Mow Sun Wong v. Hampton

• Decision Date: 25 January 1974
• Docket Number: No. 72-1079,72-1079
• Citation: 500 F.2d 1031
• Parties: 7 Fair Empl.Prac.Cas. 58, 7 Empl. Prac. Dec. P 9101 MOW SUN WONG et al., Appellants, v. Robert E. HAMPTON, Chairman of the United States Civil Service Commission, et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1031

500 F.2d 1031

7 Fair Empl.Prac.Cas. 58, 7 Empl. Prac. Dec. P 9101

MOW SUN WONG et al., Appellants, v. Robert E. HAMPTON, Chairman of the United States Civil

Service Commission, et al., Appellees.

No. 72-1079.

United States Court of Appeals, Ninth Circuit.

Jan. 25, 1974

Certiorari Granted June 10, 1974

See 94 S.Ct. 3067.

Dennis A. Lee, Jack Siedman (argued), of Wong, Siedman & Lee, San Francisco, Cal., Edward H. Steinman (argued), Asst. Professor of Law, Santa Clara, Cal., for appellants.

James L. Browning, Jr., U.S. Atty., Alan S. Rosenthal and Bruno A. Ristau (argued), U.S. Dept. of Justice, Washington, D.C., for appellee.

Before BARNES, WRIGHT and WALLACE, Circuit Judges.

OPINION

BARNES, Circuit Judge:

On December 27, 1970, appellants, five resident aliens who immigrated to the United States from China, instituted a class action against appellees seeking injunctive relief to prevent appellees from enforcing regulations which excluded appellants as resident aliens, from the federal competitive civil service. They also sought injunctive relief to prevent appellees from denying appellants the opportunity to apply for such federal employment positions on the basis of alienage, and a declaratory judgment declaring those portions of the regulations which automatically disqualified aliens from federal competitive civil service positions illegal and void and violative of their constitutional and statutory rights to pursue such jobs.

On August 31, 1971, the District Court denied appellants' motion for summary judgment and granted appellees' motion to dismiss. Mow Sun Wong v. Hampton, 333 F.Supp. 527 (N.D.Cal. 1971).

This appeal is before this court pursuant to rule 4(a) Fed.R.App.P. As held by the district court, jurisdiction is predicated on 28 U.S.C. 1331(a) and the $10,000 matter in controversy requirement is met by each of the named class for the reasons concluded by the lower court. Id. at 529. ¹

The primary issue which confronts us is a constitutional attack by appellants as resident aliens, upon the regulations of the United States Civil Service Commission (hereinafter 'Commission') which, in effect, excludes such aliens from employment in the federal competitive civil service. 5 C.F.R. 338.101 (1971). ² The constitutional question is closely similar to that which the Supreme Court refused to intimate a view on, in its recent decision of Sugarman v Dougall, 413 U.S. 634, 93 S.Ct. 2842 (1973): whether the federal citizenship requirements of such provisions as 5 U.S.C. 3301, Executive Order 10577, 19 Fed.Reg. 7521, 2.1 (1954), 5 C.F.R. 338.101, and 502 of the Public Works Appropriation Act 1971, Pub.Law 91-439, 84 Stat. 902 are or are not susceptible to constitutional challenge. See also In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973). Cf. People v. Rodriguez, 35 Cal.App.3d 900, 111 Cal.Rptr. 238 (1973).

In Dougall the Court held that a New York statute, which denied aliens the right to hold positions in New York's classified competitive civil service, violated the Fourteenth Amendment's equal protection guarantee. The issue before this Court on appeal is whether the United States Civil Service Commission may, consistent with the Fifth Amendment's due process guarantee, exclude appellants and all other resident aliens from obtaining employment in the federal competitive civil service.

However, before we are able to decide the constitutional issue, it is necessary to determine if the lower court correctly decided the non-constitutional arguments presented by appellants.

I. NON-CONSTITUTIONAL ISSUES.

Appellants contend that the Commission regulations, 5 C.F.R. 338.101 (restricting employment to citizens), are invalid since they exceed the authority provided by Congress in 502 of the Public Works Appropriation Act, supra. ³ The district court rejected this contention and held that the regulations did not exceed or conflict with 502.333 F.Supp. at 531 ⁴ states:

'. . . Congress has in broad terms granted to the Executive the authority to establish standards for admission into the civil service. 5 U.S.C. 3301. Plaintiffs would have the court, however, read a provision in an Appropriations Act as negating that express grant of authority. The more sensible view of the relationship between 502 of the Public Works Appropriations Act and 5 U.S.C. 3301 is that 502 merely sets forth the broad contours within which the Executive (the Commission) is free to use its good judgment and expertise. Thus, on the court's view of 502 and the Commission regulation, no conflict appears. The Commission has acted permissibly in relation to the Appropriations Act in not opening up the civil service to all those whom Congress has indicated it would be willing to pay for their work.'

We agree with the district court on this point. The appropriations acts are not the basis for the regulations and the Commission has acted permissibly in enacting its regulation.

The regulations prohibiting non-citizens from the competitive civil service (5 C.F.R. 338.101), were issued pursuant to an executive order, Executive Order No. 10577, ⁵ which itself was issued upon the authority of a federal enabling act, the Civil Service Act, 5 U.S.C. 3301. ⁶

'Ostensibly clear-cut, the chain of statutory authority progresses from the enabling act, providing the President with delegatable powers, to the executive order, granting certain of those powers to the Civil Service Commission, to the specific regulation designed to ascertain the fitness of applicants by establishing standards with respect to citizenship.' Comment, Aliens And The Civil Service: A Closed Door? 61 Geo.L.J. 207, 209 (1972). ⁷

Appellants' second contention of a non-constitutional nature is that the Commission's regulation contravenes Executive Order No. 11478, 34 Fed.Reg. 12985 (1969), ⁸ which declares it to be the policy of the Federal Government to oprovide equal opportunity in Federal employment for all persons, and to prohibit discrimination in employment because of race, color, religion, sex or national origin. Appellant alleges the key term, 'national origin,' was intended to apply to permanent resident aliens. The district court, however, correctly interpreted the term 'national origin' as being limited to discrimination between United States citizens only and that no distinction should be made on the basis of their respective national origins.

Despite an Equal Employment Opportunity Commission guideline ⁹ prohibiting citizenship discrimination, the Supreme Court in a recent decision, Espinoza v. Farah Manufacturing Co., Inc., 414 U.S. 86, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973), held that such discrimination does not always constitute 'national origin' discrimination, and thus is not necessarily barred by 703 of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(a)(1). The Court found that nothing in the Act makes it illegal to discriminate on the basis of citizenship or alienage. Id. 414 U.S. at 86, 94 S.Ct. 334. Espinoza's application to this case is limited in that it involved only private employment, whereas we are concerned with the right to federal employment under the Civil Service. ¹⁰

Appellants with good reason suggest that 6 of Executive Order No. 11478, in stating: 'This order does not apply to aliens employed outside the limits of the United States,' is proof that the order was intended to apply to aliens employed inside the limits of the United States. However, assuming such an interpretation is justified and the Executive Order is ambiguous on this point so as to permit an interpretation, we still agree with the lower court that even if we are to assume the regulation contravenes Executive Order 11478, such conflict would not be judicially reviewable (333 F.Supp. at 530), because the Executive Order merely declares a general policy.

Appellants argue that such a conclusion is directly contra to the holding of Jalil v. Hampton, supra, discussed infra, which specifically states such an order is judicially reviewable. But the executive order referred to in Jalil as being reviewable was not one declaring a general policy, but was the same Executive Order No. 10577 which was the authority upon which the regulations were based.

II. CONSTITUTIONAL ISSUES.

The Commission regulations allow a person to be admitted to competitive examination or given appointment 'only if he is a citizen of or owes permanent allegiance to the United States.' 5 C.F.R. 338.101(a)(b). The district court, relying on immigation cases concerning entry and deportation, concludes that Congress' plenary power over aliens lessens the proper standard of judicial scrutiny to be applied to the discrimination and exclusion of aliens from the federal competitive civil service to that of whether the classification has a rational basis. 333 F.Supp. at 532. Appellants contend that the proper burden for the government to meet is that of showing a compelling government interest to justify the discrimination against them and other resident aliens similarly situated by the Commission regulations.

To state that Congress' plenary power over aliens enables the federal government to unreasonably discriminate against aliens, neglects to consider the fact that even Congressional plenary power is subject to Constitutional limits. United States v. Thompson, 147 U.S.App.D.C. 1, 452 F.2d 1333, 1338 (1971) (Appellants' Brief, pp. 18-19). ^10A

The rationales and holdings of Sugarman v. Dougall, supra, and Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), although not squarely controlling (because they deal with the states' power to discriminate against aliens vis-a-vis the Fourteenth Amendment) are instructive and significant when applied to the case at hand.

Dougall involved Section 53(1) of the New York Civil Service Law McKinney's Consol.Laws, c. 7 which read:

'Except as herein otherwise provided, no person shall be eligible for appointment for any...