The opinion of the court was delivered by: BIUNNO
Plaintiff sues for relief in the nature of mandamus (or, possibly, procedendo) to compel the Civil Service Commission to accept his appeal from his removal as a mail carrier in the Postal Service. The removal took effect October 15, 1973, "[to] promote the efficiency of the service," 5 U.S.C. § 7501(a).
The New York Regional Office of the Commission wrote him that his appeal was out of time, and gave him 7 days to explain the delay by showing that he either was unaware of the time limit, or that timely filing was prevented by circumstances beyond his control. See 5 C.F.R. § 752.204 (now 752.203).
Within the 7 days, two letters went to the Regional Office. His lawyer and union representative both explained that plaintiff had prosecuted a grievance, followed by arbitration, and that the arbitration was withdrawn January 24, 1974. It was claimed that the time for appeal began to run on that date. This was based on the argument that under Art. XVI, § 3 of the Postal Service Collective Bargaining Agreement, a discharged employee remains on the rolls, but on a non-pay status, until the grievance/arbitration ends.
The reason for withdrawal of the arbitration was plaintiff's guilty plea to a charge of violating 18 U.S.C. § 1701 (obstruction of the mails), for which he has been sentenced.
The Regional Office ruled that the requisite elements had not been established, that plaintiff had been explicitly informed in writing of the various time limits along the way, and that the grievance/arbitration process did not extend the time. The appeal was dismissed.
He then appealed on June 18, 1974 to the Commission's Appeals Review Board, which made the same findings as the Regional Office, and also noted that plaintiff had no right of further administrative appeal.
This suit was filed April 21, 1975, naming as defendants the former Postmaster General the former chairman of the Appeals Review Board, and the United States. They have filed a number of motions, disposition of which is as follows:
1. Dismissal for failure to exhaust administrative remedies.
The ruling of the Appeals Review Board that no further administrative appeal is available, suggests that the administrative remedies have been exhausted. Of course, the administrative disposition did not reach the merits and dismissal was based on late filing without acceptable explanation.
On the merits, plaintiff failed effectively to pursue his administrative remedies, but on the issue of timeliness of his appeal, he did. This motion is denied.
2. Dismissal for lack of subject-matter jurisdiction.
Denied. See 39 U.S.C. § 409 and 28 U.S.C. § 1339. See, also, the Mandamus and Venue Act, 28 U.S.C. § 1361. Mandamus (or procedendo) is a proper remedy to compel an official to act, even where the performance of the act involves discretion, so long as it does not direct him how to exercise it. See, for example, Roberts v. Holsworth, 10 N.J.L. 57 (S. Ct. 1828); Switz v. Middletown Tp., 23 N.J. 580, 130 A.2d 15 (1957) which discuss this aspect of the common law writ of mandamus, and In re N. Y. Susquehanna & ...