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November 14, 1985


The opinion of the court was delivered by: SCIRICA



 A motion for summary judgment has been filed by defendants the United States, the Interstate Commerce Commission (ICC) and William Love, who at the time in question was Assistant Director of the ICC's Office of Consumer Protection. Plaintiff has invoked the jurisdiction of this court pursuant to the general federal question statute, 28 U.S.C. § 1331 (1980 Supp.); the Mandamus Act, 28 U.S.C. § 1361 (1976); and the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706 (1977).

 Plaintiff's complaint charges the defendants, along with three other employees of the ICC, with various forms of harassment that led to plaintiff's suffering a heart condition and subsequently retiring on medical disability in August 1977 from his position as an ICC investigator. Plaintiff claims that the harassment began in February 1976, soon after an "unknown source" leaked to the national press, information that plaintiff had supplied to Congress at the request of the Subcommittee on Oversight and Investigations of the Commerce Committee of the House of Representatives. Plaintiff alleges that for thirteen months following the leak, one individual in particular, Anthony W. Bummara, harassed him by directing plaintiff's secretary to (1) keep a record of plaintiff's comings and goings, (2) apprise plaintiff of her conduct, and (3) refuse to do any of plaintiff's typing without first getting approval from Mr. Bummara. Plaintiff also charges that his colleagues were warned they would lose their jobs if they fraternized with him. In addition, plaintiff claims that the other defendants, including the ICC, wrongfully encouraged Mr. Bummara's actions.

 Plaintiff's complaint initially sought compensatory and punitive damages for emotional distress, humiliation and embarrassment against the individual defendants only, a new position in a federal agency other than ICC, and back pay and benefits "which would have accrued since his forced retirement." In an earlier opinion, Judge Hannum characterized the claims for money damages against the individual defendants as state law actions for intentional infliction of emotional distress and dismissed them as time-barred under the applicable Pennsylvania two-year statute of limitations. Lawrence v. United States, 631 F. Supp. 631, slip op. at 9 (E.D. Pa. 1982). Judge Hannum permitted the action to proceed, however, "for non-monetary relief against all defendants under the Administrative Procedure Act and under the Mandamus Act." Id. at 639. In a subsequent memorandum and order Judge Hannum granted summary judgment in favor of Mr. Bummara and two other ICC employees, whose recent retirements had made them inappropriate defendants in a mandamus action. Lawrence v. United States, 631 F. Supp. 631 (E.D. Pa. 1982).

 Today I consider the four arguments raised by the remaining defendants: (1) absence of a case or controversy; (2) estoppel; (3) laches; and (4) failure to exhaust administrative remedies. Finding that plaintiff failed to exhaust his administrative remedies, I grant the defendants' motion.


 A. Case or Controversy

 Defendants' first argument is that plaintiff failed to submit a case or controversy. Pointing to the specific relief sought by plaintiff, i.e., reinstatement to a civil service position with a federal agency other than ICC and back pay, defendants contend that since neither the Mandamus Act nor the APA allows monetary awards or the performance of "discretionary" government acts, plaintiff's claim is merely a request for an advisory opinion. This argument is unpersuasive.

 The test is "whether the 'conflicting contentions of the parties . . . present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.'" Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298, 60 L. Ed. 2d 895, 99 S. Ct. 2301 (1979) (citations omitted). Further, I must determine whether the plaintiff "suffered some actual injury that can be redressed by a favorable judicial decision." Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 104 S. Ct. 373, 374-375, 78 L. Ed. 2d 58 (1983). It is only where these conditions are met and the issues are pressed before the court "with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multi-faced situation embracing conflicting and demanding interests," United States v. Fruehauf, 365 U.S. 146, 157, 5 L. Ed. 2d 476, 81 S. Ct. 547 (1961), that "a court can see what legal issues it is deciding, what effect its decision will have on the adversaries, and some useful purpose to be achieved in deciding them." Public Service Commission v. Wykoff, 344 U.S. 237, 244, 97 L. Ed. 291, 73 S. Ct. 236 (1952).

 In this case, the parties have a real, well-focused controversy, particularly when the alleged facts are viewed for purposes of this summary judgment motion in the light most favorable to plaintiff. See Continental Insurance Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982). At issue is whether defendants' conduct infringed upon plaintiff's exercise of his First Amendment free-speech rights, and whether that conduct was the cause of the disability that forced plaintiff to retire.

 In addition, there is no intrusion by the court into the province of another governmental branch. In passing the Mandamus Act, Congress specifically established a judicial forum for the redress of certain actions by federal officials. Although the offer of employment is discretionary rather than ministerial, and relief under the Act does not extend to the performance of discretionary duties, a mandamus action is not automatically barred here. Mandamus may lie not only to compel ministerial duties, but where, as alleged here, "there has been an action taken by a government official contrary to law and so plainly prohibited as to be free from doubt." Naporano Metal and Iron Co. v. Secretary of Labor of U.S., 529 F.2d 537, 542 (3d Cir. 1976); see Taylor v. United States Dept. of Labor, 552 F. Supp. 728, 744-45 ...

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