Monaco v. U.S.

• Decision Date: 17 September 1975
• Docket Number: Nos. 73-2743,74-3141,s. 73-2743
• Citation: 523 F.2d 935
• Parties: Salvatore F. MONACO et al., Plaintiffs-Appellants, v. UNITED STATES of America et al., Defendants-Appellees. James H. CAMP et al., Plaintiffs-Appellants, v. James R. SCHLESINGER, Secretary of Defense, et al., Defendants-Appellees. a.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 935

523 F.2d 935

Salvatore F. MONACO et al., Plaintiffs-Appellants, v. UNITED STATES of America et al., Defendants-Appellees.

James H. CAMP et al., Plaintiffs-Appellants, v. James R. SCHLESINGER, Secretary of Defense, et al.,

Defendants-Appellees.

Nos. 73-2743, 74-3141a.

United States Court of Appeals Ninth Circuit.

Sept. 17, 1975.

David E. Pesonen (argued), San Francisco, Cal., for plaintiffs-appellants.

James L. Browning, Jr., U. S. Atty. and Richard F. Locke, Asst. U. S. Atty., San Francisco, Cal., for defendants-appellees.

F. L. Hetter (argued), San Diego, Cal., for plaintiffs-appellants.

Peter W. Bowie (argued), Asst. U. S. Atty., San Diego, Cal., for defendants-appellees.

OPINION

Before CHAMBERS and CARTER, Circuit Judges, and THOMPSON, ^* District Judge.

THOMPSON, District Judge:

These are companion cases which were consolidated on appeal inasmuch as each presents an identical controlling question of law.

The Monaco case was commenced in the Northern District of California by several civil service employees of the Naval Air Rework Facility at the Naval Air Station, Alameda County, California, as a class action on behalf of themselves and other employees who were in a retired or retainer status from career service in the Armed Forces of the United States. The named defendants are the United States, the Secretary of Defense and a number of other federal military and civil service officials. The action came on for hearing before the District Court on plaintiffs' motion for a preliminary injunction. On July 3, 1973, the Court denied the motion. This appeal is from the order denying the preliminary injunction and the jurisdiction of this Court is predicated on 28 U.S.C. § 1292(a)(1).

Similarly, James H. Camp and others filed a complaint in the Southern District of California naming as defendants the Secretary of Defense and several federal officials of the civil service and navy departments. The class of plaintiffs consisted of civil service employees of the Naval Air Rework Facility, North Island, San Diego, California, who were retired military servicemen. The case came before the District Court on plaintiffs' prayer for a temporary restraining order and, after hearing, Judge Edward J. Schwartz entered an order denying the relief sought and dismissing the complaint for failure to state a claim. An appeal was taken which was remanded by this Court of Appeals for reasons not pertinent to this Opinion. Thereafter, plaintiffs filed an amended complaint. The matter came on for hearing on defendants' motion to dismiss before Judge Gordon Thompson, Jr., and he, on November 10, 1972, granted the motion to dismiss for failure to state a claim. This appeal followed, the jurisdiction of this Court being founded on 28 U.S.C. § 1291.

In both the Monaco and Camp cases, the plaintiffs, retired military personnel, were threatened with loss of their civil service jobs as a consequence of a substantial reduction in force at the respective Naval Air Rework Facilities. All plaintiffs were receiving pensions earned by virtue of their military service from which they had retired. The plaintiffs assert vested rights under the Veterans' Preference Act of 1944, originally codified at 5 U.S.C. § 861 et seq., which was in effect during the periods of their active military service. The plaintiffs allege that the Dual Compensation Act of 1964, 5 U.S.C. §§ 3501, 3502 and 3503, is unconstitutional and injunctive relief was sought against the enforcement of the provisions of the Dual Compensation Act of 1964 insofar as they affect the priority rights of plaintiffs to retain their civil service employment.

The Veterans' Preference Act of 1944, in addition to establishing a general preference for honorably discharged veterans "(I)n certification for appointment, in appointment . . . and in retention in civilian positions in all establishments, agencies, bureaus, administrations, projects, and departments of the Government" (58 Stat. 387, ch. 287, sec. 2), contained the following specific provision (58 Stat. 387, ch. 287, sec. 12):

"In any reduction in personnel in any civilian service of any Federal agency, competing employees shall be released in accordance with Civil Service Commission regulations which shall give due effect to tenure of employment, military preference, length of service, and efficiency ratings: Provided, That the length of time spent in active service in the armed forces of the United States of each such employee shall be credited in computing length of total service: Provided further, That preference employees whose efficiency ratings are 'good' or better shall be retained in preference to all other competing employees and that preference employees whose efficiency ratings are below 'good' shall be retained in preference to competing nonpreference employees who have equal or lower efficiency ratings * * * ."

The Dual Compensation Act of 1964 (P.L. 88-448, 78 Stat. 484) provided, in pertinent part:

"Sec. 202. Section 12 of the Veterans' Preference Act of 1944, as amended (5 U.S.C. 861), is amended

"(1) by inserting '(a)' immediately following 'Sec. 12.';

"(2) by inserting ', subject to subsection (c) of this section,' immediately after the word 'That' in the first proviso thereof;

"(3) by inserting '(subject to subsection (b) of this section)' immediately after 'military preference'; and

"(4) by adding at the end thereof the following new subsections: '(b) Notwithstanding any other provision of this Act, an employee who is a retired member of any of the uniformed services included under section 2 of this Act shall be considered a preference employee for the purposes of subsection (a) of this section only if

" '(1) his retirement was based on disability (A) resulting from injury or disease received in line of duty as a direct result of armed conflict or (B) caused by an instrumentality of war and incurred in the line of duty during a period of war (as defined in sections 101 and 301 of title 38, United States Code); or

" '(2) his service does not include twenty or more years of full-time active service (regardless of when performed but not including periods of active duty for training); or

" '(3) immediately prior to the effective date of this subsection, he was employed in a civilian office to which this Act applies and, on and after such date, he continues to be employed in any such office without a break in service of more than thirty days.' "

It is primarily the foregoing section of the Dual Compensation Act which is attacked as unconstitutional by these plaintiffs. The impact of the amendment was to eliminate the preference rights of these plaintiffs to retention in civil service employment because the military service of these plaintiffs did include twenty or more years of full-time active service and because these plaintiffs were not employed in a civilian office to which the Act applies immediately prior to the effective date of the subsection, that is, August 19, 1964.

In both cases, a motion was made to empanel a statutory three-judge district court under 28 U.S.C. § 2282. In each case, the motion was denied upon the ground that the constitutional issue is insubstantial. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933). We agree. We, nevertheless, recognize the test for insubstantiality explicated by the Supreme Court in Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 858, 35 L.Ed.2d 36 (1973):

"Title 28 U.S.C. § 2281 does not require the convening of a three-judge court when the constitutional attack upon the state statutes is insubstantial. 'Constitutional insubstantiality' for this purpose has been equated with such concepts as 'essentially fictitious,' Bailey v. Patterson, 369 U.S. (31), at 33 (82 S.Ct. (549), at 551 (7 L.Ed.2d 512), 'wholly insubstantial,' Bid.; 'obviously frivolous,' Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288 (30 S.Ct. 326, 327, 54 L.Ed. 482) (1910); and 'obviously without merit,' Ex parte Poresky, 290 U.S. 30, 32 (54 S.Ct. 3, 4-5, 78 L.Ed. 152) (1933). The limiting words 'wholly' and 'obviously' have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 2281. A claim is insubstantial only if ' "its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy." ' Ex parte Poresky, supra, at 32 (454 S.Ct. (3), at 4), quoting from Hannis Distilling Co. v. Baltimore, supra (216 U.S.), at 288 (30 S.Ct. (326), at 327; see also Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105-106 (53 S.Ct. 549, 550, 77 L.Ed. 1062) (1933); McGilvra v. Ross, 215 U.S. 70, 80 (30 S.Ct. 27, 31, 54 L.Ed. 95) (1909)."

See Vun Cannon v. Breed, --- F.2d ---, (9th Cir. 1975).

We observe the facial incongruity of declaring a contention to be "essentially fictitious," "wholly insubstantial" and "obviously without merit" in the light of the arguments sincerely made by Appellants in lengthy briefs. It would be equally incongruous for this Court to engage in a lengthy discussion of the contentions in the light of a conclusion that the constitutional issues are insubstantial. We shall, therefore, limit ourselves to a short, succinct statement of the reasons for this conclusion.

The hub of Appellants' argument is that they, by enlisting in the military service between 1944 and 1964, acquired a vested, unrepealable right by virtue of the Veterans' Preference Act of 1944 to preference for employment in the federal civil service and preference to retention of employment in the...