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LAWRENCE v. UNITED STATES

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


December 29, 1982

FRANK E. LAWRENCE
v.
UNITED STATES OF AMERICA, et al.

Hannum, J.

The opinion of the court was delivered by: HANNUM

MEMORANDUM AND ORDER

HANNUM, J.

 The Government has moved for summary judgment in favor of the individual defendants in this action - Bummara, Burns and Teeple. In a Memorandum and Order of this Court entered June 8, 1982, this Court dismissed all claims for damages against the individual defendants as untimely under applicable statutes of limitation. However, the action was permitted to proceed against said defendants under the Mandamus Act, 28 U.S.C. § 1361, seeking reinstatement to plaintiff's former position with the Interstate Commerce Commission, as well as an award of back pay.

 The individual defendants in question, however, have retired from their respective positions with the Interstate Commerce Commission. The Government argues, therefore, that the retired defendants no longer have any authority or power to grant plaintiff any of the equitable relief he seeks in the Mandamus proceeding. The point is well taken. By its very nature, Mandamus will lie only where a federal official owes the plaintiff a ministerial duty, that is, a duty that is positively commanded. Paige v. Pennsylvania Board of Parole, 311 F. Supp. 940 (E.D. Pa. 1970). Since the individual defendants are no longer federal officials, it necessarily follows that they owe no clear, ministerial duty to plaintiff.

 Plaintiff nonetheless argues that defendants remain individually liable for an award of back pay. This position is untenable. As earlier related, plaintiff's claims for damages against the individual defendants were dismissed as untimely. This ruling can not be so easily avoided by asserting a claim for compensation against the individual defendants by a Mandamus action. In this regard, Brook v. Thornburgh, 497 F. Supp. 560 (E.D. Pa. 1980) offers no support for plaintiff. In Brook, it was held in a § 1983 civil rights action that state officials could be held personally liable for an award of back pay to one wrongfully discharged. The decision does not go so far as to authorize similar recovery in a Mandamus action against individuals no longer federal officials. Moreover, to permit such recovery as sought by plaintiff against the individual, retired defendants would result in plaintiff's salary as a federal employee being paid by one other than the United States, which result would likely contravene 18 U.S.C. § 209.

 For the foregoing reasons, therefore, the Court concludes that defendants Bummara, Burns and Teeple are entitled to summary judgment as a matter of law. *fn1"

 An Order follows.

 ORDER

 AND NOW, this 29th day of December, 1982, it is ORDERED that the Motions For Partial Summary Judgment As To Defendants Joel Burns, Lewis Teeple and Anthony Bummara are GRANTED and judgment is hereby entered in favor of said defendants and against plaintiff.


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