Radin v. U.S., 82-1456

• Citation: 699 F.2d 681
• Decision Date: 27 January 1983
• Docket Number: No. 82-1456,82-1456
• Parties: 112 L.R.R.M. (BNA) 2560, 96 Lab.Cas. P 14,004 Michael G. RADIN, Appellant, v. UNITED STATES of America and National Mediation Board, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 681

699 F.2d 681

112 L.R.R.M. (BNA) 2560, 96 Lab.Cas. P 14,004

Michael G. RADIN, Appellant, v. UNITED STATES of America and National Mediation Board, Appellees.

No. 82-1456.

United States Court of Appeals Fourth Circuit.

Submitted Dec. 2, 1982.

Decided Jan. 27, 1983.

Harry L. Gastley, Gabeler & Gastley, McLean, Va., on brief, for appellant.

Elsie L. Munsell, U.S. Atty., Nash W. Schott, Asst. U.S. Atty., Alexandria, Va., on brief, for appellees.

Before RUSSELL and PHILLIPS, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

JAMES DICKSON PHILLIPS, Circuit Judge:

Michael G. Radin appeals the dismissal of his action against the United States and the National Mediation Board for allegedly violating his fifth amendment right to due process. Radin, a railroad employee who was dismissed for violating the terms of a collective bargaining agreement, alleged that the defendants deprived him of his statutorily guaranteed right to notice and an opportunity to challenge his dismissal. The district court granted defendants' motion to dismiss, finding that the suit against the United States was barred by sovereign immunity and that the National Mediation Board was not a proper defendant in the action. We affirm.

I

Radin was hired by the Penn Central Transportation Company in 1974 as a police officer. He was a member of Teamster Local No. 732, which had a collective bargaining agreement with Penn Central. In January of 1976, Radin was accused of violating the collective bargaining agreement by submitting falsified overtime claims and failing to remit to Penn Central certain fees and mileage payments he had received for court appearances on behalf of his employer. Radin appeared at a hearing held in the Office of the Captain of Police, where he was represented by his union steward. After being found guilty as charged, Radin was dismissed on February 7, 1976.

Pursuant to the grievance procedure contained in the bargaining agreement, Radin appealed his dismissal to a Penn Central executive. On March 8, 1976, the dismissal was sustained and Radin, again through his union representative, appealed the decision to a regional board of adjustment. ¹ He requested a hearing and notice of the hearing date, which he was entitled to receive under 45 U.S.C. Sec. 153 First (j) and (x). ² Radin became concerned when almost four months passed without a response from the regional board, so he directed his retained counsel to inquire about the status of the appeal. Counsel inquired by letter dated July 12, 1982, and in return received a letter from the regional board on July 15, 1982, stating that the hearing was scheduled for that day. The regional board considered the appeal that day, despite Radin's absence and lack of due notice, and issued a decision on August 5, 1976, sustaining the dismissal.

Radin commenced this action on December 23, 1981, more than five years after the final decision at the highest level of the grievance mechanism contained in the collective bargaining agreement. His theory was that the regional board's failure to give him notice and an opportunity to be heard deprived him of his fifth amendment right to due process. He joined the National Mediation Board, as the federal agency that oversees regional boards, and the United States, as the ultimate overseer of its own agencies, as the defendants allegedly responsible for this deprivation of a constitutional right. Radin requested various forms of redress, including injunctive and declaratory relief, monetary damages, reinstatement, costs and attorneys fees, and a writ of mandamus compelling defendants to grant him a new hearing.

On a motion by defendants, the district court dismissed the suit against the United States because of the bar of sovereign immunity. The court also dismissed the suit against the National Mediation Board, holding that the Board's status as the parent agency of the regional board of adjustment was an insufficient basis for making the Board a defendant in this action. Radin challenges both rulings by the trial court.

II

Radin was employed by a railway carrier and was therefore subject to the grievance procedures provided by the Railway Labor Act, 45 U.S.C. Secs. 151-188. ³ Section 153 First (i) of the Act provides that minor disputes, growing out of grievances or contract interpretation, that cannot be resolved by intra-company negotiation under the collective bargaining agreement shall be referred to the National Railroad Adjustment Board (NRAB), or one of its regional boards, for arbitration. ⁴ The provision for arbitration is not a voluntary undertaking, but rather is compelled by the Act; a discharge grievance is a minor dispute that must be referred to the NRAB for arbitration, and this is the exclusive means by which a railroad employee can directly challenge the validity of his discharge. Andrews v. Louisville & Nashville R.R., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972). ⁵ The award of the NRAB is final and binding, Sec. 153 First (m), but is subject to review in the district court if an employee or carrier is "aggrieved by the failure of ... the Adjustment Board to make an award ... or is aggrieved by any of the terms of an award or by the failure ... to include certain terms in such award...." Section 153 First (q). The party seeking review of an award must file the action within two years after the cause of action accrues under the award of the NRAB. Section 153 First (r).

Radin's most obvious course of action, had he proceeded promptly and in the usual manner, would have been to follow the above procedure in seeking review of the arbitration award upholding his discharge. A regional board of adjustment, acting on behalf of the NRAB pursuant to Sec. 153 First (x), allegedly denied him statutorily mandated due process rights in sustaining his dismissal, and such procedural deprivation by the arbitrators is ground for relief in the district court. Section 153 First (q) specifically provides that the district court can set aside an order "for failure of the [NRAB] to comply with the requirements of this chapter," and that is the basis of Radin's complaint. See also Sheehan v. Union Pac. R.R., 576 F.2d 854 (10th Cir.1978) (deprivation of due process by NRAB in rendering award requires that a new arbitration be conducted).

Unfortunately, Radin did not commence any legal action concerning his discharge until more than five years had passed. ⁶ Time-barred from seeking review of the initial award against him, he attempted the novel approach of suing both the United States and the National Mediation Board directly under a favorable statute of limitations. ⁷ We discuss the actions against these parties separately.

A.

Alleging general federal question jurisdiction under 28 U.S.C. Sec. 1331, Radin attempted to hold the United States liable for the actions of the regional board of adjustment on a theory of respondeat superior. Radin's theory derives from Bivens v. Six Unknown Federal Bureau of Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), where the Supreme Court held that federal officers were subject to personal liability for deprivations of an individual's fourth amendment rights. Bivens was extended to deprivations of fifth amendment due process rights in Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). Radin argues that if a federal officer can be held liable for a fifth amendment deprivation, the United States is likewise liable for fifth amendment deprivations by federal agencies. This theory, a quantum leap from the rationale of Bivens and Davis, fails to clear the hurdle of sovereign immunity.

It is well settled that the United States, as sovereign, is absolutely immune from suit except as Congress specifically provides, and any waivers of immunity are to be strictly construed. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). Unless Congress has consented to a cause of action against the United States, there is no jurisdiction in any court of the land to entertain such suits. United States v. Sherwood, 312 U.S. 584, 587-88, 61 S.Ct. 767, 770, 85 L.Ed. 1058 (1941). Congress has not seen fit to provide the cause of action Radin seeks here. ⁸ Bivens and Davis, which held that sovereign immunity does not shieldfederal officers in their individual capacity from liability for violation of an individual's constitutional rights, did not waive the sovereign immunity of the United States. ⁹ This court, in addressing a similar question in Norton v. United States, 581 F.2d 390, 393 (4th Cir.1978), stated:

While Bivens created a federal tort for certain violations of the Fourth Amendment, it did not (and indeed could not) impose liability on the officer's employer, the federal government. The federal fisc was protected by the traditional doctrine of sovereign immunity.

See also Jaffee v. United States, 592 F.2d 712, 719 (3d Cir.1979). We therefore affirm the district court's ruling that the claim against the United States is barred by sovereign immunity.

B.

We are also unpersuaded by Radin's claim that the National Mediation Board (Board) is a proper party to this action. Initially, any claim for monetary relief against the Board would have to be paid with public funds, thereby making the United States the real party in interest. The claim for damages against this federal agency is barred by sovereign immunity unless Congress has expressly or impliedly consented to suit, see Blackmar v. Guerre, 342 U.S. 512, 515, 72 S.Ct. 410, 411, 96 L.Ed. 534 (1952), and we are unaware of any such consent.

We conclude further that no claim is stated against the Board regardless of the nature of the relief sought. Radin's claims against the Board are premised on the status of the Board as the parent agency of the NRAB and the regional boards of adjustment, but this nexus is too tenuous a basis for holding the Board liable for the acts of those other...