Section 3563; see also Farmer v. Philadelphia Electric Co., 329 F.2d 3 (3rd Cir., 1964). Therefore, "it is beyond dispute that validly issued administrative regulations ... may be treated as "laws of the United States" under Section 1331(a)." Chasse v. Chasen, 595 F.2d 59, 61 (1st Cir. 1979).

The controversy in the present case is whether plaintiff's dismissal from the Customs Service is warranted under the circumstances of this case pursuant to Treasury Department's applicable regulations, i. e. Chapters 751 and 752 of the Treasury Personnel Manual, which are the ones that deal with disciplinary actions. We must, therefore, determine if those regulations are a proper basis for suit in the federal courts. The test to be used was established by the United States Court of Appeals for the First Circuit in Chasse v. Chasen, supra, at page 62.

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 Section 1331(a) ... 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.

The statutory authority for promulgation of the regulations at issue is found in 5 U.S.C. Section 301, which reads in its pertinent part:

The head of an executive department ... may prescribe regulations for the government of his department, the conduct of its employees, (and) the distribution and performance of its business ... (Emphasis ours)

We should now address the formality of the regulation factor. Although these regulations are not published in the Federal Register, and 5 U.S.C. Section 552 requires that the regulations of the Federal Administrative agencies be published in that Register, 5 U.S.C. Section 552(b)(2) specifically establishes that this section "does not apply to matters that are related solely to the internal personnel rules and practices of an agency."

Chapter 751 of the Treasury Personnel Manual "contains the instructions for the uniform handling of employee misconduct cases ... prescribes the procedures for the taking of disciplinary actions ... (and) supplements the provisions of Chapters 751 and 752 of the Federal Personnel Manual and applicable Executive orders." Subchapter 1(1-1).³ Among other things, it specifically prescribes the disciplinary action authority, the officers' responsibilities, and the types of disciplinary actions. Subchapter 1 (1-5-, 6 and 7)⁴ of Chapter 752⁵ deals with the adverse action procedure and with the right and procedure to appeal.

Plaintiff alleges that the dismissal action is contrary to Subchapter 2-5(c) of Chapter 752⁶ (Basis for adverse action), which is similar to Subchapter 1-3(b) of Chapter 751⁷ (Objectives of disciplinary actions), and which states in part that "adverse actions used as a means (sic) of disciplining employees shall be applied consistent with the principle that the penalty shall match the offense"; to Chapter 751, subchapters 1-4(c)⁸ (Disciplinary action policy), which states that "disciplinary actions in order to be effective must be timely" and that "it is simply equity to avoid keeping an employee in a state of uncertainty"; and 1-7(e)⁹ (Types of disciplinary penalties), which states that "in deciding whether removal is an appropriate penalty action, the resulting loss of the time and money spent in training and developing the employees to do his job should be considered as well as whether a less severe penalty might accomplish the desired result — a fully effective employee whose conduct and compliance with requirements will be assured in the future", and that "the effect of the removal on the employee's ability to obtain another position should also be considered."

In brief, the regulations at issue were promulgated to handle uniformly all the employee misconduct cases in the Treasury Department and they contain not only guidelines but also specific instructions on the disciplinary procedure.

After weighing the factors enunciated in Chasse v. Chasen, supra, we find that said factors have been met by the regulations at issue. Therefore, we conclude that said regulations may be used as a basis for an action in this Court under 28 U.S.C. Section 1331.

Defendant further asserts that judicial review of the agency's action is barred until administrative proceedings have been exhausted. However, what we are here concerned with is the authority of the court to grant interim injunctive relief pending an administrative determination on the merits. This issue is related to, but quite distinct from, the issue of the necessity for the exhaustion of administrative remedies before an adjudication on the merits may be obtained in a court. Clearly, what is sought in an action such as the case at bar is not a determination on the merits that will be binding upon the administrative agency before that agency has had an opportunity to complete its procedures, but an interim form of relief to prevent irreparable damage to the parties or the public interest pending the outcome of an administrative determination.

The All Writs Act, 28 U.S.C. Section 1651(a) empowers the federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." To this effect in McClellan v. Carland, 217 U.S. 268, 280, 30 S.Ct. 501, 504, 54 L.Ed. 762 (1910), the Court held: "(w)e think it the true rule that where a case is within the appellate jurisdiction of the higher court a writ ... may issue in aid of the appellate jurisdiction which might otherwise be defeated ..." And in Roche v. Evaporated Milk Assn., 319 U.S. 21, 25, 63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943) the Court stated that the authority of the appellate court "is not confined to the issuance of writs in aid of a jurisdiction already acquired by appeal but extends to those cases which are within its appellate jurisdiction although no appeal has been perfected." Similarly, decisions of the United States Supreme Court "have recognized a limited judicial power to preserve the court's jurisdiction or maintain the status quo by injunction pending review of an agency's action through the prescribed statutory channels ... Such power has been deemed merely incidental to the court's jurisdiction to review final agency action ..." Arrow Transp. Co. v. Southern R. Co., 372 U.S. 658, 671 n. 22, 83 S.Ct. 984, 991 n. 22, 10 L.Ed.2d 52 (1963). There the Court cited Scripps-Howard Radio Inc. v. Federal Trade Communications Comm'n, 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229 (1942); West India Fruit & S. S. Co. v. Seatrain Lines, Inc., 170 F.2d 775 (2 Cir. 1948); and Board of Governors v. Transamerica Corp., 184 F.2d 311 (9th Cir.) cert. den., 340 U.S. 883, 71 S.Ct. 197, 95 L.Ed. 641 (1950).

Certainly, the power to issue such relief is necessary because of the possibility of irreparable harm, but as the Court made clear in Scripps-Howard Radio, supra, the exercise of the power is discretionary:

If the administrative agency has committed errors of law for the correction of which the legislature has provided appropriate resort to the courts, such judicial review would be an idle ceremony if the situation were irreparably changed before the correction could be made. (But) ... "(a) stay is not a matter of right, even if irreparable injury might otherwise result to the appellant. (Citation omitted.) It is an exercise of judicial discretion. The propriety of its issue is dependent upon the circumstances of the particular case." (Citations omitted.)¹⁰

Nevertheless, cases such as those cited herein were distinguished by the Court in Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1973), which dictated that in cases dealing with the availability of equitable relief to discharged government employees several factors must be given serious consideration. These factors were:

"The District Court, exercising its equitable powers, is bound to give serious weight to the obviously disruptive effect which the grant of the temporary relief awarded here was likely to have on the administrative process. When we couple with this consideration the historical denial of all equitable relief by the federal courts in cases such as White v. Berry, 171 U.S. 366, 18 S.Ct. 917, 43 L.Ed. 199 (1898), the well-established rule that the Government has been granted the widest latitude in the...