Mulry v. Driver
| Decision Date | 26 October 1966 |
| Docket Number | No. 20514.,20514. |
| Citation | 366 F.2d 544 |
| Parties | Charles MULRY, Leonard Polonsky, Irvin Fishman, Lawrence Lee, Carmen Yuppa and Robert Barrett, Appellants, v. William DRIVER, Administrator of the Veterans Administration, et al., Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Abraham Gorenfeld, Los Angeles, Cal., for appellants.
John W. Douglas, Asst. Atty. Gen., Morton Hollander, Robt. V. Zener, Attys., Dept. of Justice, Washington, D. C., Manual L. Real, U. S. Atty., Los Angeles, Cal., for appellees.
Before POPE, JERTBERG and ELY, Circuit Judges.
The appellants brought suit in the court below for the purpose of obtaining judicial review of certain orders and regulations by the defendant Administrator of the Veterans Administration, seeking an adjudication that such regulations are void and unenforceable, and praying for an injunction against the Administrator and those associated with him restraining them from enforcing the same against the plaintiffs.1
The complaint alleges that plaintiffs are employed or appointed as resident physicians at the Long Beach Veterans Hospital; that each of them holds a degree as doctor of medicine or osteopathy from an approved college university; that each has completed an internship satisfactory to the administrator; and that each is licensed to practice medicine, surgery, or osteopathy in a state.2 The order and regulation primarily complained of provides that physicians, dentists and nurses appointed in the manner in which plaintiffs have been appointed, are employed on a full time basis for twenty-four hours a day, seven days a week, and are, therefore, prohibited from engaging in extra-veterans administration professional activities for remuneration. The order or regulation in its entirety is set forth in the margin.3
Although the United States was not made a defendant in the action, the United States Attorney filed a motion to dismiss which recited: "The defendant, United States of America, by and through the undersigned, moves the court to dismiss the within action," etc. The ground for the motion was that the court lacked jurisdiction over the subject matter and that the complaint failed to state a claim. The district court, treating the motion as a "motion of defendants to dismiss the complaint" granted dismissal reciting that "this action is in effect one brought against the United States without its consent, and this court lacks jurisdiction thereof." The plaintiffs, as appellants here, then brought this appeal.4
We are of the opinion that the reasons given by the trial court for lack of jurisdiction are not sound. Title 5 U.S.C. Sec. 1009 expressly provides for review of administrative or agency action at the instance of "any person suffering legal wrong" because of such action "or adversely affected or aggrieved by such action" subject to certain exceptions stated in that section. Instead of reaching a conclusion that the action was "in effect one brought against the United States without its consent", the court should have made inquiry whether the action was one authorized by the section referred to above. If so, the necessary consent of the United States will be found to exist.
Plaintiffs' complaint seeks to bring them within the purview of Sec. 1009 of the Administrative Procedure Act, supra. It alleges that plaintiffs have been adversely affected or aggrieved by the action of the Veterans Administration in adopting and undertaking to enforce the regulation above mentioned; that as licensed physicians they have the right to practice medicine outside and independent of the Veterans Administration Hospital during their spare time and with non-veteran patients, and that to deny them this right would constitute a deprivation of their liberty and property without due process of law; that the regulation in question deprives them of the equal protection of the law by imposing on them unreasonable and arbitrary restrictions, and that the regulation is arbitrary, unreasonable and capricious.
The complaint further alleges that the regulation here sought to be enforced against the plaintiffs adversely affects them and aggrieves them in that their salaries, which they allege were fixed by the administrator pursuant to authority granted by Title 38 Sec. 4108 U.S.C., are so low that the plaintiffs, many of whom are married and have families, are unable to support themselves and their families under minimum standards of living and therefore, in order to supplement their salaries, they are compelled to engage in medical practice outside of the hospital, a practice which is referred to as "moonlighting".5
In order to arrive at a conclusion as to whether the administrative regulation here under attack is subject to court review under the Administrative Procedure Act, or otherwise, or whether, in case it is so reviewable, the regulation is of such nature and substance as to permit a court to set it aside or modify it, it is necessary to examine the various statutes relating to powers of the administrator and the rights of the persons employed in the capacity in which these appellants claim to operate.
The applicable statutes to which we must now refer are a veritable patch-work of enactments. Sec. 4104 Title 38 U.S.C., dealing with the Veterans Administration and its department of medicine and surgery, provides for appointment by the administrator of physicians, dentists and nurses in such number as he may find necessary for the medical care of veterans. Section 4105 describes the qualifications of such appointees in the language previously mentioned. (See footnote 2, supra.) Section 4106 provides that initial appointments after the establishment of necessary qualifications shall be for a probationary period of three years. Section 4106 also provides for subsequent promotions of such physicians. Section 4107 provides for various grades and pay scales for each. (The physicians' schedule, as amended in 1965, provides for pay ranging from a minimum of $8,961 to a maximum of $25,043 per year.)
Subchapter I of Chapter 18 Title 5 U.S.C., relating to employees of the executive branch of the government, provides that subject to certain exceptions specified in Sec. 902 Title 5, all civil officers and employees under the executive branch of the government shall be governed by the provisions of subchapter II and III (Secs. 911 to 922 Title 5). That provides that all such officers and employees shall be compensated for all hours of employment in excess of 40 hours in any administrative work week. It specifies the rates of overtime pay. Sec. 944 of Title 5, which applies also to such employees, provides that they shall have a basic administrative work week of 40 hours. Section 902 Title 5 lists the types of employees who are not covered by those provisions of the sections last mentioned and listed among those persons are "student nurses, medical or dental interns, residents-in-training, student dieticians, student physical therapists, and student occupational therapists."
Section 902 indicates that those exempted from coverage are in student or training status. So far as the complaint here shows none of the appellants has that status. In fact, the listing of persons in student or training status as exempt from the coverage previously mentioned, would indicate that an employed physician no longer in training or student status would, so far as these sections are concerned, come within the coverage of subchapters II and III mentioned above.
The important statute here is Section 4108 Title 38 U.S.C., which provides as follows: "Notwithstanding any law, Executive order, or regulation, the Administrator shall prescribe by regulation the hours and conditions of employment and leaves of absence of physicians, dentists, and nurses."6
It is obvious that the question here is whether in view of the provisions of this section, the contested administrative regulation is subject to judicial review. When we turn to the provisions of Sec. 10 of the Administrative Procedure Act (Title 5 U.S.C. Sec. 1009), we find language not easy to apply in a case of this character. Thus in subdivision (c) of that section, it is provided that "Every agency action made reviewable by statute and every final agency action for which there is no other adequate remedy in any court shall be subject to judicial review." Subdivision (e) of that section provides that the reviewing court in addition to deciding relevant questions of law, interpreting statutory provisions, and determining the meaning of agency action, may hold unlawful and set aside agency action found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
A reading of the whole section in the light of its legislative history,7 would indicate that the section contemplated that generally speaking agency action would be subject to judicial review. It has been said that the more recent decisions of the Supreme Court are consistent with the idea that there is "a presumption of reviewability that may be rebutted by affirmative indication of legislative intent in favor of unreviewability, or by some special reason for unreliability growing out of the subject matter or the circumstances."8
On the other hand, it is important to note that the section of the Administrative Procedure Act, here referred to, begins with an exception listing circumstances which prevent judicial review. This language is as follows: "Except so far as (1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion * * *", meaning that in such cases judicial review may not be had.
We have concluded that it is unnecessary for the purposes of our decision in this case to determine whether the regulation here involved and the action of the Administrator with respect thereto is subject to judicial review or whether it is action "committed...
To continue reading
Request your trial
-
State of Washington v. Udall
...under Administrative Procedure Act absent "clear and convincing evidence" of contrary legislative intent). See also Mulry v. Driver, 366 F.2d 544 (9th Cir. 1966) (review of orders and regulations of the Administrator of the Veterans Under the foregoing principles, since sovereign immunity d......
-
Powelton Civic Home Own. Ass'n v. DEPARTMENT OF H. & U. DEV.
...waiver of sovereign immunity in all actions otherwise sustainable against federal officers or agencies. See Mulry v. Driver, 366 F.2d 544, 547 (9th Cir. 1966); Estrada v. Ahrens, 296 F.2d 690, 698 (5th Cir. 1961); cf. Blackmar v. Guerre, 342 U.S. 512, 72 S.Ct. 410, 96 L.Ed. 534 (1952). See ......
-
Greene County Planning Bd. v. Federal Power Com'n
...this Court to decide all relevant questions of law and make all requisite statutory interpretations. 5 U.S.C. § 706. Mulry v. Driver, 366 F.2d 544, 549 (9th Cir. 1966). 2 We abdicate our responsibility when we treat an unsolicited interpretation by the Comptroller General as the equivalent ......
-
Hubbard v. E.P.A.
...Council, 383 F.2d 110 (5th Cir.1967), cert. denied, Bramlett v. Leber, 389 U.S. 1046, 88 S.Ct. 769, 19 L.Ed.2d 838 (1968); Mulry v. Driver, 366 F.2d 544 (9th Cir.1966); Manhattan-Bronx Postal Union v. Gronouski, 350 F.2d 451 (D.C.Cir.1965), cert. denied, Manhattan-Bronx Postal Union v. O'Br......