Daggs v. Klein, 11581

• Decision Date: 09 August 1948
• Docket Number: 11772.,No. 11581,11581
• Citation: 169 F.2d 174
• Parties: DAGGS v. KLEIN et al. BRAITO v. KLEIN et al.
• Court: U.S. Court of Appeals — Ninth Circuit

169 F.2d 174 (1948)

DAGGS v. KLEIN et al. BRAITO v. KLEIN et al.

Nos. 11581, 11772.

Circuit Court of Appeals. Ninth Circuit.

August 9, 1948.

Gladstein, Andersen, Resner & Sawyer, Herbert Resner and Norman Leonard, all of San Francisco Cal., for appellants.

Frank J. Hennessy, U. S. Atty. and William E. Licking, Asst. U. S. Atty., both of San Francisco, Cal., for appellees.

Before DENMAN, BONE, and ORR, Circuit Judges.

ORR, Circuit Judge.

Two separate suits were instituted in the District Court and motions to dismiss were heard before different judges. In the Daggs case the complaint was dismissed on the ground that no federal question was presented, and the Braito case was dismissed on the ground that the Secretary of the Navy, to whom we shall hereinafter refer as the Secretary, is an indispensable party. The cases were consolidated for argument and presentation on appeal.

The pertinent facts, as alleged in the complaints, are: Appellants Daggs and Braito were federal civil service employees stationed at Mare Island Navy Yard and were by order of the Secretary removed from service under the provisions of the Act of June 28, 1940, Public Law 671, 76th Congress, 54 Stat. 676, 50 U.S.C.A.Appendix, § 1156¹

Rear Admiral W. L. Friedell was at the time Commandant of the Mare Island Navy Yard and was designated by the Secretary to impart to appellants the reasons for their removal in compliance with the requirements of the statute. Pursuant to such designation Friedell advised appellants that their dismissals were warranted by the demands of national security, because a confidential investigation had disclosed they did not possess the requisite loyalty to the United States by reason of their active association with an organization which advocated the overthrow of the constitutional form of government of the United States. Thereafter, appellants informed Rear Admiral Friedell in writing of facts on which they relied for their retention together with the personal opinion of each why they should not have been discharged; that appellants made repeated demands on Friedell that appellants be fully informed of the reasons for their removal; that no further statement was given them. Appellants asked judgment of the court for an order that they be reinstated to their former employment, that they be compensated for the time lost, and that their rights to accrued leave with pay as the same existed at the date of discharge be reinstated.

While the ground given by the trial court for the dismissal of the Daggs case was the absence of a federal question, the motion to dismiss presented the ground that the Secretary of the Navy was an indispensable party. That question is present in both cases. Being of the opinion that dismissal of both cases is required on the ground that the Secretary is an indispensable party, the question of whether or not a federal question is presented need not be determined.

There existed prior to December 8, 1947, considerable diversity of opinion and uncertainty in the circuits as to the circumstances which rendered a superior officer an indispensable party in a suit against an administrative official. This conflict and uncertainty was composed by the Supreme Court of the United States in the case of Williams et al., v. Fanning, Postmaster of Los Angeles, 332 U.S. 490, 68 S.Ct. 188. The Supreme Court in that case chartered the way in which a solution to the question should be approached and announced a formula to be applied, namely, "the superior officer is an indispensable party if the decree granting the relief sought will require him to take action, either by exercising directly a power lodged in him or by having a subordinate...