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HERSH v. DEPARTMENT OF THE NAVY

July 24, 1978

Alvin R. HERSH
v.
DEPARTMENT OF the NAVY, and United States Civil Service Commission and Ralph B. Masino



The opinion of the court was delivered by: BRODERICK

MEMORANDUM

The plaintiff, Alvin Hersh, instituted this suit against the Department of the Navy, the Civil Service Commission, and several employees of the Navy, alleging that they discriminated against him when they failed to promote him, in violation of 42 U.S.C. §§ 1981, 1985(3), and the First, Fourth and Fifth Amendments to the United States Constitution. Presently before the Court are the plaintiff's unopposed motion to amend his previously amended complaint to allege jurisdiction under § 717 of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16; and the defendants' motion for judgment on the pleadings or in the alternative, for summary judgment.

 The defendants assert that since the plaintiff is a federal employee, his sole remedy for discrimination is § 717 of the Civil Rights Act of 1964, as amended, and that he has failed to satisfy the jurisdictional prerequisites for a § 717 suit. We will permit the plaintiff to amend his previously amended complaint to allege jurisdiction under § 717. Nevertheless, having reviewed the briefs, affidavits and the administrative record submitted, for the reasons hereinafter set forth, we have determined that the defendants' motion will be granted.

 Early in 1977, the plaintiff commenced this suit by filing a complaint alleging that the Department of the Navy, the United States Civil Service Commission and Ralph Masino failed to promote him from Electrical Engineer, G.S. 12, to Supervisory Engineer, G.S. 13, although his qualifications were superior to those of every other applicant, because they "were prejudiced and biased against (him) for reasons totally unrelated to the qualifications for advancement." He also challenged the procedure by which promotions are granted as being arbitrary, wilful, capricious and unlawful because "there has never been any showing as to the basis for plaintiff's failure to secure advancement." Jurisdiction in the complaint was based on the Constitution of the United States, 42 U.S.C. § 1981 and the First and Fourth Amendments.

 Several months later, an amended complaint was filed. The following additional defendants were listed: Graham Clayton, Secretary of the Navy, James Olson, G. D. Fraunces and Ward DeGroot, III. Jurisdiction was amended to include the Fifth Amendment and 42 U.S.C. § 1985(3). The allegations of fact were also changed, adding the following specific allegations: (1) that the plaintiff is an Episcopalian; (2) that he has been reluctant to contribute to the Combined Federal Campaign for religious reasons; and (3) that defendants denied him a promotion because of his reluctance to contribute to the Combined Federal Campaign.

 The defendants answered the complaint and then filed a motion for judgment on the pleadings or for summary judgment. A copy of the administrative record relating to the plaintiff's complaints to the Navy and the Civil Service Commission was also submitted.

 In their motion the defendants contend: (1) that as a federal employee the plaintiff's only remedy for employment discrimination is under § 717 of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16; and (2) that even were plaintiff to amend his complaint to include a claim under § 717, the Court would not have jurisdiction because the plaintiff has not exhausted his administrative remedies pursuant to § 717.

 The plaintiff contends that (1) the defendants' motion is premature and inappropriate because discovery is necessary in order to develop a record on the question whether plaintiff has exhausted his administrative remedies under § 717; and (2) the defendants failed to show that there is any reason why the plaintiff may not come under an exception to the doctrine of exhaustion of remedies.

 Preliminarily, we note that the motion filed by the defendants requests judgment on the pleadings or summary judgment. The defendants' contention that the plaintiff does not have a cause of action under 42 U.S.C. §§ 1981, 1985(3), and the First, Fourth and Fifth Amendments to the United States Constitution, will be considered by this Court on the basis of the defendants' motion for judgment on the pleadings, and for purposes of determining this question we have considered only the pleadings filed in the case.

 The defendants point out that as a federal employee, the plaintiff's sole remedy for employment discrimination is under § 717 of the Civil Rights Act of 1964, as amended. In Brown v. General Services Administration, 425 U.S. 820, 828-29, 835, 96 S. Ct. 1961, 1966, 48 L. Ed. 2d 402 (1976), the Supreme Court stated that the "unambiguous congressional perception seems to indicate that the congressional intent in 1972 was to create an exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination," and held "that § 717 of the Civil Rights Act of 1964, as amended, provides the exclusive judicial remedy for claims of discrimination in federal employment." Therefore, judgment on the pleadings will be entered on the plaintiff's claims filed pursuant to 42 U.S.C. §§ 1981, 1985(3), as well as the First, Fourth and Fifth Amendments.

 The substance of the defendants' other contention is that this Court lacks jurisdiction to entertain the plaintiff's § 717 claim because he has failed to exhaust his administrative remedies. This contention is more properly raised in a motion to dismiss the complaint for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). Brown v. General Services Administration, 425 U.S. 820, 96 S. Ct. 1961, 48 L. Ed. 2d 402 (1976); Gissen v. Tackman, 537 F.2d 784 (3d Cir. 1976). Therefore, we will treat this second portion of defendants' motion as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), and in connection with the 12(b)(1) motion we shall consider the affidavits as well as the certified record filed by the parties.

 Our Third Circuit in Mortensen v. First Federal Savings and Loan Association, 549 F.2d 884, 892 (3d Cir. 1977), recently discussed the procedure applicable where defendants' 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact. The Court stated:

 
The basic difference among the various 12(b) motions is, of course, that 12(b) (6) alone necessitates a ruling on the merits of the claim, the others deal with procedural defects. Because 12(b)(6) results in a determination on the merits at an early stage of plaintiff's case, the plaintiff is afforded the safeguard of having all its allegations taken as true and all inferences favorable to plaintiff will be drawn. The decision disposing the case is then purely on the legal sufficiency of plaintiff's case: even were plaintiff to prove all its allegations, he or she would be unable to prevail. In the interests of judicial economy it is not improper to dispose of the claim at that stage. If the court considers matters outside the pleadings before it in a 12(b)(6) motion, the above procedure will automatically be converted into a Rule 56 summary judgment procedure. Here there are further safeguards for the plaintiff: in addition to having all of plaintiff's allegations taken as true, with all their favorable inferences, the trial court cannot grant a summary judgment unless there is no genuine issue of material fact.
 
The procedure under a motion to dismiss for lack of subject matter jurisdiction is quite different. At the outset we must emphasize a crucial distinction, often overlooked, between 12(b)(1) motions that attack the complaint on its face and 12(b)(1) motions that attack the existence of subject matter jurisdiction in fact, quite apart from any pleadings. The facial attack does offer similar safeguards to the plaintiff: the court must consider the allegations of the complaint as true. The factual attack, however, differs greatly for here the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction its very power to hear the case there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's ...

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