Palmer v. Walsh, Civ. No. 3571.

• Decision Date: 28 May 1948
• Docket Number: Civ. No. 3571.
• Citation: 78 F. Supp. 64
• Parties: PALMER v. WALSH.
• Court: U.S. District Court — District of Oregon

78 F. Supp. 64

PALMER v. WALSH.

Civ. No. 3571.

District Court, D. Oregon.

May 28, 1948.

Francis E. Harrington, of Portland, Or., for plaintiff.

Henry L. Hess, U. S. Atty., and Edward B. Twining, Asst. U. S. Atty., both of Portland, Or., for defendant.

DRIVER, District Judge.

This action was brought by plaintiff, a former civil service employee of the War Department, against the District Engineer of the Portland District of that Department. For the purpose of this opinion, it is not necessary to detail the facts. It is sufficient to state that plaintiff contends she was wrongfully separated from her employment by defendant's predecessor in office.

Although it is clear that plaintiff desires reinstatement to her former employment or to a comparable position, it is difficult to determine either from her complaint or from the pre-trial order which supercedes the pleadings, the specific character of the relief which she seeks. However, the action can conceivably be treated only in three ways (1) as in the nature of a petition for a writ of mandamus (2) as a suit for a declaratory judgment, or (3) as a suit for a mandatory injunction.

If plaintiff's action be considered as a petition for a writ of mandamus, the case of Petrowski v. Nutt, 9 Cir., 161 F.2d 938, cert.den. 68 S.Ct. 659, is controlling. There a writ of mandamus was sought against the Commanding Officer of Hickam Field, Hawaii, to restore petitioner to a Civil Service Position from which he claimed he had been illegally removed. The District Court's dismissal of the petition for want of jurisdiction was affirmed by the Ninth Circuit Court of Appeals. The opinion treats the subject of jurisdiction as follows:

"District Courts of the United States have no original jurisdiction to issue writs of mandamus in the absence of constitutional or statutory provisions conferring such jurisdiction. While it is clear that Congress has the power to confer original jurisdiction in mandamus on district courts, and has done so in certain instances, the statutory delegation in each instance has expressly enumerated and designated the court as being a district court and the writ as being a writ of mandamus. None of these instances of legislative authorization are applicable to the facts of this case. * * *"

"* * * Section 262 of the Judicial Code, 28 U.S.C.A. § 377, by its terms confers jurisdiction upon district courts to issue all writs not specifically provided for by statute. * * * Under this section, district courts may issue writs of mandamus when necessary to the exercise of their jurisdiction but not as original writs in any case. In this state of the law, the writ, when issued, would necessarily be auxiliary or ancillary in character and fashioned to preserve the jurisdiction given by other and original processes.

"Appellant advances the untenable argument that a rule peculiar to the practice in the district courts of the District of Columbia is applicable to his case. Those courts, in addition to being Federal Courts, are also charged with enforcement of the domestic law, and by the Act of 1801, 2 Stat. 103, creating them, they inherited jurisdiction in accordance with the laws of the State of Maryland then existing in the ceded area, which includes jurisdiction to issue writs of mandamus in original proceedings. See 34 Am.Jur., Mandamus, Sec. 18."

If the instant action be viewed as asking for a declaratory judgment of plaintiff's rights, the court lacks jurisdiction of the cause, since it is undisputed that the Declaratory Judgment Act, 28 U.S.C.A. § 400, did not enlarge the jurisdiction of the District Courts of the United States. See Putnam v. Ickes, 64 App.D.C. 339, 78 F.2d 223, at page 226 cert.den. 296 U.S. 612, 56 S.Ct. 132, 80 L.Ed. 434, in which it was said: "The right of the court to assume jurisdiction is to be determined by the principles laid down in the Judicial Code. The Declaratory Act is in no respect amendatory of the Judicial Code either directly or by implication. If Congress had intended by this act to extend the jurisdiction of the courts in cases arising under it, it would have so stated in the act, and, in the absence of such statement or language clearly implying such intent, the act must be limited to the jurisdiction expressed therein."

See also Chicago Pneumatic Tool Company v. Ziegler, 3 Cir., 151 F.2d 784, 788 and United States ex rel. Jordan v. Ickes, 79 U.S.App.D.C. 114, 143 F.2d 152, 153, Cert.den. 320 U.S. 801, 64 S.Ct. 432, 88 L.Ed. 484.

The effect of the Declaratory Judgment Act in regard to the power to issue writs of mandamus was specifically considered in Doehler Metal Furniture Co. v. Warren, 76 U.S.App.D.C. 60, 129 F.2d 43, at page 45, cert.den. 317 U.S. 663, 63 S.Ct. 64, 87 L.Ed. 533, in an opinion written by Associate Justice Vinson for the U. S. Court of Appeals for the District of Columbia, in an action against the Comptroller General of the United States: "As pointed...