Withers v. United States Postal Service, 73CV657-W-2.

• Decision Date: 13 May 1976
• Docket Number: No. 73CV657-W-2.,73CV657-W-2.
• Citation: 417 F. Supp. 1
• Parties: Chester WITHERS, Jr., Plaintiff, v. UNITED STATES POSTAL SERVICE, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

417 F. Supp. 1

Chester WITHERS, Jr., Plaintiff, v. UNITED STATES POSTAL SERVICE, et al., Defendants.

No. 73CV657-W-2.

United States District Court, W. D. Missouri, W. D.

May 13, 1976.

Basil North, Jr., North, Colbert & Fields, Kansas City, Mo., for plaintiff.

Bert C. Hurn, U. S. Atty., Kenneth Josephson, Asst. U. S. Atty., Kansas City, Mo., for defendants.

MEMORANDUM AND ORDER ON PENDING MOTIONS

COLLINSON, District Judge.

This is an action by which plaintiff seeks judicial review of his discharge from employment with defendant, the United States Postal Service. Also joined as a defendant is Theodoric Bland, Postmaster for Kansas City, Missouri. This cause pends on cross-motions for summary judgment and defendants' motion to dismiss. The entire record of the administrative proceedings Rec. concerning plaintiff's discharge has been submitted to the Court and has been supplemented by various documents filed by the parties. Since our review is limited to the record provided by the parties, see e. g., Polcover v. Secretary of the Treasury, 155 U.S.App.D.C. 338, 477 F.2d 1223, cert. denied 414 U.S. 1001, 94 S.Ct. 356, 38 L.Ed.2d 237 (1973), the case is properly before us for summary disposition. For the reasons stated herein, defendants' motion for summary judgment will be granted and the Clerk will be directed to enter judgment on behalf of the defendants and against the plaintiff.

Defendants move to dismiss the complaint on the grounds of lack of subject matter jurisdiction, laches, and failure to state a claim. The latter two grounds are meritless.¹ Although the Court concludes that jurisdiction is proper, this issue deserves discussion.

Plaintiff alleges jurisdiction under numerous statutes including 28 U.S.C. § 1339; 39 U.S.C. § 409; 39 U.S.C. § 1208(b); 5 U.S.C. §§ 551-54 and 701-06 (1970). Defendants attack jurisdiction under Titles 28 or 39 on various grounds. The invocation of the provisions of Title 5 was added recently by amendment to the complaint.

The restructuring of the Postal Service accomplished by passage of the Postal Reorganization Act, 39 U.S.C. §§ 101 et seq. (1970), has presented a number of jurisdictional questions concerning the proper treatment of discharge cases. See, e. g., Shaw v. Postal Service, Civil Action No. 20478-2 (W.D.Mo. 1976), and Thornburgh v. Postal Service, Civil Action No. 20656-2 (W.D.Mo. 1976). In Section 1208(b) of the Act, a new cause of action is created based upon the framework of Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a) (1970). Under Section 1208(b), an aggrieved employee may bring a federal action against the Postal Service for alleged violations of collective bargaining agreements entered into by the Postal Service and a labor union. As in Section 301 cases, this implies that an action may be brought for the alleged wrongful discharge of the employee.

However, the statutory provisions authorizing judicial review of an adverse action of a federal agency, Chapters 5 and 7 of Title 5, are expressly made inapplicable to Postal Service discharges. 39 U.S.C. § 410(a) (1970). And the discharge of its employees is committed expressly to the discretion of the Postal Service subject to applicable laws, regulations and collective bargaining agreements. 39 U.S.C. § 1001(e)(2) (1970). This has not deterred some courts from engaging in at least limited judicial review of Postal Service adverse actions. See, e. g., Alsbury v. United States Postal Service, 392 F.Supp. 71 (C.D.Calif. 1975); and Marsden v. United States Postal Service, 390 F.Supp. 329 (D. Minn. 1974).

In fact, the Court has found only one decision in which this jurisdictional issue was discussed, Burns v. United States Postal Service, 380 F.Supp. 623 (S.D.N.Y. 1974). Based upon the strong presumption in favor of judicial review of administrative actions, see Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970), and Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); the absence of an expression of Congressional intent to the contrary, see Legislative History of the Postal Reorganization Act, 1970 U.S. Cong. & Adm. News, pp. 3649-3723; the existence of a general jurisdictional statute providing for jurisdiction in the federal courts of suits by or against the Postal Service, 39 U.S.C. § 409(a) (1970); provision in the Act for the application of Chapter 75 of Title 5 which pertains to the rights of a federal employee during adverse employment proceedings; and provision for judicial review in the rules which the parties deem applicable to this proceeding, see Article X, Adverse Action and Appeal Procedure, Section H.2.b.(2)(a), National Agreement between the United States Post Office Department and the National Post Office Mail Handlers, Watchmen, Messenger and Group Leaders the Labor Agreement; the Court believes that jurisdiction is proper under 39 U.S.C. § 409(a) (1970) for our "`nonstatutory' judicial review" of plaintiff's discharge. See Burns, supra, at 626-27, citing Byse & Fiocca, Section 1361 of the Mandamus and Venue Act of 1962 and "Nonstatutory" Review of Federal Administrative Action, 81 Harv.L.Rev. 308, 321, 323 (1967).

The standard for our review is well stated in Vigil v. Post Office Department of the United States, 406 F.2d 921 (10th Cir. 1969). Since the action complained of is committed to the discretion of the agency, the court may only inquire whether substantial compliance was made with the applicable procedures, and whether the actions of the Postal Service were arbitrary or capricious or not supported by substantial evidence. Vigil, supra, at 922-24.

Our first inquiry concerns the degree of compliance by the Postal Service with applicable procedures regarding plaintiff's discharge. The parties used the procedures outlined in the Labor Agreement, Article X, as authorized by 39 U.S.C. § 1001(e) (1970).²See also 39 U.S.C. § 1005 (1970). Further, the Act makes applicable the provisions of Chapter 75 of Title 5, 5 U.S.C. §§ 7501 et seq. (1970), where those provisions are not inconsistent with a labor agreement. 39 U.S.C. § 1005(a)(1)(A) (1970). The adverse action procedures set forth in the Labor Agreement, Article X, substantially conform to the provisions of 5 U.S.C. § 7501 (1970) and regulations promulgated by the Civil Service Commission, 5 C.F.R. §§ 752.101 et seq. (1971) for use in federal termination proceedings.

The Postal Service sent a "Notice of Proposed Adverse Action" to the plaintiff on October 14, 1971. The notice was in writing and was signed by a responsible official, the Kansas City Postmaster. The Postmaster noted therein that the proposed discharge was for such cause as would promote the efficiency of the service and that the action would be effected not sooner than 35 calendar days from receipt of the letter by the plaintiff. Plaintiff was further informed of the specific reasons for the proposed action; the type of action proposed; his right to answer the charges in writing or in person or both within 10 days of receipt of the letter; that his answer should be directed to the Postmaster; that additional time for submission of his answer was available upon a showing of necessity; and that he would subsequently receive a letter of decision which, if adverse, would include a list of the reasons relied upon in making the decision. Rec. at 40-41.

By letter dated October 22, 1971, plaintiff requested additional time within which to reply, Rec. at 39, and on October 27, 1971, his request was granted. Rec. at 35. On November 9, 1971, he answered the charges raised in the Notice and informed the Postmaster that he would be represented in future proceedings by the president of his Union local. Rec. at 35.

By Notice of Decision dated November 22, 1971, the Postmaster informed the plaintiff that the charge had been sustained; that his previous record of unexcused absences had been considered; and that the adverse action to be taken was discharge from employment with the Postal Service effective on December 15, 1971. The Notice was in writing, confirmed the penalty identified in the letter of proposed action; did not increase the penalty and clearly identified the adverse action and effective date. Plaintiff was also notified of his right to appeal through Civil Service Commission procedures or those of the Postal Service after receipt of the Notice but not later than fifteen days after the effective date of the adverse action. He was further informed that if he chose to invoke Postal Service procedures within ten days of receipt of the Notice, the adverse action would not be imposed pending decision at the first appellate level. Rec. at 33-34.

The Notice of Decision was sent by certified mail and the parties agree that plaintiff received the Notice on December 3, 1971.

By letter addressed to the Regional Postmaster General, Chicago, Illinois, and post-marked December 13, 1971, plaintiff notified the Postal Service of his intention to appeal the decision of the Kansas City Postmaster. A copy of plaintiff's letter was received by the Kansas City Postmaster on December 14, 1971. Rec. at 32. Plaintiff therein requested that an investigation, rather than a hearing, be initiated.

Postmaster Bland interpreted the relevant provisions of Article X of the Labor Agreement to require that he receive a copy of plaintiff's letter of appeal within ten days in order to prevent immediate termination.³ Since the letter was received by the Postmaster eleven days after receipt by the plaintiff of the Notice of Decision, plaintiff was terminated on December 15, 1971.

On or about December 20, 1971, the Kansas City Postal Offices received a letter from the Director, Employee Relations Division, Central Division. The Director requested therein that the Kansas City Postmaster

forward to this office, via certified mail, the adverse action file of the plaintiff. This is a first level appeal. The letter of appeal is

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