Christner v. Poudre Valley Cooperative Ass'n

• Decision Date: 13 July 1955
• Docket Number: No. 4313.,4313.
• Citation: 134 F. Supp. 115
• Parties: Jack W. CHRISTNER, Plaintiff, v. POUDRE VALLEY COOPERATIVE ASSOCIATION, Defendant.
• Court: U.S. District Court — District of Colorado

134 F. Supp. 115

Jack W. CHRISTNER, Plaintiff, v. POUDRE VALLEY COOPERATIVE ASSOCIATION, Defendant.

No. 4313.

United States District Court D. Colorado.

July 13, 1955.

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Donald E. Kelley, U. S. Atty., Denver, Colo., for the District of Colorado, Robert D. Inman, Ass't. U. S. Atty., Boulder, Colo., for the District of Colorado (of counsel, Reid Williams, Denver, Colo., Atty. for the U. S. Dept. of Labor), for plaintiff.

Ralph B. Harden, Fort Collins, Colo., for defendant.

CHRISTENSON, District Judge.

Plaintiff sues for reinstatement and back salary by reason of defendant's refusal to reinstate him as an employee following his training duty as a reserve officer in the Armed Forces of the United States. He relies upon Title 50 U.S.C.A. Appendix, § 459 (g) (3). This provides, inter alia, that private employees shall be granted a leave of absence for the purpose of performing training duty in the Armed Forces of the United States and that upon release from such training duty, if application be made for reinstatement within thirty days, they shall be reinstated in their positions without reduction in seniority, status or pay except as reduction may be made for all employees similarly situated. It appears that this section has not yet been construed by the courts with reference to a state of facts comparable to that involved here.

The defendant is a cooperative association organized under the laws of the State of Colorado and engaged in the sale of gasoline, oil and other products for automobiles and trucks. On or about June 9th, 1950, plaintiff was employed by the defendant as manager at a salary of $350 per month. He continued in such employment when he left on annual training duty as a reserve officer with the Armed Forces on August 9th, 1952. On August 12th, 1952, while he was engaged in this training duty, the board of directors of the defendant corporation discharged him for alleged causes arising prior to his departure. Most of the claimed causes were theretofore known to the board of directors, but no action was taken until after plaintiff's training duty had commenced. Within thirty days from his return, plaintiff requested reinstatement to his former position, which was refused. The plaintiff then enlisted the assistance of the United States attorney and counsel for the Department of Labor, which assistance was extended presumably in reliance upon 50 U.S.C.A.Appendix, § 459(d). This suit resulted.

It appears from the file that early in the proceedings the defendant moved to dismiss the action because of asserted lack of jurisdiction, and that the motion was denied, apparently without extended argument. While a plea to the jurisdiction is contained in the answer, the pre-trial order recites, "That the Court was advised by counsel that no jurisdictional questions are involved." The trial proceeded and was concluded before me without reference to any question of jurisdiction.

Plaintiff contended at the trial that his discharge, and defendant's failure to reinstate him, were by reason of his training duty; and in any event, that the defendant was under the legal obligation to reinstate him upon request by reason of the express provision of the section referred to above. Reinstatement having been refused, it was asserted by plaintiff that he was entitled to judgment ordering his reinstatement and the payment of back salary from the time of such refusal to the time of reinstatement, less income otherwise earned in the meantime.

Defendant contended that the Act relied upon by plaintiff is unconstitutional; that it covers neither reserve officers in general, nor the type or duration of duty to which plaintiff was ordered; that the plaintiff did not hold a position with "seniority, pay or status" as contemplated by the Act; that by the terms of his employment, he could be dismissed at will, with or without cause, and that there was no established seniority or status requiring restoration; that he was, in fact, reinstated by being invited to temporarily return until a new manager took over and by being paid termination and leave compensation; that in any event, he was discharged not because of his training duty but for reasonable and sufficient cause and that his reinstatement was therefore justly refused; that even though, technically, there may have been a wrongful failure to reinstate, relief would be limited to nominal damages at most. In addition to these contentions reflected in the evidence at the trial, it was asserted by the defendant in the pleadings that the plaintiff was estopped to maintain his claim, or was limited in the amount of recovery, if any, by the circumstances surrounding the obtaining of a purported letter of reference from the secretary of the defendant corporation and by delay in filing his action. The latter contentions were not argued on final submission but the case was argued and submitted on the other issues referred to above.

It is deemed unnecessary at this time to further notice the contentions above mentioned except as they relate to the question of jurisdiction. I will go no further than to comment that the evidence would furnish a substantial basis for the good faith claim on the part of the plaintiff that he was actually released by reason of his military activities, irrespective of other reasons which may or may not have constituted good cause for his discharge under other circumstances.

After submission, and in the course of my review of the statute, I became concerned with the question of jurisdiction and requested reargument orally and by briefs. Counsel with care and ability have now further advised the Court.

On the question of jurisdiction, plaintiff's position is that 50 U.S.C.A.Appendix, § 459(d) confers jurisdiction upon this Court to hear and determine the claims of an employee arising under § 459(g) (3) of the Act. It is argued that the legislative history of the Act is persuasive of this; that a liberal construction requires it; that any other construction would be unreasonable and would improperly deny the benefit of the Act to reserve officers; that the theories of diversity of citizenship or claim arising under federal law, would provide only an illusionary remedy to reserve officers in the position of plaintiff since diversity would be uncommon and few claims would exceed $3,000 in amount. Considering Congress' entire plan for the protection of the reemployment rights of veterans, plaintiff asserts that the specific grant of jurisdiction contained in § 459(d) should be held to apply to employees returning from training duty in the Armed Forces under § 459(g) (3), and that the Department of Justice's administrative interpretation of its duties to this effect is entitled to weight. The following expression by the Supreme Court in the case of Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, at page 1111, 90 L.Ed. 1230, 167 A.L.R. 110, is strongly relied upon by plaintiff:

"Our problem is to construe the separate provisions of the Act as parts of an organic whole and give each as liberal a construction for the benefit of the veteran as a harmonious interplay of the separate provisions permits."

Plaintiff contends that § 459(d) and § 459(g) (3) should be construed to fit together "as parts of an organic whole."

The defendant contends on the question of jurisdiction that there is no statutory grant applicable to this case; that the grant of jurisdiction in § 459(d) is limited by its wording to a private employer who fails or refuses to comply with the provisions of subsection (b) and subsection (c) (1) and has no application to the claimed violation of subsection (g) (3); that only by extending the language of subsection (d) beyond its clear meaning and stated limitations and by ignoring established rules of statutory construction can the plaintiff claim a special grant of jurisdiction in cases of claimed violations of subsection (g) (3); that there are no other statutes granting jurisdiction to the Court in such case as this except on grounds of diversity of citizenship or claims founded upon a law of the United States; and that there being no claimed diversity of citizenship and no allegation or proof that plaintiff's claim exceeds $3,000, plaintiff's action must be dismissed in any event. Finally, defendant contends that any change in plaintiff's theory, or amendment to his pleadings concerning jurisdiction would be improper and futile and that the action must be dismissed unconditionally.

The so-called Veterans Reemployment Statutes consist of a number of federal acts passed over the years, now known as the "Universal Military Training and Service Act", as amended, 50 U.S.C.A. Appendix, §§ 451-473. The amendment now comprising § 459(g) (3) is a part of what is commonly referred to as the 1951 Amendment and appears as Public Law No. 51, 82 Congress, effective June 19, 1951. Section 9(g) (2) of the Selective Service Act of 1948 provided reemployment rights for persons entering upon active duty. It was so worded as to include reservists going on active duty even though they might be almost immediately released because of lack of physical fitness. Subsequently, there were excluded from § 9(g) (2) persons entering upon active duty for the purpose of determining their physical fitness. By the 1951 Amendment § 9(g) (3) was added to cover such persons. While plaintiff places some reliance upon the legislative history of subsection (g) (3), my attention has been called to nothing in that history which indicates specifically that Congress intended to apply the grant of jurisdiction contained in subsection (d) to actions brought to enforce rights defined in subsection (g) (3). It is true that in that legislative history there seems nothing to spell out a contrary intent. It, therefore, seems necessary largely to look to the terms of the statutes which are quoted below. Emphasis by underscoring has been...