The opinion of the court was delivered by: McMILLEN, District Judge.
This cause comes on to be heard on defendant's motion to
dismiss, filed pursuant to F.R.Civ.P. 12(b)(1) and 12(b)(6).
Defendant's brief also argues a motion for summary judgment,
but on the pleadings we cannot go beyond the provisions of
Plaintiff was an equipment mechanic at the Chicago Post
Office. He was discharged by Postmaster McGee as of September
28, 1971 for "theft of mail." The Postmaster had the power to
do this without any appeal pursuant to 5 C.F.R. § 315.806, and
plaintiff was given written notice of the reason for his
termination as required by the regulation. The lack of an
opportunity to be heard when one's good name, reputation, honor
or integrity is put at stake by governmental action violates
the Constitutional right of due process. Wisconsin v.
Constantineau, 400 U.S. 433 at 437, 91 S.Ct. 507, 27 L.Ed.2d
Plaintiff alleges in Count II that he subsequently resigned
from employment as a probationary employee of the Veterans'
Administration when it learned the reason for his Post Office
termination. Plaintiff contends that his resignation was
coerced and not voluntary and that he should have been given
a hearing on this issue also. Cf. Paroczay v. Hodges, 111
U.S.App.D.C. 362, 297 F.2d 439 (1961). Since no administrative
appeal exists for the "coerced" termination of a probationary
employee by the Veterans' Administration (5 C.F.R. § 752.201 et
seq.), his suit for this alleged violation of his
Constitutional rights also lies. Of course, if plaintiff's
discharge by the Post Office is found to have been properly
attributed to "theft of mail", his subsequent resignation from
the Veterans' Administration when this record became known can
hardly be considered "coerced." Therefore resolution of Count
II will depend in large part on the resolution of Count I.
Plaintiff alleges jurisdiction of this court under 28 U.S.C. § 1331
or 28 U.S.C. § 1346(a)(2). The latter statute (known as
the Tucker Act) provides a cause of action for money damages
only, with equitable jurisdiction limited to such actions. See
Bell v. Groak, 371 F.2d 202, 204 (7th Cir. 1966). Section
1346(d)(2) provides that district courts shall not have
jurisdiction of claims "to recover fees, salary, or
compensation of officers or employees of the United States."
Since plaintiff's claim for money damages would fall under the
foregoing provision, we have no jurisdiction of this case under
the Tucker Act.
Jurisdiction exists under 28 U.S.C. § 1331(a) for a claim
arising under the Constitution and laws of the United States.
The case at bar invokes the provisions of 5 U.S.C. § 701-706
for reviewing agency actions, as well as raising the
Constitutional issues referred to above. Section 1331 supports
a cause of action against Federal officials. Cf. Bivens v. Six
Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d
619 (1971). It remains to be seen whether plaintiff's claim
satisfies the jurisdictional requirement of $10,000, as
Plaintiff has joined certain defendants who contend they are
not subject to this suit. The United States Civil Service
Commission as an entity has not been joined as a defendant,
and the Veterans' Administration cannot be. Cf. Blackmar v.
Guerre, 342 U.S. 512, 72 S.Ct. 410, 96 L.Ed. 534 (1952);
Napier v. Veterans' Administration, 3 Cir., 298 F.2d 445 (3rd
Cir. 1962), cert. den., 371 U.S. 186, 83 S.Ct. 266, 9 L.Ed.2d
228 (1962). The individuals representing these agencies are
proper defendants, however. Bell v. Groak, supra, p. 876. The
Postal Service has been specifically subjected to suit by
Congress in 39 U.S.C. § 409(a), and the United States of
America is not a necessary party to this litigation.
It is therefore ordered, adjudged and decreed that
defendants' Motion to Dismiss the Complaint is denied, except
as to the United States of America and the Veterans'
Administration, and the remaining defendants are granted ten
(10) days in which to Answer the Complaint. This case will be
called for a report on status on Monday, March 5, 1973 at 10
© 1992-2003 VersusLaw ...