Love v. United States

• Decision Date: 09 December 1939
• Docket Number: No. 11503.,11503.
• Citation: 108 F.2d 43
• Parties: LOVE v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

108 F.2d 43 (1939)

LOVE v. UNITED STATES.

No. 11503.

Circuit Court of Appeals, Eighth Circuit.

November 21, 1939.

Rehearing Denied December 9, 1939.

Harold R. Love, pro se.

Linus J. Hammond, Asst. U. S. Atty., of St. Paul, Minn. (Victor E. Anderson, U. S. Atty., of St. Paul, Minn., on the brief), for appellee.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

WOODROUGH, Circuit Judge.

This action was brought against the United States of America by Harold R. Love to obtain an adjudication and judgment by the court compelling the United States to take him into its employment, and to pay him certain sums of money (less than ten thousand dollars) as compensation for certain periods during which he claims he had a legal right to government employment but such right was wrongfully denied him. He filed his suit and appeared in the District Court without counsel, and his very voluminous complaint lacks the formality and coherence usually found in pleadings. It contains, however, specific allegations that jurisdiction in the case is conferred upon the District Court by the provisions of the Tucker Act, 28 U.S.C.A. § 41 (20), and that the cause of action arises under the Acts of Congress and lawful Regulations pursuant thereto.

The United States urged no point against the complaint as to any defect of form, but moved to dismiss it upon the grounds (1) that the court was without jurisdiction of the subject matter, and (2) that there was a failure to state facts sufficient to constitute a cause of action. After hearing upon briefs and oral arguments, the motion was "in all respects granted" and the action was dismissed for want of jurisdiction. Mr. Love has appealed, asserting error in the ruling and judgment.

It appears from the complaint that Mr. Love is a native-born United States citizen and an honorably discharged veteran of the World War, and that after his army discharge he was employed under the Treasury Department of the United States from 1920 through 1923 in the capacity of "agent" or "inspector" at a salary of (apparently) $2,750 per annum. After the termination of that employment and in the year 1920, he took and successfully passed a civil service examination, receiving the classification of "auditor, accountant and statistician", but was never appointed or assigned to duty in such capacity. Since March 1933 he has been in actual need or classified as such, and from June, 1936, until August 22, 1938, he was employed upon Works Progress Administration Project 5191 in Minneapolis, Minnesota. He was discharged from that work on the last named date and has been unable to obtain private employment and has been without government employment since that time.

The complaint has been studied in all its parts, but as the controlling question for this court is whether the District Court had jurisdiction, it is not necessary to set out all the particulars. The prayer of the complaint is elaborated and discloses the theory upon which the jurisdiction was invoked. Upon consideration of the prayer, it is observed that in the initial paragraphs Mr. Love "demands that it be adjudged" (in substance) that by virtue of his preference rights as a World War veteran and the passing grade he obtained in his classified civil service examination in 1920, he became and has remained and now is entitled to and shall receive immediate employment under the Department of the Treasury; that payment for his services shall be made to him at the same rate he was receiving when he was employed as a revenue agent in the year 1923; and that he recover from the United States back pay at the same rate from March 13, 1936, until his employment begins under the order of the court in this case.

Following this prayer of the complaint, it is stated that if the court should not determine as thus prayed, then alternative relief was demanded. Such alternative relief is not related to employment of Mr. Love under the Department of the Treasury, but to his employment under the Works Progress Administration. That part of the prayer will, therefore, be later and separately discussed. We consider first whether the court had jurisdiction to entertain the action against the United States to compel the employment of Mr. Love in the Department of the Treasury of the United States, or to award him a money judgment for pay during the period for which he asserts he had a right to be employed.

It is to be noted in the first place that Mr. Love has asserted no claim that he has ever had or now has any "title to office" in the government as the term "office" is understood and accepted. His contentions relate only to the alleged right to be employed in capacities distinct from and subordinate to those who hold "office". He makes many charges against such officers and others subordinate to "officers" but superior to himself in the conduct of the "office" where he has worked and in other departments, and they are alleged to have acted arbitrarily and unlawfully in denying him employment. Certain disputes which have arisen on various occasions in the course of our history in respect to the tenure of "offices" and the power to make removals of incumbents or to replace them with other appointees, have called forth the utmost effort of the courts to find peaceful solution in law and reason. Several such controversies were recognized to be of far-reaching importance. They were justiciable and were settled upon profound consideration by judicial determination.

But such determination has always been rested upon the interpretation and application of the provisions of the constitution and federal enactments. It can not be predicated upon any judicial concept concerning an able-bodied, competent and willing man's natural or inherent right to work. Unless a legal right has been defined and conferred by legislative authority, no justiciable controversy is present. The principles applicable are the same in the field of government work as in the broader field of private enterprise. The right to work at a particular employment must be shown to have become vested by law in the person asserting it. Shurtleff v. United States, 189 U.S. 311, 23 S.Ct. 535, 47 L.Ed. 828; Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160; Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611.

Mr. Love contends that the preference provisions of the Civil Service Act, 5 U.S. C.A. § 631 et seq., as amended and supplemented by the Rules and Regulations, operate to confer the legal right upon him to have government employment and that they impose a reciprocal duty and obligation upon the government to give him employment which is enforceable in his favor in this action.

The first sentence of the Veterans' Preference Act, 5 U.S.C.A. § 35, was enacted in 1865, and the second in 1919. 5 U.S.C.A. § 37 was enacted in 1876, and although modifications in some details have been made¹ and many lawful Rules and Regulations have been promulgated to effectuate the provisions of the law as amended,² the nature of the privilege conferred upon honorably discharged veterans in the matter of their employment in the government service has not been changed. The intendment of the law was considered by the Supreme Court in 1900 in the case of Keim v. United States, 177 U.S. 290, 20 S.Ct. 574, 576, 44 L.Ed. 774. In that case it appeared that Keim was a Civil War veteran who had been discharged for inefficiency from the clerkship in the Department of the Interior to which he had been appointed. He instituted proceedings in the United States Court of Claims, asserting his status as an honorably discharged veteran who had successfully passed the civil service examination. He requested determination that he had been discharged without any fault of his own and without just cause; that he was an efficient clerk and discharged his duties faithfully and efficiently and possessed the necessary business capacity for the proper discharge of the duties of his clerkship. He proved that other clerks of the same division were retained in the Department who were not veterans honorably discharged, and that still others lacking such preferred status were appointed on or about the day of his discharge. He sought compensation in damages for loss of his employment. The Court of Claims declined to make findings requested by Mr. Keim and dismissed his petition. On appeal to the Supreme Court the decree of the Court of Claims was affirmed and the decision of the Supreme Court clearly establishes that the preferential provisions of the Civil Service Act, as they stood at the time of the decision, did not operate to confer any absolute right to work for the government such as is claimed by Mr. Love in this case. The court said: "No thoughtful person questions the obligations which the nation is under to those who have done faithful service in its army or navy. Congress has generously provided for the discharge of those obligations in a system of pensions more munificent than has ever before been known in the history of the world. But it would be an insult to the intelligence of Congress to suppose that it contemplated any degradation of the civil service by the appointment to or continuance in office of incompetent or inefficient clerks simply because they had been honorably discharged from the military or naval service. The preference, and it is only a preference, is to be exercised as between those `equally qualified,' * * *."

The court found nothing in the statutory provisions to indicate that the duty of passing on the competency or qualifications of persons who apply for or who have obtained and are engaged in government employment had been taken away from the administrative officers or transferred to the courts. The court doubted whether "that is a duty which is strictly judicial in its nature." It said: "It would seem strange that one having passed a civil service examination could challenge...