Insular Police Commission v. Lopez

• Decision Date: 16 June 1947
• Docket Number: No. 4192.,4192.
• Citation: 160 F.2d 673
• Parties: INSULAR POLICE COMMISSION v. LOPEZ.
• Court: U.S. Court of Appeals — First Circuit

160 F.2d 673 (1947)

INSULAR POLICE COMMISSION v. LOPEZ.

No. 4192.

Circuit Court of Appeals, First Circuit.

March 26, 1947.

Writ of Certiorari Denied June 16, 1947.

Samuel D. Slade, Department of Justice, of Washington, D. C. (John F. Sonnett, Asst. Atty. Gen., Paul A. Sweeney and Emery Cox, Jr., Attys., Department of Justice, Mastin G. White, Sol., Department of Interior, and Irwin W. Silverman, Chief Counsel, Division of Territories and Island Possessions, Department of Interior, all of Washington, D. C., of counsel), for appellant.

Angel M. Villamil and Gaetan Roberts & Alcala, all of San Juan, P. R., for appellee.

Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.

Writ of Certiorari Denied June 16, 1947. See 67 S.Ct. 1743.

MAGRUDER, Circuit Judge.

Carlos M. Lopez, an honorably discharged veteran of the United States Army, filed a petition in the District Court of the United States for Puerto Rico under § 8 of the Selective Training and Service Act of 1940, as amended, 54 Stat. 890, 56 Stat. 724, 58 Stat. 798, 50 U.S.C.A.Appendix, § 308.¹ He sought a judgment ordering defendant, Insular Police Commission, an agency of the Government of Puerto Rico, to restore him to his former position as an insular policeman at a salary of $83.33 per month and to compensate him for his interim loss of salary. A motion to dismiss for lack of jurisdiction was filed by defendant; but this motion was denied for lack of prosecution, and thereafter defendant filed its answer admitting most of the factual allegations of the petition. After a pretrial conference, the district court, on May 29, 1946, filed its findings of fact and conclusions of law and its judgment in the case (67 F.Supp. 112). The court concluded that petitioner was entitled to be reinstated in his former position as insular policeman "since it does not appear that respondent's circumstances are so changed as to make it impossible or unreasonable to reinstate petitioner to his former position and since it further appears that petitioner is qualified to perform the duties of said position." The judgment, which is the subject of the present appeal, ordered that petitioner be reinstated to the position of insular policeman; that he be not discharged from such position without cause within one year after December 7, 1945 (the date on which he applied for reemployment), and that he "be paid his regular salary for the period beginning December 7, 1945 up to this date."

The only question presented to us by appellant is whether the court below had jurisdiction of a suit to enforce a veteran's reemployment rights as against an agency of the Government of Puerto Rico, a territory of the United States, in the absence of a provision in the Selective Training and Service Act authorizing such a suit. Under the Organic Act, 48 U.S.C.A. § 863, the United States District Court for Puerto Rico has "jurisdiction of all cases cognizable in the district courts of the United States," plus certain additional jurisdiction not now relevant.

As appears from the text of the Selective Training and Service Act, the pertinent portions of which are quoted above in the footnote, the only provision there made for judicial enforcement of a veteran's reemployment rights is contained in § 8(e) relating exclusively to positions in the employ of any private employer. It seems that the district court erroneously thought that the case came within § 8(e), for one of the court's stated conclusions was that defendant's circumstances had not so changed as to make it impossible or unreasonable to reinstate petitioner to his former position — a condition precedent having to do with reinstatement to private employment only, not to reinstatement to a position "in the employ of the United States Government, its Territories or possessions, or the District of Columbia".

In Lynch v. United States, 1934, 292 U.S. 571, 582, 54 S.Ct. 840, 845, 78 L. Ed. 1434, the court said: "When the United States creates rights in individuals against itself, it is under no obligation to provide a remedy through the courts. United States v. Babcock, 250 U.S. 328, 331, 39 S.Ct. 464, 63 L.Ed. 1011. It may limit the individual to administrative remedies. Tutun v. United States, 270 U.S. 568, 576, 46 S.Ct. 425, 70 L.Ed. 738." So far as we can find, the legislative history of the Selective Training and Service Act is barren of any intimation that the Congress contemplated any judicial enforcement of the rights conferred as against the Government of the United States or of its territories or possessions.

Though the petition based the jurisdiction of the court below solely on § 8 of the Selective Training and Service Act, appellee now suggests that jurisdiction may be based upon paragraph (14) of § 24 of the Judicial Code, 28 U.S.C.A. § 41(14), reading:

"The district courts shall have original jurisdiction as follows: * * * (14) Suits to redress deprivation of civil rights.

"Fourteenth. Of all suits at law or in equity authorized by law to be brought by any person to redress the deprivation, under color of any law, statute, ordinance, regulation, custom, or usage, of any State, of any right, privilege, or immunity, secured by the Constitution of the United States, or of any right secured by any law of the United States providing for equal rights of citizens of the United States, or of all persons within the jurisdiction of the United States."

In this connection, reference is made to 8 U.S.C.A. § 43, derived from § 1 of the Civil Rights Act of April 20, 1871, 17 Stat. 13, as reenacted with modifications in R.S. § 1979:

"§ 43. Civil action for deprivation of rights.

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

We do not think that the above provisions of law have any relevance to the present case. This is not a suit against public officials as individual wrongdoers to recover damages or to enjoin a threatened invasion of plaintiff's rights. The object of the suit, as well as the effect of the judgment, is to require affirmative official action putting plaintiff on the payroll as an employee of the insular government and reimbursing plaintiff out of the public treasury for his interim loss of salary. It is in substance a suit against the insular government, a subordinate arm of the Government of the United States which has not consented to such suit. Mine Safety Appliances Co. v. Forrestal, 1945, 326 U.S. 371, 66 S.Ct. 219.

It is to be noted that § 8(b) (A) of the Selective Training and Service Act puts in a single category positions "in the employ of the United States Government, its Territories or possessions, or the District of Columbia". Suppose a veteran should bring suit in a district court against an official of the Government of the United States to obtain reemployment in a federal position under the jurisdiction of such official. Cf. Ballf v. Kranz, 9 Cir., 1936, 82 F.2d 315. Such a suit obviously could not be maintained under the jurisdictional provision of § 24(14) of the Judicial Code, because the respondent official, in denying the application for reemployment, could not be said to be acting "under color of any law * * * of any State."² As judicial enforcement of a veteran's reemployment rights could not be had in such a case, it certainly cannot be supposed, in the absence of explicit legislative provision, that Congress...