Jalil v. Hampton

• Decision Date: 08 March 1972
• Docket Number: No. 24640.,24640.
• Citation: 460 F.2d 923
• Parties: Mazhar JALIL, Appellant, v. Robert E. HAMPTON, Chairman United States Civil Service Commission.
• Court: U.S. Court of Appeals — District of Columbia Circuit

460 F.2d 923 (1972)

Mazhar JALIL, Appellant, v. Robert E. HAMPTON, Chairman United States Civil Service Commission.

No. 24640.

United States Court of Appeals, District of Columbia Circuit.

Argued September 21, 1971.

Decided March 8, 1972.

Mr. Robert Allen Sedler, University of Kentucky Law School, Lexington, Ky., with whom Messrs. Melvin L. Wulf, New York City, Lawrence Speiser and Ralph J. Temple, Washington, D. C., were on the brief for appellant.

Mr. Bruno A. Ristau, Atty., Department of Justice, with whom Messrs. Thomas A. Flannery, U. S. Atty., at the time the brief was filed, and Alan S. Rosenthal, Atty., Department of Justice, were on the brief, for appellee.

Before BAZELON, Chief Judge, LEVENTHAL, Circuit Judge, and ADAMS,^* Circuit Judge, U.S. Court of Appeals for the Third Circuit.

ADAMS, Circuit Judge:

This case presents the questions whether the Civil Service Commission, consonant with the Fifth Amendment, may deny to a resident alien the opportunity to take the competitive examination for federal civil service employment, and whether appropriation acts may prohibit the use of appropriated funds to pay aliens employed in the civil service of the United States.

Appellant, Dr. Jalil, is a citizen of the Republic of India. On August 8, 1968, he was admitted to the United States for permanent residence. Two days later, he applied to the Civil Service Commission to be admitted to the examination for a Civil Service rating. The application was denied on the ground that, by its regulations, the Commission may accept applications only from citizens.

On September 22, 1969, Dr. Jalil filed a class action against the Chairman of the Commission¹ seeking declaratory relief that those portions of the regulations² which disqualify aliens are illegal and void and that any provisions in Congressional enactments³ prohibiting the use of appropriated funds for payment of salaries of alien employees of the Executive Branch are also void. In addition, he sought injunctive relief ordering the Chairman to instruct the Commission and its staff that the regulations are void, that aliens must be admitted to competitive civil service examinations, and that there shall be no discrimination on the ground of alienage. In his complaint, Dr. Jalil stated he desired to be employed in forestry, agriculture or malaria control,⁴ and did not desire to be employed in any position involving national security. He further stated that he was prepared to execute an oath of allegiance to the United States as a condition of employment.⁵

The Government moved to dismiss the complaint for failure to state a claim upon which relief could be granted and for failure to join indispensable parties.⁶ Dr. Jalil cross-moved for summary judgment. The district court denied Dr. Jalil's motion for summary judgment and granted the Government's motion to dismiss.⁷ This appeal followed.

Preliminarily, it should be noted that this is not a case involving the discharge of an employee already appointed to a federal position. In such a case, it has been held that the due process clause of the Fifth Amendment circumscribes arbitrary dismissals. Norton v. Macy, 135 U.S.App.D.C. 214, 417 F.2d 1161 (1969). Nor does this action involve the exercise of control over a federal employee. In such situations the power of the President may not be absolute. See Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 610-613, 9 L.Ed. 1181 (1838). Rather, this case presents an attack on one facet of the power of the President to appoint federal employees.

The Constitution provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." U.S. Const. Art. II, § 2, cl. 2. Federal courts "have no general supervising power" over the appointment of federal officials, and have been reluctant to impose restrictions upon the power of the President in this area. See Keim v. United States, 177 U.S. 290, 293, 20 S. Ct. 574, 44 L.Ed. 774 (1900).⁸

It is well settled by custom as well as by law that Congress may limit and has for many years limited the presidential power of appointment by specifying qualifications for the positions it has created. The civil service laws constitute one such restriction, and it is now generally accepted that these laws raise no constitutional questions.

We recognize that Dr. Jalil's complaint and argument raise a substantial issue as to the limits of the President's authority over the appointment of employees of the Executive Branch of the Government. However, because of the view we take of this case, it is not necessary for us to decide that question at this time.

The Civil Service Commission operates pursuant to an authorizing statute and to an Executive Order. The statute provides in part:

The President may —

(1) prescribe such regulations for the admission of individuals into the civil service in the executive branch as will best promote the efficiency of that service;

(2) ascertain the fitness of applicants as to age, health, character, knowledge and ability for the employment sought; and

(3) appoint and prescribe the duties of individuals to make inquiries for the purpose of this section. 5 U.S.C. § 3301 (Supp. VI 1970).

In accordance with that statute, the President has promulgated the following Executive Order:

* * * The Civil Service Commission is authorized to establish standards with respect to citizenship, age, education, training and experience, suitability, and physical and mental fitness, and for residence or other requirements which applicants must meet to be admitted or rated in examinations. Executive Order 10577, § 2.1(a), 10 Fed.Reg. 7521 (November 22, 1954).

On the basis of this authority, the Commission has issued regulations providing:

(a) A person may be admitted to competitive examination only if he is a citizen of or owes permanent allegiance to the United States.

(b) A person may be given appointment only if he is a citizen of or owes permanent allegiance to the United States. 5 C.F.R. § 338.101 (1971).⁹

If the quoted regulation of the Commission exceeds the authority given it by the Executive Order, then it is invalid and may not be applied to exclude Dr. Jalil from the examination. Similarly, if the Executive Order exceeds its Congressional authorization, then it is inapplicable to the extent it is not in conformity with the Civil Service Act. See Cole v. Young, 351 U.S. 536 (1956). A decision that either the regulation or the order is beyond the authority of its issuer obviates the need to reach the constitutional question raised in this case¹⁰ as to the regulations or Executive Order.

These matters were asserted by Dr. Jalil in paragraph 9 of the "Cause of Action" section and paragraphs 2 and 3 of the "Relief" section of his complaint, but because the district court dismissed the complaint without opinion, we are unable to determine to what extent that court considered these non-constitutional issues.

The ultimate determinations whether either the President or the Commission acted without authority are, of course, mixed questions of law and fact which are inappropriate for decision on this sparse record. No findings of fact are included in the district court's order dismissing the complaint. In particular, there are no findings pertinent to the question whether the exclusion of aliens from the Executive Branch will "best promote the efficiency of that service."

Consequently, in the interest of the orderly administration of justice, this case will be remanded to the district court for consideration of these issues.¹¹ On the remand for the determination of the validity of the regulation, the district court may, of course, if it is necessary, decide the constitutional claims.¹²

After the district court dismissed the complaint in this case, the Supreme Court announced its decision in Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971). Although that decision is not squarely controlling here because it dealt with the states' power to discriminate against aliens vis-a-vis the Fourteenth Amendment and the federal power over the entrance and residence of aliens, it is nonetheless quite significant. The Court, in discussing standards applicable to the states, said:

"Classifications based on alienage, like those based on nationality or race are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of a `discrete and insular\' minority * * * for whom such heightened judicial solicitude is appropriate." Id. at 372, 91 S.Ct. at 1852 (footnotes and citations omitted).

The Court went on to hold that the special public-interest doctrine was not an adequate justification for the denial of welfare to aliens because the Court no longer bases constitutional decisions on the distinction between benefits which are rights and benefits which are privileges. Id. at 374, 91 S.Ct. 1848. In short, the states were required to justify such discrimination on the ground of a compelling governmental interest. See id. at 376, 91 S.Ct. 1848.

In Nielsen v. Sec'y of Treasury, 137 U.S.App.D.C. 345, 424 F.2d 833 (1970), which considered a federal regulation, this Court referred to the decisions invalidating state measures discriminating against aliens in the absence of special justification. Nielsen is inapposite because of the difference in the issues actually litigated, but it teaches that there is the need for a special showing by the federal government, just as there is a requirement of special justification by the states. The...