Hastings, Chief Judge, Duffy, Senior Circuit Judge and Swygert, Circuit Judge. Swygert, Circuit Judge (dissenting).
DUFFY, Senior Circuit Judge.
Plaintiff seeks a declaratory judgment that the United States Civil Service Commission must accept his appeal and grant him a hearing on the merits of his "discharge" as a post office employee. The District Court entered an order dismissing the complaint on the ground that it lacked jurisdiction to grant the relief sought.
In September 1949, plaintiff was employed as a distribution clerk at the United States Post Office in Chicago. He worked there through August 2, 1962. On that date he signed papers resigning his position of employment.
On August 4 and December 9, 1962, and on January 17, 1963, plaintiff wrote to the United States Post Office Department seeking reinstatement to his position. These requests were denied in separate letters.
The first answer was from the acting postmaster stating -- "Based upon your previous record, your request of August 4, 1962, for reinstatement will not be granted." The second answer by the postmaster stated -- "Based upon your previous record, your request for reinstatement, dated December 9, 1962, will not be granted." The third answer was also by the postmaster and stated -- "Your request for reinstatement, dated January 7, 1963, will not be granted, due to your previous unsatisfactory record."
Plaintiff claims that on March 20, 1964, upon learning that the United States Civil Service Commission had authority over his resignation, he appealed to the Civil Service Commission, Chicago Regional office.
In his appeal, plaintiff stated he was questioned by two postal inspectors on August 2, 1962, and was advised that he had only two choices; either resign, or the inspectors would bring proceedings against him. Plaintiff charged he was not given any opportunity to consult with others as to the course he should take.
On March 23, 1964, the Regional Director of the Chicago Region of the Civil Service Commission answered, requesting additional information, including an inquiry as to why an earlier appeal had not been filed. Plaintiff replied setting forth events which he claimed occurred in connection with his resignation.
By letter dated April 10, 1964, defendant Connor, the Regional Director of the United States Civil Service Commission, informed the plaintiff that the normal time limit for acceptance of appeals by the Commission expires at the end of ten days from the effective date of the action appealed. The Commissioner stated this time limit could be extended by the Commission when it is established that circumstances beyond the control of the employee prevent him from filing an appeal within the ten-day period. The Regional Director then stated that plaintiff's appeal, taken nineteen months after the date of the action being appealed, was not considered to have been filed within a reasonable time. He also stated -- "Although you allege you were extremely busy working and training for a new career, this is not a sufficient reason for your delay in filing an appeal to the Commission." The letter further stated that an appeal could be taken from the action of the Regional Director to the Board of Appeals and Review.
On April 13, 1964, the plaintiff appealed the adverse decision to the Board of Appeals and Review of the Civil Service Commission. By letter dated May 6, 1964, defendant Groak, Chairman of the Board of Appeals and Review, denied plaintiff's appeal.
Although plaintiff seeks a declaratory judgment, the relief prayed for is in the nature of a writ of mandamus. Plaintiff asks this Court to decree that the United States Civil Service Commission must accept an appeal from plaintiff in this cause.
Before the District Court, plaintiff contended the Court had jurisdiction under the Tucker Act, 28 U.S.C. § 1346 (a) (2). Apparently, this claim has been abandoned, as no mention thereof is made in the amended complaint. In any event, that claim could not be sustained. Wells v. United States, 9 Cir., 280 F.2d 275, 277.
In the District Court, after the Government had objected that the individual members of the Civil Service Commission must be parties to the suit, the complaint was amended to name the Commissioners as party-defendants. However, ...