Mow Sun Wong v. Hampton, C-70-2730 RFP.

• Decision Date: 31 March 1977
• Docket Number: No. C-70-2730 RFP.,C-70-2730 RFP.
• Court: U.S. District Court — Northern District of California
• Parties: MOW SUN WONG et al., Plaintiffs, v. Robert E. HAMPTON, Chairman of the United States Civil Service Commission, et al., Defendants.

435 F. Supp. 37

MOW SUN WONG et al., Plaintiffs, v. Robert E. HAMPTON, Chairman of the United States Civil Service Commission, et al., Defendants.

No. C-70-2730 RFP.

United States District Court, N. D. California.

March 31, 1977.

Edward Steinman, Associate Professor of Law, University of Santa Clara School of Law, Santa Clara, Cal., Patricia Lee, San Francisco Neighborhood Legal Assistance Foundation, San Francisco, Cal., Kenneth Hecht, Employment Law Center, San Francisco, Cal., for plaintiffs Mow Sun Wong, et al.

Robert H. Bork, Sol. Gen., Office of the Sol. Gen., Washington, D. C., Stephen A. Shefler, Asst. U. S. Atty., Civ. Div., San Francisco, Cal., for defendants Robert E. Hampton, et al.

MEMORANDUM AND ORDER

PECKHAM, Chief Judge.

This action was brought by five aliens, lawful permanent residents of the United States, to challenge the validity of a regulation promulgated by the United States Civil Service Commission excluding virtually all noncitizens from eligibility for appointment to the federal civil service.¹ Plaintiffs sought a declaratory judgment that this regulation was in violation of the Due Process Clause of the Fifth Amendment, and injunctive relief to prevent defendants from denying plaintiffs the opportunity to apply for employment in the federal civil service on the basis of alienage.

On August 31, 1971, this court denied plaintiffs' motion for summary judgment, and granted defendants' motion to dismiss. Mow Sun Wong v. Hampton, 333 F.Supp. 527 (N.D.Cal.1971). The court held that the challenged civil service regulations were not implicitly repudiated by certain Acts of Congress, and that they did not violate the equal protection considerations inherent in the Due Process Clause of the Fifth Amendment.

The judgment of this court was reversed by the Court of Appeals for the Ninth Circuit on January 25, 1974. Mow Sun Wong v. Hampton, 500 F.2d 1031 (9th Cir. 1974). Drawing upon cases recognizing alienage as a "suspect classification" under the Equal Protection Clause of the Fourteenth Amendment, Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), and that an indiscriminate prohibition on employment of noncitizens by state governments is violative of equal protection, Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973), the Court of Appeals held that the challenged regulation was in conflict with the Fifth Amendment.

Although recognizing that certain federal governmental interests in regulating the conduct of noncitizens, inapplicable to the states, conceivably supported the Commission's regulation, the Court of Appeals nevertheless held that these were not "compelling governmental interests" capable of supporting discrimination based upon alienage. The Court of Appeals therefore remanded the case to this court with instructions to grant plaintiffs the injunctive relief sought.

The decision of the Court of Appeals invalidating the civil service regulation was affirmed by the Supreme Court on June 1, 1976. Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495. The Supreme Court affirmed, however, on grounds distinct from those relied upon by the Court of Appeals. "Assuming without deciding that the national interests identified by the defendants would adequately support an explicit determination by Congress or the President to exclude all noncitizens from the federal service," id. at 116, 96 S.Ct. at 1911, the Supreme Court nevertheless found the rule as promulgated by the Civil Service Commission to be invalid.

The Court stated that, where the federal government seeks to justify a rule violative of equal protection if adopted by a state, due process requires that there be a legitimate basis for presuming that the rule was motivated by those national interests proffered in support of it. Since the concerns of the Civil Service Commission are limited to the promotion of an "efficient" federal service, an objective inadequate to sustain the Commission's rule, there is no basis upon which to conclude that the rule was intended to serve those national interests which might justify its adoption. The Supreme Court therefore concluded that section 338.101 of the Civil Service Commission Regulations was invalid, and affirmed the judgment of the Court of Appeals.

The case is again before this court, on plaintiffs' motion for an order implementing the mandate of the Supreme Court's June 1, 1976, opinion. Normally, this would present a simple task. Although the Supreme Court did not issue a specific directive, we think it clear under that Court's mandate that plaintiffs are entitled to a judgment declaring section 338.101 of the Civil Service Commission Regulations invalid, and an injunction requiring defendants to admit plaintiffs to competitive examination in the civil service.

Simple execution of the Supreme Court's mandate is, however, foreclosed in the instant case. By Executive Order dated September 2, 1976, President Ford amended Civil Service Rule VII to provide explicitly for exclusion of aliens from the civil service, except in limited circumstances where necessary for efficiency of the service.² Thus, subsequent to the decision of the Supreme Court, but prior to plaintiffs' motion for an order implementing the mandate of that Court, the President purported to change the law governing the subject matter at issue in the litigation. The question presently before this court, therefore, is the effect of the President's September 2, 1976, Executive Order upon the relief appropriately ordered by this court pursuant to the Supreme Court opinion of June 1, 1976.

Plaintiffs' entitlement to an order declaring section 338.101 of the Civil Service Commission Regulations invalid is not in dispute. The Executive Order in no way affects the validity of this regulation, and a declaratory judgment holding the regulation unconstitutional is clearly appropriate. See United States Civil Service Commission v. Ramos, 426 U.S. 916, 96 S.Ct. 2616, 49 L.Ed.2d 368 (1976).

What is at issue is plaintiffs' entitlement to an injunction mandating their admission to competitive examination in the civil service. Noting that the trial court must apply the federal law as it exists when the court enters final judgment subsequent to remand, see Banco Nacional de Cuba v. Farr, 383 F.2d 166, 178 (2d Cir. 1967), cert. denied, 390 U.S. 956, 88 S.Ct. 1033, 20 L.Ed.2d 1151 (1968), and Thorpe v. Housing Authority, 393 U.S. 268, 281-82, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969), the government argues that the intervening Executive Order precludes the issuance of an injunction. While conceding that the Executive Order, if valid, precludes injunctive relief, plaintiffs premise their entitlement to an injunction upon the invalidity of the Executive Order. All parties appear to concede that an invalid Executive Order cannot supersede the mandate of the Supreme Court, and therefore that the validity of President Ford's September 2, 1976, order excluding aliens from the civil service is properly placed into controversy in determining the propriety of injunctive relief pursuant to the June 1, 1976, opinion of the Supreme Court. We turn therefore to that issue.

Plaintiffs seek to invalidate Executive Order 11,935 upon two distinct grounds. First, plaintiffs contend that the Order exceeds the scope of the President's statutory and constitutional authority to prescribe qualifications for federal employment. Second, plaintiffs assert that, even if the President is generally authorized by Congress or the Constitution to enact such a rule, the rule must be stricken as repugnant to the Due Process Clause of the Fifth Amendment. We address these issues in turn.

President Ford promulgated Executive Order 11,935, "by virtue of the authority vested in me by the Constitution and statutes of the United States of America, including Sections 3301 and 3302 of Title 5 of the United States Code . . .."

Pursuant to 5 U.S.C. § 3301, the President is authorized to "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", as well as to, "ascertain the fitness of applicants as to age, health, character, knowledge, and ability for the employment sought".³ Section 3302 and Title 5 of the United States Code further authorizes the President to make certain exceptions to the rules requiring competition examination.⁴ Finally, Article 2 Section 2, Clause 2 of the United States 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.

Plaintiffs contend that these grants of authority are insufficiently broad to sustain Executive Order 11,935.

Although we are not unmindful of the difficulties encountered in deriving a statutory basis of authority for issuance of the Executive Order,⁵ nor of the complexities inherent in finding constitutional authorization,⁶ we think that extended analysis of these issues is unnecessary in view of the fact that the Supreme Court has already decided the question presented.

In its opinion, the Court reviewed in detail the background of Congressional participation in the rule excluding aliens from federal employment. Although the Court determined that Congress had never mandated the President or Civil Service Commission to exclude noncitizens from the federal service, it clearly decided that Congress had delegated sufficiently broad authority to permit the President or Civil Service Commission to adopt such...