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BURKE v. GREEN

June 18, 1976

LEVERETT C. BURKE and JAMES E. MOLE, Plaintiffs
v.
WILLIAM GREEN, et al., Defendants



The opinion of the court was delivered by: HIGGINBOTHAM

 INTRODUCTION

 This action arises as a result of an alleged violation of plaintiffs' Fifth Amendment rights. Jurisdiction was alleged in the original Complaint under Title 28 of the United States Code, Section 1346 (a)(2). The defendants have moved to dismiss this action for want of jurisdiction under Rule 12(b)(1) and, for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. However, since affidavits, exhibits and depositions were submitted in support of both the defendants' motion to dismiss and briefs in opposition thereto, said motion is also, in effect, a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.

 Plaintiffs, Leverett C. Burke and James E. Mole, are officers of the United States Bureau of Customs (hereafter "Bureau"). They resigned from the Bureau following the alleged disappearance, on or about February 22, 1972, of five hundred dollars. The money had been seized and retained by the Bureau, and stored in a locker to which both plaintiffs allegedly had access at the time the money was discovered missing. The plaintiffs, as well as other Bureau personnel, were questioned in connection with an investigation about the missing money. Plaintiffs assert that their Fifth Amendment rights were violated by three Customs Special Agents, defendants Delaney, Farrell and Green, who interrogated Burke and Mole without first advising them of their right to remain silent in accordance with the procedure outlined in Miranda. Plaintiffs also contend that their resignations, procured as a result of these allegedly unconstitutional interrogations, were involuntary.

 The plaintiffs, as well as Special Agent Donald Chase and Customs Port Officer Joseph Carpiak, were first interviewed concerning the missing money on March 2, 1972. *fn1" The investigation was conducted by defendants Delaney, Farrell and Green. Prior to any questioning, one of these three agents explained to plaintiffs the purpose of the interview and their obligation as Bureau employees, under § 27.39 para. J of the Customs Manual, to answer questions posed in the interview. Burke and Mole were informed that any refusal to answer the questions of the investigating agents would be reported to personnel with the possibility that the obstinate employees would be subject to discipline. *fn2" It was not until after these instructions were given that plaintiffs, on March 22, 1972, executed consent forms agreeing to undergo polygraph examinations. *fn3" At different times, each plaintiff reported to a designated motel for the purpose of taking the polygraph examination. *fn4" No warning of the right to remain silent was given prior to either the administration of each plaintiff's test or the interrogation of the plaintiffs. After taking the exam, each plaintiff was escorted to a room where he was questioned by two, and sometimes three, armed Special Agents. The dialogue between each plaintiff and the Special Agents, including time spent during the polygraph exam, continued for more than two and one-half hours. The interrogating officers apparently began their second interview of Burke and Mole, subsequent to the administration of the polygraph tests, with the assertion that the polygraphs revealed deception on the part of the plaintiffs. After some questioning, and a second polygraph test taken by Mole, each plaintiff resigned.

 The plaintiffs appealed to the United States Civil Service Commission on the grounds that the resignations were involuntary and obtained in violation of the Supreme Court's mandate in Miranda. On December 10, 1973, the Board of Appeals and Review (hereafter "Board"), while rejecting the contention that plaintiffs were entitled to Miranda warnings prior to any interrogation, *fn5" agreed that the resignations were involuntary and ordered their reinstatement in their former capacities with back pay retroactive to March, 1972. The Board's order, made mandatory on the Bureau by a Civil Service Commission regulation, 5 C.F.R. § 752.401, *fn6" required that corrective action be taken within ten days of the receipt of the decision. Plaintiffs contend that the Board's order was deliberately violated when their reinstatement was not effected until December 27, 1973, seventeen days after the Board's decision was rendered. The Regional Director of the Personnel Management Division of the Bureau, defendant Richard A. Finley, Jr., received the Board's decision on the above date and immediately restored plaintiffs to their previous status in the Bureau.

 Plaintiffs also allege a conspiracy calculated to deprive them of their back pay for a period in excess of ten months on the part of defendants Reed, Moore, Van Pelt, John Doe, and Roe. *fn7" More specifically, plaintiffs aver that the above defendants failed to implement in a timely fashion the mandates of the Back Pay Act of 1966, 5 U.S.C. § 5596, *fn8" the regulations promulgated thereunder *fn9" and, the Internal Revenue Service Manual Transmittal § 0550.54(4). *fn10" Defendants' Exhibit 0, at 2. Apparently, a dispute arose in the calculation of the exact amount of back pay due the plaintiffs. Burke and Mole requested an appeal in accordance with the Internal Revenue Service's procedures in order to settle the dispute. A review under I.R.S. procedures had to be triggered by the administrative agency with which the employee had a back pay dispute. The request to follow the suggested procedure was denied by defendant Fenner, who insisted that any dispute over the amount of back pay should be directed to the Bureau Headquarters in Washington, D.C. Defendants' Exhibit 26. This alternative form of relief was never pursued by plaintiffs. On October 7, 1974, checks were issued to the plaintiffs which included reimbursement for back pay. The dispute as to the amount still due the plaintiffs remains unresolved.

 JURISDICTION UNDER THE BACK PAY ACT

 Plaintiffs' Complaint raises the following jurisdictional issues: does this Court have the authority to consider plaintiffs' claim for damages allegedly occasioned by federal officers' delay in processing back pay for Burke and Mole? May this Court consider the plaintiffs' claim for damages based on the federal officers' refusal to follow the appeal procedures found in the Internal Revenue Service's Manual Transmittal?

 By virtue of a 1964 amendment to 28 U.S.C. § 1346, district courts now possess concurrent jurisdiction with the court of claims over civil actions to recover fees, salary, or compensation for official services of officers or employees of the United States. Act of August 30, 1964, P.L. 88-519, 78 Stat. 699. However, plaintiffs in this case have prayed for damages in excess of the ten thousand dollar jurisdictional amount, so that the Court is precluded from exercising jurisdiction under § 1346(a)(2). The plaintiffs have not requested that the Court compel the performance of any act by an officer or employee of the United States, so that jurisdiction does not exist under the Mandamus Act. 28 U.S.C. § 1361. *fn11" Finally, the Third Circuit has ruled that Section 702 *fn12" of the Administrative Procedure Act does not provide an independent basis for extending the jurisdiction of the district court to claims outside of the purview of other jurisdictional statutes. Local 542, International Union of Operating Engineers v. N.L.R.B, 328 F.2d 850 (3d Cir.), cert. denied, 379 U.S. 826, 85 S. Ct. 52, 13 L. Ed. 2d 35 (1964); see Charlton v. United States, 412 F.2d 390, 396 (3d Cir. 1969) (Stahl, J., concurring). So if this Court has jurisdiction over this back pay dispute, it is under general federal question jurisdiction, 28 U.S.C. § 1331. The Court declines to exercise § 1331 jurisdiction.

 The Court, at this time, is not in a position to say that the actions of the defendants Reed, Doe, Moore, Van Pelt and Roe did not conform to the requirements of the Back Pay Act of 1966. The attempt of plaintiffs, to judicially enforce under § 1331 the important rights created by that act, is futile because of a failure to exhaust their administrative remedies. The Court of Appeals for the Third Circuit recently reiterated the importance of prior exhaustion of administrative remedies in Barnes v. Chatterton, 515 F.2d 916, 920 (3d Cir. 1975). The plaintiff in that action was a discharged naval employee seeking, among other remedies, to enjoin a Civil Service Commission hearing on the merits of his unlawful discharge claim and to compel the Navy to produce requested documents for his administrative hearings. The Court, in an opinion authored by Judge Rosenn, denied the requested relief and explained the doctrine of exhaustion of administrative remedies. Judge Rosenn opined that the doctrine:

 
. . . evolved after substantial experience, is conducive to efficient disposition of administrative proceedings and to effective judicial review. . . . As with most judicially created doctrines, there are judicially created exceptions. A party need not await a final agency decision if the preliminary agency decision clearly and unambiguously violates statutory or constitutional rights, (citation omitted) or "if the prescribed administrative procedure is clearly shown to be inadequate to prevent irreparable injury." American Fed'n of Gov't Employees, Local 1004 [sic -- 1904] v. Resor, 442 F.2d 993, 994-95 (3d Cir. 1971) (emphasis added).

 In this action the plaintiffs allege that the actions of the above defendants violated their statutory right to receive back pay after an appropriate authority, the Civil Service Commission, had determined that the Bureau's adverse personnel action was unwarranted. However, an examination of the Back Pay Act reveals that there is no clear violation of a statutory right in this case.

 Apparently the back pay dispute concerns hotel, restaurant, travel and other expenses allegedly incurred in plaintiffs' interim employment during the period when their resignations were effective. Letter from Mr. Brookman, Plaintiffs' Attorney, to Richard A. Finley, Jr., defendant, Defendants' Exhibit 25, at 2. Plaintiffs contend that those expenses listed above, for which they would have been reimbursed by the Government had they remained in its employ, should be included in the back pay allowance forthcoming from the agency. It is evident, after examination of both the pertinent regulation under the Back Pay Act and the Comptroller General's decision upon which the agency relied in making its determination, that the method used to calculate the plaintiffs' back pay award was not in clear violation of the Back Pay Act. 5 C.F.R. § 550.804, implementing the Back Pay Act, mandates that the agency shall not include in its back pay award an allowance for expenses which would have been reimbursed if incurred by the employee in the performance of his agency job, but were not incurred because of the unjustified personnel action taken by the agency. *fn13" The lack of a clear violation of the Back Pay Act on the part of the agency is also apparent upon review of a 1961 decision of the Comptroller General. The Comptroller General held that:

 
. . . allowance for hotel, restaurant, travel, and other expenses incurred in connection with the successful appeal of separation before the Civil Service Commission, as well as the excess cost of living at the place of interim employment over what the cost would have been at the former employment place, is neither expressly nor impliedly authorized to be ...

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