220 F.2d 522 | 1st Cir. | 1955
Lead Opinion
The plaintiff-appellant is an honorably discharged veteran of over twenty years service in the United States Navy. After his discharge from the Navy he qualified under the rules and regulations of the United States Civil Service Commission and in November 1951 he was given an “indefinite appointment” to the position of “helper machinist,” from which he was later promoted to “journeyman machinist,” in the Boston Naval Shipyard. His performance rating throughout his employment at the yard has been “satisfactory.”
On June 21, 1954, he was served with notice that he would be separated from his employment on July 23 “because of reduction of force * * * due to a lack of work.” At the same time, however, like notices were not served upon several non-veteran “journeymen machinists” at the yard with the same efficiency rating who also held indefinite appointments, but “indefinite appointments in lieu of reinstatement,” for the reason that they were career employe» with “competitive status” acquired as * result of previous service as permanent employees prior to the date of their reinstatement, which, incidentally, antedated the plaintiff’s employment.
A few days before the effective date of his notice of separation the plaintiff brought the instant suit grounded upon violation of his rights under § 12 of the Veterans’ Preference Act of 1944, 58 Stat. 390, 5 U.S.C.A. § 861 against the Commander of the Boston Naval Ship, yard and his subordinate in charge of employment, the Chief Civilian Assistant to the Industrial Relations Officer. The relief requested is a preliminary injunction restraining the defendants from separating the plaintiff from his employment and, on final hearing, a declaratory judgment establishing the plaintiff’s right to be retained in his position. The District Court held an immediate hearing
We do not reach the question of the validity of the above Regulation of the Civil Service Commission because we think the District Court misunderstood the scope of the decision of this court'in the Wettre case and for that reason erred in denying the defendants' motion to dismiss for lack of equity jurisdiction.
The Wettre case was one very similar to this as to parties wherein the plaintiffs alleged that they were veterans with ratings of “good” and that they were about to be demoted from supervisory positions at the Boston Naval Shipyard while non-veterans with greater seniority were not. This, they said, was in direct violation of their rights under the proviso of § 4 of the Act of August 23, 1912, 37 Stat. 413, 5 U.S.C.A. § 648, which provided that “in the event of reductions being made in the force in any of the executive departments no honorably discharged soldier or sailor whose record in said department is rated good shall be discharged or dropped or reduced in rank or salary.” Wherefore they demanded a temporary and permanent injunction against their demotion and an award of money damages. The defendants did not answer, but moved to dismiss for lack of jurisdiction on four grounds: failure to join the Secretary of the Navy; failure to join the members of the United States Civil Service Commission; because in essence the suit was against the United States and it had not consented to be sued; and because the plaintiff had not exhausted the administrative remedies given to them by § 14 of the Veterans’ Preference Act of 1944, 58 Stat. 390, 5 U. S.C.A. § 863. The District Court granted the defendants’ motion and dismissed the complaint solely on the ground of the plaintiffs’ failure to exhaust their administrative remedies, and the correctness of that ruling was the only question thoroughly covered in the arguments on appeal.
The plaintiffs-appellants argued that the general rule requiring exhaustion of administrative remedies before
In the interval between the argument of the Wettre case in this court and our decision, the Supreme Court decided Hilton v. Sullivan, 1948, 334 U.S. 323, at page 336, 68 S.Ct. 1020, at page 1026, 92 L.Ed. 1416 wherein it held that the Veterans’ Preference Act of 1944 did not supersede or narrow, but if anything broadened, the scope of the preference given to veterans in § 4 of the Act of 1912 quoted above. We thought this holding amounted to a definitive determination that the plaintiffs had an absolute right to be retained in rank, which we thought brought the case within the exception noted above to the general rule requiring exhaustion of administrative remedies as a prelude to resort to the courts. Wherefore on the authority of Order of Railway Conductors of America v. Pitney, 1946, 326 U.S. 561, 566, 65 S.Ct. 1566, 89 L.Ed. 1970, wherein the conceded exception to the general rule on which the plaintiffs relied was recognized, see also Work v. State of Louisiana, supra, and Miguel v. McCarl, 1934, 291 U.S. 442, 54 S.Ct. 465, 78 L.Ed. 901, we vacated the District Court’s judgment dismissing the plaintiffs’ complaint on the ground of failure to exhaust administrative remedies and remanded the case for further proceedings consistent with our opinion, our intention being for that court then to rule on the other grounds advanced by the defendants in support of their motion to dismiss for lack of jurisdiction, and also any other jurisdictional matter such as the existence of an adequate remedy at law or an amount in controversy sufficient to support federal jurisdiction. See the second opinion of this court in the same case sub nom. Joy v. Hague, 1 Cir., 1949, 175 F.2d 395, certiorari denied, 1949, 338 U.S. 870, 70 S. Ct. 147, 94 L.Ed. 534.
Perhaps in the Wettre case I did not express the views of this court as clearly and in as much detail as I should. However, the decision in that case was meant to be limited to the situation presented, that is to say, to cases in which plaintiffs are able to show a clear violation of some incontestable right under a federal statute and thus bring themselves within what we thought to be an established exception to the general rule requiring exhaustion of administrative remedies. We certainly did not intend in that case to consider, let alone to decide, any jurisdictional question other than the one before us. Those questions are numerous and difficult, see for illustration Marshall v. Crotty, 1 Cir., 1950, 185 F.2d 622, and the appropriate time to consider them is when they have been not only considered but definitely ruled upon below and fully briefed and argued on appeal. We indicate no opinion on these questions now. Nor by holding in the Wettre case that the plaintiffs were within a recognized
Thus, since the plaintiff herein certainly has not shown, particularly in view of the repeal in 1950, 64 Stat. 1100 of § 4 of the Act of 1912, that his separation is in violation of a clear statutory right to be retained, that is to say, that the Regulation of the Civil Service Commission under which he was ordered separated is patently at variance with the clear provisions of § 12 of the Veterans’ Preference Act of 1944, he must exhaust the administrative remedies given him by § 14 of that Act before seeking equitable relief against anyone in any court.
The judgment of the District Court dismissing the complaint on the merits is set aside and the case is remanded to that court for the entry of a judgment dismissing the plaintiff’s complaint for lack of equity jurisdiction.
. This relief was continued from time to time until November 2 last when the plaintiff-appellant submitted a formal offer to go on “leave without pay” which was accepted by the Boston Naval Shipyard, effective immediately.
Concurrence Opinion
(concurring).
I concur in the opinion and judgment of the court. In addition, I should like to suggest another ground for concluding that the district court lacked jurisdiction of the complaint, namely, that the suit in effect was one against the United • States, and the United States has not consented to be sued in this manner. I recognize that I may be mistaken about this, since the contrary seems to have been assumed (without notation of the point, however) in cases like Hilton v. Sullivan, 1948, 334 U.S. 323, 68 S.Ct. 1020, 92 L.Ed. 1416, and Elder v. Brannan, 1951, 341 U.S. 277, 71 S.Ct. 685, 95 L.Ed. 939. But since the object sought by the injunctive relief prayed for is the retention of the plaintiff on the federal pay roll, with the consequent obligation upon the United States, I assume, to continue paying for his services, it seems difficult to avoid the conclusion that the present suit is in substance one against the United States.
Suppose the plaintiff had obtained his injunction in the present litigation, and had continued working at the Boston Naval Shipyard. And suppose, upon the government’s refusal to pay him his salary, he brought suit against the United States in the Court of Claims. Would the plaintiff expect to have to litigate de novo in the Court of Claims the issue as to his right under the Veterans’ Preference Act? If so, then what would the plaintiff have gained in the present injunction suit except the right to work for nothing? Or would the Court of Claims have to hold that the United States was under an inescapable obligation to pay for the services actually rendered by the plaintiff, albeit services forced upon the United States as a result of the injunction forbidding the Commander of the Naval Shipyard from discharging plaintiff ?
These considerations suggest to me that what the Supreme Court said in Lynch v. United States, 1934, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434, is applicable to the case at bar. The Court in that case said 292 U.S. at page 582, 54 S.Ct. at page 845: “When the United States creates rights in individuals against itself, it is under no obligation to provide a remedy through the courts. United States v. Babcock, 250 U.S. 328, 331, 39 S.Ct. 464, 63 L.Ed. 1011. It may limit the individual to administrative
. By the Act of June 30, 1948, 5 U.S.C.A. § 652, Congress did provide that an employee having rights under § 14 of the Veterans’ Preference Act of 1944, who is discharged, and after an administrative appeal to the Civil Service, Commission is restored to duty on the ground that the discharge was unjustified or unwarranted, shall be paid back pay, at the rate of compensation received on the date of discharge; for the period during which the discharge was in effect, less any amounts earned by him in other employment during that period. It was recognized by the Court of Claims in O'Brien v. United States, 1953, 124 Ct.Ol. 655, that a discharged employee who has been so reinstated may sue in the Court of Claims to enforce this statutory right to back pay.
