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NIXON v. HAMPTON

September 12, 1975

BONITA LOIS NIXON and BARRY LOUIS NIXON, on their behalf and on behalf of all others similarly situated
v.
ROBERT E. HAMPTON, Chairman of United States Civil Service Commission



The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 Plaintiffs, individually and on behalf of all others similarly situated, have brought this action seeking declaratory and injunctive relief, and appropriate money damages, alleging that 5 U.S.C. § 8341(a)(3)(A) (Supp. 1975), amending 5 U.S.C. § 8341(a)(4)(A) of the Civil Service Retirement Act, 5 U.S.C. § 8331 et seq., is unconstitutional in that it denies them the equal protection of the laws implicitly guaranteed by the due process provision of the Fifth Amendment. The proposed class which plaintiffs represent is composed of all recognized illegitimate children of civilian employees of the United States Government who were not living, or will not be living, with the employee in a regular parent-child relationship at the time of the employee's death. The alleged unconstitutional discrimination results in the denial of survivor annuity benefits to members of the class, while such benefits are awarded to all legitimate children of deceased government employees and illegitimate children who were living with an employee in a regular parent-child relationship. *fn1"

 Plaintiffs' natural father, William Louis Rogers, was, at the time of his death, a civilian employee of the Defense Department in Gibbsboro, New Jersey. Following his death, plaintiffs' mother, Geraldine Nixon, filed a claim for survivor annuity benefits with the Civil Service Commission on behalf of her two children who were minors at that time. Her claim was denied on the ground that the children (plaintiffs) were not living in a regular parent-child relationship with the deceased.

 Presently before the Court is defendant's motion to dismiss this action for lack of subject matter jurisdiction. Plaintiffs assert that jurisdiction exists under 28 U.S.C. § 1331(a); 28 U.S.C. § 1361 (Mandamus Act); 5 U.S.C. § 701 et seq. (Administrative Procedure Act); U.S. Const. amend. V; and 28 U.S.C. § 1346(a)(2) (Tucker Act). The Court notes at the outset that plaintiffs' constitutional challenge raises a substantial federal question. However, we will be unable to reach the substantive issue raised by the case. The Court agrees with defendant that it lacks subject matter jurisdiction over this action, for reasons more fully set out below.

 Plaintiffs assert, without any authority in support thereof, that the Fifth Amendment confers jurisdiction upon this Court. Such an assertion has never been accepted, as the District Courts of the United States are courts of limited jurisdiction, possessing only such jurisdiction as congressionally-enacted statutes expressly confer. United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84, 88 (3d Cir. 1969); People's Rights Organization v. Bethlehem Associates, 356 F. Supp. 407, 409 (E.D.Pa.), aff'd, 487 F.2d 1395 (3d Cir. 1973). Therefore, the Fifth Amendment does not afford plaintiffs a basis for jurisdiction.

 Jurisdiction also cannot be predicated upon the Tucker Act, 28 U.S.C. § 1346(a)(2). That Act gives district courts jurisdiction over claims against the United States for money damages not exceeding $10,000. The Supreme Court has construed the Act's applicability as being limited to actions for money damages and not as extending to suits for equitable relief against the United States. Richardson v. Morris, 409 U.S. 464, 465, 34 L. Ed. 2d 647, 93 S. Ct. 629 (1973). Since plaintiffs are asking for declaratory and injunctive relief as well as monetary damages, the Tucker Act is inapplicable in this case.

 Jurisdiction may not be invoked under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., as the Third Circuit has held that the Act is remedial in nature and may not serve as an independent basis of jurisdiction. Zimmerman v. United States, 422 F.2d 326, 330-331 (3d Cir.), cert. denied, 399 U.S. 911, 26 L. Ed. 2d 565, 90 S. Ct. 2200 (1970). The plaintiffs argue that, since Zimmerman, the Supreme Court in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971), held, sub silentio, that the APA provides an independent basis of jurisdiction. Volpe involved an attempt to enjoin the Secretary of Transportation from releasing federal funds to a state highways department for the construction of an expressway through city park lands. The Court noted that the APA subjects agency action to judicial review, but did not hold that the APA provided the jurisdictional vehicle by which to proceed to that review. Id. at 410. Additionally, the Third Circuit has addressed this question on numerous occasions subsequent to Volpe, and has repeatedly held that the APA does not provide an independent basis of jurisdiction. See Grant v. Hogan, 505 F.2d 1220, 1225 (3d Cir. 1974); Bachowski v. Brennan, 502 F.2d 79, 82 (3d Cir. 1974), rev'd. on other grounds sub nom., Dunlop v. Bachowski, 421 U.S. 560, 95 S. Ct. 1851, 44 L. Ed. 2d 377 (1975); Chaudoin v. Atkinson, 494 F.2d 1323, 1328-1329 (3d Cir. 1974); Richardson v. United States, 465 F.2d 844, 849 n.2 (3d Cir. 1972), rev'd. on other grounds, 418 U.S. 166, 41 L. Ed. 2d 678, 94 S. Ct. 2940 (1974).

 Plaintiffs also purport to bring this action pursuant to the Mandamus Act, 28 U.S.C. § 1361, which provides:

 
The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or agency thereof to perform a duty owed to the plaintiff.

 The legislative history of the mandamus statute reveals that the statute's construction turns upon traditional mandamus law. Davis, Administrative Law Treatise (1970 Supplement) § 23.10. In Richardson v. United States, supra, the Third Circuit summarized the prior law as follows:

 
In order for mandamus to issue, a plaintiff must allege that an officer of the Government owes him a legal duty which is a specific, plain ministerial act "devoid of the exercise of judgment or discretion." . . . An act is ministerial only when its performance is positively commanded and so plainly prescribed as to be free from doubt. 465 F.2d at 849 (citations omitted).

 Applying this test, we do not believe that the performance which plaintiffs seek here can be said to be a clear, plain, ministerial act such as is envisioned in the concept of mandamus. To the contrary, the statute clearly commands the defendant not to award survivor annuity benefits to illegitimate children not living in a regular parent-child relationship.

 Plaintiffs argue, however, that mandamus jurisdiction lies when the act of a federal official, although authorized by statute, is alleged to violate the Constitution; specifically in this case, the due process provision of the Fifth Amendment. See Christian v. New York State Department of Labor, Division of Employment, 414 U.S. 614, 617 n.3, 39 L. Ed. 2d 38, 94 S. Ct. 747 (1974); Burnett v. Tolson, 474 F.2d 877, 880-883 (4th Cir. 1973); Martinez v. Richardson, 472 F.2d 1121, 1125 & 1126 n.12 (10th Cir. 1973); Mattern v. Weinberger, 377 F. Supp. 906, 914 (E.D.Pa. 1974). But see Jamieson v. Weinberger, 379 F. Supp. 28, 34 (E.D.Pa. 1974). Plaintiffs cite Richardson v. United States, supra, in support of their proposition. That case involved a taxpayer who sought a writ of mandamus to compel the publication of the budget of the Central Intelligence Agency. The statutory basis for the Secretary of the Treasury's refusal to provide the information was the Central Intelligence Agency Act, 50 U.S.C. § 403a et seq. (1970). Save for the existence of the Act, the Secretary would have been required to give an accounting of the expenditures, as required by the Accounting and Auditing Act of 1950, 31 U.S.C. §§ 66b(a), 1029. The court held that ...


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