Marshall v. District of Columbia Government

• Decision Date: 23 May 1977
• Docket Number: 75-1900 and 75-1901,Nos. 75-1651,s. 75-1651
• Citation: 559 F.2d 726,182 U.S.App.D.C. 105
• Parties: 14 Empl. Prac. Dec. P 7525, 182 U.S.App.D.C. 105 Melvin A. MARSHALL, Appellant, v. DISTRICT OF COLUMBIA GOVERNMENT et al. (three cases).
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 726

559 F.2d 726

14 Empl. Prac. Dec. P 7525, 182 U.S.App.D.C. 105

Melvin A. MARSHALL, Appellant, v. DISTRICT OF COLUMBIA GOVERNMENT et al. (three cases).

Nos. 75-1651, 75-1900 and 75-1901.

United States Court of Appeals District of Columbia Circuit.

Submitted Without Argument May 13, 1976.

Decided April 26, 1977.

Rehearing Denied May 23, 1977.

Melvin Marshall, pro se, was on the brief for appellant.

C. Francis Murphy, Corp. Counsel, Louis P. Robbins, Richard W. Barton and Leo N. Gorman, Asst. Corp. Counsel, Washington, D. C., were on the brief for appellee.

Before TAMM and MacKINNON, Circuit Judges, and KAUFMAN, ^* United States District Judge for the District of Maryland.

Opinion for the court PER CURIAM.

Opinion filed by FRANK A. KAUFMAN, District Judge, concurring in part and dissenting in part.

PER CURIAM:

Plaintiff-appellant applied for employment with the District of Columbia police force in May of 1973. His application was denied because he had previously been adjudged bankrupt. On June 28, 1973, he brought his complaint seeking employment notwithstanding such rule. While that case was pending, the District of Columbia modified its regulation barring the hiring of bankrupts to one that permitted the hiring authority to take the incidents of particular bankruptcies into consideration in evaluating the applicant's suitability for employment. Plaintiff was eventually hired on September 30, 1974, as a probationary employee. However, his probationary employment was subsequently terminated because of his refusal to comply with grooming regulations as promulgated in General Order 1102.3. Those regulations required all police officers to trim their beards and haircuts according to established standards.

The present appeal arises from plaintiff's suit against the District of Columbia (1) for his discharge, and (2) for the delay in his hiring due to the bankruptcy regulation. The complaint alleged that both of these harms were motivated by racial prejudice. The District Court, however, found no evidence of racial discrimination, and proceeded to analyze the complaint in its specific charges. This ruling was correct on the facts and is hereby sustained. ¹

On April 11, 1975, the District Court granted the defendant-District's motion for summary judgment on the counts dealing with the hair regulations. ² The need for uniform regulations to insure an officer's own safety and that of the community he serves was deemed to supersede plaintiff's claimed interest in religious expression. ³ The regulations were not found to be arbitrary or capricious. The denial of appellant's complaints that the grooming regulations violated his freedom of religion, and were arbitrary and capricious, is hereby affirmed on the basis of the District Court's opinion, reported at 392 F.Supp. 1012 (D.D.C.1975).

We also find that the hair regulation was rationally connected to " the effective functioning of the (Police) department" and to the specific objectives that the District of Columbia sought to achieve by its choice of organization, dress and equipment for its policemen. The grooming requirements are directly related to discipline, uniformity and to esprit de corps. Prior to such regulation "relaxed grooming standards had resulted in the deterioration of the appearance of (police) officers" (affidavit of then Assistant Police Chief, Maurice Cullinane). All these standards composed the method of organizing its police force that the government of the District of Columbia has selected as part of its objective to promote the safety of persons and property and in doing so appellant's constitutional rights under the fourteenth amendment were not violated. ⁴

In paragraph six of his amended complaint appellant also alleged that the District's employment guideline denying police force positions to those who had been adjudged bankrupt denied him his right to "due process and equal protection of the laws," and violated the supremacy clause. Appellant invoked 28 U.S.C. § 1331(a) as his jurisdictional base. ⁵ On August 6, 1975, defendant's motion for summary judgment as to the "bankruptcy" count was granted, on the ground that the jurisdictional requirement of $10,000 amount in controversy had, to a legal certainty, been shown to be absent. This order of the District Court is sustained for the failure of appellant to satisfy the jurisdictional requirement of $10,000 in controversy. ⁶

As the complaint alleged a right under the bankruptcy laws to be free from any negative employment implications resulting from his having gone through bankruptcy, it might be argued that he stated a cause of action under28 U.S.C. § 1337. ⁷ No jurisdictional amount is required under 28 U.S.C. § 1337. However, it has never been held that the reference in section 1337 to an "Act of Congress regulating commerce" encompassed the bankruptcy laws. Those laws have their own jurisdictional statute in 28 U.S.C. § 1334. And the bankruptcy laws find independent constitutional authorization. U.S.Const. art. I, § 8, cl. 4. ⁸ Authority for their enactment is not derived from the commerce power, to which section 1337 alludes. ⁹ The connection becomes even more tenuous in light of the fact that petitioner's claim is not one recognized under a specific provision of the bankruptcy law, but instead seeks the protection of a generalized national policy assumed to underlie the bankruptcy laws themselves. In claimed reliance on Perez v. Campbell, 402 U.S. 637, 91 S.Ct. 1704, 29 L.Ed.2d 233 (1971), appellant argues that the bankruptcy statute, in impliedly affording him a "new opportunity in life," prohibits defendant from using his bankruptcy against him in any way in the future. That argument reads too much into the Act. ¹⁰ The bankruptcy statute gives a bankrupt "a new opportunity in life and a clear field for future effort unhampered by the pressure and discouragement of preexisting debt" ¹¹ but it does not wipe out the fact of a prior bankruptcy. Nor does it prohibit employers from using the fact of bankruptcy in considering whether the past record of a job applicant merits his consideration for employment.

The fact that one has been unable to successfully manage his financial affairs in the past might well be considered a sufficient deficiency in his qualifications to justify a refusal to employ him as a police officer. Police officers, because of the nature of their work, are frequent targets of bribery attempts. The District of Columbia might well desire, to the maximum extent possible, to insulate its law enforcement from such corrupt endeavors by refusing to employ officers who, because they were unable to successfully manage their financial affairs in the past might be unable to do so while they were police officers and thus be more susceptible to bribery than other applicants who had demonstrated such capability. If there were anything to appellant's argument then, by analogy, a person's past criminal record could not be used in considering his suitability for employment because he had been discharged on parole and presumably "given a new opportunity in life." But neither statute wipes out the past.

All a discharge in bankruptcy does is to discharge "pre-existing debt." It does not expunge the fact of bankruptcy. Hence, even if the Bankruptcy Act were grounded in the commerce clause, petitioner's claim does not constitute an "action arising under" that statute.

Finally, we must take judicial notice of the fact that long after June, 1974, when this action was commenced, Congress amended 28 U.S.C. § 1331(a) on October 21, 1976, by Public Law No. 94-574, 90 Stat. 2721, to qualify the $10,000 requirement as follows:

except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity.

Public Law No. 94-574, as discerned from its amendment of 28 U.S.C. § 1391(e) and 5 U.S.C. §§ 702, 703, was concerned with suits against the federal government.

We remand to the District Court on the question whether, in the absence of an explicit statement in the Act, the lowered jurisdictional amount should be retroactive, and whether the District of Columbia can be construed to be an "agency" of the United States for purposes of the amended 28 U.S.C. § 1331(a). Even if both of these questions were resolved in appellant's favor, however, he might still not benefit from the change. The last day on which appellant alleged to suffer harm to his purported rights relative to the Bankruptcy Act was September 30, 1974, when he was eventually hired. Suits against the District of Columbia are subject to a six-month notice requirement. D.C.Code § 12-309 (1973).

That statute could be interpreted as a statute of limitations, meaning that Marshall could not now bring his lawsuit, nor could he have brought it on the date the jurisdictional amount of § 1331 was changed October 21, 1976. If, however, D.C.Code § 12-309 is merely a notice requirement, then the filing of the lawsuit in June of 1973, even though without jurisdiction, constituted notice within the necessary six-month period. Even then, it is for the District Court to determine in the first instance whether a refiling is necessary or whether, following the dictum in Weinberger v. Wiesenfeld, 420 U.S. 636, 642, n. 10, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975), such a step could be avoided as a needless gesture.

The case is remanded for the District Court to consider the questions indicated.

Judgment accordingly.

FRANK A. KAUFMAN, District Judge, concurring in part and dissenting in part:

The record in this case supports the District Court's conclusion that plaintiff has not established that his discharge in connection with the grooming regulations of the District of Columbia Police Force violated any of plaintiff's due process, equal protection, or other federal constitutional rights. Accordingly, I concur in the...