Marshall v. Crotty

• Decision Date: 28 November 1950
• Docket Number: No. 4508.,4508.
• Citation: 185 F.2d 622
• Parties: MARSHALL v. CROTTY et al.
• Court: U.S. Court of Appeals — First Circuit

185 F.2d 622 (1950)

MARSHALL v. CROTTY et al.

No. 4508.

United States Court of Appeals First Circuit.

November 28, 1950.

Francis W. Marshall, pro se.

Eugene T. Maher, Atty., Department of Justice, Washington, D. C. (H. G. Morison, Asst. Atty. Gen., George F. Garrity, U. S. Atty., Boston, Mass., Edward H. Hickey, Atty., Department of Justice, Washington, D. C., and Harry Bergson, Jr., Asst. U. S. Atty., Boston, Mass., with him on the brief), for appellees.

Before MAGRUDER, Chief Judge, WOODBURY, Circuit Judge, and SWEENEY, District Judge.

MAGRUDER, Chief Judge.

The appeal here is from a judgment dismissing a complaint and a supplementary complaint for lack of jurisdictional amount. Plaintiff claims to have been wrongfully discharged from a government job in violation of his veteran's preference. We affirm the judgment, though on a different ground.

Francis W. Marshall, plaintiff-appellant, is a veteran who served in the Armed Forces of the United States in World War I. On September 24, 1945, he was appointed to the position of Adjudicator, P-2, in the United States Veterans Administration, and assigned to duty in the Regional Office in Boston, Massachusetts. This was a so-called war-service appointment, made under the provisions of the Emergency War Service Regulations of the Civil Service Commission, 5 C.F.R. § 18.1 et seq. (Cum. Supp.), and was limited in tenure to the period of the war and not to exceed six months thereafter. Marshall was promoted to the position and grade of Adjudicator, P-3, on January 8, 1946, and continued in that position and grade as a war-service indefinite appointee, with an efficiency rating of better than "Good". On February 25, 1948, plaintiff received a notice signed by William J. Blake, Manager of the Boston Regional Office of the Veterans Administration, stating that since budgetary limitations necessitated a reduction in force, "your active service must be terminated at the close of business on March 26, 1948." The notice further stated that such separation from the service was being effected in accordance with Civil Service regulations governing reduction in force, this reference being to "Retention Preference Regulations for Use in Reductions in Force" now found in 5 C.F.R. § 20.1 et seq. (1949 ed.).¹ Marshall was also informed that if he felt himself aggrieved, he had a right to appeal in writing to the Director, First U. S. Civil Service Region, Boston, Mass.

After unsuccessful efforts to obtain administrative relief, plaintiff filed his complaint in the court below on March 22, 1948. Named as defendants were Francis W. Crotty, Personnel Officer in the Boston Regional Office of the Veterans Administration, and William A. Foley, Director of the First U. S. Civil Service Region. An application in the complaint for a temporary restraining order was denied. The main prayer was that the court should "grant unto this complainant a Declaratory Judgment that the Civil Service Regulation by which he is being discharged be declared null and void as applied to him and not in accordance with the provisions of U. S. Code Title 5 Sec. 861 § 12 of the Veterans' Preference Act of 1944, 58 Stat. 390, and he be restored to his position without loss of pay." In the supplemental complaint filed November 22, 1948, the prayer was again for a declaratory judgment as aforesaid; and further that, after the expiration of thirty days from the date of the said declaratory judgment, if it remained unappealed from and unacted upon, a writ of mandamus be issued requiring defendant Foley to direct that the plaintiff be restored to his position without loss of pay and requiring defendant Crotty to give complainant preference on his retention list for reduction in force over other competing employees under the requirements of the Veterans' Preference Act, 5 U.S.C.A. § 851 et seq.

On various grounds, defendants moved for dismissal of the complaint or for summary judgment. The district court rested its dismissal solely upon a determination that the matter in controversy did not exceed the value of $3,000, required by 28 U.S.C.A. § 1331.

The matter in controversy is the asserted right of the plaintiff to be retained in employment as Adjudicator, P-3, in the Veterans Administration, in preference to others who were so retained in the Boston Regional Office on and after March 26, 1948, the date of the plaintiff's discharge. What was the value of that right, which plaintiff sought to vindicate by filing the complaint below? Plaintiff was employed at an annual salary of $4,275, in a job of indefinite duration, for the period of the war and not to exceed six months thereafter. On March 26, 1948, though actual hostilities had ceased, our armed forces were still in occupation of enemy countries and the state of war had not formally terminated. The district court concluded that "any right of employment which plaintiff had was not of so definite a character as to substantiate a claim that it was worth $3,000." Its reasoning was as follows: "But this technical duration of the war was subject to termination at any time, and, hence, from the very nature of his appointment, plaintiff could rely on earning little more than six months' salary, or about $2200. But even this was uncertain. Even if we assume that the release of the plaintiff on March 26, 1948 was improper, he would remain at all times subject to termination of his employment by a further reduction in personnel so far-reaching as to justify the release of an employee with preference rights to which plaintiff lays claim. It does not matter that it is now apparent that the war period has not yet ended, or that further reductions in force have not taken place. Nor is it important that if plaintiff were now to be restored after a finding he had been wrongfully discharged, he would be entitled to recover back pay in excess of $3,000. The value of the right to employment of which plaintiff claims to have been illegally deprived must be judged as of the date when the allegedly illegal deprivation took place. Plaintiff has failed to show with any degree of certainty that the value of that right was in excess of $3,000."

We are somewhat in doubt as to the correctness of this ruling by the district court. The value of the right sought to be vindicated must be determined, we suppose, as of the date the complaint was filed. But plaintiff surely has not the burden of establishing to a "certainty" as of that date that had he not, as he asserts, been wrongfully discharged in violation of his statutory veteran's preference, he would have earned in the position in excess of $3,000. Cf. St. Paul Mercury Indemnity Co. v. Red Cab Co., 1938, 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845. The most he has to show is that, as of the date of filing suit, that eventuality was more probable than not. A finding of jurisdictional amount is not necessarily precluded by the fact that continuing employment would have been subject to termination on any of various contingencies, some of them not capable of actuarial computation. In Thompson v. Thompson, 1913, 226 U.S. 551, 33 S.Ct. 129, 57 L.Ed. 347, in a suit by a wife for separate maintenance, she had obtained a decree requiring the husband to pay her $75 per month for the maintenance of herself and child. The Court of Appeals for the District of Columbia reversed the decree and remanded the cause with direction to dismiss the bill. 35 App.D.C. 14. The plaintiff thereupon appealed to the Supreme Court of the United States, which had jurisdiction only if the matter in dispute exceeded the sum of $5,000. In challenging the jurisdiction, appellee pointed out that the statutory maintenance provided in the decree was subject to judicial modification at any time, or might be cut off entirely, in the event of a change in the circumstances of the parties; and that it would of course wholly cease in the event of the death of the husband. Notwithstanding these contingencies, the Court sustained its jurisdiction of the appeal. See Smith v. Adams, 1889, 130 U.S. 167, 175-76, 9 S.Ct. 566, 32 L.Ed. 895, and cases cited. See also Nord v. Griffin, 7 Cir., 1936, 86 F.2d 481.

As of March 26, 1948, a formal state of peace seemed still far off even though hostilities had ceased two or three years earlier. In view of the international situation then prevailing, there was every likelihood that the period of the technical war would be prolonged at least several months, so that a person whose tenure of employment was for the period of the war and not to exceed six months thereafter would probably have had an opportunity to earn in excess of $3,000 at the stated annual salary. It is true there was also a contingency of a subsequent reduction in personnel so extensive in character "as to justify the release of an employee with preference rights to which the plaintiff lays claim." But here again, was there a probability of another far-reaching reduction in the personnel of the Veterans Administration, in view of the vast and expanding administrative tasks confided to that agency under apparently settled policies established by congressional legislation? And while the determination of the value of the right in controversy might have required a forecast of probabilities if the court had made its finding at an earlier date, here the district court decided the matter on January 9, 1950, over twenty-one months after the complaint was filed. What was formerly a matter of some speculation as to probabilities had then ceased to be a matter of doubt. The war period had been prolonged, and there had been no further reductions in force. We are by no means sure that the court was obliged to ignore altogether the confirmatory evidence of subsequent events in estimating the probable value of plaintiff's asserted right at the time the complaint was filed.

Because of our doubts on the above matter, we prefer to put our affirmance on another ground, which did not...