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November 6, 1979

Stanley C. MAZALESKI, Plaintiff,
Patricia Roberts HARRIS et al., Defendants.

The opinion of the court was delivered by: ROBINSON


Before the Court is Defendants' Motion for Summary Judgment in an action brought by Stanley C. Mazaleski against Patricia Roberts Harris. Plaintiff was a commissioned health officer in the United States Public Health Service of the Department of Health, Education, and Welfare. Defendant is the Secretary of the Department of Health, Education and Welfare. Plaintiff alleges (1) that commissioned health officers are denied access to all civil service protection, (2) that there is no rational basis for this denial, and (3) that this constitutes a violation of the Equal Protection Clause of the Fourteenth Amendment, as incorporated into the Fifth Amendment. Defendants' Motion asserts that Plaintiff's claim is barred either by Res judicata or because Plaintiff lacks standing. This Court has jurisdiction under 28 U.S.C. ยง 1331.

 This case has a long and troubled history. Plaintiff was terminated as an officer in the Commissioned Corps of the Public Health Service on June 6, 1975. On June 5, 1975, and June 20, 1975, Plaintiff filed two suits in which he challenged the dismissal on constitutional grounds. In the first suit (Mazaleski I ), Plaintiff alleged that Defendant terminated him because he was a "whistleblower," thus, violating his First Amendment rights, and that the procedures employed to terminate him violated his Fifth Amendment Due Process Rights. In the second suit (the instant case) Plaintiff alleged that the termination procedures violated his Fifth Amendment Equal Protection rights.

 On July 20, 1975, the trial judge dismissed Mazaleski I for failure to state a cause of action. On September 15, 1975, this Court held that Mazaleski II was barred due to Res judicata. On April 26, 1977, the Court of Appeals remanded Mazaleski I. *fn1" On March 26, 1979, the Court of Appeals vacated this Court's finding of Res judicata, and remanded Mazaleski II "for consideration of the equal protection issue and for such further consideration and proceedings as the District Court deems advisable."

 I. Res Judicata

 It is clear that a judgment must be final before it is entitled to Res judicata effect. *fn2" Thus, the trial court's decision in Mazaleski I can no longer provide the basis for Res judicata. *fn3" The Government contends, however, that the Court of Appeals decision provides the basis for Res judicata. Its reasoning may be succinctly summarized as follows:


(1) Plaintiff alleged in the complaint that PHS procedures violated his First, Fifth, and Sixth Amendment rights;


(2) The only issues not finally disposed of were the First Amendment claim and the agency's failure to comply claim;


(3) The Court of Appeals specifically held that PHS termination procedures do not violate the due process clause of the Fifth Amendment; *fn4"


(4) This finding inferentially included Plaintiff's equal protection claim; and


(5) Therefore, the equal protection claim was finally disposed of, along with Plaintiff's due process claim, in Mazaleski I.

 A judgment is final regarding a specified cause of action only if that action could not become affected by further proceedings in the court where the judgment was rendered. *fn5" Thus, "if the original judgment has been set aside or reversed, and further proceedings are directed, such as a new trial, rules of Res judicata are not applicable until new judgment is rendered." *fn6" In Mazaleski I, the original judgment was reversed, with the exception of the procedural due process issue. Only that issue could remain unaffected by further proceedings in the trial court; thus only judgment on that issue is entitled to Res judicata effect. The Court of Appeals did not consider Plaintiff's equal protection claim, however. It did not preclude Plaintiff from attempting to argue that claim. Consequently, this Court cannot bar the equal protection claim on the basis of Res judicata.

 II. Standing

 Standing focuses on whether the proper party is before the Court. Plaintiff must demonstrate (1) a distinct and palpable injury *fn7" and (2) a fairly traceable causal connection between the claimed injury and the challenged conduct. *fn8" To comport with the second prong of the standing test, Plaintiff must show that "the exercise of the Court's remedial powers would redress the claimed injuries." *fn9"

 Plaintiff is no longer with the PHS, and does not seek reinstatement as relief for his alleged injuries. Rather, he requests a ruling that the termination procedures used by the PHS are constitutionally infirm and an Order requiring the agency to utilize procedures which are constitutionally sound. The relief Plaintiff seeks would in no way benefit him. New procedures would not be advantageous to him because he is no longer with the PHS and does not seek reinstatement. His reputation would not be enhanced by a judgment in his favor *fn10" because the alleged equal protection violation is in no way related to the purported injury to reputation. *fn11"

 Accordingly, it is by the Court this 6th day of November, 1979,

 ORDERED, that Defendants' Motion for Summary Judgment be and hereby is GRANTED.

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