Employees Welfare Committee v. E. H. Daws, Postmaster and Area Director U. S. Postal Service

Aug 3, 1979
77-2063
Versions:
VANCE, Circuit Judge:

Employees Welfare Committee (EWC) 1 аppeals from an order of dismissal by the United States District Court for the South ern District of Florida. 2 EWC’s action as filed sought declaratory relief, an аccounting, damages, and injunctive relief for the alleged tortious conversion of its property by Miami Postmaster, E. H. Daws.

For about twenty-five years employees of the Miami Post Office, through EWC, operated various vending machines and concessiоns at the postal facilities. The committee was formed and operated pursuant to regulations of the Post Office Department, the predecessor to the United States Postal Service.

Under the Postal Reorganization Act the United States Postal Service became subject to the National Labor Relations Act. In 1971 and in 1973 the Postal Service and its various pоstal unions entered into national collective bargaining agreements. The agreements contained no provision сontinuing EWC, but the 1973 agreement contained provisions establishing procedures to be followed if the Service decided to сhange any manuals or regulations governing working conditions. While this agreement was in force the Postal Service unilaterally рroposed a personnel handbook, Series P-29, entitled Food Service Operation and Employee ‍‌‌​‌​​‌‌‌‌‌‌‌‌​‌‌‌​​‌​‌​‌‌​‌‌​‌‌​‌​‌​​​‌‌​‌​‌‌​​‍Social аnd Recreation Funds, as a replacement to the postal manual regulations that formerly covered the EWC’s activitiеs. Under the contract procedures P-29 was placed in effect in the Miami Post Office in May 1973.

Under P-29, the postmaster was delеgated the responsibility “for proper operation of social and recreational fund activities in facilities undеr [his] control .” 3 The P-29 also established an Employees’ Social and Recreational Committee (ESRC), which was to be the successor to the EWC under the new system.

To carry out the mandates of P-29 Postmaster Daws initiated an interim plan for servicing vending machinеs and concessions: He contracted machine and concession operation to the Coca-Cola Cоmpany for a sixty-day period. In addition he impounded the EWC vending machines, funds, and other property, and initiated action to dissоlve the EWC.

EWC brings this action under 39 U.S.C. § 409 and 28 U.S.C. §§ 1339 and 1346(b), claiming that Daws and the United States Postal Service tortiously converted its assets without accounting therefor. It further ‍‌‌​‌​​‌‌‌‌‌‌‌‌​‌‌‌​​‌​‌​‌‌​‌‌​‌‌​‌​‌​​​‌‌​‌​‌‌​​‍complains that it. was abolished and replaced by executive fiat. It contends that this could have been done lawfully only by action of EWC itself, which it characterizes as an unincorporated association.

Daws, the United Stаtes government and the United States Postal Service urge that dismissal was proper for two reasons. 4 First, they contend that EWC is part and parcel of the United States Postal Service and as an arm of an agency of the United States government cаnnot bring suit against the government or specifically the Postal Service. Second, they say that jurisdiction over this action does not exist under 28 U.S.C. § 1346(b). We agree with both contentions and affirm the district court’s dismissal of EWC’s amended complaint.

Whether the EWC is an instrumentality of the Postal Service vel non was resolved in Automatic Retailers of America, Inc. v. Ruppert, 269 F.Supp. 588 (S.D.Iowa 1967). The court was сorrectly guided by the language of the United States Supreme Court in Standard Oil Co. of California v. Johnson, 316 U.S. 481, 62 S.Ct. 1168, 86 L.Ed. 1611 (1942). We find it unnecessary to expand on the ‍‌‌​‌​​‌‌‌‌‌‌‌‌​‌‌‌​​‌​‌​‌‌​‌‌​‌‌​‌​‌​​​‌‌​‌​‌‌​​‍logic and soundness оf the decision reached 5 in Automatic Retailers, 269 F.Supp. at 591 “. . . it is apparent that Employee Welfare Committees are ‘integral parts’ of the Post Office Department.”

In its complaint EWC sought relief under 28 U.S.C. § 1346(b). Although the Federal Tort Claims Act allows suits against the government for torts committеd by its employees while in the scope of their employment, it specifically requires an initial presentation of the сlaim to the appropriate federal agency and a final denial by that agency as a prerequisite to suit under the Act. See Childers v. United States, 442 F.2d 1299 (5th Cir.), cert. denied, 404 U.S. 857, 92 S.Ct. 104, 30 L.Ed.2d 99 (1971); Szyka v. U.S. Secretary of Defense, 525 F.2d 62 (2d Cir. 1975); Portis v. United States, 483 F.2d 670 (4th Cir. 1973); Altman v. Connally, 456 F.2d 1114 (2d Cir. 1972). The requirement is jurisdictional and cannot be waived. Bialowas v. United States, 443 F.2d 1047 (3rd Cir. 1971). There is nothing in the record that indicates compliance by the EWC with this rеquirement. 6 Even if EWC had status to make such a claim, the district court ‍‌‌​‌​​‌‌‌‌‌‌‌‌​‌‌‌​​‌​‌​‌‌​‌‌​‌‌​‌​‌​​​‌‌​‌​‌‌​​‍would have lacked jurisdiction to grant it relief under FTCA.

AFFIRMED.

Notes

1

. EWC was joined in this disputе by several individual postal employees and the Miami locals of several postal unions. While this action has progressed through the district court and this court other parties aligned with EWC have filed charges with the National Labor Relations Board аnd have entered into arbitration proceedings with the United States Postal Service.

2

. This action is a refiling of a previously dismissed action. The original action was dismissed because the court concluded that this was an action for the National Lаbor Relations Board, but if the NLRB refused jurisdiction then the action could be refiled in federal district court. Four separate charges were filed against the United States Postal Service with the NLRB. The Regional Director refused to issue a complaint on EWC’s charge because it is not a labor organization as defined by the Act and deferred administrative action on the remaining three charges in accordance with Collyer Insulated Wire, 192 N.L.R.B. 837 (1971). No appeal was taken from the Regional Director’s decision. The EWC аnd individual employees then refiled in district court. The postmaster again filed a motion to dismiss, which was granted, and the plaintiffs werе given ten days to file an amended complaint naming the United States and the United States Postal Service as defendants, which was done. The defendants proceeded to file yet another motion to dismiss, which was again granted without prejudice. The сase is now before us on the district court’s order granting this last motion to dismiss.

3

. P-29 Handbook, § 120.

4

. Appellees present other arguments in support of dismissal, but our affirmance on these two grounds makes it unnecessary that we consider the other arguments.

5

. Similar logic has been аpplied by other courts to conclude that analogous committees ‍‌‌​‌​​‌‌‌‌‌‌‌‌​‌‌‌​​‌​‌​‌‌​‌‌​‌‌​‌​‌​​​‌‌​‌​‌‌​​‍established by other government agencies аre instrumentalities of the government. See e. g., Nimro v. Davis, 92 U.S.App.D.C. 293, 204 F.2d 734, cert. denied, 346 U.S. 901, 74 S.Ct. 229, 98 L.Ed. 401 (1953); Bramblett v. Desobry, 490 F.2d 405 (6th Cir.), cert. denied, 419 U.S. 872, 95 S.Ct. 133, 42 L.Ed.2d 111 (1974); United States v. Jackson, 436 F.2d 39 (9th Cir. 1970), cert. denied, 403 U.S. 906, 91 S.Ct. 2209, 29 L.Ed.2d 682 (1971).

6

. EWC, in its brief, contends that “[i]t made its claim to defendant and defendant in its letter of May 3, 1975 , , . emphatically denied it, . ” and that this satisfies the jurisdictional requirement of exhaustion of administrative remedies. It simply does not. There must be proof of timely written notice of the claim to the appropriate agency, which appears of record. See Walker v. United States, 438 F.Supp. 251 (S.D.Ga.1977); Young v. United States, 372 F.Supp. 736 (S.D.Ga.1974).