Mow Sun Wong v. Hampton

• Decision Date: 30 August 1971
• Docket Number: No. C-70 2730.,C-70 2730.
• Citation: 333 F. Supp. 527
• Parties: MOW SUN WONG et al., Plaintiffs, v. Robert E. HAMPTON, Chairman of the United States Civil Service Commission, et al., Defendants.
• Court: U.S. District Court — Northern District of California

333 F. Supp. 527

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.

United States District Court, N. D. California,

August 30, 1971.

Stephen M. Lowe, Wong, Siedman & Lowe, San Francisco, Cal., for plaintiffs.

Brian B. Denton, Asst. U. S. Atty., N.D. California for defendants.

MEMORANDUM AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

PECKHAM, District Judge.

This is an action by Chinese residents of the United States, seeking to overturn regulations of the United States Civil Service Commission ("Commission") which exclude these non-citizens from the competitive civil service. 5 C. F.R. § 338.101 (1971). The Commission is authorized to establish standards with respect to citizenship by Executive Order No. 10577 § 2.1(a), 19 Fed.Reg. 7521:

The Commission shall be responsible for open competitive examinations for admission to the competitive service which will fairly test the relative capacity and fitness of the persons examined for the position to be filled. The 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 to or rated in examinations.

The authority whereby the President promulgated this Executive Order lies in the delegation by Congress to the President to promulgate standards for admission into the civil service. 5 U.S.C. § 3301.

Plaintiffs—Chinese residents who have been denied the opportunity to apply for federal civil service jobs—challenge only the Commission's regulation. In pertinent part, that regulation reads:

§ 338.101 Citizenship

(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 allegiance to the United States. * * *

Plaintiffs contend that this regulation contravenes the due process clause of the Fifth Amendment; violates Executive Order No. 11478 (relating to freedom from job discrimination within the federal government) and conflicts with § 502 of the Public Works Appropriation Act, 1970, Pub.Law 91-144, 83 Stat. 336-337, (relating to compensation of employees of the government). Plaintiffs seek a declaration of invalidity of the Commission's regulation on any one of the above grounds, and an injunction to restrain the defendants—who are members of the Civil Service Commission, the Administrator of the General Services Administration, and the heads of various other governmental agencies— from continuing to act upon the regulation.

Initially, the government contends in response that no subject matter jurisdiction resides in this court, or that sovereign immunity stands as a bar to this action. The court rejects both of these contentions.

Subject matter jurisdiction over this action is conferred by 28 U.S.C. § 1331(a), the federal question section. That provision grants to this court original jurisdiction of all civil actions wherein the matter in controversy exceeds $10,000 and arises under the Constitution or laws of the United States. Plaintiffs specifically allege that "the matter in controversy" from their viewpoint is certainly in excess of the jurisdictional amount. While it is admittedly difficult to value the right to a job, looking at the issue from the vantage of plaintiffs (see 1 Moore's Federal Practice, ¶ 0.911 at 827) and considering the importance of the right asserted (cf. Hague v. C. I. O., 307 U.S. 496, 529-532, 59 S.Ct. 954, 83 L.Ed. 1423 (separate opinion of Mr. Justice Stone); Murray v. Vaughn, 300 F.Supp. 688, 694-695 (D.R.I.1969), the court is persuaded that the jurisdictional amount is satisfied by each plaintiff herein. Moreover, § 1331 is available as a jurisdictional basis even though no monetary relief is sought. See 1 Moore's Federal Practice, ¶0.95 at 862-863.

There is of course no doubt that this action is one which "arises under" the Constitution and the laws of the United States. The basic allegation is that the Commission's regulation is invalid because it is unconstitutional or at least is fatally inconsistent with a Congressional enactment. In other words, a non-frivolous claim is set up and rests directly upon federal law. Accordingly, the action "arises under" that law within the meaning of § 1331. See generally Wright, Federal Courts (2nd Ed. 1970) §§ 17, 18. This court therefore has jurisdiction of the within action.

The government also contends that this suit is in reality one against the United States, the sovereign, and that no statute sets up the right to sue the United States herein. That is, the sovereign has not waived its immunity from suit. This contention is easily met, however. Whether or not a given suit can properly be characterized as one against the sovereign—an inquiry which is probably analytically unsound anyway —the established law is that sovereign immunity does not bar a suit against federal officers where it is alleged that the officer's action is "not within the officer's statutory powers or, if within those powers, only if the powers, or their exercise in the particular case, are constitutionally void." Malone v. Bowdoin, 369 U.S. 643, 647, 82 S.Ct. 980, 983, 8 L.Ed.2d 168 (1962), quoting from and reaffirming Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 702, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). See generally 3 Davis on Administrative Law (Treatise), § 27.01 at 546-547, § 27.03, § 27.10. Since the plaintiffs in this action contend that the defendants' actions violate both the Constitution and their statutory authority, the doctrine of sovereign immunity is certainly inapplicable. Laycock v. Kenney, 270 F.2d 580, 584 (Ninth Cir. 1959).

On the merits of the case, the court believes the non-constitutional arguments of the plaintiffs to be more substantial than their constitutional arguments, but for the reasons to be stated herein, it is the government's urgings on the merits which are correct.

Plaintiffs contend that the Commission regulation in question contravenes Executive Order No. 11478, 34 Fed.Reg. 12985 (Filed August 8, 1969) (Ex. "C" to complaint). This Order declares it to be the policy of the Government that equal opportunity shall exist within the Federal Government, and that discrimination based upon race, color, religion, sex, or national origin is expressly prohibited. Plaintiffs hinge upon the reference to "national origin" and conclude that discrimination based upon citizenship status is prohibited. But from the face of the document itself, this conclusion appears incorrect. The initial language of the Order is: "It has long been the policy of the United States Government * * *", indicating that this Order was not intended to establish a new policy generally, let alone a new policy specifically on the subject of citizenship as a prerequisite to entrance to the competitive civil service. Furthermore, it is reasonably clear that the reference to "national origin" was intended to convey the policy that as between United States citizens, no distinction should be made on the basis of their respective national origins. Thus, the reasonable interpretation of the Executive Order in question establishes that the Commission's regulation is not violative of that Order.

This analysis of the Order has proceeded upon the assumption that a purported conflict between an Executive Order and an agency regulation is court reviewable. That is, plaintiffs assume that an agency regulation may be declared invalid on the basis of an Executive Order. This proposition appears highly doubtful, and even more so in the case of an Executive Order which merely declares a general policy. Manhattan-Bronx Postal Union v. Gronouski, 121 U.S.App.D.C. 321, 350 F.2d 451 (1965); National Ass'n of Internal Revenue Emp. v. Dillon, 123 U.S.App.D.C. 58, 356 F.2d 811 (1966). Thus, this court would also conclude that even if the Commission's regulation did conflict with the Executive Order, such a conflict would not be judicially reviewable.

Plaintiffs' other main non-constitutional argument is that the Commission's regulation is inconsistent with § 502 of the Public Works Appropriation Act, 1970, Pub.Law 91-144, 83 Stat. 336-337, which provides in pertinent part as follows:

No part of any appropriation contained in this or any other Act shall be used to pay the compensation of any officer or employee of the Government of the United States (including any agency the majority of the stock of which is owned by the Government of the United States) whose post of duty is in continental United States unless such person (1) is a citizen of the United States, (2) is a person in the service of the United States on the date of enactment of this Act, who, being eligible for citizenship, had filed a declaration of intention to become a citizen of the United States prior to such date, (3) is a person who owes allegiance to the United States * * *

Plaintiffs contend that the Civil Service Commission has impermissibly narrowed this Congressional enactment by wholly omitting that class of persons within category (...