Wham v. United States, Civ. A. No. 78-1136.

• Decision Date: 10 October 1978
• Docket Number: Civ. A. No. 78-1136.
• Citation: 458 F. Supp. 147
• Court: U.S. District Court — District of South Carolina
• Parties: Wayne E. WHAM, Plaintiff, v. UNITED STATES of America, Defendant.

458 F. Supp. 147

Wayne E. WHAM, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 78-1136.

United States District Court, D. South Carolina, Greenville Division.

October 10, 1978.

Wayne E. Wham, pro se.

Thomas E. Lydon, Jr., U. S. Atty. for the District of South Carolina, Columbia, S. C., and J. D. McCoy, III, Asst. U. S. Atty. for the District of South Carolina, Greenville, S. C., for defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

HEMPHILL, District Judge.

Defendant's motion to dismiss, filed September 11, 1978 brings before the court another in a series of law suits¹ filed by plaintiff seeking redress for his removal for "failure to meet the requirements of your position"², and "undependability in reporting or completing your work."³ At the outset it is obvious that this plaintiff seeks to harass the postal officials, and the United States Attorney time, judicial time, clerk time, processing time, etc., if calculated and totalled, would run into thousands of dollars. This court has reviewed the record, previous actions, and the transcript before the Federal Employee Appeals Authority⁴. For reasons hereinafter stated, it is obvious the motion to dismiss should be granted.

Wham alleges that his removal from the Postal Service was not for such cause as will promote the efficiency of the service, but that he was removed for filing a civil action against the Postal Service on June 16, 1976. He seeks relief under the Federal Tort Claims Act. 28 U.S.C. § 1346(b).

On December 17, 1976, plaintiff was notified by letter (Exhibit 1) that it was proposed to remove him from the Postal Service because his:

"Undependability in reporting or completing your work as scheduled and not being available when needed, indicates that you are unable to meet the requirements of your position."

The letter detailed the plaintiff's history of progressive discipline. Plaintiff filed an appeal of his removal with the Federal Employee Appeals Authority of the Civil Service Commission (CSC) and the matter was set for hearing on April 1, 1977. Plaintiff's appeal was then presented before Commission Appeals Officer Edward A. Thomas. Plaintiff was represented by counsel and a verbatim transcript was made of the proceedings. He was permitted to present evidence and to call witnesses on his behalf and cross-examine witnesses presented by the Postal Service.

Plaintiff, testifying in his own behalf at that hearing, was asked by his counsel (page 79, Exhibit 2):

"Q. By Mr. Steele Do you have any idea as to why you were fired and they other postal employees weren't?

A. Yes, sir, I do have an idea why that I was fired.

Q. Why is that, sir?

A. Because I had to file a civil action against the Post Office in June, I believe it was June the 16th that the actual complaint was filed, and then on December the 13th, 1977 believed to mean 1976 Judge Robert Hemphill handed down a summary judgment in favor of the Postal Service, and four days later after they got that hearing they told me I was fired, that I was being removed. In my opinion, that is the reason, because they started documenting my sick leave, and from July the 10th was the first day I was out sick and after the complaint was filed, and then November — no, December the 13th was the last day that I was out sick, and that is the day that Judge Hemphill handed down his order of a summary judgment in favor of them, and in my opinion that is the reason they really fired me."

At the hearing on April 1, 1977, counsel for the plaintiff made the following statements in his closing statement to the Appeals Officer (page 96, Exhibit 2):

"The evidence is undisputed that Mr. Wham was treated differently from other employees. . . ."

and at page 100, counsel commented:

"I feel that we have shown that Mr. Wham was singled out for unfair treatment, that he was treated differently from other employees under the same circumstances, that he was arbitrarily dismissed and summarily dismissed because of some legal problems that he had with the United States Postal Service, and that under our system of law and under our system of fairness and under the rules of the Civil Service Commission, it is not grounds for dismissal."

In a letter dated June 14, 1977, plaintiff's counsel was notified that the Civil Service Commission had determined that the action of the Postal Service removing his client from employment should be affirmed.⁵

On November 29, 1977, plaintiff filed a suit in the United States District Court for the District of South Carolina, Greenville Division, which was styled Wayne E. Wham v. United States Postal Service, Civil Action No. 77-2328. In this suit, plaintiff prayed for an order reinstating plaintiff to his former position in the Postal Service with back pay. This suit terminated in an order issued May 24, 1978 granting summary judgment for the defendant United States Postal Service.

In the order of May 24, 1978, the court found the Postal Service's action in removing appellant for being unavailable for work when needed, and thus, unable to meet the requirements of his position, and the Field Office's finding that the action was for such cause as would promote the efficiency of the service were not arbitrary and capricious, but were supported by substantial evidence.

It is believed that plaintiff's reference to a suit filed December 13, 1976 (Paragraph VII of plaintiff's Complaint) and the decision on that action on "December 13, 1976" (Paragraph VIII of plaintiff's Complaint) is the one styled as Wayne E. Wham v. United States Postal Service, Civil Action No. 76-1090, United States District Court, District of South Carolina, Greenville Division. Reference to that Complaint and the final Order in that case is invited.

Plaintiff's prayer for an order reinstating him to his former position with back pay and seniority does not lie under the Federal Tort Claims Act. The provisions of the Federal Tort Claims Act, which plaintiff cites as the jurisdictional basis for this suit, are quite clear in that the only remedy available under the Federal Tort Claims Act is for money damages, and does not submit the United States to injunctive relief.

28 U.S.C. § 2672, which is incorporated into 28 U.S.C. § 1346(b), specifically states that the remedy provided by the waiver of sovereign immunity in tort is to provide money damages only.⁶ See also Moon v. Takisaki, 501 F.2d 389 (9th Cir. 1974); Turtzo v. United States, 347 F.Supp. 336 (E.D. Pa.1972).

While plaintiff cites 39 U.S.C. § 409(a) as a basis for the court's jurisdiction, Congress has stated specifically the conditions under which tort claims may be brought against the United States by enactment of 28 U.S.C. § 2679(a) which provides that the authority of any federal agency to sue and be sued in its own name shall not be considered to authorize suits against such federal agency on claims cognizable under the Federal Tort Claims Act and the remedies provided in the Tort Claims Act shall be exclusive.

Plaintiff has stated a cause of action where Congress has specifically declined to waive sovereign immunity in the Federal Tort Claims Act. 28 U.S.C. § 2680(a) provides that the Federal Tort Claims Act shall not apply to any claim based on the exercise or performance of a discretionary function or duty of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

In Baca v. United States, 467 F.2d 1061 (10th Cir. 1972), the court held that the discretionary function exception of the Federal Tort Claims Act barred a claim that in retaliation for employees having reported breaches of security, an alleged government instrumentality transferred the plaintiff-employees to other jobs which they were not equipped to perform and finally fired them. See also Radford v. United States, 264 F.2d 709 (5th Cir. 1959); Chafin v. Pratt, 358 F.2d 349 (5th Cir. 1966) cert. denied, 385 U.S. 878, 87 S.Ct. 159, 17 L.Ed.2d 105; Flowers v. United States, 348 F.2d 910 (10th Cir. 1965).

Congress has provided remedies for review of administrative decisions to remove employees;⁷ however, the Federal Tort Claims Act is not considered one of them.

Plaintiff's suit is barred by the doctrine of res judicata. A reading of plaintiff's complaint makes it clear that his cause...