Medina v. United States, Civ. No. 79-0296.

• Court: U.S. District Court — District of Puerto Rico
• Writing for the Court: CEREZO
• Citation: 541 F. Supp. 719
• Docket Number: Civ. No. 79-0296.
• Decision Date: 23 June 1982
• Parties: Andres Serrano MEDINA, Plaintiff, v. UNITED STATES of America, Commanding Officer of the Naval Station, Roosevelt Roads, Puerto Rico Antilles Consolidated School System, Defendants.

541 F. Supp. 719

Andres Serrano MEDINA, Plaintiff,
v.
UNITED STATES of America, Commanding Officer of the Naval Station, Roosevelt Roads, Puerto Rico Antilles Consolidated School System, Defendants.

Civ. No. 79-0296.

United States District Court, D. Puerto Rico.

June 23, 1982.

541 F. Supp. 720

Robert J. Walser, San Juan, P.R., for plaintiff.

Vilma J. Vilá Sellés, Asst. U. S. Atty., Hato Rey, P.R., for defendants.

MEMORANDUM OPINION AND ORDER

CEREZO, District Judge.

The complaint filed on January 25, 1979 alleges that defendants' action in revoking plaintiff's authorization to enter the Navy Base in Roosevelt Roads, Ceiba, Puerto Rico violated his constitutional rights to a due process of law and equal protection of the laws as well as the negotiated agreement with the Industrial, Technical, Professional and Government Employees Division of the National Maritime Union of America, AFL-CIO, (the Union) and Executive Order 11491. Jurisdiction was originally invoked under 28 U.S.C. Sec. 1346(a)(2). On October 12, 1979 plaintiff amended his complaint essentially for the purpose of asserting jurisdiction under 28 U.S.C. Secs. 1331, 1343, 1346(a)(2), 1346(b) and 42 U.S.C. Sec. 1985.

A motion for summary judgment was filed by plaintiff on June 22, 1979 in which he requested judgment in his favor on the ground that defendants' answers to his interrogatories clearly demonstrate that the reasons for his debarment from the base were not within the exception of Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961) (Cafeteria Workers) to the requirement of a hearing prior to exclusion. Defendants' opposition states that plaintiff erroneously based his position on their objections to his interrogatories, not on their answers, and that the questions asked were unrelated to the issue presented. (Emphasis ours). On December 7, 1979 defendants filed their own motion for summary judgment claiming that the complaint fails to state a cause of action under 42 U.S.C. Sec. 1985 or 5 U.S.C. Sec. 701 and that the Court lacks jurisdiction under 28 U.S.C. Sec. 1343 or Sec. 1346. In addition, they contend that there has been no violation of plaintiff's due process rights and that he failed to exhaust administrative remedies as required by Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-16. Plaintiff opposed this motion on January 22, 1980. A reply and an opposition thereto are also part of the record.

Facts

Plaintiff is a former employee of the Antilles Consolidated School System at the U. S. Naval Station in Roosevelt Roads, Ceiba, P.R., who also operated a taxi within the grounds of the naval station. In order to pursue these occupations, two authorization cards had been issued allowing him to enter the base. It was later found that certain discrepancies and differences existed in these cards.

541 F. Supp. 721

On January 8, 1978, plaintiff and two others were stopped on Navy grounds by Naval Station Security personnel and apprehended because a bag of marihuana was allegedly found in the car they were riding. After some investigation of the incident plaintiff was informed that he would not be permitted to enter the naval base any longer. At the request of plaintiff's attorney a meeting or hearing was held on January 17, 1978 at the office of U. S. Navy Commander Serig in which the matter of his debarment was discussed. No immediate action was taken until March 30, 1978 when the order of debarment became final. Meanwhile, a criminal case pending against plaintiff in the local courts had been set for trial on April 1978. On May 11, 1978, the local charges against plaintiff were dismissed and charges filed in this Court were also dismissed on July 1978. On November 7, 1978, plaintiff requested reinstatement on the ground that the criminal charges had been dismissed. The naval station's commanding officer rejected this request stating that although cleared of criminal charges he was still guilty of possessing fraudulent identification badges in violation of Naval Station regulations and United States laws. Soon afterwards plaintiff filed this complaint.

Jurisdiction

The defendants are the United States of America, the Commanding Officer of the Naval Station at Roosevelt Roads and the Antilles Consolidated School System (Antilles Consolidated). Jurisdiction is asserted under the Tucker Act, as amended, Sections 1346(a)(2) and (b) of Title 28, United States Code, since the action is founded on a contract between the Antilles Consolidated School System and the Union and on a constitutional tort allegedly committed by an officer of the United States. Monetary as well as equitable relief is sought.

The Tucker Act is a jurisdictional statute which authorizes federal district courts to entertain suits against the United States only in the circumstances specified by it. 28 U.S.C. Sec. 1346. Because the jurisdiction of the district court under this Act is concurrent with the Court of Claims, the statute has been construed as not conferring jurisdiction to grant equitable remedies. See: Lee v. Thornton, 420 U.S. 139, 95 S.Ct. 853, 43 L.Ed.2d 85 (1975); Richardson v. Morris, 409 U.S. 464, 93 S.Ct. 629, 34 L.Ed.2d 647 (1973); United States v. Sherwood, 312 U.S. 584, 589-591, 61 S.Ct. 767, 771-772, 85 L.Ed. 1058 (1941). But see United States v. Milliken Imprinting Co., 202 U.S. 168, 173-174, 26 S.Ct. 572, 573-574, 50 L.Ed. 280 (1906). Jurisdiction against the United States for nonmonetary relief, however, has been found to exist under 28 U.S.C. Sec. 1331(a), as amended, and 5 U.S.C. Sec. 702. See: Beller v. Middendorf, 632 F.2d 788, 796-797 (9th Cir. 1980); Sheehan v. Army and Air Force Exchange Service, 619 F.2d 1132, 1138-40 (5th Cir. 1980); Jaffee v. United States, 592 F.2d 712, 718-719 (3rd Cir. 1979), cert. denied 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979). But see: Watson v. Blumenthal, 586 F.2d 925 (2nd Cir. 1978).

Section 1346(a)(2) of Title 28, U.S. Code, limits the jurisdiction of this Court to claims not exceeding $10,000. Jurisdiction for claims which exceed $10,000 lies with the Court of Claims, pursuant to 28 U.S.C. Sec. 1491. Plaintiff is claiming back pay from March 30, 1978 to the time of judgment. Defendants contend that since this amount exceeds $10,000 the Court lacks subject matter jurisdiction over plaintiff's claim for back pay. It has been held, however, that "plaintiff may confer jurisdiction upon a district court pursuant to the Tucker Act by waiving any damages in excess of $10,000." Di Luigi v. Kafkalas, 437 F.Supp. 863, 870 (M.D.Pa.1977) (citations omitted), vacated on other grounds 584 F.2d 22 (3rd Cir. 1978), cert. denied 440 U.S. 959, 99 S.Ct. 1500, 59 L.Ed.2d 772. Plaintiff in this case has waived all damages against the United States in excess of $10,000, therefore, jurisdiction is not barred by his original claim.

Jurisdiction under section 1346(a)(2) is based upon the negotiated agreement signed between the Industrial, Technical,

541 F. Supp. 722

Professional and Government Employees Division of the National Maritime Union of America, AFL-CIO, and the Antilles Consolidated Schools Cafeteria Fund, Fort Buchanan, P.R., pursuant to Executive Order 11491, as amended, reprinted as a note in 5 U.S.C.A. Sec. 7101 (1980). Antilles Consolidated is a nonappropriated fund instrumentality which, as the name implies, does not receive its monies by congressional appropriation. See: United States v. Hopkins, 427 U.S. 123, 125, n. 2, 96 S.Ct. 2508, 2510, n. 2, 49 L.Ed.2d 361 (1976). For this reason, "the government assumes none of the financial obligations of the instrumentality." Id., at 124, 96 S.Ct. at 2509, quoting (Standard Oil Co. v. Johnson, 316 U.S. 481, 485, 62 S.Ct. 1168, 1170, 86 L.Ed. 1611 (1942)). Until the 1970 amendment to the Tucker Act, Pub.L.No. 91-350, Sec. 1(a), 84 Stat. 449, district courts lacked any authority to enforce obligations assumed by nonappropriated funds instrumentalities against the Federal Government. In 1970, the Act was amended to expressly provide that contracts with certain nonappropriated fund instrumentalities shall be considered contracts with the United States (emphasis ours). However, as...