Wilson v. Watson

• Citation: 309 F. Supp. 263
• Decision Date: 23 October 1968
• Docket Number: Civ. A. No. KC-2793,T-4483.
• Court: U.S. District Court — District of Kansas
• Parties: Adam WILSON, Plaintiff, v. Marvin WATSON, Postmaster General of the United States, et al., Defendants. Joe LOYA and State Board of Social Welfare, Division of Services for the Blind, Plaintiffs, v. Marvin WATSON, Postmaster General of the United States, et al., Defendants.

309 F. Supp. 263

Adam WILSON, Plaintiff, v. Marvin WATSON, Postmaster General of the United States, et al., Defendants.

Joe LOYA and State Board of Social Welfare, Division of Services for the Blind, Plaintiffs, v. Marvin WATSON, Postmaster General of the United States, et al., Defendants.

Civ. A. Nos. KC-2793, T-4483.

United States District Court, D. Kansas.

October 23, 1968.

Durward K. McDaniel, Washington, D. C., Robert M. Brown, Topeka, Kan., for Adam Wilson and Joe Loya.

Charles V. Hamm, State Board of Social Welfare, Topeka, Kan., for State Bd. of Social Welfare, Division for the Blind.

Benjamin E. Franklin, U. S. Atty., Thomas E. Joyce, Asst. U. S. Atty., Kansas City, Kan., for defendants.

MEMORANDUM OF DECISION

TEMPLAR, District Judge.

On May 29, 1968, plaintiff Wilson filed a complaint in this Court under provisions of 5 U.S.C. §§ 701-706; 20 U.S.C. § 107; 28 U.S.C. § 1361; 28 U.S.C. § 2201; and Rule 65 of the Federal Rules of Civil Procedure. The action bears Clerk's number KC-2793. He alleged that his claim has a value of more than $10,000, and claims that the basis of his action requires an interpretation of the United States Constitution, Acts of Congress, and Federal regulations.

In substance, plaintiff alleged in that case that he was a licensed blind operator of a vending concession in the Federal Building at 812 North 7th Street, in Kansas City, Kansas, and that he was licensed for such purpose by the State Board of Social Welfare, Division of Services for the Blind, pursuant to 20 U.S.C. § 107; that such agency is the one designated by the Secretary of Health, Education, and Welfare to license blind operators for vending concessions on Federal and other property in the State of Kansas; that defendants Watson, Mullen and Meyer are officials exercising de facto control over the Federal property affected by this action and threaten action adverse to plaintiff's rights; that defendant Knott is custodian of Federal property under control of General Services Administration with the power and duty to regulate vending concessions on property occupied by the Post Office Department.

The plaintiff further alleged that Canteen Corporation has a number of vending machines located and operated on Federal leased property at Tenth and Pacific Streets in Kansas City, Kansas, under an agreement between the Post Office Department and the State Board of Social Welfare, Division of Services for the Blind, as authorized by 20 U.S.C. § 107; that a portion of net proceeds from operation of these vending machines has been assigned to plaintiff and amounts to approximately $50.00 per week, and is about one-half of plaintiff's income by which he supports himself and family. Plaintiff further alleges that defendants and the Post Office Department have arbitrarily exceeded their authority and duty in canceling the agreement contrary to provisions of Randolph-Sheppard Act (20 U.S.C. § 107 et seq.), and P.O. Regulation, 30 CFR 614.3, because the order of cancellation is based on reasons other than those authorized by the regulation, the reason being, in substance, that the Post Office Department had entered into agreements with postal employees' organizations whereby the vending machines in workrooms or swingrooms of post office facilities were to be operated for the benefit of such postal employees' organizations and excluding machines operated by licensees of the State Department of Social Welfare; that the Postmaster General has arbitrarily exceeded his authority and power in entering into such agreements with the employees' organizations and the contracts made with the postal employees' unions are in contravention of the statutory sanction of the programs and authority created by the Randolph-Sheppard Act.

The plaintiff also alleges that defendant Knott, acting for General Services Administration, defaulted in his duty by undertaking to exempt the Post Office Department from regulations governing vending concessions on Federal property and particularly 41 CFR § 101-19.200b; that compliance with the Post Office order to remove the machines from the workroom or swingroom would cause a pecuniary loss to the Canteen Corporation as would the restoration or replacement of the machines on the premises.

Plaintiff asks that the defendants be restrained from carrying out the order of the Post Office Department requiring the state licensing agency to remove the machines from the premises of the Post Office at Tenth and Pacific, in Kansas City, Kansas, to prevent irreparable pecuniary loss to plaintiff and unjust expense to Canteen Corporation; also for declaratory judgment construing validity of union contracts with the Post Office Department and their constitutionality, and the statutory power of the Postmaster General to make such agreements; and, likewise, construing power of defendant Knott to delegate authority of General Services Administration relating to vending concessions to the Post Office Department; interpreting and construing 39 U.S.C. § 501 and 20 U.S.C. § 107, as they apply to machines on Federal property and construing authority of the Postmaster General to grant employees a concession for their private profit, operated on Federal property, without regard to work performed or salaries earned by such employees.

On May 29, 1968, on application of the plaintiff, the Court issued a temporary restraining order directing defendants not to remove machines from the Post Office Building at Tenth and Pacific Streets, in Kansas City, Kansas. The machines have not been removed and the matter has been left "as is" pending the determination of the case.

Thereafter, on June 10, 1968, defendants filed a motion to dismiss the action, or in the alternative for summary judgment, on the following grounds:

1. The Court lacks jurisdiction for the reason that the action is in reality a suit against the United States to which it has not consented.

2. The complaint fails to state a claim upon which relief can be granted.

3. The action is not instituted by the real party in interest.

4. The action seeks to control the discretionary acts of government officials.

The parties entered into a pre-trial stipulation which provided, in substance, that the issues of the case are as follows:

1. The issues raised in the motion of the defendant to dismiss or in the alternative for summary judgment.

2. Can the permit or license from the Postmaster to the State Board of Social Welfare be revoked under the facts involved in the action?

3. Is the delegation as published in the Federal Register by General Services Administration to the Post Office Department or Postmaster General relative to the regulation and establishment of vending machines in the swingrooms and workrooms of post offices in premises under control of the Postmaster valid?

4. Are regulations promulgated by the Post Office Department signed by the General Counsel of the Post Office Department pertaining to the regulations of vending stands or machines in swingrooms and workrooms and other parts of buildings under the control of the Post Office Department valid?

5. Is the contract between the postal unions and the Postmaster General valid, or, in other words, did the Postmaster General have authority to enter into such union contract and empower employee welfare committees to contract for operations of vending machines through open competitive bidding and to derive revenue from vending machines in swingrooms and workrooms?

6. Is the plaintiff a proper person to maintain this action, and, if so, has he exhausted his administrative remedies?

On August 1, 1968, plaintiff filed an amended and supplemental complaint alleging, in substance, that agency actions complained of are void because they are contrary to the provisions of the Randolph-Sheppard Act and official regulations promulgated thereunder; that the regulations promulgated under which defendant Postmaster General purports to act are void because they are not adopted in the manner required by law; that the agency actions complained of are contrary to the decisions of the Comptroller General; that the agency actions complained of are against public policy because they are an unlawful supplementation of salaries of Federal employees through private concessions; that they are void because they are in violation of the provisions of the Randolph-Sheppard Act. Plaintiff, by such amended and supplemental complaint, seeks an adjudication that the regulations of the Postmaster General are invalid; that the decisions of the Comptroller General control; and that the applicability of 18 U.S.C. § 209 and 31 U.S.C. § 484 to the issues of this case should be construed.

Thereafter, and on August 1, 1968, plaintiff filed a motion for summary judgment.

From the record, it is made to appear that on August 4, 1968, plaintiff Wilson died, and on August 5, 1968, defendants filed a motion asking that the action be abated because no rights asserted by plaintiff inured to his estate.

On August 8, 1968, defendant State Board of Social Welfare, Division of Services for the Blind, filed an answer and cross-complaint, adopting the allegations of plaintiff Wilson's complaint, and further alleging that it is the state licensing agency designated by the Secretary of Health, Education, and Welfare to license blind operators of vending concessions on Federal and other property in Kansas; and that it is directed by law to secure locations for vending machines to be operated by blind persons chosen by such defendant.

The defendant, State Board of Social Welfare, Division of Services for the Blind, then, on August 15, 1968, filed its motion for summary judgment. On August 16, 1968, one Joe Loya filed a motion to intervene in such action on the ground that he is a licensed blind vending stand operator, having been so licensed for that purpose by the defendant, State Board of Social Welfare, Division of Services for the Blind, and that he has...