Taydus v. Cisneros, Civ. A. No. 94-10326-RCL.

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
• Writing for the Court: LINDSAY
• Citation: 902 F. Supp. 278
• Parties: Thomas S. TAYDUS, Plaintiff, v. Henry CISNEROS, Secretary of the United States Department of Housing and Urban Development, Defendant.
• Decision Date: 06 July 1995
• Docket Number: Civ. A. No. 94-10326-RCL.

902 F. Supp. 278

Thomas S. TAYDUS, Plaintiff,
v.
Henry CISNEROS, Secretary of the United States Department of Housing and Urban Development, Defendant.

Civ. A. No. 94-10326-RCL.

United States District Court, D. Massachusetts.

July 6, 1995.

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COPYRIGHT MATERIAL OMITTED

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Norman Jackman, Norma Roth, Jackman & Roth, Boston, MA, for Plaintiff

Assistant U.S. Atty., Susan Poswistilo, Boston, MA, for Defendant.

LINDSAY, District Judge.

Report and Recommendation accepted.

REPORT AND RECOMMENDATION RE: DEFENDANT'S MOTION TO DISMISS (DOCKET ENTRY # 7)

May 9, 1995

BOWLER, United States Magistrate Judge.

Defendant Henry Cisneros ("defendant"), Secretary of the United States Department

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of Housing and Urban Development, moves to dismiss counts I, II, III and VII of the verified complaint on the basis of sovereign immunity, lack of a private cause of action and failure to state a claim under "Rule 12(b)."¹ (Docket Entry # 7). Plaintiff Thomas S. Taydus ("plaintiff") opposes dismissal. (Docket Entry ## 9, 15, 16 & 22). On January 11, 1995, this court held a hearing and took the motion to dismiss (Docket Entry # 7) under advisement. (Docket Entry # 17)

PROCEDURAL BACKGROUND

Plaintiff, a former job applicant for a temporary position in a regional office of the United States Department of Housing and Urban Development ("HUD"), filed this employment discrimination action under various federal statutes. Plaintiff maintains that defendant violated: (1) section 4214 of The Veterans Readjustment Act ("VRA"), 38 U.S.C. § 4214, and section 791 of The Rehabilitation Act ("The Rehabilitation Act"), 29 U.S.C. §§ 701 et seq. (Count I); (2) section 2108 of The Veterans Preference Act ("VPA"),² 5 U.S.C. § 2108, 5 U.S.C. § 1302(b)³ and the Rehabilitation Act (Count II); (3) the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. (Count III); (4) the Rehabilitation Act and section 3112 (Count IV); (5) the Federal Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA") (Count V); (6) the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (Count VI) and (7) public policy (Count VII). (Docket Entry # 1).

Defendant initially moved to dismiss Count I (violation of the VRA and the Rehabilitation Act), Count II (violation of the VPA and the Rehabilitation Act), Count III (violation of the APA), Count IV (violation of section 3112 and the Rehabilitation Act) and Count VII (violation of public policy). (Docket Entry # 7). Defendant subsequently withdrew its motion to dismiss Count IV which defendant characterizes as arising under sections 791 and 794 of the Rehabilitation Act.⁴ (Docket Entry # 13, n. 1).

Defendant first moves to dismiss the claims based on the VRA, the VPA, the APA and public policy on the basis of sovereign immunity. Second, defendant contends that

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plaintiff has no express or implied private right of action under the VPA, the VRA or for a violation of public policy. Under this contention, defendant also argues that the statutory remedies available under the Civil Service Reform Act ("CSRA")⁵ comprehensively address federal personnel matters and therefore preclude judicial review of "the veterans statutes."⁶

Third, defendant moves for dismissal on the basis of failure to state a claim for relief. Defendant maintains that the alleged violations of the VRA, the VPA and public policy are not subject to review under the APA because defendant's conduct lies within the statutory exception for acts committed to agency discretion. Defendant also submits that monetary damages are not available under the APA. Finally, defendant asserts that the equitable defense of laches precludes relief for wrongs committed in 1991. (Docket Entry ## 7, 13 & 18).

Defendant admits that plaintiff filed a timely discrimination claim and exhausted his administrative remedies pertaining thereto. (Docket Entry # 3, ¶ 2). Facts, as set forth in the verified complaint, are as follows.⁷

BACKGROUND

In July 1991 plaintiff, a 46 year old partially disabled Vietnam veteran, applied for one of 11 advertised temporary positions for management information specialists in HUD's regional office located in Manchester, New Hampshire. HUD advertised the six month positions at salary grade levels of five and seven.⁸

By letter dated July 25, 1991, HUD rejected plaintiff's application because he lacked the necessary grade point average to qualify under the Outstanding Scholar Program and had not taken the Administrative Careers with America Examination ("the ACWA exam"). A HUD official informed plaintiff that a veterans applicant under either the VRA or the VPA must take the ACWA exam in order to be considered for an opening.

The VRA directs The Office of Personnel Management ("OPM") to prescribe regulations "for veterans readjustment appointments

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and for subsequent career-conditional appointments" for eligible veterans. 38 U.S.C. § 4214(b)(1). Section 3112 similarly directs that a federal agency "may make a noncompetitive appointment" of a disabled veteran, such as plaintiff "under such regulations as OPM shall prescribe." 5 U.S.C. § 3112

The pertinent provision of the Code of Federal Regulations permits the noncompetitive hiring of veterans and disabled veterans for temporary limited appointments. Section 316 provides that, "An agency may give a noncompetitive temporary limited appointment without regard to the existence of an appropriate register to" any veteran meeting the qualifications for a veterans readjustment appointment and to any disabled veteran with a disability of at least 30 percent. 5 C.F.R. § 316.402(b)(4) & (5).⁹

Due to HUD's insistence that plaintiff take the ACWA exam, plaintiff registered and passed the next scheduled ACWA exam. Plaintiff also contacted personnel at OPM's regional office in Boston, Massachusetts, who advised him that HUD could appoint eligible veterans noncompetitively. Upon apprising HUD's Acting Personnel Manager of this information on or about August 2, 1991, the manager declined to exercise his authority to rescind previously made but not accepted offers of employment for the specialist positions.

In late August 1991, after passing the ACWA exam, plaintiff applied for another position at HUD. Despite his qualifications and veterans status, defendant awarded the position to another candidate.

DISCUSSION

Defendant first seeks to dismiss the VRA, the VPA, the APA and the public policy claims, i.e., counts I, II, III and VII, on the basis of lack of subject matter jurisdiction and sovereign immunity. (Docket Entry # 7). The burden rests "on the plaintiff to establish jurisdiction." Markey v. United States, 27 Fed.Cl. 615, 620 (Fed.Cir.), affm'd, 11 F.3d 1072 (Fed.Cir.1993). Regarding the above claims, the verified complaint cites 28 U.S.C. § 1331, the VRA, the VPA and the APA as setting forth the requisite jurisdictional basis.

On its face, the verified complaint falls within this court's federal question jurisdiction under 28 U.S.C. § 1331 ("section 1331"). See Kanemoto v. Reno, 41 F.3d 641, 643-644 (Fed.Cir.1994) (suit against Attorney General for restitution for Japanese ancestors interned during World War II). Section 1331's general grant of federal question jurisdiction, however, "does not by its own terms waive sovereign immunity and vest in district courts plenary jurisdiction" over claims for money judgments against the United States. Sibley v. Ball, 924 F.2d 25, 28 (1st Cir.), affm'd, 944 F.2d 913 (Fed.Cir.1991). Thus, plaintiff faces the issue of sovereign immunity which must be overcome in order to seek and obtain relief in this court. See Kanemoto v. Reno, 41 F.3d at 644.

"`The terms of the sovereign's consent to be sued in any court define that court's jurisdiction to entertain the suit.'" Kanemoto v. Reno, 41 F.3d at 644 (quoting United States v. Sherwood, 312 U.S. 584, 586-87, 61 S.Ct. 767, 769-70, 85 L.Ed. 1058 (1941)); accord Biase v. Kaplan, 852 F.Supp. 268, 277 (D.N.J.1994) (quoting United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983) for principle that consent of United States "`is prerequisite for jurisdiction'"). Stated otherwise, the United States can be sued only "when it has expressly given its consent to be sued." Coleman v. Espy, 986 F.2d 1184, 1189 (8th Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 301, 126 L.Ed.2d 249 (1993). The waiver must be express, clear and unequivocal. Coleman v. Espy, 986 F.2d at 1189; accord Sarit v. U.S. Drug Enforcement Administration, 987 F.2d 10, 16 (1st Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 241, 126 L.Ed.2d 195 (1993). Further, the language of any waiver of sovereign immunity is strictly construed in favor of the United States. Markey v. United States, 27 Fed.Cl. at 622.

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The VRA does not purport to waive sovereign immunity. See Heckman v. Olive, 1992 WL 390249 at *6 (E.D.N.Y. Dec. 9, 1992), affm'd, 9 F.3d 1537 (2d Cir.1993) ("no provision in 38 U.S.C. §§ 4211-4214 purports to waive the sovereign immunity of the United States" nor authorize express or implied cause of action). Section 2108 of the VPA merely defines the eligibility of "veterans" and "disabled veterans." 5 U.S.C. § 2108. Thus, neither the sections at issue in the VRA nor the VPA contain express waivers of sovereign immunity. See also Hill v. United States, 571 F.2d 1098, 1101 n. 5 (9th Cir.1978) (finding "nothing" in VPA legislation suggestive of sovereign immunity waiver). In light of the absence of an explicit waiver of sovereign immunity, this court will not and cannot imply a waiver. See Sarit v. U.S. Drug Enforcement Administration, 987 F.2d at 16 ("Only an express waiver will give a court jurisdiction to hear a claim against the United States"); Biase v. Kaplan, 852 F.Supp. at 278 (consent by United States to be sued must be express). Public "policy, no matter how compelling, is insufficient, standing alone, to waive...