DPS: Camacho improperly added department in its appeal vs. CSC

The Department of Public Safety claims it was improperly joined in Sgt. Peter Raymond Camacho’s petition for judicial review of a Civil Service Commission decision.

“Petitioner has wrongly joined DPS, an improper party, because DPS itself issued no order adjudicating his grievance. In addition, for the reasons mentioned, DPS cannot be a proper party for petitioner’s constitutional due process claim and DPS should be dropped as a party to that claim in this proceeding. The court should either dismiss DPS from this case or remand this matter back to DPS for a proper order,” DPS claims.

Earlier this year, Camacho, through his lawyers Robert Torres and Oliver Manglona, appealed CSC’s decision that denied the grievances he filed against DPS, alleging that the commission violated his rights, as well as the Open Government Act. In this appeal, Camacho named DPS as a party, but DPS is now claiming the department was improperly joined in this administrative appeal.

DPS, through assistant attorney general Charles P. Reyes Jr., has filed a motion asking that the department either be removed as a party, or the matter be remanded back to DPS for acting DPS commissioner Anthony Macarnas to rule on.

“Respondent DPS…requests that this court drop it as a named respondent…because Camacho improperly joined it in this administrative appeal. Alternatively, DPS moves the court to remand this matter back to DPS for a proper order issued by the acting DPS commissioner,” states the motion.

Reyes, in his motion, argues that Camacho failed to state a legitimate legal basis for including DPS in the appeal.

“Petitioner alleges that he filed a grievance with DPS, his employer, regarding employment-related matters in 2021. Petitioner further alleges that the Office of the Attorney General responded to petitioner’s grievance by a letter addressed to petitioner’s counsel(s), that was filed under its letterhead and signed by the Commonwealth Attorney General, yet was intended to be DPS’ response to Sgt. Camacho’s formal grievance. Petitioner asks this court to find that the OAG improperly commandeered DPS’ responsibility to respond to Sgt. Camacho’s formal grievances when it prematurely injected itself into the grievance process. Taking all allegations of fact as true and construing them in the light most favorable to petitioner, petitioner has failed to state a legitimate legal basis for his joinder of DPS. In addition, to the extent that petitioner raises issues outside the scope of an Administrative Procedures Act review, such as constitutional due process claims pursuant to which petitioner seeks recovery of certain amounts of salary and compensation disbursed by DPS, DPS is not a proper party to this action as it is not a sue-and-be-sued entity subject to suit,” the motion states.

Because of this, DPS states that the court should drop DPS as a respondent in this administrative appeal because DPS made no decision regarding the petitioner.

“By petitioner’s own admission, DPS is not the party against whom the appeal is taken; rather, the appeal is taken against the OAG and the CSC affirming the OAG’s decision. Thus, the court should either drop DPS or remand this case back to DPS to issue an order from the acting commissioner or ask petitioner to accept the OAG decision as the official order from DPS,” said Reyes.

Reyes also added that nothing found in any statute allows or implies any capacity or ability for DPS to sue or be sued.

“Under Commonwealth law, DPS has no legal existence separate and apart from the Commonwealth proper. It is a non-jural entity and on that basis cannot be a defendant in this suit, only a respondent for the limited purpose of APA review,” said the motion.