755 F.2d 266 (2nd Cir. 1985), 38, Soto-Lopez v. New York City Civil Service Com'n

Docket Nº:38, Docket 84-7325.
Citation:755 F.2d 266
Party Name:Eduardo SOTO-LOPEZ and Eliezer Baez-Hernandez, Plaintiffs-Appellants, v. NEW YORK CITY CIVIL SERVICE COMMISSION; New York City Department of Personnel; Mark Lebow, individually and as Chairman of the New York City Civil Service Commission; and Juan Ortiz, individually and as Director of the New York City Department of Personnel, Defendants-Appellee
Case Date:February 15, 1985
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
FREE EXCERPT

Page 266

755 F.2d 266 (2nd Cir. 1985)

Eduardo SOTO-LOPEZ and Eliezer Baez-Hernandez, Plaintiffs-Appellants,

v.

NEW YORK CITY CIVIL SERVICE COMMISSION; New York City

Department of Personnel; Mark Lebow, individually and as

Chairman of the New York City Civil Service Commission; and

Juan Ortiz, individually and as Director of the New York

City Department of Personnel, Defendants-Appellees,

The Attorney General of the State of New York,

Defendant-Intervenor-Appellee.

No. 38, Docket 84-7325.

United States Court of Appeals, Second Circuit

February 15, 1985

Argued Sept. 19, 1984.

Page 267

Robert L. Becker, New York City (Jorge Batista, Puerto Rican Legal Defense & Educ. Fund, Inc., New York City, on the brief), for plaintiffs-appellants.

Robert Abrams, Atty. Gen., State of N.Y., New York City (Brenda S. Spears, Frederick Mehlman, Asst. Attys. Gen., New York City, of counsel), submitted a brief for defendant-intervenor-appellee.

Frederick A.O. Schwarz, Jr., Corp. Counsel of the City of New York, New York City (Gillian Sacks, New York City, of counsel), for defendants-appellees, joined the brief of defendant-intervenor-appellee.

Before OAKES, KEARSE and PRATT, Circuit Judges.

Page 268

KEARSE, Circuit Judge:

The State of New York (the "State"), through article V, Sec. 6, of its Constitution and Sec. 85 of its Civil Service Law, provides that a New York resident who passes a civil service examination, who is a veteran of the United States armed forces, and who meets certain other criteria will have points added to his score if he was a resident of New York at the time he entered the armed forces. Plaintiffs Eduardo Soto-Lopez and Eliezer Baez-Hernandez, veterans residing in New York who claim to have met all of the criteria of those provisions except that of New York residence at the time of their entrance into the armed forces, appeal from a final judgment of the United States District Court for the Southern District of New York, Richard Owen, Judge, granting the motion of defendants New York Civil Service Commission, et al., to dismiss their complaint, brought under 42 U.S.C. Sec. 1983 (1982), challenging the past-residency requirement of the New York provisions as violative of their right to equal protection under the Fourteenth Amendment to the United States Constitution and of their constitutionally protected right to travel. Relying on August v. Bronstein, 369 F.Supp. 190 (S.D.N.Y.) (three-judge court), aff'd mem., 417 U.S. 901, 94 S.Ct. 2596, 41 L.Ed.2d 208 (1974), which decided the very questions at issue here, the district court held that the New York provisions infringed neither constitutional right. Plaintiffs contend that August v. Bronstein was implicitly overruled by Zobel v. Williams, 457 U.S. 55, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982), and that Zobel requires that the past-residency requirement of the New York provisions be invalidated as both a denial of equal protection and a burden on the right to travel because the practice is not rationally related to a legitimate or compelling state purpose. We agree and therefore reverse the judgment of the district court and remand for further proceedings.

I. BACKGROUND

  1. Facts

    For purposes of the present appeal, the facts do not appear to be in substantial dispute. Both Soto-Lopez and Baez-Hernandez are American citizens born in Puerto Rico; each resided in Puerto Rico at the time of his induction into the United States Army. Baez-Hernandez entered the army in 1958 and served on active duty until 1960. He became a resident of New York State in 1968 and has resided in New York continuously since that time. In 1970 he was recalled to active duty for 15 days, during which he suffered an injury that left him partly disabled. Baez-Hernandez was honorably discharged after both periods of active duty.

    In 1980, Baez-Hernandez took the New York City ("NYC") Civil Service competitive examination for the position of Human Resources Specialist and received a score of 77.3. In response to his claim that he was a disabled veteran, Baez-Hernandez was preliminarily awarded 10 additional points--5 for veteran status, and 5 for his service-related disability--thereby raising his score to 87.3. Based on the adjusted score, Baez-Hernandez received an appointment as a Human Resources Specialist on about June 1, 1981. The award of the 10 bonus points was rescinded two days later, however, and the appointment withdrawn, when it was discovered that Baez-Hernandez was not a New York resident at the time of his entry into the army.

    In 1981, Baez-Hernandez took NYC Civil Service competitive examinations for the positions of O.C. Research Assistant and Assistant Accountant, with similar results. In each case, he was preliminarily awarded 10 additional points based on his claim that he was a disabled veteran; in each case the award was rescinded upon the discovery that he was not a New York resident when he entered the army. The cancellation of the 10-point bonus led to Baez-Hernandez's name being placed substantially lower on the eligibility lists compiled from the examinations. Apparently, Baez-Hernandez eventually received an appointment to a civil service position from one of these lists. However, he contends that his appointment

    Page 269

    was substantially delayed, with a concomitant loss of wages and seniority, due to defendants' refusal to grant him the 10 veteran preference points he claimed.

    Soto-Lopez entered the army in 1961 and was honorably discharged from active duty in 1963. He became a resident of New York in 1965. In 1980, he took the NYC Civil Service competitive examination for the position of Housing Caretaker, receiving a score of 88. Based on his claim to veteran status he was provisionally granted 5 additional points, thereby raising his score to 93. In December 1982, Soto-Lopez was called for interviews for a Housing Caretaker position. However, upon the discovery that he was not a New York resident at the time of his entry into the army, the 5 bonus points were cancelled, his name was accordingly placed significantly lower on the eligibility list, and he was no longer considered for the position. At the time this appeal was argued, Soto-Lopez had not been appointed to a civil service position.

  2. The Proceedings Below

    Plaintiffs' complaint, brought under 42 U.S.C. Sec. 1983, recited the above facts and claimed that the application of N.Y. Const. art. V, Sec. 6, and N.Y.Civ.Serv.Law Sec. 85(1)(a) (McKinney 1983) to deny them the additional points accorded to those New York resident veterans who were New York residents at the time they entered the armed forces violated the Equal Protection Clause of the Fourteenth Amendment and the constitutionally protected right to travel. They sought declaratory and injunctive relief and retroactive employment benefits. 1

    After a number of procedural steps eventually culminating in the intervention by the Attorney General of the State of New York as a defendant, plaintiffs moved for summary judgment granting the relief requested in their complaint, and defendants cross-moved for summary judgment in their favor. In support of their motion, plaintiffs pointed out that the challenged provisions created a distinction between two classes of New York resident veterans, i.e., those veterans who were residents of the state at the time they entered the armed forces and those veterans who were not, with only the former class entitled to veteran preference points. Plaintiffs argued (1) that this distinction was not rationally related to a legitimate state purpose and therefore violated the Equal Protection Clause; and (2) that the effect of the provisions was to give certain long-term residents priority over newer residents, without any compelling state interest in such a priority, and thus to burden impermissibly the constitutionally protected right to travel. Plaintiffs urged the court to rule that August v. Bronstein, which had upheld the New York distinction as a modest token of gratitude to residents of the State for their past contributions to the State in time of war, had been implicitly overruled by Zobel v. Williams, which plaintiffs construe as holding that " 'reward[ing] citizens for past contributions ... [is an] objective [that] is not a legitimate state purpose.' " (Plaintiffs' brief on appeal at 6 (quoting Zobel v. Williams, 457 U.S. at 63, 102 S.Ct. at 2314).)

    After receiving arguments from both sides as to the continuing vitality of August and the legitimacy of New York's purposes in maintaining the challenged distinction, the district court rejected the contention that August v. Bronstein had been

    Page 270

    overruled by Zobel v. Williams. The court held, following August, "that it is neither an infringement on the rights of a resident of another state to travel, nor of equal protection of the laws for New York to promise to its own sons and daughters departing for wartime service in the armed forces that upon their honorable return, they are entitled to a modest civil service hiring advantage." Accordingly, it granted defendants' motion to dismiss the complaint.

    This appeal followed.

    II. DISCUSSION

    On appeal, plaintiffs renew the constitutional challenges they made in the district court. For the reasons below, we find merit in both the equal protection and the right-to-travel arguments and accordingly reverse the judgment dismissing the complaint. We remand to the district court for the granting of declaratory and injunctive relief and for further proceedings on other issues relating to plaintiffs' claims for individual relief.

  3. The Statutory Scheme

    Article V, section 6, of the New York State Constitution provides that:

    [a]ppointments and promotions in the civil service of the state and...

To continue reading

FREE SIGN UP