Kessler v. Kurtzberg

TYLER, District Judge.

Defendants move for summary judgment or, in the alternative, to dismiss the complaint of an employee of an agency of the United States which seeks (1) declaratory and injunctive relief against defendants as officials of the General Services Administration and (2) damages against defendants personally.

This court does not have jurisdiction of either cause asserted by plaintiff.

The plaintiff does not allege, nor does it appear, that she has exhausted, or, indeed, resorted to, her administrative remedies. 5 C.F.R. 1-89, eff. Jan. 1, 1961. Accordingly, jurisdiction is absent. Burns v. McCrary, 229 F.2d 286 (2d Cir. 1955). Thus, this court cannot properly take cognizance of her first claim.

As to her second claim, plaintiff does not allege diversity of citizenship, and it appears from the record that there is none. The statutes cited by plaintiff, *123 28 U.S.C.A. § 1343 and 42 U.S.C.A. § 1985 , have no application to the facts as alleged by plaintiff and thus do nothing toward creating requisite jurisdiction.

Plaintiff admits that she has not exhausted her administrative remedies. Her claim is that the administrative proceedings will be partial and unfair. However, even assuming that her surmise to this effect proves later to be correct, she will not be without appropriate judicial remedies when the administrative proceedings are concluded.

Defendants’ motion to dismiss pursaunt to Rule 12(b) (1), F.R.Civ.P. is granted.

So ordered.