Jarecki v. U.S.

• Decision Date: 23 February 1979
• Docket Number: No. 78-1320,78-1320
• Citation: 590 F.2d 670
• Parties: Edward JARECKI et al., Plaintiffs-Appellants, v. UNITED STATES et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 670

590 F.2d 670

Edward JARECKI et al., Plaintiffs-Appellants, v. UNITED STATES et al., Defendants-Appellees.

No. 78-1320.

United States Court of Appeals Seventh Circuit.

Argued Sept. 25, 1978.

Decided Jan. 9, 1979.

Rehearing and Rehearing En Banc Denied Feb. 23, 1979.

Kenneth L. Cunniff, Chicago, Ill., for plaintiffs-appellants.

Gabriel N. Steinberg, Asst. U. S. Atty., Chicago, Ill., for defendants-appellees.

Before FAIRCHILD, WISDOM ^* and PELL, Circuit Judges.

WISDOM, Circuit Judge.

Three uniformed civilian guards, who were denied appointment to the Federal Protective Service (FPS), brought this suit against the United States and against the regional directors of the General Services Administration (GSA) and the Civil Service Commission for the Chicago area. In the complaint and on appeal, the plaintiffs pursued two separate courses. They challenged, in Count I of the complaint, the legality of the FPS. In Count II, they alleged that the government's refusal to reclassify them as Federal Protective Officers was an abuse of discretion. The district court dismissed the complaint for lack of subject matter jurisdiction and failure to state a claim on which relief can be granted. We affirm the district court's dismissal of Count I; we also affirm the dismissal of Count II but on the alternative ground that the plaintiffs have not exhausted available administrative remedies.

I.

According to the complaint, the GSA employed for many years uniformed civilian guards as special police to protect federal buildings under its control. When these buildings became a target of terrorist activity, the GSA thought it necessary to employ federal officers capable of doing more hazardous protective work than was expected of the uniformed guards. In 1971, the GSA created the Federal Protective Service to meet this need. FPS officers were required to pass a training course in various aspects of police work, including the use of firearms and the detection of bombs, and were held to rigorous physical fitness standards. In turn, the officers were classified by the Civil Service Commission in the "police position" series and, as a result, they received higher GS grades than do uniformed guards. In addition, geographical pay adjustments are allocated from time to time to members of the police series.

The GSA continues to appoint uniformed guards to the FPS, but now it also recruits from outside sources. Moreover, the guards, like new applicants, must first pass an examination conducted by the Civil Service Commission which includes the training course in police work and a physical examination. The plaintiffs applied for appointment to the FPS in 1974. Although they successfully completed a month-long training course, both Mr. Martynowski and Mr. Swiatly failed the physical examination. According to the allegations in their complaint, they suffered from "diabetes, ulcers, overweight problems and various anatomical deformities". Mr. Jarecki refused to take the physical examination insisting that as a veteran, a status shared by the other plaintiffs, he is exempt from this requirement.

In their complaint, the plaintiffs asked the district court to grant two basically inconsistent forms of relief: either to order the GSA to abandon the FPS and revert to its pre-1971 practice of appointing only uniformed guards to act as special police or, instead, to order the GSA and Civil Service Commission to reclassify the uniformed guards as FPS officers. They also requested back pay, reflecting the difference between the salaries of guards and that of FPS officers, computed from the time the plaintiffs passed the training course.

II.

We address first the plaintiffs' request for an order that would compel the GSA to draw all special police from the ranks of the uniformed guards. The plaintiffs contend that jurisdiction to grant this relief is conferred by the mandamus statute, 28 U.S.C. § 1361, which permits a federal court to compel an officer of the United States "to perform a duty owed to the plaintiff". ¹ According to the plaintiffs, a statutory duty to appoint only uniformed guards is imposed upon the GSA by the Protection of Public Property Act, 40 U.S.C. § 318, which provides in part that:

"The (General Services) Administrator . . . may appoint uniformed guards of said administration as special policemen without additional compensation for duty in connection with the policing of public buildings . . . Such special policemen shall have the same powers as sheriffs."

Mandamus is a powerful and unusual remedy that issues only in carefully circumscribed situations. It is traditionally available to compel a ministerial duty owed by the agency and then only when the statute defining that duty is "clear and free from doubt". Smith v. Grimm, 9th Cir. 1976, 534 F.2d 1346, 1352; McClendon v. Blount, 7th Cir. 1971, 452 F.2d 381, 383; Hammond v. Hull, 1942, 76 U.S.App.D.C. 301, 303, 131 F.2d 23, 25, Cert. denied, 1943, 318 U.S. 777, 63 S.Ct. 830, 87 L.Ed. 1145. The language of the Protection of Property Act, however, is not mandatory. The statute does not, on its face, compel the appointment of uniformed guards as special police; it states that the GSA "may" appoint the guards at no additional compensation. Were we to adhere strictly to the traditional view of mandamus, our discussion would end with that observation.

The plaintiffs ask us, however, to consider the legislative history of Section 318 in determining whether there is a duty imposed by Section 318 that is subject to mandamus. Some courts have held that the need to construe a statute does not deprive the court of jurisdiction under Section 1361, acknowledging that a duty often becomes ministerial "only after a court has reached its own judgment about a disputed legal question and its application to a factual situation." Seaton v. Texas Co., 1958, 103 U.S.App.D.C. 163, 168, 256 F.2d 718, 723, Quoted in Haneke v. Secretary of Health, Ed. & Welfare, 1976, 175 U.S.App.D.C. 329, 334, 535 F.2d 1291, 1296 n.16. Commentators, too, urge that we break away from the "clear and free from doubt" standard, and recognize that mandamus cases, like other suits for specific relief, present the question whether the administrative action complained of falls outside the scope of authority delegated to the executive department and is, therefore, subject to judicial control. ² We shall look to the legislative history of Section 318, therefore, to see what light it throws on the question.

Before the enactment of Section 318, the Commissioner of Public Buildings was granted statutory authority to appoint federal employees as special policemen in the District of Columbia, 43 Stat. 175 (May 27, 1924) and outside the District during the period of national emergency. 56 Stat. 1000 (October 26, 1942). Formerly, the government had relied on state police to perform all necessary protective work in the area outside the District. It became apparent, however, that state police would often be unavailable or without jurisdiction to act on newly acquired federal property. Section 318, therefore, removed all limitations on the Commissioner's power to use federal officers. It also made clear that federal officers performing special protective duties were authorized to make arrests and must be recognized by courts as arresting officers. 1948 U.S.Cong. Service 1627.

The history amply supports the GSA's position that it has the power to establish the FPS. Whether the GSA exercises its authority by appointing employees to special police duties from time to time or by creating a permanent position for federal officers who act only as special police is immaterial.

The more serious contention of the plaintiffs is that Congress deprived the GSA of all elements of choice in selecting the personnel of the FPS when it enacted Section 318. The version of the bill presented to the House of Representatives contained no references to uniformed guards and, indeed, the 1942 statute on which Section 318 was modeled granted authority to appoint federal "employees". The bill was amended in the Senate, however, "so as to make clear that only uniformed guards are to be appointed as special policemen, since they are the ones who are carefully selected and trained for police service". Senate Report No. 1176.

It may well be that Congress specifically authorized the GSA to draw only upon the uniformed guards to serve as police officers. But the limitation to guards was, at most, intended as a means of ensuring capable personnel. The congressional purpose behind Section 318 would be subverted by requiring the GSA, at this stage, to respect the technical limitation to guards at the price of not employing qualified officers for police work. ³ We hold, therefore, that the GSA did not depart from its delegated authority when it chose to bypass the limitation to guards in favor of discharging its principal statutory duty to appoint carefully trained federal officers for the protection of federal buildings.

Our reading of the legislative history of Section 318 leads us to the conclusion that the plaintiffs also lack standing to seek an order against the GSA. A primary factor in deciding whether the requirement of standing is met is whether "the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute . . . in question". Data Processing Service v. Camp, 1970, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d 184. This aspect of the requirements of standing is succinctly incorporated into the mandamus statute. Section 1361 states that mandamus is proper to compel a duty "running directly to the plaintiff". In our view, Section 318 was designed to enable the GSA to discharge its duty to the public and to the government to protect federal property; the reference in the statute to the uniformed guards is merely an incident of this design. Since the statute does not...