De Leon Cruz v. Loubriel, Civ. No. 81-2107.

• Decision Date: 05 May 1982
• Docket Number: Civ. No. 81-2107.
• Citation: 539 F. Supp. 250
• Parties: Santos DE LEON CRUZ, Plaintiff, v. Wilson M. LOUBRIEL, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

539 F. Supp. 250

Santos DE LEON CRUZ, Plaintiff, v. Wilson M. LOUBRIEL, et al., Defendants.

Civ. No. 81-2107.

United States District Court, D. Puerto Rico.

May 5, 1982.

Noel Zamot, Hato Rey, P.R., for plaintiff.

Howard Charles, Fed. Lit. Div., Dept. of Justice, San Juan, P. R., Curbelo & Nuñez, Hato Rey, P. R., for defendants.

OPINION AND ORDER

GILBERTO GIERBOLINI, District Judge.

Plaintiff in this case, a veteran employed by the Ports Authority of Puerto Rico (the Authority or Agency) is trying to invalidate in this court a transfer ordered by the Agency from its present assignment as Recruitment Specialist to one as Budget and Systems and Methods Specialist. The transfer ordered by the Agency is characterized as discriminatory by plaintiff, who filed this action requesting injunctive relief and damages against the Agency and its principal officers.

We denied the temporary restraining order requested and thereafter ordered plaintiff to show cause why this action should not be dismissed for lack of jurisdiction.

Plaintiff has appeared and filed a memorandum of law in support of his contention that this court has jurisdiction pursuant to 38 U.S.C. Section 2012. (Pub.L. 94-502 Title VI, Sections 605, 607(2) Oct. 15, 1976, 90 Stat. 2405). After examining plaintiff's arguments and the law upon which he relies we remain unpersuaded. The conclusion that we lack jurisdiction to entertain the complaint herein is inescapable and consequently this action shall be dismissed.

The facts of the case which are not in controversy show that plaintiff is a disabled veteran who has been employed by the Ports Authority of Puerto Rico as Recruitment Specialist. The plaintiff is a "handicapped individual" within the meaning of the Rehabilitation Act of 1973. (29 U.S.C. § 706(6)) By letter of October 15, 1981 the Executive Director of the Authority notified plaintiff that he was being transferred from his position as stated before to one as Budget Specialist, Systems and Methods in the Budget Office of the Authority. It has not been alleged that the transfer ordered entails any decrement in plaintiff's status or salary. Likewise, there is no allegation that the work conditions will be worse in the new assignment and although not totally clear, it seems that the physical location of the office to which plaintiff has been assigned is located in the same building or general area as before.

Title 38 U.S.C. Section 2012(b) controls and it now reads as follows:

"(b) If any special disabled veteran or veteran of the Vietnam era believes any contractor of the United States has failed to comply or refuses to comply with the provisions of the contractor's contract relating to the employment of veterans, the veteran may file a complaint with the Secretary of Labor, who shall promptly investigate such complaint and take appropriate action in accordance with the terms of the contract and applicable laws and regulations."¹

Since no complaint was filed by plaintiff with the Veterans Employment Service of the Department of Labor prior to the present action, as mandated by Section 2012(b) and since he has ignored the administrative scheme devised by Congress, the complaint filed in this court cannot prevail. See Marin v. New York Dept. of Labor, 512 F.Supp. 353 (S.D.N.Y.1981).

Furthermore, it seems clear to us that no private cause of action is established in section 2012 for an aggrieved veteran to file in federal court. By its clear terms the remedy afforded is to be obtained through the mechanism mentioned therein: by filing a complaint with the Veterans Employment Service of the Department of Labor.

A basic principle of statutory construction is that when legislation expressly provides a remedy, the courts should not expand the coverage of the statute to subsume other remedies. Nat. R. R. Passenger Corp. v. Passenger Assn., 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646. If the statute provides the way in which a remedy is to be obtained, such a command negates the use of any other way. "But even the most basic principles of statutory construction must yield to clear contrary evidence of legislative intent." Neuberger v. Commissioner, 311 U.S. 83, 61 S.Ct. 97, 85 L.Ed. 58 (1940).

In accordance with the above, we turn now to the legislative intent of 38 U.S.C. 2012. Senate Report No. 94-1243, U.S.Code Cong. & Admin.News 1976, p. 5241, regarding the Veterans Education and Employment Assistance Act of 1976, (P.L. 94-502, 90 Stat. 2383)² reads as follows in its pertinent part:

"Section 605 — This section amends section 2012 concerning veterans' employment emphasis under Federal contracts to require the Secretary to include in the annual report (required by section 2007) detailed information as to complaints filed pursuant to section 2012(b). Under 2012(a) each party contracting with the United States in the amount of $10,000 or more for the procurement of personal property and nonpersonal services (including construction) is required `to take affirmative action to employ and advance in employment qualified disabled veterans and veterans of the Vietnam era.' Although this unneeded provision was included as section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974, regulations implementing the section only became effective on July 28, 1976.

The Committee intends that the complaint procedures outlined in section 2012(b) to afford remedies to those disabled and Vietnam era veterans who believe that a contractor has failed to comply with the affirmative action provisions be actively implemented and enforced by the Department of Labor. In this connection the Committee is deeply distressed over the failure of the United States Employment Service to seek greater compliance with the mandatory listing requirements codified at section 2007. The Committee believes that inclusion in the annual report of the number of complaints filed pursuant to section 2012(b) of the action taken thereof, and the resolution thereof will provide additional information to enable the Committee to gauge the effectiveness and efficiency of the affirmative action program.

Section 605 also requires the Secretary to include in his annual report the number of contractors listing suitable employment...