# Gilman J. Chasse v. Robert E. Chasen

> Court of Appeals for the First Circuit · September 8, 1979 · 595 F.2d 59

URL: https://www.frixlaw.com/law-library/cases/9465623

## Case

- **Full name:** Gilman J. CHASSE Et Al., Plaintiffs-Appellants, v. Robert E. CHASEN, Et Al., Defendants-Appellees
- **Court:** Court of Appeals for the First Circuit
- **Decided:** September 8, 1979
- **Citations:** 595 F.2d 59; 1979 U.S. App. LEXIS 15797
- **Precedential status:** Published
- **Opinion:** Concurrence by Campbell
- **Judges:** Kunzig, Claims, Campbell, Bownes
- **Cited by:** 34 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9465623

## How later opinions describe it (automated extraction)

- concluding that Customs Service memorandum was not “law” under § 1331 because plaintiff failed to identify statute that “grants the Secretary the authority to issue binding regulations creating rights to work overtime which are enforceable by a federal court”
- explaining that “validly issued administrative regulations or executive orders may be treated as ‘laws of the United States’ under § 1331(a)” after the court weighs “the statutory authority for promulgation” and “the formality of the promulgation”
- stating, in dicta, that an agency pronouncement promulgated in accordance with the procedural and publication requirements of the APA meets the formality requirement

## Opinion text

LEVIN H. CAMPBELL, Circuit Judge
(concurring).
It may well be that my colleagues are correct in concluding that Circular INS-2MI is neither a law nor a regulation. I am unsure whether the distinction between 28 U.S.C. §§ 1331 and 1346(a)(2) 1 should be considered immaterial for jurisdictional purposes, but agree that it is doubtful whether the Circular in issue here is either a regulation or a law. It was a managerial directive dealing with personnel assignments that was not issued as a regulation and that apparently could be changed at will. Unlike other Customs Service policies as to overtime work, see 19 C.F.R. § 24.16 , it was not published in the Federal Register and does not appear in the Code of Federal Regulations.
It seems to me that in any event plaintiffs have failed to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6); see Farmer v. Philadelphia Electric Co., 329 F.2d 3, 8-10 (3d Cir. 1964) 2 Not every dispute over the interpretation of *65 federal personnel policies is necessarily to be resolved by the judicial branch. See Manhattan-Bronx Postal Union v. Gronouski, 121 U.S.App.D.C. 321, 326-27 , 350 F.2d 451, 456-57 (1965). Circular INS-2MI is an in-house circular written for in-house distribution and use; it is directed at supervisory personnel, to guide them in assigning work. I read it as having been issued more for the administrative convenience and benefit of the agency than for the overriding benefit of the employees of the Custom Service, and I would leave its interpretation to the Commissioner of Customs. See Zabala Clemente v. United States, 567 F.2d 1140, 1144-45 (1st Cir. 1977), cert. denied, 435 U.S. 1006 , 98 S.Ct. 1876 , 56 L.Ed.2d 388 (1978). Any other view would hamper seriously the ability of departmental administrators to communicate freely and flexibly with the employees of their departments by means of written directives.
To interpret Circular INS-2-MI as creating rights that an aggrieved employee could enforce in court would, moreover, be inconsistent with the grievance procedures under which plaintiffs have proceeded to date. Under that procedure, the Director of the Personnel Management Division of the Customs Service had the final authority to act on plaintiffs’ grievance, and was free to reject the findings of the Grievance Examiner. Civil Service Regulations expressly provide that the Director’s decision is non-reviewable by the Civil Service Commission. See 5 C.F.R. § 771.118 . Thus the administration of the personnel policies in issue here is committed to the agency’s grievance procedures and, ultimately, to the Director of Personnel. Plaintiffs have pointed to nothing, either in the Circular or elsewhere, suggesting that they are entitled to bring an original action to have a court interpret and enforce the policies reflected in the Circular.
. The defendants argue that 28 U.S.C. § 1346 cannot be invoked, as plaintiffs have failed to name the United States as a party. See Harbolt v. Carpenter, 536 F.2d 791 , 791 n. 1 (8th Cir. 1976). But the defendants are officers of the United States Customs Service sued in their official as well as individual capacities, and at least some of the relief sought (damages, declaratory and injunctive relief) would run against the United States if awarded, see Hawaii v. Gordon, 373 U.S. 57, 58 , 83 S.Ct. 1052 , 10 L.Ed.2d 191 (1963). Leaving aside the technical questions of the adequacy of the plaintiffs’ complaint, § 1346 would appear to be a proper basis for jurisdiction, if the plaintiffs could establish that Circular INS-2-MI is a “regulation of an executive department.” (Plaintiffs have not argued that the Circular was part of their employment contract, and have not tried to assert 28 U.S.C. § 1346 (a)(2) jurisdiction on the ground that their suit is based on “any express or implied contract with the United States.”)
. While Bell v. Hood, 327 U.S. 678 , 66 S.Ct. 773 , 90 L.Ed. 939 (1946), did not involve any question whether the provisions sued under were in fact laws of the United States, the general principle of that case lends some support to this approach. In Bell , the Supreme Court stated that federal courts should accept jurisdiction where a complaint is drawn so as to seek recovery under a law of the United States, and should decide separately whether the plaintiffs have a federal cause of action. Id. at 681-83 , 66 S.Ct. 773 . As deciding whether an agency document is a “regulation” appears to require some discussion of whether the document creates any judicially enforceable rights, this analysis seems appropriate here.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9465623. Public record. Not legal advice.