*1 al., Gilman J. CHASSE et
Plaintiffs-Appellants, CHASEN, al.,
Robert E. et
Defendants-Appellees.
No. 78-1103. Appeals,
United States Court
First Circuit.
Argued Sept. 29, 1979.
Decided March Persina,
William E. Associate Gen. Coun- Union, sel, Treasury National C., Robert Washington, D. with whom M. Tobias, Counsel, C., Washington, D. Gen. brief, plaintiffs-appellants. was on Ward, Atty., Martin J. Gen. Office of the Counsel, Service, Regional U. S. Mass., deRomoet, Boston, with whom John Counsel, Service, Regional U. S. Customs brief, Boston, Mass., was on for defendants- appellees. KUNZIG,* Judge,
Before U. S. Court of Claims, BOWNES, CAMPBELL and Circuit Judges.
KUNZIG, Judge. pay
This civilian case involves of certain of the United States suit to enforce Customs Service * Sittingby désignation. *2 policy pronouncement concerning grievance
terms of a Plaintiffs filed by overtime issued Commissioner of agency grievance the Customs Service’s Judge Customs on November procedure. Ed- They charged Gignoux ward T. of the United Dis- change States by Acting instituted District (North- trict Court for the District of Maine Director violated Customs Service Circular Division) ern held that the court with- was issued the Commissioner of subject-matter out subject Customs on 1968. The November complaint. claim and dismissed the We af- “assignment of that circular was listed as firm. personnel inspectional activities.” Plain- argued tiffs policy change was plaintiffs-appellants The five were cus- inconsistent with section III.D.4. of the cir- inspectors employed toms by the United grievance cular.3 4The examiner found in Bangor States Customs Service Interna- plaintiffs, favor of the but his recommenda- Airport tional in Maine.1 Each awas full rejected by who, tion was defendant Martin journeyman inspector. time Prior to De- as the Manage- Director of the Personnel 1, 1974, cember duty overtime tours of Service, ment Division of the Customs had (those on Sundays, holidays, during final to decide such matters. hours of midnight 12:00 to 8:00 A.M. on weekdays) Bangor at the International Air- timely action, Plaintiffs then filed this port only assigned were actually to “when alleging a violation Customs Service Cir- employed” (WAE)2 employees after 2-MI, each cular United States Dis- INS— journeyman inspector given had been trict Court for District of Columbia. opportunity to accept special overtime. On defendant’s motion case was trans- year calendar 1974 each plaintiff earned ferred to the United States District Court $20,000 at least pay. in overtime (Northern for the District of Maine Divi- sion). 1, 1974, On December defendant Ingalls, Acting
then
District Director for the Port-
amending
after
their com-
District,
land
change
instituted a
plaint,
grounds
jurisdic-
asserted four
staffing policy
overtime
Bangor
at the
In-
(1)
(Declarato-
tion:
U.S.C. §§
ternational Airport. Under
policy,
the new
ry Judgment Act);
(2) 28 U.S.C.
inspectors
two WAE
assigned
were
(Mandamus);
for each
(3)
1331(a) (laws
28 U.S.C. §
journeyman inspector who worked that tour
States);
(4)
of duty. As a result
of this
change,
1346(a)(2) (executive regulations).
In dis-
were
assigned
not
to work on missing
jurisdic-
for lack of
jobs
number of
tion,
overtime
on occasions
Judge Gignoux
(1)
held that:
the De-
when they were willing and able to do so.
claratory Judgment Act does not extend
In calendar year
plaintiff
no
subject
court;
received
$10,107
more than
pay.
overtime
(2) the Mandamus statute does not confer
(b)
Plaintiffs Connell and
compensation
Hodson retired from
The volume of extra
as-
respectively.
active service in
signments
1975 and 1976
qualified permanent
is such that
employees,
off,
full-time
in order to have time
employees
part-time
2. WAE
are
workers.
prevent overwork,
require
or to
relief and
They
generally
eligible
for extra com-
qualified permanent
there are no other
full-
pensation
Act,
under the Customs Overtime
employees available;
time
amended,
unless
(c)
Director,
opinion
In the
of the District
Sunday
holiday.
work on a
necessary
becomes
from an administrative
standpoint
assign
seasonal or W.A.E. em-
3. Section III.D.4. of the Circular reads:
ployees
compensation
to extra
activities.
4. Seasonal and W.A.E.
instances,
regular recurring
Such
if on a
ba-
actually employed”
Seasonal and “when
sis,
shall be made the
of a written
(WAE) employees may
assigned
to extra
explanation
approved by
which shall be
compensation
activities
when:
Regional Commissioner and retained for re-
(a) Emergencies
requiring
arise
an immedi-
personnel.
view
Bureau
assignment
qualified permanent
ate
and a
employee
provided;
full-time
of the Customs Service
jurisdiction on the court
subject matter
exists; (3)
to enforce the
none
Customs
suit in federal court
where otherwise
pronouncement if the
does not consti-
terms of that
Circular INS-2—MI
Clearly such a
tute one of the “laws of the United States” movies were not shown?
1331(a);
(4)
contemplated.
under 28 U.S.C.
basis for suit was never
hand,
However,
policy pro-
does not constitute a
on the other
*3
department”
“regulation
specific
of an executive
to a
pursuant
nouncement issued
1346(a)(2).
authority,
promul-
under U.S.C.
and
statutory
grant of
procedural
with
gated in accordance
court,
challenged
have
In this
of the Admin-
publication requirements
(4)].4
only
holdings [(3)
these latter two
(APA), 5 U.S.C.
istrative Procedure Act
agree
Judge Gignoux that the
We
clearly
proper
be a
551-53
would
§§
Customs
at issue was not
Service Circular
courts. Our
basis for suit in the federal
promulgated
type
of statu-
pursuant
problem:
the line?
where to draw
authority necessary
judi-
for a
tory
does
Service
policy pronounce-
cial enforcement. This
We
not match either of these extremes.
ment,
Circular,
or
is therefore an insuffi-
along
of where
presented
with the issue
jurisdiction
cient basis for
flyer or
a mere
the continuum between
under either 28 U.S.C.
or
[laws]
pur-
issued
regulation
leaflet
a formal
1346(a)(2) [regulations],
plaintiffs’
statutory authority this
specific
suant
cause must fail.5
Circular lies.
Initially
jurisdic
we note that for
need
focus
that we
the criteria which
purposes
tional
should be
pronounce-
on
regulatory
nature
applied
determining
in
whether Customs
magic
if there were
ment at issue almost as
is one of the
INS—2—MI
“regulation.”
in the mere use of the word
States,”
“laws of the United
is the same as
is
They contend that Circular INS-2-MI
applied to
that which should be
determine
gener-
clearly regulation
concept
a
is
as
whether the circular is “a
of an
Although plain-
ally described in the APA.
department.”
beyond
executive
It is
dis
agency pronounce-
tiffs admit that not all
pute
validly
reg
issued administrative
court, they
ments are
federal
actionable in
ulations or executive orders
be treated
docu-
contend that when an
issues a
as “laws of the
United States”
public
regulatory
ment to
in
1331(a). See,
g.,
e.
Farmer v. Philadel
statutory
nature
au-
pursuant
and issued
(3rd
phia
Company,
Electric
question it purports to answer. Judge Gignoux held that Customs Service essence, the court with concurs was not issued the district judge that in deciding express statutory authority. to Plaintiffs a particular agency statu- concede our court should consider the may properly as jurisdic serve the basis of tory authority for the issuance of Circular tion under 1346(a)(2), 2-MI, they trial argue but that INS— (I) examine: authority for 'judge erroneously required spe- there abe promulgation, (II) the formality of the statutory authority cific nexus between the promulgation. weigh We these factors to pronounce- and the decide whether the policy pronouncement ment at this re- issue. Plaintiffs may be used as basis a suit quirement case is inconsistent .6 federal courts Company, Philadelphia Farmer v. Electric 1964), (3rd 329 F.2d cite
I. specific nexus proposition that no The most precedents However, instructive required. easily in this Farmer is distin- general area of statutory authority guishable. are did rule that There court those cases which consider whether particu- agency regu- certain Executive Orders lar executive orders be the basis of promulgated lations decision, supra problem As stated note facts of the ultimate to of for- reach necessary, mality promulgation. case at bar we do not find our for policy pronouncement like of a INS— suance and Administrative Property the Federal Neither 66 nor 19 Act 2-MI.9 U.S.C. Services law. The court did the force of matters such as hir- had U.S.C. refers to court not, however, the district decisions, rule that or use staffing policies, ing claim under had employees. Plaintiffs’ additional part-time com- 1331(a). The court dismissed 301, applicable authority, 5 on its U.S.C. § administrative to exhaust plaint for failure military and every each civilian face to the issue of remedies, not decide but did branch of segment of the Executive jurisdiction. Id. at 10. generalized grant of au- Government. This military depart- and executive thority to all the district argued to non-specific (1976) (which ment heads is so broad that either U.S.C. Treasury Congress Secretary reasonably we cannot conclude in- authorizes bonds, regulations entry, forms of as the sole draft tended this statute to serve customs duties collection of pertaining for in the federal courts for this goods) or 19 warehousing of policy pronouncement. internal (1976)(which Secretary authorizes the 267§ language of these statutes the rates of com- by regulation establish contemplating possibility read shippers which carriers and must pensation by issuing type of Customs Circular pay the Customs Service overtime work (INS-2-MI), the Commissioner Customs inspectors) grants of stat- performed by plaintiffs, created a in favor of the utory authority binding regulations giving preferential option them over- subjects covered Circular INS-2— *5 duty part- time tours of to the exclusion of Judge Gignoux disagreed. MI. be time workers which could enforced attempt to Now add to the against government and result in a officials in this court that 5 by arguing above U.S.C. money judgment against the United States. (1976)7 adequate statutory is also §
authority promulgation for the of Circular II. INS-2—MI.8 promulgation We now turn form three We conclude that none of these Judge Gignoux. by as discussed Since authority grants Secretary statutes the the there was no have concluded that binding regulations creating rights authority to issue a by to work overtime which are enforceable create a like which would INS-2-MI not cite a federal court. Plaintiffs do one court, in federal it is unneces- legislative history word of which would in- sary question formality the to reach Congress dicate an intent on the give promulgation of the Circu- Secretary the to create needed rights by enforceable in federal court is- lar.10 erty Acquisition Policy part: pertinent Act of
7. The
1970. 84 Stat.
statute reads in
seq.
were
U.S.C.
4601 et
department
mili-
head of an Executive
or
Congress
tary department may
regulations
mere
did not intend
prescribe
government
department,
to be enforced
the federal courts.
for the
of his
employees,
conduct of its
the distribution and
appear that the
was ever
It does not
business,
custody,
performance of its
any right
judicial
enforce-
intended to create
use,
records,
preservation
papers,
and
of its
ment.
It contains some broad statements of
property.
.
policies
policy.
example,
of the
For
one
addition,
argument
In
was not
we note this
objectives
in the discussion of the
enumerated
made in
raised
the court below and cannot be
give
provision
services was “to
of overtime
appeal.
for
first
time on
We treat
possible
reasonable and uniform service
most
argument only
courtesy and not
as a matter of
added).
(emphasis
This is
minimum
at
costs.”
right.
Acting
Director was
that the
District
attempting
instituted the new
Morton,
to fulfill when he
Farms,
9. Cf. Paramount
Inc. v.
ratios,
scarcely
staffing
aided
case,
overtime
F.2d 1301
In that
personnel
receiving
and abetted
the use of
provisions
court held that
of the
costly
highest
Prop-
overtime. Under
and most
Uniform Relocation Assistance and Real
(II):
problem formality
reach
rejected
pro-
judge
The district
defendants’
mulgation.
argument
give jurisdiction
that in order
1346(a)(2),
under either
upon careful consid-
Accordingly, we hold
agency policy pronouncement
pro-
must be
law, all briefs
pertinent
eration of the
mulgated pursuant
procedural
argument
submissions
oral
that
and after
publication
APA,
requirements
but
district court
judgment
dismiss-
promulgation
held that
of Circular
AFFIRMED.
ing
any
formality
INS—2—MI lacked
CAMPBELL,
Judge
Circuit
LEVIN H.
necessary
which is
for
Circular to serve
(concurring).
as the basis
in
the federal
courts. We
leave the
how much
my colleagues
It
well be that
formality is
a policy pronounce-
needed for
correct in
that
concluding
Circular INS-2-
ment to be the
of a federal
basis
regulation.
MI is
neither a law nor
I am
day.
action until another
unsure
distinction
whether the
between 28
1346(a)(2)1
1331 and
should be
§§
summary,
out
reasons
jurisdictional
considered
for
immaterial
supra,
lined
we conclude that Customs Ser purposes,
agree that
but
doubtful
vice Circular
does not
constitute
in
issue here is
the Circular
one of the
“laws of
United States”
regulation
managerial
It was a
or a law.
“any regulation
of an
personnel
dealing
assign-
directive
executive department”
1346(a)(2).
ments that
issued as a
was not
Thus the
not an adequate
Circular is
apparently
changed
subject-matter
policies
in
will. Unlike
the feder
other Customs Service
work,
24.16,
as to
see 19
Notwithstanding
al court.
overtime
C.F.R.
that a rule
published
it was not
Register
in the Federal
regulation may be enforceable within an
and does
appear
the Code of Federal
agency, that does not address the issue
Regulations.
here, namely
enforceability
its
in the courts
of the United States. Plaintiffs have failed
It
seems to me
plain-
event
to establish that the Customs Service Circu
tiffs have
upon
failed to state a claim
*6
lar on which they
their entire
base
case has
relief
can be granted.
Fed.R.Civ.P.
backing
sufficient statutory
permit
suit 12(b)(6);
v. Philadelphia
see Farmer
Elec-
thereon in the federal courts.
Co.,
Because of
3,
(3d
tric
1964)2
329
8-10
F.2d
Cir.
our holding
(I),
find it unnecessary
we
every dispute
interpretation
to Not
circumstances,
suggest
employment
contract,
these
was
that the state-
of their
ments in the Circular were not meant
1346(a)(2)
as hard
have not
tried to
assert
rules,
and fast
but rather as broad
ground
their suit
be balanced and accommodated.
“any
implied
express
based on
contract with
States.”)
the United
1.
that 28
defendants
1346
invoked,
plaintiffs
have failed to
678,
Hood,
2.
66 S.Ct.
While Bell
327 U.S.
v.
party.
name the United States as a
See Har
773,
90 L.Ed.
involve
939
did not
791,
Carpenter,
bolt v.
536 F.2d
791 n. 1
provisions
whether
sued under
But the defendants are officers of
States,
were in fact
the United
laws of
the United States Customs Service sued in their
general principle
sup-
case lends some
of that
capacities,
official as well as individual
and at
Bell,
port
approach.
Supreme
to this
sought
(damages,
least some of the relief
de
accept
courts
stated that federal
should
Court
claratory
relief)
injunctive
would run
where a
drawn so as
against
awarded,
if
the United States
see Ha
recovery
a law of the
to seek
United
57, 58,
Gordon,
1052,
waii v.
U.S.
S.Ct.
States,
separately
and should decide
(1963). Leaving
Manhattan-Bronx
Appellants,
321, 326-27,
nouski,
U.S.App.D.C.
v.
451,
(1965).
456-57
Circular INS-2
F.2d
GOVERNMENT,
STATES
UNITED
written for in-
MI is an in-house circular
Defendant, Appellee,
use; it is
directed
house distribution
guide
them in as
supervisory personnel,
having
I
it as
been
signing work.
read
MIMIYA, INC., Third-Party
HOSPITAL
conve
issued more for the administrative
Defendant, Appellee.
agency than for
nience and benefit of the
employees
overriding
benefit
No. 78-1321.
Service, and I would leave its
the Custom
Appeals,
Court of
States
of Cus
interpretation
Commissioner
First Circuit.
v. United
Zabala Clemente
toms. See
(1st
States,
1144-45
567 F.2d
6, 1979.
Submitted Oct.
denied,
1977), cert.
435 U.S.
S.Ct.
Decided
March
(1978).
Any other
departmental administrators flexibly freely with the
cate of written departments by
of their means
directives. as creat- interpret
To
ing rights aggrieved employee that an moreover, would,
enforce in court be incon- grievance procedures
sistent with the proceeded have to date. procedure,
Under that the Director Management
Personnel Division of Cus- authority to act
toms Service had the final plaintiffs’ grievance,
on and was free to
reject findings of the Grievance Exam- expressly Regulations
iner. Civil Service
provide that the Director’s decision is non-
reviewable the Civil Service Commission. *7 771.118. Thus the adminis-
See C.F.R. § personnel policies
tration of the issue agency’s grievance
here is committed to the and,
procedures ultimately, to the Director pointed
of Personnel. Plaintiffs have elsewhere,
nothing, either in the Circular or
suggesting are entitled to original interpret to have a action policies
and enforce the reflected in the
Circular.