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September 17, 1981

James R. BOYCE, Dominic Coppo, John R. Davis, Robert C. Leschorn, George McCauley, Anthony McHale, David W. O'Flaherty, Michael R. O'Neill and Julius L. Weiner, Plaintiffs,
UNITED STATES of America, et al., Defendants

The opinion of the court was delivered by: NEAHER


Plaintiffs in this action are nine Deputy United States Marshals who claim entitlement to retroactive promotion and pay in accordance with the terms of a teletype dated June 16, 1972, sent to United States Marshals by a personnel officer of the United States Marshals Service ("USMS"). As discussed more fully below, the terms of promotion as set forth in the teletype were impermissible under applicable law and regulations, and the personnel officer's erroneous authorization to promote plaintiffs more rapidly than would otherwise be possible was not implemented. The action is now before the Court on defendants' motion to dismiss for lack of subject matter jurisdiction. For the reasons which follow, the motion is granted.

 In 1971 plaintiffs were appointed as temporary, or "term," Deputy United States Marshals to serve in the President's Anti-Air Piracy Program. Because they were specially appointed without having to attain eligibility through the competitive civil service system, their appointments were not permanent, could be terminated by the government at will, and would, in any event, last no longer than four years.

 On June 16, 1972, when it appeared that the Air Piracy Program would be in effect longer than four years, USMS personnel officer Bert Lederer sent a teletype to several Marshals, which is reproduced in the Appendix.

 Although the teletype appeared to hold out an assurance that term convertees would reach the GS-7 pay level within 90 days of conversion to career conditional appointments, it still required that such appointments be effected through the regular civil service registers and that the appointees have "sufficient grade points available." It was anticipated that since term appointees had differing levels of seniority and grade eligibility, conversion to career conditional appointments would be to differing GS levels. It was an apparent attempt to equalize the positions of all term appointees, that the teletype stated that those whose eligibility required their appointment at the GS-4 level would within 90 days be accelerated to GS-7 upon meeting certain conditions.

 Prior to their conversion, plaintiffs were term appointees at GS-6, step 2. *fn1" On December 24, 1972, they were converted to career conditional deputy marshals at GS-4, step 10, the highest level to which they were eligible for conversion at that time. On April 1, 1973, plaintiffs were promoted to GS-5, step 8, and on April 14, 1974, their salaries and benefits were elevated to GS-7, step 3. Finally, on April 27, 1975, they were promoted to GS-9, the highest level authorized for their position, and they have been receiving periodic step increases since then.

 Plaintiffs were not advanced to GS-7 90 days after their conversion to career conditional because of the rule embodied in the so-called "Whitten Amendment." 5 U.S.C. § 3101 note. See 5 C.F.R. § 300.600(4). This provision requires that certain government employees including deputy marshals must serve at least one year in a given grade level before they may be promoted to the next higher grade level. For employees converted to a career conditional appointment at a lower grade level than that held under a temporary appointment, an exception to the Whitten Amendment permits the convertee to credit the time served at the higher level toward the seniority required for promotion from the lower level. See Federal Personnel Manual ch. 300, § 6-2(d) (1)(b). Accordingly, plaintiffs' time served while term appointees at GS-6 was credited to their career conditional service at GS-4, enabling them to be promoted to GS-5 only four months after their conversion. Thereafter, as related above, they were promoted one grade level each year. Since they had already been given the full benefit of this exception to the Whitten Amendment, however, they could not be promoted even more rapidly and advanced three levels within only 90 days after conversion. Plaintiffs had the option, but did not exercise it, to decline the conversion and remain term appointees at GS-6.

 An additional exception to the Whitten Amendment permits the Civil Service Commission, in its discretion, to order a promotion regardless of the time in grade requirements when requested by the chief officer of a federal agency in order to avoid particular hardships. See C.F.R. § 300.600(4). It does not appear that plaintiffs ever petitioned the Attorney General to request the Civil Service Commission to exercise its discretion to waive the Whitten Amendment. Nor does it appear that plaintiffs, on the assumption that their superiors had an obligation, sua sponte, to make such a request on their behalf, ever pursued the administrative procedures available for the redress of departmental grievances. Instead, this suit was instituted almost six years after the time plaintiffs assert they should have been converted to GS-7.

 Plaintiffs contend that because the teletype sent to their superior appeared to indicate that rapid promotion to GS-7 would be implemented notwithstanding the Whitten Amendment, which they concede would otherwise be applicable, defendants may not now rely on the Amendment's requirements. Accordingly, the complaint demands that the Court order defendants to waive the Amendment's mandates and treat plaintiffs in all respects as if they had been promoted to GS-7 as of March 24, 1973. While defendants respond that the complaint fails to state a claim upon which relief may be granted and that it is barred by a failure to exhaust administrative remedies, as well as by laches and the statute of limitations, their initial defense, with which we agree, is that the Court lacks jurisdiction to entertain plaintiffs' claim.

 It is well settled that the United States as sovereign enjoys immunity from all actions except those as to which it has expressly consented to suit, and that a court's subject matter jurisdiction is narrowly defined by the terms of that consent. See United States v. Testan, 424 U.S. 392, 399, 96 S. Ct. 948, 953, 47 L. Ed. 2d 114 (1976); United States v. Sherwood, 312 U.S. 584, 61 S. Ct. 767, 85 L. Ed. 1058 (1941). This immunity extends also to officers of the United States serving in an official capacity. Estate of Watson v. Blumenthal, 586 F.2d 925, 929 (2d Cir. 1978); see Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688, 69 S. Ct. 1457, 1460, 93 L. Ed. 1628 (1949). Plaintiffs assert that federal question jurisdiction supports their claims for denial of due process and equal protection. However, absent an express waiver of sovereign immunity, 28 U.S.C. § 1331 does not provide jurisdiction over actions against the government and its officers that in effect seek disbursement from the Treasury or decrees affecting public administration. Estate of Watson v. Blumenthal, supra, 586 F.2d at 932. See Brown v. General Services Administration, 425 U.S. 820, 826-27, 96 S. Ct. 1961, 1964-1965, 48 L. Ed. 2d 402 (1976); Gnotta v. United States, 415 F.2d 1271, 1277 (8th Cir. 1969), cert. denied, 397 U.S. 934, 90 S. Ct. 941, 25 L. Ed. 2d 115 (1970). Clearly, the complaint seeks such relief.

 It is true that claims implied directly under constitutional guarantees may assert federal question jurisdiction. See Davis v. Passman, 442 U.S. 228, 236, 99 S. Ct. 2264, 2272, 60 L. Ed. 2d 846 (1979). Such actions, however, which are judicially created, see Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), may be maintained only against individuals acting beyond and abusing their official duties, because the sovereign has not consented to be liable in such actions. Leonhard v. United States, 633 F.2d 599, 618 n. 27 (2d Cir. 1980). Here, the relief sought plainly demonstrates this action to be against the sovereign. In addition, plaintiffs have made no allegations of improper personal involvement by any defendant, id. 633 F.2d at 621 n. 30, and have even failed to join the personnel officer who dispatched the teletype. Hence, plaintiffs' assertion of jurisdiction for their self-styled "Bivens" action is unavailing.

 Plaintiffs also seek leave to amend the complaint to allege jurisdiction under the Tucker Act, 28 U.S.C. § 1346(a), in order to assert claims based upon the due process and equal protection clauses of the Fifth Amendment and on the doctrine of equitable estoppel.

 In United States v. Testan, supra, the Supreme Court expressly rejected the argument

"that the Tucker Act fundamentally waives sovereign immunity with respect to any claim invoking a constitutional provision or a federal statute or ...

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