Steinagel v. Jacobson, C-3-79-365.

• Decision Date: 04 November 1980
• Docket Number: No. C-3-79-365.,C-3-79-365.
• Citation: 507 F. Supp. 288
• Parties: Werner G. STEINAGEL, Plaintiff, v. Raymond JACOBSON et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

507 F. Supp. 288

Werner G. STEINAGEL, Plaintiff, v. Raymond JACOBSON et al., Defendants.

No. C-3-79-365.

United States District Court, S. D. Ohio, W. D.

November 4, 1980.

David L. Hall, Dayton, Ohio, for plaintiff.

Donetta D. Wiethe, Asst. U. S. Atty., Dayton, Ohio, for defendants.

DECISION AND ENTRY ON MOTIONS; PLAINTIFF GIVEN LEAVE TO AMEND COMPLAINT; ACTION DEFERRED ON OTHER MOTIONS

RICE, District Judge.

The captioned cause came to be heard upon Defendants' motion, seeking an Order of the Court: dismissing the Complaint for the reason that the Court lacks subject matter jurisdiction or because venue is improper, pursuant to F.R.C.P. 12(b)(1), (3); or, alternatively, entering summary judgment in Defendants' favor, pursuant to F.R.C.P. 56; or, alternatively, dismissing the Complaint as to the Defendant Raymond Jacobson for reason that he is not a proper party, pursuant to F.R.C.P. 21.

The Plaintiff, Werner G. Steinagel, is a former United States Marshal who was discharged from that position in September, 1978, and who has exhausted all available administrative remedies in an unsuccessful attempt to regain his employment since that time. In addition to Raymond Jacobson, who is the former Executive Director of the United States Civil Service Commission, the Defendants are the unnamed Director of the Merit Systems Protection Board, the United States Attorney General (Benjamin Civiletti), and the Director of the United States Marshals Service (William E. Hall).

Plaintiff's cause is based on allegations that his discharge: (1) was arbitrary, capricious, an abuse of the employing agency's discretion, and not in accordance with law; (2) was obtained without the agency's compliance with procedures required by law; and (3) was not supported by substantial evidence of cause for discharge. Plaintiff demands that the agency's decision to terminate his employment be reversed, and that he be reinstated to his position with back pay and other appropriate compensation.

At the threshold, this Court is confronted with a complex question of subject matter jurisdiction, the resolution of which will not only determine whether this action (or any part thereof) may proceed in a federal district court, but may also determine, in considering venue, whether the action should proceed in this particular district court.

The Complaint predicates jurisdiction on 28 U.S.C. § 1343(4) (concerning actions for relief under federal civil rights statutes), 28 U.S.C. § 1346(a) (concerning, in relevant part, claims against the United States not exceeding $10,000), and 28 U.S.C. § 1346(b) (concerning actions on tort claims against the United States). In memorandum, Plaintiff says that if jurisdiction cannot be founded upon these statutes, then leave to amend will be requested, pursuant to 28 U.S.C. § 1653, to allege jurisdiction under 28 U.S.C. § 1331 (general federal question jurisdiction) and 28 U.S.C. § 1361 (concerning actions in the nature of mandamus).

The Court concludes that jurisdiction over Plaintiff's cause, herein, certainly cannot be founded on either Section 1343(4) or Section 1346(b). Although, as Plaintiff contends, employment rights may, under some circumstances, constitute property rights of constitutional dimension and in that sense thereby be considered "civil rights," the statutes respecting federal civil service employment cannot be considered "Acts of Congress providing for the protection of civil rights" for purposes of Section 1343(4). Plaintiff's contention is similar to that rejected by the Supreme Court in Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979), wherein the "arguable" characterization of social security benefits as "civil rights" was held not to warrant jurisdiction of an action arising under the Social Security Act upon the "more restrictive meaning of `civil rights' as used in the jurisdictional statute." Id. at 621, 99 S.Ct. at 1917. Rather, it appears that the "civil rights" comprehended by Section 1343(4) are those rights in the nature of personal liberties (i. e., freedom of speech, press, religion, voting rights), and not those dependent for their existence upon property rights. Id. at 623, 99 S.Ct. at 1919, citing McCall v. Shapiro, 416 F.2d 246, 249 (2d Cir. 1969). (By the same token, and contrary to Defendants' contention, herein, the Court understands that there is no requirement that a deprivation of appropriate "civil rights" be under color of state law (as opposed to "under color of federal law") for purposes of Section 1343(4). Chapman at 619-20 n. 38, 99 S.Ct. at 1917 n. 38).

By its terms, Section 1346(b) only provides jurisdiction to the extent that the sovereign has waived its immunity under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, and established a corresponding remedy therein. However, it is "beyond question" that claims based upon wrongful discharge under a contract of federal employment are "wholly alien" to the remedy provided for tortious conduct under the Federal Tort Claims Act. Young v. United States, 498 F.2d 1211, 1218 (5th Cir. 1974). As succinctly stated in Wham v. United States, 458 F.Supp. 147, 151 (D.S.C.1978):

Congress has provided remedies for review of administrative decisions to remove employees; however, the Federal Tort Claims Act is not considered one of them.

The remedy for review of federal employee discharges currently provided by Congress is set forth in 5 U.S.C. § 7703(b)(1), Civil Service Reform Act of 1978, § 205, P.L. 95-454, 92 Stat. 1111, 1143, which authorizes such review only in the Court of Claims or a United States Court of Appeals. However, because Plaintiff's discharge occurred prior to the effective date of Section 7703(b)(1), jurisdiction to review his discharge must be determined "as if this Act had not been enacted." Civil Service Reform Act of 1978, § 902(b), P.L. 95-454, 92 Stat. 1111, 1224. See Glenn v. Merit Systems Protection Board, 616 F.2d 270, 271 (6th Cir. 1980).

The courts authorized to review federal administrative decisions, including personnel actions prior to the enactment of Section 7703(b)(1), are defined by 5 U.S.C. § 703. Section 703 provides in pertinent part:

The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction.

In turn, the jurisdictional competency of potential courts of review must be determined by reference to specific statutory grants of jurisdiction, the applicability of which depend in many instances upon the type of relief sought by the discharged employee. Thus, where the employee seeks reinstatement upon review of his discharge, and where such reinstatement may be properly characterized as relief in the nature of mandamus (i. e., reinstatement is a "clear duty" owed to plaintiff), federal district court jurisdiction may be properly founded upon 28 U.S.C. § 1361. Similar relief, characterized as "restoration to office or position," may also be obtained in the Court of Claims under 28 U.S.C. § 1491.

Moreover, where monetary relief is sought from the government under the Back Pay Act, 5 U.S.C. § 5596, the district court has jurisdiction over such claim for relief up to $10,000 under 28 U.S.C. § 1346(a)(2), and the Court of Claims has concurrent jurisdiction, again, under Section 1491. However, where requested monetary relief exceed $10,000, jurisdiction over such claim lies exclusively in the Court of Claims under Section 1491.

The interrelationship between and operation of Sections 1346(a)(2), 1361, and 1491, in the context of the present case may be properly summarized as follows:

Presently, then, in an officer or employee case, if the back pay that is sought is $10,000 or under, he has a choice of proceeding in the district court or the Court of Claims and may obtain full relief in either court. If his claim is for more than $10,000, he must proceed in the Court of Claims in order to obtain both reinstatement and full back pay.

1 Moore's Federal Practice ¶ 0.652.-3 at 700.110-.111 (emphasis added; footnotes deleted).

Therefore, upon amendment of Plaintiff's Complaint to plead jurisdiction under 28 U.S.C. §§ 1331, 1361 (in addition to 28 U.S.C. § 1346(a)(2) as already pleaded), this Court concludes that it would have jurisdiction to hear Plaintiff's claims for reinstatement and back pay, provided that Plaintiff's claim for back pay does not exceed $10,000 in amount.

The Court notes that the Complaint does not presently set forth the specific amount of back pay claimed by Plaintiff. It is, of course, the Plaintiff's burden to sufficiently allege all pertinent factual prerequisites to jurisdiction, and this principle applies as much to pleading the $10,000 ceiling under Section 1346(a)(2), as it does, for example, to pleading the $10,000 floor in 28 U.S.C. § 1332(a). F.R.C.P. 8(a)(1); Konecny v. United States, 388 F.2d 59, 62 (8th Cir. 1967); Squalls v. Union Fidelity Life Insurance Company, 437 F.Supp. 971 (N.D.Ill. 1977). Therefore, Plaintiff must amend his Complaint to allege the maximum amount of back pay claimed. Moreover, the amount pleaded must be exclusive of anticipated setoffs for which the government may or may not counterclaim. Larsen v. Hoffman, 444 F.Supp. 245 (D.D.C.1977). However, Plaintiff may elect to claim only $10,000 even if more than that is due him, provided that he waives his claim to the excess. Vander Molen v. Stetson, 571 F.2d 617, 619 n. 2 (D.C.Cir.1977). If, in accordance with these principles, Plaintiff amends the Complaint to claim back pay less than $10,000 in amount, then a District Court will have jurisdiction over the entirety of Plaintiff's cause.

If, however, Plaintiff's claim for...