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LUTZ v. USPS

May 14, 1982

ROBERT A. LUTZ, Plaintiff,
v.
UNITED STATES POSTAL SERVICE, Defendant



The opinion of the court was delivered by: NEAHER

MEMORANDUM OF DECISION AND ORDER

Plaintiff sues for money damages and injunctive relief directing the United States Postal Service to refrain from alleged unlawful employment practices and to appoint him to a position as a postal inspector. After answer, defendant moved for summary judgment dismissing the action, principally on the ground that the doctrine of sovereign immunity required dismissal of the suit for lack of jurisdiction. For the following reasons, which differ somewhat from arguments the parties primarily advanced, the Court concludes that the action must be dismissed.

 The pleadings disclose that the parties are in substantial agreement about the basic facts, almost all of which were established through the documentary material plaintiff attached to his complaint. Although lacking some specific details, the following outline will suffice to place this case in perspective. In 1974 plaintiff was employed by the United States Postal Service as a security police officer. Since he first considered employment with defendant in 1972, however, his goal - still unrealized - has been to become a postal inspector. The present suit arises because of defendant's continued rejection of plaintiff's applications and failure to appoint him to that position.

 Plaintiff does not complain that defendant did not explain the reasons for the unsuccessful outcome of his applications. And he could not reasonably do so, for the record is clear that defendant fully explained them. Budgetary restrictions limiting the number of postal inspector appointments and the large pool of already eligible candidates prompted defendant to discourage plaintiff even from submitting an application the first time he inquired about the job. Next, after plaintiff had been a security officer for two years and had first formally applied for the position, inspectors who conducted background investigations of plaintiff reported their recommendations that he not be considered favorably for the position. The ensuing denial of the application was conveyed to plaintiff in terms of the "severe" competition for the limited number of vacancies, which permitted selection only of candidates with the "highest" qualifications.

 The investigators' written reports, which were disclosed to plaintiff, apparently at his request, indicate an important reason for the unfavorable recommendations was the negative physical report of the Postal Service's examining physician, who referred to a nervous twinge in plaintiff's back, and an apparently separate back condition for which plaintiff had received a disability award from the Veterans Administration. The reports also included unfavorable comments about plaintiff's judgment, attitude and maturity from co-workers and others.

 Defendant continued to emphasize the "intense" competition for the limited number of positions when plaintiff sought renewed consideration of his application. In addition, the regional Chief Inspector wrote plaintiff explaining the "many factors" considered in evaluating the qualifications of a candidate for inspector; i.e., "experience, type of degree, attitude, oral expression, results of personal interview." He also noted the "considerable weight" given to plaintiff's back condition, which by itself made plaintiff "noncompetitive" for the job.

 After plaintiff furnished satisfactory medical proof that no back conditions disabled him from the work of an inspector, he was placed on the eligible register for the period of one year. He also was told that this status did not guarantee appointment but only further consideration. About the same time, plaintiff achieved an "85" on a qualification rating form, which purported to account for education, work experience and an examination. Plaintiff's score apparently put him among the top six of those with whom he was rated. Nevertheless, despite acquiring an MBA degree, plaintiff was not selected for any of the training classes before his eligibility expired.

 Neither the regional Chief Inspector or the Chief Inspector had explicitly referred to the negative comments about plaintiff's attitude revealed in his file. On the other hand, although plaintiff submitted his own affidavit, he did not contradict that of Craig Smith, a manager in the Personnel and Support Services Branch of the Postal Inspection Service. Smith, who interviewed plaintiff in April 1979 before the year of eligibility expired, said he had explained that the selection committees had deemed other applicants more qualified than plaintiff and that comments in the plaintiff's file indicated his personality traits made him appear "too overbearing" for a postal inspector. According to Smith, plaintiff said he was aware of "coming on too strong" but thought he could control it.

 In challenging defendant's actions, plaintiff asserts that defendant abused its discretion in not selecting him, and violated its own merit hiring and advancement policies by selecting others who ranked below him on the qualification rating form. To blunt the import of the fact that defendant informed him of the reasons for not selecting him, plaintiff further argues that there is a genuine issue of material fact as to the actual reason he did not receive favorable action.

 Against this background, we turn to a consideration of the government's contentions challenging the Court's power to entertain plaintiff's complaint, which alleges that federal jurisdiction exists by virtue of 28 U.S.C. §§ 1331, 1346, 1361, 2201. In addition, the passage from Spencer, White & Prentis, Inc. v. United States, 641 F.2d 1061, 1065 (2d Cir. 1981), included in plaintiff's brief, fairly indicates that he also is relying upon general principles of administrative review and the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq., asserting that his action is "based essentially on an alleged erroneous ruling by a federal agency." 641 F.2d at 1065.

 If the foregoing were all that plaintiff could rely upon to sustain jurisdiction against the assertion of sovereign immunity, it is clear that the complaint would have to be dismissed on that basis. *fn1" First it is well settled that the Declaratory Judgment Act, 28 U.S.C. § 2201, "does not provide an independent basis for federal jurisdiction but simply increases the remedies available to a litigant." Estate of Watson v. Blumenthal, 586 F.2d 925, 928 (2d Cir. 1978), citing Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 94 L. Ed. 1194, 70 S. Ct. 876 (1950). It is equally well settled that the other jurisdictional statutes specified in the complaint, §§ 1331, 1361 and 1346, do not by themselves waive the sovereign's immunity to suits arising under federal law, as this one purports to be. See Doe v. Civiletti, 635 F.2d 88, 93-95 (2d Cir. 1980). *fn2" Furthermore, the waiver of sovereign immunity in the APA, 5 U.S.C. § 702, is no help to plaintiff here, because the APA itself is not an independent basis for jurisdiction, Califano v. Sanders, 430 U.S. 99, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1978). Thus, authority for plaintiff to maintain his suit against the sovereign must be sought elsewhere.

 The jurisdictional bar of sovereign immunity raised by defendant is, however, insufficient to require dismissal of this suit. In reorganizing the old cabinet-level Department of the Post Office into the present United States Postal Service, as "an independent establishment of the executive branch," 39 U.S.C. § 201, Congress specifically provided that the Postal Service "shall have" the general power "to sue and be sued in its official name." 39 U.S.C. § 401(1). Long before Congress reorganized the Postal Service, the Supreme Court consistently interpreted "sue and be sued" in statutes creating federal corporations, agencies and instrumentalities, as a general waiver of the sovereign's immunity as to the entity, see, e.g., Keifer & Keifer v. R.F.C., 306 U.S. 381, 83 L. Ed. 784, 59 S. Ct. 516 (1939). Indeed, in specifically reviewing this provision in the Postal Service's governing statute in Beneficial Finance Co. of New York v. Dallas, 571 F.2d 125 (2d Cir. 1978), the Court of Appeals found "no proper alternative" to the accepted construction of "sue and be sued" and held that the Postal Service was not immune to a garnishment suit.

 In these circumstances, it cannot be said, as defendant urges, that plaintiff failed to include in his complaint "a short and plain statement of the grounds upon which the court's jurisdiction depends" as required by Rule 8(a)(1), F.R.Civ.P. Contrary to the narrow view of the complaint defendant favors, "it is our duty to read it liberally, to determine whether the facts set forth justify taking jurisdiction on grounds other than those most artistically pleaded." New York State Waterways Association, Inc. v. Diamond, 469 F.2d 419, 421 (2d Cir. 1972). Cf. Marbury Management, Inc. v. Khan, 629 F.2d 705, 712 n. 4 (2d Cir. 1980) (complaint that gives full notice of the circumstances giving rise to the plaintiff's claim for relief need not also correctly plead the legal theory or theories and statutory basis supporting the claim).

 Here, there could be no question that the complaint properly named the Postal Service as the entity responsible for the alleged "unlawful" employment practice of which plaintiff complains. Accordingly, federal district court jurisdiction was available under the literal terms of 39 U.S.C. § 409(a), which provides for original, non-exclusive jurisdiction in the ...


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