Tiltti v. Weise
| Decision Date | 14 September 1998 |
| Docket Number | D,No. 650,650 |
| Citation | 155 F.3d 596 |
| Parties | Allan TILTTI, Anthony Coppola, Norman Mentzel, Martin Witriol, Alexander Jaszenko, Michael Serak, Vonzell Harris, Christopher James, Whitley Azure, Kenneth Bagby, and Leonard Dobis, Plaintiffs-Appellants, v. George WEISE, as Commissioner, Department of the Treasury, Robert E. Rubin, Department of Treasury, and United States Customs Service, Defendants-Appellees. ocket 97-6078. Second Circuit |
| Court | U.S. Court of Appeals — Second Circuit |
Lloyd Somer, New York City, for Plaintiffs-Appellants.
Pierre M. Gentin, Assistant United States Attorney for the Southern District of New York (Mary Jo White, United States Attorney and Marla Alhadeff, Assistant United States Attorney for the Southern District of New York, on the brief), for Defendants-Appellees.
Before: KEARSE, OAKES and FRIEDMAN *, Circuit Judges.
The appellants, 11 present and former Customs Patrol Officers (Patrol Officers) of the United States Customs Service (Customs), challenge the district court's dismissal of their amended complaint seeking to overturn Customs reassigning them to different geographical locations. The district court dismissed the first claim for relief for lack of subject matter jurisdiction, and the second claim for relief for failure to state a claim upon which relief could be granted. The Patrol Officers' appeal challenges only the
dismissal of the first claim for relief. We affirm.
A. The underlying facts are not disputed. By letters dated March 21, 1995, Customs' Assistant Commissioner of its Office of Investigation informed all Patrol Officers, then numbering 16, that they were being reassigned to offices along the southwestern border of the United States. Those 16 Officers were then working in New York, New Jersey, Florida, Virginia, and Texas. The letter listed eight reassignment locations (two in California and three each in Arizona and Texas) for which the Patrol Officers were asked to indicate their preference.
The letter stated that if the Patrol Officer "decline[d] this reassignment," Customs would initiate proceedings to remove the officer and that if the officer faced mandatory retirement (at age 57) or was eligible to retire by March 30, 1996, the officer could do so instead of transferring. The Patrol Officers were to inform Customs of their decision within 15 days of receipt of the letter, and failure so to reply "w[ould] be considered a declination."
The opening paragraph of the letter explained the reassignment:
Within the last year, the Administration and the Customs Service have recognized a need to strengthen our presence along the Southwest Border. Specifically, there is a critical need to intensify interdiction and other enforcement operations at a number of border locations. In order to establish a stronger enforcement posture along the Southwest Border, we are directing the reassignment of all Customs Patrol Officers, not currently on or near the Southwest Border, to offices along the border where their expertise and training can be more effectively utilized.
A declaration by the Customs official who was "the principal staff officer responsible for the development and implementation of the 1995 plan to reassign all Customs Patrol Officers ('CPOs') throughout the United States to positions on the Mexican-American/Southwest Border of the United States (the 'Southwest Border')" stated:
In 1985, the drug smuggling threat on the Southwest Border increased. In the mid-late 1980's all CPOs assigned to the Boston, Philadelphia, and Baltimore field offices were reassigned to the Southwest Border in order to counter the threat on that border. No action was taken at that time to reassign CPOs from other locations such as New York, because of the belief that sufficient threat continued to exist to warrant retention of those CPOs within their regions....
In 1995, as the drug smuggling threat on the Southwest Border continued to increase, and because there was little or no identifiable threat of drug smuggling between the Ports of Entry along the East and West Coasts or along the Canadian border, action was initiated to reassign all CPOs nationwide to the Southwest Border. This decision was made because the greatest need for CPOs is on the Southwest Border.
Of the 11 appellant Patrol Officers who received reassignment notices, 2 accepted reassignment and the other 9 elected to retire.
B. In March 1996, 10 of the Patrol Officers filed the present suit in the United States District Court for the Southern District of New York against the Commissioner of Customs. The complaint alleged that the Commissioner had "acted arbitrarily, capriciously, and illegally" in reassigning the Patrol Officers, and that the reassignment was "an adverse action and/or a reduction in force" and was "intended to force the resignations or the retirement of the [Patrol Officers] from federal service." The complaint stated that it was "a suit for a preliminary and a permanent injunction preventing the defendant from mandating the reassignment of the CPOs to the Southwest Border."
The district court denied a preliminary injunction barring Customs from enforcing the reassignment order. The court held that the plaintiffs had failed to show either a likelihood of success on the merits or irreparable injury.
Two days before the district court's ruling, the Patrol Officers filed with the Office of Special Counsel a complaint against Customs Almost eight months later, the Office of Special Counsel informed the Patrol Officers that it had "made a preliminary determination to close the investigation into this matter." The Special Counsel stated:
seeking "an immediate investigation into the allegations that the agency has acted improperly ... based on a directive dated March 21, 1995 in which all the CPOs were ordered to report to the Southwest Border of the United States, or be terminated." The complaint requested that the Special Counsel "move to prevent the forced resignation, forced retirement, and/or reassignment of the CPOs." Enclosed with the complaint were copies of two affidavits the Patrol Officers had filed in the district court in support of the motion for a preliminary injunction describing their contentions in detail
It appears that the Service assessed a need in the Southwest for stepped-up interdiction, a service that Custom Patrol Officers could readily provide. While you believe that you had no other choice but to retire, it does not appear that the Service coerced your retirement. In fact, the Service gave you three alternatives to reassignment to the Southwest. We found no facts suggesting that the Service asked you to retire, or that there were any adverse actions pending against you. Further, it does not appear that you were under any time pressure to retire, because it appears that you were allowed fifteen days to make your decision.
Six months after the district court denied a preliminary injunction, the Patrol Officers (their number increased to 11) filed an amended complaint, which contained two claims for relief. The first claim for relief asserted that as a result of Customs' arbitrary, capricious, and illegal actions in ordering the reassignments, nine of the Patrol Officers had been coerced into retiring and the other two into relocating. The amended complaint based jurisdiction over this claim on 28 U.S.C. § 1331 (1994) and on the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (1994). The second claim for relief charged that the reassignments violated the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (1994). The relief requested included the return to duty of the Patrol Officers "who were forced to retire on March 30, 1996," that any Patrol Officers who transferred to the Southwest Border as a result of the March 21, 1995 reassignment "be allowed to return to their former job duty positions," that the reassignment directive "be stricken and declared null and void," and that the Patrol Officers be retroactively promoted.
On the government's motion, the district court dismissed the amended complaint. The court held that it lacked jurisdiction under the Administrative Procedure Act for the reason it had stated in denying a preliminary injunction: "The APA makes plain the intent of Congress which was clearly and unequivocally to preclude direct appeal to the federal courts of agency decisions."
The court ruled that it had no jurisdiction under the Civil Service Reform Act of 1978 (Reform Act), Pub.L. 95-454, 92 Stat. 1111 et seq. (codified in various provisions of Title 5 of the United States Code), because under that Act (citations omitted) The court noted that the Patrol Officers had sought relief from the Office of Special Counsel, which ruled that "the Customs Service had not committed any improper act." The court further noted that "[n]owhere in plaintiffs' complaint or moving papers do they request that this Court review OSC's actions to insure that its inquiry complied with the statutory requirement."
Finally, the court rejected the Patrol Officers' argument that it had jurisdiction because the reassignments were made in retaliation for the officers' exercise of their First Amendment right to discuss various issues relating to their employment. The court stated that the Reform Act "does not preclude judicial review of a federal agency's actions where the plaintiff asserts such actions violated his constitutional rights," but The court dismissed the...
To continue reading
Request your trial
-
Spetalieri v. Kavanaugh
...Cir.1995), or that his "primary aim" was to engage in a public discussion of race discrimination or race relations. See Tiltti v. Weise, 155 F.3d 596, 603 (2d Cir.1998); Ezekwo v. New York City Health & Hosps. Corp., 940 F.2d 775, 781 (2d Cir.1991), cert. denied, 502 U.S. 1013, 112 S.Ct. 65......
-
Bland v. New York
... ... redress for a personal wrong, the speech is not protected by the First Amendment merely because its subject matter `may affect the public'." Tiltti v. Weise, 155 F.3d 596, 603 (2d Cir.1998). See Saulpaugh v. Monroe Community Hospital, 4 F.3d 134, 143 (2d Cir.1993)(claim that termination was ... ...
-
Walia v. Holder
...explicitly or by necessary implication sanctions judicial challenges to such actions, judicial challenge is foreclosed.” Tiltti v. Weise, 155 F.3d 596, 600 (2d Cir.1998). In this case, with respect to the Plaintiff's claim that his rights under the Privacy Act were violated because he recei......
-
Dotson v. Griesa
... ... Tiltti v. Weise, 155 F.3d 596 (2d Cir.1998). Although we found it unnecessary to resolve the issue in that case, we did acknowledge the majority view ... ...