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,
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,
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.
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,
the regulations promulgated thereunder
and, the Internal Revenue Service Manual Transmittal § 0550.54(4).
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.
Finally, the Third Circuit has ruled that Section 702
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).