Jose L. Zapata v. Preston Smith, Governor of the State of Texas
437 F.2d 1024
5th Cir.
1971
Check Treatment

*1 rights were not violated constitutional hearing, repre the absence of a al., Jose L. ZAPATA et Plaintiffs- counsel, right subpoena, sentation Appellants, witnesses, present evi confront oral dence, involuntary appeal of his his SMITH, Preston Governor State Texas, activation Neither the statute al., Defendants-Appellees. orders. et

providing of reserv activation No. 28456. regula

ists, 673(a), nor the 10 U.S.C. § Appeals, United States Court setting proce up tion activation Fifth Circuit. gives dures, 135-91, involuntary AR an Feb. right personal activated to a reservist hearing appeal.3 An When signed agreed

sted to and his enlistment

contract, to induction into he consented partici

active he fail to service should

pate satisfactorily Army Re Whyte,

serves. Cf. Gianatasio v. 426 F. (2d

2d He con Cir. also subject

tracted to to the statutes

regulations provide appeal Army Regu

of activation orders. While provide per

lation for a 135-91 does ap appeal,

sonal it allows the

pellant appeal to include in his in written “appropriate

form all evidence which the

applicant may present.” wish provided procedure

find that this reserv protection

ist Ansted with sufficient rights

his constitutional hold that a personal hearing required

full was not

as a matter of contractual law or as a

matter of constitutional law. Cf. Giana (2d Whyte,

tasio v. F.2d 908 Cir.

1970); Resor, Smith

(2d 1969); Boswell, 289 Morse v.

F.Supp. 812, (D.Md.1968), 816, 4 aff’d n. Cir., 401 F.2d 544.

Consequently, affirm we the district appellant peti-

court’s denial of Ansted’s stay. addition, we assume judgment

that since there is not a final original declaratory judg-

on Ansted’s complaint,

ment court the district will

forthwith order. issue such final

Affirmed. Army presently right Regulation provides hearing. 135-91 was amended now to a *2 ally, against Obledo, Tijerina, the Alan the suit is fact one Mario G. Pete Antonio, Tex., Exelrod, Gonsa- States Mike United San Tex., plaintiffs-appel- Rio, lez, sought judgment Del “if ‘the would ex- treasury pend public lants. itself on the interfere, domain or with the Martin, Atty. Gen. Crawford C. ” Rank, Dugan administration.’ Atty. Tex., White, First Asst. Ñola 999, 1963, 372 83 S.Ct. U.S. Atty. Gen., Bailey, Pat Executive Asst. 1006, 15, L.Ed.2d Gen., Flowers, Clay- C. Monroe Robert Tex., Attys. Gen., Austin, ton, Dollar, 1947, Asst. Wil- Land Accord: U.S. Gen., Ruckelshaus, Atty. 1209; D. 731, 1009, liam Asst. Mor 67 S.Ct. 91 L.Ed. Seagal Wheatley, Atty., 481, Work, 1925, V. U. S. Jere- 266 U.S. 45 S. rison v. Handy, Atty., miah 394; Asst. U. S. Robert Ct. 69 L.Ed. Simons v. Vin Zener, Raymond Battocchi, Attys., 732; son, V. D. Ameri 5 Cir. Justice, Dept, Washington, C., Burton, Corp. D. Guaranty 1 Cir. can defendants-appellees. WISDOM, GOLDBERG, Before is, cases, however, a There line of Judges. INGRAHAM, Circuit usually spoken exception to this as an against rule, hold that a suit GOLDBERG, Judge: Circuit the official is not one United Though engage we are asked to in the alleged if it is either that the of States esoterics of statutory constitutional and statutory beyond limita ficial acted the construction, unnecessary find we be- though power or, of his tions even with cause our decision here can be rested on scope authority, powers in the of his the grounds. more mundane constitutionally themselves are void. brought Plaintiffs suit Dugan Rank, supra; See Malone v. against the Governor Texas and the Bowdoin, 1962, 643, 82 S.Ct. Director of Op the Office of Economic 168; v. Domestic L.Ed.2d Larson portunity, alleging that il had been Foreign Corp., Commerce legally and unconstitutionally removed 93 L.Ed. participation Verde Val justified theory 1631. Suit project. Suing under 42 at that the official’s conduct cannot be U.S.C.A 1985(3), plaintiffs 1983 and sovereign of tributed because the sought (1) declaratory judgment that power ficial had no challenged in fact to do the the Governor power either had no to re act. Larson v. Domestic move volunteers, certain or, even if the Foreign supra. Corp., Commerce power to existed, remove the manner of glance appear At first our case would its exercise violated standards of due exception to come within plaintiffs since process; (2) damages for the back pled that the dismissal pay they would have received if unau- the VISTA volunteers was both had not illegally been removed. We authorized, by statute, or, thorized need investigate the details or the deprivation was an unconstitutional plaintiff’s arguments merits of save to process. However, due there is well note requested the relief inwas recognized exception exception part money judgment pay for back applies to this case and which parties all appear agree now that all that, despite makes it clear claims save that for the pay back allegations and constitutional Finding moot. that in such a case the plaintiffs, suit nevertheless United indispensable States is an party, against In Larson v. United States. we must dismiss since the United States Foreign Corp., Domestic and Commerce joined has not party a defend supra, majority explained: ant. It is well settled course, may fail, that when an as one “Of suit administrative official is sovereign, sued individu- if it even being par- sued circumstances the officer evance to the claimed beyond unconstitutionally or ticular case. has acted statutory powers, if relief re- his Specifically, are instances merely granted by quested cannot unconstitutionality where the of a ordering of the conduct cessation yet lan statute was conceded and complained require affirm- of but will guage sovereign immunity in *3 sovereign or the by the action ative See, g., bar voked to suit. North e. unquestionably sover- disposition of 22, Temple, Carolina v. 134 10 U.S. S. eign property. North Carolina v. 849; 509, Ct. 33 L.Ed. Christian 22, 509, Temple, 134 10 S.Ct. 33 U.S. Co., 233, Atlantic & N. C. R. 133 U.S. 691, (1890).” at 849 337 U.S. L.Ed. 260, 589; 10 33 S.Ct. Louisiana L.Ed. 11, at 1462. n. 69 S.Ct. Guaranty ex rel. New York & I. Co. v. 230, explained Steele, 511, 134 Frankfurter U.S. 10 33 Mr. Justice S.Ct. dissenting qualify opinion: do in his L.Ed. 891. These cases not further category principle the the eases belong category the the “To second Regard two. for the facts these an official the au cases where asserts brings cases them first cat within the thority of a for action but statute his egory because nature of the relief the challenges injured plaintiff the the constitutionality requested makes them either cases the statute. property which Government would injury then en Threatened will be transferred, or have to be cases where plaintiff joined if the otherwise satis person satisfy the sued the court could requirements equitable the in fies for only by acting decree in an official ca tervention. Allen v. Baltimore & O. tortfeasor, pacity. is, The is not Co., 925, 962, 311, 114 5 R. U.S. S.Ct. happened immunized because he 200; Reagan 29 L.Ed. Farmers’ office, hold but can because the tort Co., 362, Loan & T. 1047, 154 14 U.S. S.Ct. redressed, threatened, not averted, or if be 1014, 38 4 L.Ed. Inters Com bringing opera into 560; parte Young, 123, Ex 209 U.S. governmental machinery.” 337 441, 714, 28 ,N.S., 932, 52 S.Ct. 13 L.Ed. L.R.A. 712, 713, 69 S.Ct. at 1473. 764; Rickert Ann.Cas. Fontenot, 110, Mills Rice recognized 297 U.S. principle The same was 374, 56 S.Ct. 80 L.Ed. 513. So also Safety Appliances earlier in Mine Forrestal, 1945, Co. v. recovery may property had of in an be 371, 326 U.S. S.Ct. against action an when official the 140, 90 L.Ed. where the Court said: statute under the seizure the purpose proceed- “The sole property is made unconstitutional. prevent is to Secretary the Greenhow, Poindexter v. 114 U.S. taking stop certain action which would 5 S.Ct. 29 L.Ed. 185. In payment by government money the against these cases ing suit the one hold lawfully in the States Trea- United office is “a deemed suit government’s sury satisfy the personally wrongdoer, him Secretary’s appel- not the debt parte not the State.” Ex assumption underlying lant. The Young, 123, 151, 209 U.S. prayed action is that if relief 714, 725, L.R.A.,N.S., 52 L.Ed. granted, government pay is will 764, supra. 14 Ann.Cas. relinquish ownership and thus These apply princi- cases likewise possession effect, money. ple appear- that is clear. There an is therefore, this an is indirect effort to inconsistency ance in some of the allegedly collect a debt owed only opinions cases because also are government proceeding in a to which prey composition. the frailties of government not has consented. phrases always Familiar are not used underlying basis the relief precision with critical due rel- alleged asked unconstitu- may brought Renegotiation tionality Claims, Act and Court proceeding purpose is 28 U.S.C.A. after 1964 in the sole government’s court, the district 28 U.S.C.A. 1346. fix the though liability. Thus, Secretary’s remains, however, The fact it, the conclusion appellant denies party the United not made a States was essentially inescapable that the suit is pur to this was not action and served designed money to reach 4(d) suant to Rule Fed.Rules Civ. government Under these owns. therefore, choice, no Proc. but government circumstances the indispensable party, to dismiss this action. United Minnesota States not be sued behind its back. 382, 388, States, United Safety Appliances Forrestal, Mine Co. v. even, L.Ed. S.Ct. supra. Renegotiation though Act under Affirmed. Secretary proposed to act which might *4 unconstitutional.” held INGRAHAM, Judge (special- Circuit (cita- 374-375, 66 S.Ct. at 221 at ly concurring): omitted). tions and footnotes disagree respectfully I with the must beyond is it clear the instant ease my manner in brothers dis- peradventure is that the suit posed of with their this case and refusal remedy since the States United “engage to in the esoterics of constitu- sought pay can be satis- is back construction.” tional I treasury. only It fied follows, shirking court, its feel that this corollary therefore, is plaintiffs sponsibility, to re- has enabled indispen- States is an clear—the United again, expense file the suit entire Safety party to Mine sable the action. judiciary’s the federal valuable time supra; Forrestal, Appliances Co. energy. supra; Work, Simons Morrison v. supra. Vinson, begins majority opinion The with the result of determination usual plaintiffs assumption that erroneous indispensa- is an that the United States damages brought suit “for back party ble the United dismissal because pay received would have sovereign by protected immuni- States is illegally An ex had not removed.” ty consented to and has not the suit. original complaint filed amination of the g., Dugan Rank, supra; See, Ma- e. proceedings of the in this cause and the supra; Bowdoin, Do- lone v. Larson v. pursuant there district court conducted Foreign Corp., su- mestic and Commerce of action indicates that the cause was Safety Appliances pra; v. For- Mine Co. strictly equitable in nature.1 Nowhere Work, supra. restal, supra; Morrison proceedings complaint in the in the damages present was mention In the case such a result there below necessary pay, I feel could be back nor do not at the onset since pay reasonably apparently Back was nev has waived its inferred. United States suggested plaintiffs’ immunity brief on this er until in cases of sort. Suits pay appeal.2 States for back the United plaintiffs’ complaint of the United first ments of the Constitution count controversy ex- States. The amount was as follows: jurisdiction $10,000.00 of costs and ceeds exclusive “1. The this Court pursuant interest.” invoked U.S.C. Section equity, action in 1343. This is an by prayer for “such other Plaintiffs’ did ask 42 U.S.C. Sections 1983 authorized deprivation, appropriate 1985(3), circumstances.” redress relief boilerplate provision cannot the laws of Such a good under the color of the United Texas, rights, to include claim faith be and the construed States State pay- privileges, back immunities secured First, Fifth, Fourteenth Amend- Nevertheless, majority opinion, by rights, and an action under 28 U.S.C. § bootstrap operation, declaratory judgment now asserts 2201 for a ing declar- pay appellees that this for back suit the acts of unconstitutional join applied plaintiffs must be dismissed failure to and the class party they represent. defendant. United States despite the fact Direc- This was that the The record indicates apparent authority tor of has the OEO programs two VISTA in Val Verde necessary payments make as are County: VISTAs, responsible National agency. the administration of supervisors regional to Austin, Texas, office in U.S.C. 2942. Minority and the Mobili- below, dismissing The court Program (M.M. VISTAs), zation com- denying plaintiffs’ suit and motion for posed of Mexican-Americans recruited restraining temporary order, “as found community. from the local The latter programs a matter of law the ‘Vista’ program, funded the Federal Govern- from Val never terminated Verde were private ment and administered only but the individual volunteers work- agency, pursuant was established programs in those were removed agreement between OEO/VISTA U.S.C., from service under Title 42 Sec- County Community Val Verde Action 2992(b).” The court further found Agency (the sponsor). local Dissatis- “that defendants can remove said volun- apparently faction over a local incident stating teers from service rea- resulted in considerable friction between *5 majority sons or cause therefor.” The local officials and VISTA work- opinion language, does not sanction this On March ers. the Commis- thereby permitting plaintiffs bring to County pass- sioners Court of Val Verde again. this same suit I would affirm requesting aed resolution the Governor language this of the district and court programs to terminate the VISTA in the findings, these county. with the reasons stated formally The Governor then explanation herein and awith careful of quested the Director of OEO to termi- underpinnings: the factual programs nate both VISTA and to dis- assigned thereunder, all miss VISTAs Plaintiffs were former in Volunteers explaining that the had contrib- workers Service to America (VISTAs) and mem- respect uted to the abdication of community bers of the of Val Verde order, disruption law and of demo- County, Texas, and commenced ac- this process, provocation cratic dis- of appellees, Governor unity among the citizens. Director The Texas and the Director of the Office of dismissed all of the nineteen volunteers (OEO), Opportunity Economic participating projects, in the two al- illegal allegedly and unconstitutional re- though projects themselves were appellants participation moval of statutory authority not abolished. The project. Val Verde for this action was asserted equity, pursuant It under 42 action U. in 1985(3), 42 U.S.C. 1983 and S.C. to re- which has been set in §§ § deprivation dress of basic Constitutional the footnote.3 Programs 3. Part A. families, Full-Time Volunteer ers and their or of residents of Authority to establish full-time Columbia, the District of the Common- programs. Rico, Guam, wealth of Puerto American (a) may recruit, select, Samoa, Virgin Director Islands, or the Trust persons Territory train to serve in Islands; full-time of the Pacific programs, upon request volunteer (2) in the care and rehabilitation Federal, State, agencies, pri- or local or mentally mentally ill or retarded un- non-profit organizations, may assign vate nonprofit der treatment at mental health such volunteers to Work— facilities; or mental retardation (1) meeting health, education, welfare, programs or related needs of Indians liv- with connection reservations, migratory authorized, supported, work- activities or of appellant questions court should III. Did the removal of this The three or confronta- are as follows: VISTAs without had addressed itself tion of their accusers constitute viola- authority I. Was process tion of due of laws ? under 42 U. the M. M. VISTAs remove Statutory I. The Basis Removal 2992(b)? S.C. § contend that the M. M. appellant removal of the II. Did the subject VISTAs are not to the removal County consti- Val Verde VISTAs from provision 2992(b), swpra. of 42 U.S.C. § Amend- their First tute a violation of They assert the M. VISTAs M. rights speech and of freedom ment pursuant to 42 were created U.S.C. §§ expression? 2993a,4 special freedom of 2993 and volunteer eligible title, provisions under for assistance a character chapter. appli- section 1001 of Title shall assignment respect (b) volunteers under cable oath or affirma- terms and shall be on such this section tion. politi- (including Support restrictions on full-time conditions 2992b. volunteers. recognize appropriately —Stipend; activities that allowances. cal living special may provide (a) stipend of volunteers status The Director persons among groups part served volunteers under this while assignment, programs training been as- to which are in and on but per may determine, signed) stipend as the Director $50 shall not exceed assignments including year during in their own work month the volunteer’s first nearby communities; may provide stipend but volunteers under He service. assigned part per shall not be to duties or month in the case $75 to exceed persons any the consent of State without work served for at least one who have assignment who, of such the Governor. The with stand- accordance prescribed by him, desig- shall be termi- a volunteer State ards have been requested the Director when so nated leaders on the basis of nated volunteer experience special later of such State not Governor skills. The Direc- thirty days provide or at a time thereafter than tor also volunteers such liv- agreed upon by ing, (including and Direc- Governor travel travel and from *6 request place training), tor after such has made of leave allow- ances, housing, equip- supplies, the Director. the Governor to and such ment, subsistence, clothing, of 2992a. Terms service—Commit- § health and care, support, ment to full-time service. he dental or such other as part (a) may necessary appropriate be Volunteers under this shall deem or for personal required full-time to make a com- their needs. poverty. combatting Payment completion term; upon To the mitment to ad- practicable, stipend. this shall include a extent vancement accrued among payable only upon (b) Stipends to and at commitment live shall be people served, completion service; except economic level of the of a term of extraordinary without to remain available for service that in circumstances the working hours, regular may regard to at all Director from time to time advance except service, during stipend, any portion thereof, times their term of accrued or periods leave. for authorized In the to or on behalf of a volunteer. One-year enrollment; during shorter enroll- event of the death of a volunteer any unpaid stipend service, ment for volunteer associates. the amount of part (b) paid pro- be Volunteers under this shall be in accordance with the shall periods service, one-year enrolled for visions of section 5582 of Title 5. training. excluding time devoted to may, however, persons Auxiliary Special Director allow who And Volun- Part B.— one-year Programs a full com- are unable to make teer Community programs— associates § mitment to enroll as volunteer service periods service; of not less than two Term of activities. for service (a) develop programs he that this months where determines The Director shall effectively pro- expand opportunities per- designed service will for more limited purposes subehapter. participate per- in mote the of this sons to a direct and way, part-time sonal on a basis or for Oath or affirmation. (c) part periods under shall shorter quired of service than are re- All volunteers under take and subscribe to an oath or affirma- for enrollment section prescribed by nearby title, in their the form section home or tion workers 2992 are considered full-time no program, § that these sections vest for one are to be enrolled power removal the Governor. periods.5 Appellant all were workers that the Governor concede serving on a full time-time On basis.6 power the Na- possessed to remove hand, pro- other 2993 calls for § 2992(b). but tional VISTAs under § Moreover, grams part-time on a basis. argue com- VISTAs were that the M. M. living specifically prohibits 2993(b) § my opin- In missioned under 2993a. § stipend, or as authorized allowance § ion, workers the M. were M. VISTAs assertion, primordial 2992b. Plaintiffs’ le- 2992 and their removal within § however, they is that are or were § gal 2992(b). under § we conclude Should that workers. in- prayer for relief can construed to M. While is clear that M. VIS- pay, request ma- as the clude back program manner of TA differed its jority opinion done, placed has we training recruitment, supervision of plaintiffs position in the unenviable workers, factors which there are several having to ada- admit that which lead to the M.M. conclusion mantly deny are § 2992 workers. VISTAs § —that removal) place, (subject first volunteers recruited under to se- workers —all communities, special quired in volunteer activities con- cir- because of unsual or tributing poverty. affecting project. to the elimination of cumstances agree- appropriate plans, Pursuant ments, Allowance of service as non-Federal arrangements or the Director contribution. provide financial, technical, (e) any person, or other as- services of other- carry projects sistance needed to wise allowable as a non-Federal contribu- any program are undertaken programs. connection with these toward cost or projects may include, project chapter These assisted under this or limitation, designed (1) Act, activities other Federal shall not be disallowed encourage greater persons merely by numbers reason of actions of the Direc- participate, volunteers, pro- providing in local tor under this section or grams projects assisting recruitment, referral, assisted under or chapter, particular emphasis upon preservice training person. (Pub. with of such programs designed youth pro- VIII, to aid or L. title as added 88— development; encourage I, mote child Pub.L. title Dec. 90— persons managerial, profes- 724.) needed 81 Stat. sional, Special skills programs. technical to contribute § 2993a. volunteer programs develop- conduct, those skills to The Director is authorized to provide by ment or betterment urban grant for, special and rural or contract neighborhoods especially having programs or areas designed volunteer to stimulate large proportions improved provid- concentrations or and initiate methods of *7 poor, particular emphasis upon help- ing with encourage volunteer services and to neighborhoods residents participation, of those wider volunteer in further- develop competence necessary purposes areas to subchapter. ance of the of this advantage private to take of jjer Not to exceed 10 centum of the sums resources appropriated any ap- which would not otherwise or allocated from programs; propriation carry available or subchapter used those existing any year may to assist pro- national and for grams fiscal be used for agencies relying upon local or in need (Pub.L. of under this section. 88— 452, volunteers to obtain volunter VIII, services more 821, title as added Pub.L. § readily, provide specialized or to I, 23, 1967, short- title Dec. § 81 90— training, particular emphasis term 724.) Stat. agencies serving seriously the most disad- 3, supra, (b). 5. See note 2992a vantaged, operating in areas of the most poverty, having concentrated agreement similar 6. A memorandum of the between critical needs. and the Val Verde OEO/VISTA Support Community Agency and allowances. Action stated that (b) serving Persons as volunteers under “[t]he Volunteers will serve on a full-time living this section shall receive no allow- hasis. Each Volunteer will receive seven stipend only sup- days ance or leave, including week-end, such other port or during allowances as the Director deter- his first enrollment. VISTA ** * mines, pursuant regulations (emphasis added). are re-

1031 See, g., Pickering have not asked cure relief which e. v. Board of Educa tion, for. 391 U.S. 20 (1968); L.Ed.2d 811 N.A.A.C.P. v. But nothing Finally, 2992 ton, 371 9 L.Ed.2d S.Ct. prohibits the Director OEO (1963); City Rock, Bates v. of Little using Spe full-time workers in the from 4 L.Ed.2d S.Ct. Programs, the M. cial such as Volunteer (1960); Thomas, Ferguson although Thus, program.7 ad M. (5th at 859 programs may have ministration of the Any organization appellants in which different, appellants were § might participated could have held au There workers. goals identical to those of VISTA. thority from for their removal. Aside Fighting achieving poverty, better con- agreement authority, between ditions, goals etc. are broad which or- pro sponsor the local OEO/VISTA ganizations gamut running the of the sponsor request the vided that the could spectrum political might Could share. any volunteer, that removal appellants, VISTAs, participate as any recall could volunteer OEO/VISTA organization regardless any time, resign any at and a volunteer could organization by used means quite seems that time. It clear goals? achieve its think Al- not. the Director of OEO acted within his though Congress actively cannot seek to powers withdrawing appellants suppress political opposition local ac- County. Val Verde associations, tivities not re- quired support Appel- such actions. II. First Amendment Freedoms of lants could have remained Val Verde Speech and Association County, participated in demonstrations helped community of the members allege Appellants National rights. They political assert their can- and rights First M. VISTA’s Amendment M. not, engage however, in said activities speech freedom of and associa- federally sponsored members violated have been when were program, especially when the result positions in Val removed from their disruption friction and on the state and County. support Verde of this con- government. levels local tention, appellants assert Appellants aware of quest well for their removal was a result power membership organization the Director and the recall their in a local power rep- These improvement of the con- veto Governor. dedicated to the recognition Congress resented a valid ditions of in Tex- the Mexican-American sponsor that tagonistic it could not activities an- as. that freedom of believe governing authorities to local requires that volun- association organization join an teers be allowed to control. some means of exactly purposes same as are whose cite, appellants mainly The cases in- goals program. the VISTA stated volving rights of teachers with re- argu- oaths, spect unions, loyalty etc., merit in these is little There *8 essence, controlling. example, we must In balance not For even in ments. speech McLaughlin Tilendis, freedom of and as- on 398 inhibitions v. F.2d 287 legitimate (7th 1968), interests in sociation Cir. which in- state’s government outweigh plaintiff’s and the in did of the manner terest not freedoms, protected. these interests associational the court ex- 2992(a) apparently under 2992 connection author- teers recruited Section programs. to utilize izes the Director full-time volun- OEO 1032 Moreover, possible even a case dismissal

plained of course that “[i]t may- public employment, plaintiffs from or not whether that at some future time hearing depends upon justify- required engage a a conduct in union-related of factors at 289. balance such as the need for their dismissal.” 398 F.2d government summarily to act could Appellants in the instant case employee extent to which the will be areas, requested a transfer other have harmed the dismissal. Meredith v. resigned alternative, ap- their or, in the Hospital Allen Memorial War pursued pointments as VISTAs Com’n., 1968); (7th 397 36 F.2d Cir. Appellants’ political activities. their (2nd Trussell, Birnbaum F.2d v. 371 672 not freedoms Amendment First Cir. See Cafeteria & Restaurant by ap- action taken been violated. The Union, McElroy, Workers v. 367 U. etc. supra, pursuant pellees, 2992(b), to S. 81 1230 S.Ct. 6 L.Ed.2d specifically to restrictions refers (1961). The extent of harm to the em activities, justifiable political was on ployee interest, is often indicative of his legitimate governmen- a the exercise of others, these cases and the sub Olson, v. 353 tal See Jenson interest. usually stantial interests involved are 1965); London (8th 828 Cir. reputation ability pursue a Department of Health & Re- Florida profession. Trussell, su Birnbaum Serv., F.Supp. (N.D. 596 hab. pra, 371 F.2d at 678. Fla.1970). appellants

The action taken deprive pursuit did not them a of the Due Process III. Constitutional profession, do not wear “badge infamy” of their because re argument submit Updegraff, moval. Wieman v. op- their removal or L.Ed. portunity to confront their accusers vio- (1952); Macy, U.S.App. Norton v. right process law, lated their to due (1969). D.C. government and that was vested They plaintiff are unlike the Lucas arbitrary power. with an unlimited Chapman, Cir., (5th 430 F.2d 945 at 947 1970), “long employment whose ain con my knowledge, To minimum tinuing relationship through the use quirements process of due in the termi- renewals of short-term contracts was employ- nation of a VISTA volunteer’s give necessary sufficient him the ex passed upon ment have never been pectancy reemployment that constitut appellate federal I court. do not feel in- protectable ed a interest.” In the case searching analysis clined to conduct bar, appellants protected were agency procedures necessary for Civil In 42 Service laws. U.S.C. § place In determination. the first 2994b, specifically provided appellants were not “terminated” subject relating VISTAs are not to laws They “fired”. withdrawn employment, to federal not fed and are project County. in Val Verde The VIS- employees, except eral for tax and social TA Volunteer Handbook security purposes. They are also sub (§ VIII) provides that “it become ject politi to Hatch Act restrictions necessary to transfer a Volunteer to an- Thus, they cal activities. are similar project other or terminate his service temporary probationary In workers. this is in the best interest of the total Jaeger Freeman, (5th 410 F.2d 528 program. Consideration will al- 1969), plaintiff under a one- ways given transfer ter- before employment gov probationary minating a Appel- Volunteer’s service.” poultry lants, however, inspector ernment and was dis chose other avenues of endeavor, returning college denying such as or missed. him reinstatement *9 seeking employment. other pay, and back this court that due held every re instance process not does grant government a trial- quire the America, UNITED STATES discharged employee, hearing a type Plaintiff-Appellee, to im compelling reasons no and found prior dismis requirement pose Joseph CEDAR, Defendant-Appellant. Med employees. See probationary sal No. 24349. (1st Cir. Freeman, off v. 1966). Appeals, Court United States Ninth Circuit. rejected appel- thus have should Feb. of a deprived claim lants’ Eighth hearing. Cir- constitutional Special Seh. cuit, v. Gould in Freeman Ark., County, of Lincoln Dist. (1969), stated: many public em- are here “IT] their

ployees separated from are who arbitrary purely de- employment change upon

cision, administra- change of con- factual even

tion or appointments are

trol where protected by type some civil service or tenure, statutory or contractual.

(cid:127)X- [*] [*] or contractual

“Absent discharged

quirements, persons incompetency,

inefficiency, insubor- right dination no constitutional rights of cross ex- confrontation of wit-

amination and

nesses.” Jones

405 F.2d at 1161. See (10th

Hooper, 410 F.2d 1327-1328 among presidential Even aides, governors’

cabinet members and frequently

transfers and removals regard procedural safe-

made guards. Appellant “volun- VISTAs are

teers” the executive branch term, accept

true sense and must policy summary

a similar transfer. harsh, might but

Such a decision seem

this court should have taken importance note reputation of the VIS- very program

TA as a whole. Its sur- achieving upon depend

vival its rapport cooperation

adequate level governing

with local officials. with-

I affirm the district court would qualification.