Carroll v. Somervell
| Decision Date | 13 January 1941 |
| Docket Number | No. 112.,112. |
| Citation | 116 F.2d 918 |
| Parties | CARROLL v. SOMERVELL. |
| Court | U.S. Court of Appeals — Second Circuit |
Herman Rosenfeld, Arthur Garfield Hays, and Darwin J. Meserole, all of New York City, for complainant-appellant.
John T. Cahill, U. S. Atty., of New York City (Robert L. Werner and Edward J. Ennis, Asst. U. S. Attys., both of New York City, of counsel), for defendant-appellee.
Before SWAN, AUGUSTUS N. HAND, and CLARK, Circuit Judges.
The complaint alleges that the complainant, a native-born American citizen, resident in New York City, received employment in the Works Projects Administration (hereinafter called WPA) in the City of New York, in October, 1939, and has since been regularly employed as a senior clerk in WPA; that on June 23, 1940, the Senate and House of Representatives adopted a Joint Resolution extending the WPA until June 30, 1941, and providing in Section 15 (f), 15 U.S.C.A. §§ 721-728, that no part of the money appropriated should be available to pay any person who does not make affidavit that he is not a Communist and not a member of any Nazi Bund Organization, and providing in Section 17 (b) that no portion of the appropriation should be used to pay compensation to anyone who advocates, or who is a member of any organization that advocates, the overthrow of the Government of the United States. The complaint further alleged that the defendant-administrator of the local operating unit of WPA for the City of New York, on June 22, 1940, and before approval of the Joint Resolution by the President, illegally caused to be issued a form of affidavit providing among other things that the deponent should declare himself a citizen and not a Communist and not a member of any Nazi Bund Organization, and on June 25, 1940, illegally ordered the complainant, as a condition of employment, to sign the above form of affidavit. The complaint also alleged that the complainant in response to the question in the affidavit: "Are you a Communist?" said: "I am a member of the Communist Party of the U. S. A.", and that he was thereafter, and on June 26, 1940, dismissed from his employment on the Project by a notice saving: "separated — failure to sign form 608".
The complaint likewise alleged that the suit was of a civil nature arising under the Constitution and Laws of the United States, that Sections 15 (f) and 17 (b) were discriminatory and violated the Fifth Amendment, and that the amount in controversy exceeded $3,000 exclusive of interest and costs. It prayed that the foregoing subdivisions of Sections 15 and 17 be declared unconstitutional, that the defendant be enjoined from enforcing them, be ordered to restore the complainant to his employment, and that a court of three judges be convened.
Shortly after service of the complaint, complainant moved upon it, and upon affidavits, for a hearing before a court of three judges and for a preliminary injunction restraining the defendant from enforcing Sections 15 (f) and 17 (b) of the Emergency Relief Appropriation Act, fiscal year 1941, and directing the WPA Administrator to restore him to employment. The complainant's affidavit stated that he was a member of the Communist Party but that neither he nor that party advocated the overthrow of the government; that the Emergency Relief Appropriation Act constituted an attempted invasion of his civil rights as a citizen which would result in damage to him in excess of $3,000, and that a preliminary injunction should issue because he had no means of support and would be irreparably injured by being deprived of a livelihood pending trial. The defendant filed an affidavit showing that any compensation which complainant could receive during the ensuing year as a WPA worker would amount at most to only $1,138.80 under the Congressional Appropriation which has been made. The complainant filed a replying affidavit alleging that his civil rights were involved and that they had a value in excess of $3,000.
The District Court denied the complainant's motion for an injunction pendente lite and also dismissed the bill for lack of jurisdiction because the matter in controversy did not exceed the value of $3,000. We think the decision was right and should be affirmed.
The appellant contends that Sections 15 (f) and 17 (b) of the Act in effect deprive him of "the right to enjoy the free exercise of his political and social opinions; the right to be in line for employment by the federal government; the right to stand on the same footing with other citizens." He says that his loss is not limited to wages which would have amounted to only $1,138.80 at most, even if he had been given employment during the entire period when Congressional appropriations for WPA workers would have been available. But he argues that he has suffered additional damages because of loss of civil rights which were worth more than the $3,000 necessary to give jurisdiction over suits arising "under the Constitution or laws of the United States." Title 28 U.S.C.A. § 41 (1).
We cannot...
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