Paterson v. Weinberger, No. 79-1441

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before GODBOLD, Chief Judge, SIMPSON and THOMAS A. CLARK; THOMAS A. CLARK
• Citation: 644 F.2d 521
• Decision Date: 08 May 1981
• Docket Number: No. 79-1441
• Parties: 26 Fair Empl.Prac.Cas. 943, 26 Empl. Prac. Dec. P 31,823 Daniel G. PATERSON, Plaintiff-Appellant, v. Caspar W. WEINBERGER, Secretary of Defense of the United States of America, Defendant-Appellee.

Page 521

644 F.2d 521 26 Fair Empl.Prac.Cas. 943,
26 Empl. Prac. Dec. P 31,823 Daniel G. PATERSON, Plaintiff-Appellant,
v.
Caspar W. WEINBERGER, Secretary of Defense of the United
States of America, Defendant-Appellee. No. 79-1441. United States Court of Appeals,
Fifth Circuit. May 8, 1981.

David T. Lopez, Houston, Tex., for plaintiff-appellant.

Page 522

Robert Darden, Asst. U.S. Atty., Houston, Tex., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GODBOLD, Chief Judge, SIMPSON and THOMAS A. CLARK, Circuit Judges.

THOMAS A. CLARK, Circuit Judge:

In the district court the plaintiff-appellant challenged his forced retirement in 1975 at age 62 from a civilian position with the Army and Air Force Exchange Service ("AAFES"). The district court dismissed the plaintiff's complaint for lack of jurisdiction. We reverse. The complaint in part is certainly subject to certain jurisdictional defects. On the other hand, the defendant made only a "facial attack" and not a "factual attack" on plaintiff's claim of jurisdiction.

The complaint was filed July 21, 1977, and the Secretary answered on October 5, 1977. The docket sheet reflects a pretrial conference with a minute entry that the defendant was to file a motion within two weeks concerning jurisdiction and plaintiff was to respond within 30 days. Before discussing defendant's motion to dismiss for lack of jurisdiction, we will set forth the pertinent allegations of the complaint:

1. This cause arises under the Constitution and statutes of the United States, more specifically under the Fifth Amendment to the Constitution of the United States, 5 U.S.C. § 8335(a), and Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1331, 1361, 2201 and 2202. Venue is prescribed by 28 U.S.C. § 1391(d)(4) (sic).

2. Plaintiff DANIEL G. PATERSON is an adult citizen of the United States of America and a resident of Crosby, Texas. At the time pertinent to this complaint he was employed by the Army and Air Force Exchange Service, an agency of the government of the United States of America, more particularly a non-appropriated fund instrumentality of the Departments of the Army and the Air Force.

....

4. Plaintiff was required to retire upon reaching the age of 62, in contravention of the provisions of Federal statute making retirement mandatory at age 70, and in contravention of the provisions of the Age Discrimination in Employment Act (hereinafter referred to as ADEA).

5. Although the Plaintiff made timely protest and exhausted all administrative channels then known to him, no relief was provided.

6. The Plaintiff's employer failed in its responsibility to inform the Plaintiff of the availability of relief under the ADEA, and when the Plaintiff independently became aware of the provisions of that law, the employing agency, under the direction and supervision of the Defendant, refused to provide relief on the basis that a complaint had not been timely brought.

7. Upon information and belief, the Plaintiff asserts that as to other employees similarly situated, the agency made known the provisions of the ADEA and made arrangements for employees who had been retired at age 62 to return to the employ of the Army and Air Force Exchange Service.

8. Equal consideration for returning to work was not made available to the Plaintiff, thus depriving him of his liberty and property without due process of law.

9. The Plaintiff is a person individually grieved within the meaning of Federal statutes by the actions or omissions of a Federal agency, in this case the Army and Air Force Exchange Service, and, accordingly, the Plaintiff is entitled to seek judicial review and relief under the provisions of the Administrative Procedure Act.

Page 523

The Secretary's motion to dismiss merely alleged that the plaintiff "failed to file any notice of intent to sue with the Civil Service Commission or file his suit within 180 days as provided by 29 USCA § 633a(d)." Defendant alleged that filing of such a notice was a condition precedent and further alleged that plaintiff had not exhausted his administrative remedies. As stated, defendant Secretary filed no affidavit or other facts in support of its Rule 12(b)(1) motion.

The plaintiff failed to file any response to the motion to dismiss as requested by the court at the pretrial conference. The court dismissed the case because plaintiff failed to comply with 29 U.S.C. § 633a(d). ¹ Plaintiff then moved to amend or set aside the judgment on the ground that plaintiff had a fifth amendment claim as well as an Administrative Procedure Act claim which had not been considered by the court. The Secretary then filed another motion to dismiss on November 16, 1978, with a supporting brief. A hearing was conducted, and the complaint was again dismissed for lack of jurisdiction on December 5, 1978, and final judgment was entered on February 23, 1979.

Our first consideration is the distinction between a "facial attack" and a "factual attack" upon the complaint under Fed.R.Civ.Proc. 12(b)(1). Our court, others, and textwriters have dealt with...