Davis v. Shultz
Davis v. Shultz
Opinion of the Court
OPINION OF THE COURT
This is an appeal from a district court order of July 9, 1970, dismissing the complaint “with prejudice” after making a finding of lack of subject matter jurisdiction. The dispute arose out of the dismissal of Michael Davis, the named plaintiff, and 178 other economically disadvantaged youths from a Neighborhood Youth Corps Program
The basis of the claim in Count I is that Atlantic should have been named as a prime sponsor and, as such, should have implemented the incidents of prime sponsorship. 42 U.S.C. § 2739(a) provides that the director of OEO “ . . . shall recognize a public or private nonprofit agency which shall serve as the prime sponsor to receive funds . . . ” and administer community programs under Title I-B.
Count II of the complaint deals with the dismissals from the program in mid-summer and claims that they were the result of mismanagement and incompetency. Also, it alleges that defendants have interfered with the named plaintiff’s attempts to redress the wrongful dismissals. Count II is brought as a class action, and damages are claimed for the loss of the benefits of the work training program by Davis and the 178 other youths who were dismissed. The record demonstrates that the named plaintiff has suffered no deprivation of rights and he should not be permitted to bring a suit on behalf of a class of persons who may have suffered interference with their personal rights.
For the above-stated reasons, we find that neither of the counts of the complaint states a claim on which relief can be granted, so that the jurisdiction of the district court may be assumed. However, we also note that the district court was apparently correct in its finding that the complaint had no jurisdictional basis. Plaintiff claimed that jurisdiction was based on 28 U.S.C. § 1361 and 28 U.S.C. § 1331.
Plaintiff has failed to meet the $10,000. jurisdictional minimum of § 1331. A party asserting § 1331 jurisdiction has the burden of establishing by competent and preponderate evidence that his claims exceed $10,000.
Plaintiff’s claim of jurisdiction based upon 28 U.S.C. § 1361 to consider the claim for mandamus relief was properly dismissed by the district court. Section 1361 grants original jurisdiction to district courts to consider “actions in the nature of mandamus” directed against officers and employees of the Federal Government.
The majority view is that in certain limited cases a § 1361 action may be used to compel the performance of an act committed to discretion. As the District of Columbia Circuit stated in Peoples v. United States Department of Agriculture, 138 U.S.App.D.C. 291, 427 F.2d 561 (1970), jurisdiction can be based on § 1361 to “ . . . issue appropriate corrective orders where Federal officials are not acting within the zone of their permissible discretion but are abusing their discretion or otherwise acting contrary to law. . . . ” In the instant action, plaintiff has claimed no such variance from the permissible scope of discretion granted to Secretary Shultz but rather has relied on the theory that the Secretary has disregarded a mandatory duty to appoint a prime sponsor.
For the foregoing reasons, we affirm the July 9, 1970, order of the district court.
. The Neighborhood Youth Corps is the popular name given to work experience programs under Title I-B of the Economic Opportunity Act, 42 U.S.C. § 2738.
. Atlantic was named the Community Action Agency for Atlantic and Cape May Counties, New Jersey, pursuant to 42 U.S.C. § 2790.
. The Director of the Office of Economic Opportunity delegated his duty to let such contracts under 42 U.S.C. § 2739 to the Department of Labor. 42 U.S.C. § 2942(d) provides for such delegations of authority. See Delegation of Authorities, O.E.O., Dept. of Labor, 33 Fed.Reg. 15139 (1968).
. The Neighborhood Youth Corps is such a Title I-B program.
. See note 3, supra.
. Delegation of Authorities, O.E.O., Dept. of Labor, 33 Fed.Reg. 15139 (1968).
. Manpower Administration Order No. 12-68 (Oct. 9, 1968), issued by the Department of Labor, sets out the duties and responsibilities of a prime sponsor. 42 U.S.C. § 2739(d) mandates certain incidents of prime sponsorship, including citizen involvement in the conduct of programs. The lack of participant involvement is plaintiffs’ chief complaint.
. Or, in this case, his delegate, the Secretary of Labor.
. The existence of discretion not to appoint a prime sponsor is also evident from the legislative history of Title I-B. In the Senate Report, it was stated that “The authority to fund components directly rather than through prime sponsors will also be used. . . .” Senate Comm, on Labor and Public Welfare, No. 563, S. 2388, p. 2444, 1967, U.S. Code Cong, and Admin. News (90th Cong., 1st Sess.).
. “§ 122 — Prime sponsors and delegated agencies. The Senate bill requires that for each community program area, the prime sponsor to receive funds under this part shall be the community action agency unless the Director determines that an alternative prime sponsor is likely to have a greater capability in planning and implementing a comprehensive work and training program. The House amendment does not contain this provision. The Senate recedes.” Conference Report, No. 1012, S. 2388, pp. 2575-76, 1967 U.S. Code Cong, and Admin. News (90th Cong., 1st Sess.).
. “5. In communities served by community action agencies the community action agency shall be the prime sponsor for all work training projects. Exceptions to this policy may be made for compelling program reasons after consultation between the staffs of the Office of Economic Opportunity and the Department of Labor.” Delegation of Authorities, 33 Fed.Reg. 15139 (1968).
. A prerequisite of a properly maintainable class action under Fed.R.Civ.P. 23 is that the plaintiff representative be a member of the class which he purportedly represents. Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962). Plaintiffs did file a motion for determination that the action is maintainable as a class action, but the district court did not rule on it, holding that its dismissal of the cause of action rendered the issue moot.
. The record is unclear as to the exact amount of time he was unemployed but, in any event, it was not longer than two weeks.
. Plaintiffs claim jurisdiction based on the Administrative Procedure Act, which provides that “a person suffering legal wrong because of agency action is entitled to judicial review thereof.” 5 U.S.C. § 702, which was cited in a one-sentence footnote in their district court brief and was not mentioned during the district court argument, giving that court reason to believe it had been abandoned. This ground cannot be raised for the first time on appeal. Although this court has allowed such amendments under 28 U.S.C. § 1653 to perfect an improperly pleaded jurisdictional basis, see, e, g., Guerrino v. Ohio Casualty Ins. Co., 423 F.2d 419 (3d Cir. 1970) (diversity alleged but not properly pleaded), it is necessary that the grounds be raised in the district court. See Ehrlich v. Van Epps, 428 F.2d 363 (7th Cir. 1970); Sachanko v. Gill, 388 F.2d 859, 861 (3d Cir. 1968); Tromza v. Tecumseh Products Co., 378 F.2d 601, 604 n. 4 (3d Cir. 1967). Furthermore, we note that 5 U.S.C. § 701(a) excludes from the review provisions of the Act situations wliere “agency action is committed to agency discretion by law.” Plaintiffs’ contention that North City Area-Wide Council, Inc. v. Romney, 428 F.2d 754 (3d Cir. 1970), is applicable to the facts of this case is rejected.
. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Breault v. Feigenholtz, 380 F.2d 90, 92 (7th Cir. 1967), cert, denied, 389 U.S. 1014, 88 S.Ct. 591, 19 L.Ed.2d 660 (1967). Plaintiffs assume this burden since the question of jurisdictional amount was placed in issue by defendants’ motion to dismiss.
. See St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Nelson v. Keefer, 451 F.2d 289 (3d Cir., 1971); Taconski v. Avisun Corp., 359 F.2d 931, 934 (3d Cir. 1966); Riggins v. Riggins, 415 F.2d 1259 (9th Cir. 1969).
. We have decided that the named plaintiff may not properly bring this suit as a class action, but even if he could, plaintiff would not be permitted to aggregate his damages with those of other members of the purported class. Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969).
. Rosado v. Wyman, 414 F.2d 170 (2d Cir. 1969), rev’d on other grounds, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970).
. Goldsmith v. Sutherland, 426 F.2d 1395, 1398 (6th Cir. 1970); Wade v. Rogala, 270 F.2d 280 (3d Cir. 1959).
. Section 1361 was part of a 1962 amendment to Title 28 which enlarged the jurisdiction of the district courts and liberalized the venue requirements. Prior to these amendments, it was impossible to bring a mandamus action against a federal official in any district other than the District of Columbia. See generally Byse & Fiocca, Section 1361 of the Mandamus and Venue Act of 1962 and “Xonstatutory” Judicial Review of Federal Administrative Action, 81 Harv.L.Rev. 308 (1967).
. Jarrett v. Resor, 426 F.2d 213 (9th Cir. 1970); Carter v. Seamens, 411 F.2d 767 (5th Cir. 1969); Rural Electrification Admin, v. Northern States Power Co., 373 F.2d 686 (8th Cir. 1967); Prairie Band of Pottawatomie Tribe of Indians v. Udall, 355 F.2d 364 (10th Cir. 1966).
. Ashe v. McNamara, 355 F.2d 277, 282 (1st Cir. 1965).
. Paragraph 12 of the complaint alleges:
“Plaintiff is informed and believes that defendant George P. Shultz through his agents, employees, and subordinates has refused to implement 42 U.S.C. 2737 et seq. and Manpower Administration Order 12-68 in deliberate disregard of the mandates contained therein, setting up as his reason for doing so a denial that the effect of the aforesaid authorities is to constitute said Atlantic Human Resources or any other community action agency prime sponsor of Title I-B programs.”
Reference
- Full Case Name
- Michael DAVIS, a minor by his next friend, Jean Boss, Individually and on behalf of all others similarly situated v. George P. SHULTZ, Secretary of the United States Department of Labor
- Cited By
- 19 cases
- Status
- Published