PARKER, District Judge:
On July 14, 1977, Colston A. Lewis instituted this action against the President of the United States and the Chair of the Equal Employment Opportunity Commission (EEOC). Plaintiff's complaint, entitled "Complaint for Breach of Contract and Reinstatement to Position of Employment," charges that defendants unlawfully terminated him from his position as a member of the EEOC. Injunctive relief resulting in his reinstatement to the position and damages in excess of $10,000 are sought.
While the primary issue presented by this litigation is whether the President has the power to remove at will a member of the EEOC, the Court's immediate concern with respect to that issue is its effect on plaintiff's motion for a preliminary injunction presently pending before the Court. Also before the Court is defendants' motion to dismiss for failure to state a claim and for lack of subject matter jurisdiction.
After full consideration of the parties' memoranda of points and authorities and the oral argument of counsel, the Court finds that it has jurisdiction only over the equitable relief sought by plaintiff and that, under the circumstances of this case, issuance of a preliminary injunction would be inappropriate. Pursuant to the following findings and conclusions, the Court determines that the motion for a preliminary injunction should be denied and that defendants' motion to dismiss for lack of subject matter jurisdiction should be granted with respect to the damage claims.
FINDINGS OF FACT
The relevant facts are not in dispute. In 1972, plaintiff was appointed to a five-year term as a member of the EEOC, that term expiring June 30, 1977. The statute provides that a member's term will be automatically extended until a successor is nominated and qualified:
[All] members of the Commission shall continue to serve until their successors are appointed and qualified, except that no such member of the Commission shall continue to serve (1) for more than sixty days when the Congress is in session unless a nomination to fill such vacancy shall have been submitted to the Senate, or (2) after the adjournment sine die of the session of the Senate in which such nomination was submitted.
42 U.S.C. § 2000e-4(a). The President has not nominated anyone to succeed plaintiff.
In a letter dated June 3, 1977, the President thanked plaintiff for his years of service, noting that his term was to end June 30, 1977. Plaintiff also received a later letter, dated June 29, 1977, from Robert J. Lipshutz, Counsel to the President. Mr. Lipshutz confirmed an earlier conversation plaintiff had had with Deputy Counsel Margaret McKenna to the effect that plaintiff would not be permitted to serve according to the holdover provisions of the statute and, therefore, his service as a Commissioner would end as of the close of business on June 30, 1977.
In a memorandum, also dated June 29, 1977, defendant Eleanor Holmes Norton, Chair of the EEOC, notified plaintiff of the termination procedure to be followed in his case.
Since June 30, 1977,
plaintiff has been prevented from acting as a member of the EEOC. After allegedly taking informal steps to gain his reinstatement, plaintiff filed this action.
Jurisdiction is asserted under 28 U.S.C. §§ 1331 and 1346, based upon a violation of an act of Congress creating a right to employment and an amount in controversy exceeding $10,000. Defendants have moved to dismiss for lack of subject matter jurisdiction, contending that plaintiff's contractual claims are cognizable only under portions of the Tucker Act, 28 U.S.C. §§ 1346(a)(2), 1491, which specifically limit jurisdiction in the district courts to claims under $10,000. Plaintiff requests approximately $15,000 in back pay and lost benefits.
Defendants' position with regard to plaintiff's contractual claims appears well-taken. Murray v. United States, 132 U.S.App.D.C. 91, 405 F.2d 1361 (1968). Claims exceeding $10,000 must be brought in the Court of Claims, 28 U.S.C. § 1491.
Plaintiff, however, also seeks immediate reinstatement -- equitable relief unavailable in the Court of Claims.
As support for his claim for reinstatement plaintiff relies upon the statutory provision setting forth the term of office of members of the EEOC, 42 U.S.C. § 2000e-4(a). That foundation, plus the fact that plaintiff is bringing the action against officers of the United States, appears to bring the suit within the jurisdictional grant of § 1331.
As noted above, the primary issue involved in this litigation is whether the President has the power to remove at will a member of the EEOC. The few cases on the issue of the President's removal power indicate that whether an agency's officers are removable at the will of the President depends upon the character of the functions which Congress has confided in the agency. Wiener v. United States, 357 U.S. 349, 78 S. Ct. 1275, 2 L. Ed. 2d 1377 (1958); Humphrey's Executor v. United States, 295 U.S. 602, 55 S. Ct. 869, 79 L. Ed. 1611 (1935), and Myers v. United States, 272 U.S. 52, 47 S. Ct. 21, 71 L. Ed. 160 (1926). If those functions are of a quasi-legislative or quasi-judicial nature, as opposed to purely executive, Congress can validly limit the President's removal power by setting terms of office during which officers can only be removed for cause specified by Congress.
The parties to the present action contest the nature of the functions of the EEOC. Defendants attempt to characterize those functions as primarily executive, while plaintiff contends they are legislative or judicial in nature. It is apparent that the EEOC has not been granted the broad quasi-legislative and quasi-judicial functions conferred by Congress upon other agencies. However, it is also apparent that the EEOC does possess a quantity of functions which are legislative or judicial in character, including information collection and dissemination and the issuance of advisory opinions. The question, of course, is where to draw the line between executive and non-executive agencies. Should only those officials in agencies with purely executive functions be subject to removal at the will of the President or should the test be whether the agency in question has functions which are only predominantly executive. The Supreme Court has left the question open:
To the extent that, between the decision in the Myers case, which sustains the unrestrictable power of the President to remove purely executive officers, and our present decision that such power does not extend to an office such as [Commissioner of the Federal Trade Commission], there shall remain a field of doubt, we leave such cases as may fall within it for future consideration and determination as they may arise.