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BRUZZONE v. HAMPTON

May 5, 1977.

John J. BRUZZONE, Plaintiff,
v.
Robert HAMPTON, Chairman, United States Civil Service Commission, James Johnson, Vice Chairman, United States Civil Service Commission, L. J. Andolsek, Commission, United States Civil Service Commission, the United States Civil Service Commission, William Berzak, Chairman, and all members of the United States Civil Service Commission Appeals Review Board, Wayne B. Colburn, Director, United States Marshal Service, and the United States Marshal Service, Defendants.



The opinion of the court was delivered by: BONSAL

MEMORANDUM

BONSAL, District Judge.

Plaintiff and defendants have crossmoved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. In the alternative, defendants move for dismissal of the complaint on jurisdictional grounds pursuant to Rule 12(b), Fed.R.Civ.P.

 Plaintiff John Bruzzone is a former Deputy United States Marshal. Defendant Hampton is the Chairman of the United States Civil Service Commission (the "Commission"). Also named as defendants are the Commission and several of its other officers, the United States Marshals Service (the "Service") and its Director. Bruzzone seeks a declaratory judgment that his removal from the Service was a nullity, an order directing his reinstatement, and an award of back pay and other damages for his wrongful removal.

 Factual Background

 Bruzzone served as a deputy marshal in the Southern District of New York from April 1968 until June 22, 1973. The events which led up to his removal from the Service can be summarized as follows: In August 1972 a report came to the attention of the Service alleging that while Bruzzone was assigned to protect a government witness named Fred Goodman on August 3rd and 4th, 1972, he and Goodman had picked up a prostitute and taken her to Goodman's motel room for the purpose of having sexual relations. On September 1, 1972, following a report from an investigator for the Service, the Personnel Officer for the Service gave notice to Bruzzone that his removal was being proposed on the grounds that he (1) had conducted himself in a manner unbecoming a deputy marshal and (2) had failed to properly protect a government witness. Following a Service administrative hearing, the Service hearing officer found that the Service had sustained its burden of proof on both grounds. By letter dated June 11, 1973, the Director of the Service notified Bruzzone that he would be removed from the Service on June 22, 1973.

 Bruzzone was a "preference eligible employee," 5 U.S.C. § 7511, and was therefore entitled to a hearing within the Service, an appeal to the Department of Justice, a de novo hearing before the Commission and an appeal to the Appeals and Review Board of the Commission. Bruzzone pursued each of these remedies and his removal was sustained. Accordingly, Bruzzone has exhausted his administrative remedies.

 On January 15, 1975 Bruzzone instituted this action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., seeking to have the Court review his removal. In moving for summary judgment Bruzzone asserts that he is entitled to relief as a matter of law on the grounds: (1) that the decision to remove him was arbitrary and capricious and not supported by substantial evidence; (2) that the decision of the Appeals and Review Board of the Commission substantially altered the grounds for his removal and thereby rendered his removal arbitrary and capricious; (3) that the Service failed to comply with its procedures for disciplinary action; (4) that the Service failed to produce Goodman as a witness at the de novo hearing before the Commission; and (5) that the Director of the Service lacked authority to remove him.

 Defendants move for summary judgment on the ground that the Service's decision to remove Bruzzone was not arbitrary or capricious and was supported by substantial evidence. Defendants deny each of the contentions asserted by Bruzzone. Defendants alternatively move to dismiss the complaint on jurisdictional grounds.

 Discussion

 1. Jurisdiction

 Defendants contend that this Court lacks jurisdiction over Bruzzone's claim for back pay and damages on the ground that this claim falls within the exclusive jurisdiction of the Court of Claims under the Tucker Act, as amended, 28 U.S.C. §§ 1346 and 1491. For this reason defendants urge the Court to decline jurisdiction as well over the claims for a declaratory judgment and reinstatement so that the entire action can be resolved in a single forum, viz., the Court of Claims. Defendants point to a 1972 amendment to section 1491 which empowers the Court of Claims to grant declaratory relief and to issue orders of reinstatement where these are incidental to a claim for monetary relief within the Court of Claims' jurisdiction.

 Bruzzone asserts that this Court has jurisdiction of all of his claims under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and the general federal question provision, 28 U.S.C. § 1331. If the Court should find that it lacks jurisdiction over his claim for back pay, Bruzzone requests that it consider his claims for non-monetary relief, contending that he would be prejudiced by having these claims transferred to the Court of Claims.

 With respect to Bruzzone's claim for back pay, jurisdiction must be determined by reference to the Tucker Act, 28 U.S.C. §§ 1346 and 1491, since the Administrative Procedure Act does not constitute an independent basis of jurisdiction, Califano v. Sanders, 430 U.S. 99, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977). Section 1491 gives the Court of Claims jurisdiction of all monetary claims against the United States (apart from those involving tort); section 1346, subdivision (a)(2), gives the district court jurisdiction concurrent with the Court of Claims of claims against the United States not exceeding $10,000. Since Bruzzone states in ...


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