Wettre v. Hague, 4328.

• Decision Date: 29 June 1948
• Docket Number: No. 4328.,4328.
• Citation: 168 F.2d 825
• Parties: WETTRE et al. v. HAGUE et al.
• Court: U.S. Court of Appeals — First Circuit

168 F.2d 825 (1948)

WETTRE et al. v. HAGUE et al.

No. 4328.

Circuit Court of Appeals, First Circuit.

June 29, 1948.

Claude L. Dawson, of Washington, D. C. (Joseph F. Dolan, of Boston, Mass., on the brief), for appellants.

Joseph M. Friedman, Sp. Asst. to Atty. Gen. (H. G. Morison, Asst. Atty. Gen., William T. McCarthy, U. S. Atty., and Gerald J. McCarthy, Asst. U. S. Atty., both of Boston, Mass., and Louise A. Hunt, Atty., Department of Justice, of Washington, D. C., on the brief), for appellees.

Before DOBIE (by special assignment), MAHONEY, and WOODBURY, Circuit Judges.

WOODBURY, Circuit Judge.

The plaintiffs-appellants, all honorably discharged soldiers, sailors or marines of the United States, some with and some without war-time military service, and all employed under civil service as "leadingmen" in various capacities, as "leadingman millman" and "leadingman shipper and caulker", in the United States Naval Shipyard at Boston, brought the instant action on their own behalf, and on behalf of all other similarly situated members in good standing of the Boston Navy Yard War Veterans Association who may care to come in and be joined as party plaintiffs, to restrain the Commandant of the Yard, its public relations officer, and other of its higher officials, from proceeding with plans for reducing or demoting them from their supervisory positions. The plaintiffs allege in their complaint that they enjoy permanent civil service status with efficiency ratings of "good", and that the defendants are about "to demote the plaintiffs to inferior positions at great loss of pay and prestige" while retaining non-veterans "in the positions which rightfully belong" to them. It is not categorically alleged in the complaint, but counsel for the plaintiffs in brief and argument strenuously contend, and counsel for the defendants apparently concede, that the plaintiffs' threatened reduction in rank is due to a post-war reduction in the labor force employed in the Navy Yard.

The plaintiffs' contention is that the defendants' action not only violates direct orders from the Secretary of the Navy but also contravenes the clear terms of applicable statutes, specifically the proviso of § 4 of the Act of August 23, 1912, 37 Stat. 413, 5 U.S.C.A. § 648, quoted hereinafter, and § 12 of the Veterans' Preference Act of 1944, 58 Stat. 390, 5 U.S.C.A. § 861.

The defendants appeared specially in the court below for the sole purpose of objecting to the jurisdiction of the court and moved to dismiss on four grounds: failure to join the Secretary of the Navy; failure to join the members of the United States Civil Service Commission; because the action in essence is against the United States and it has not consented to be sued; and finally because "the complaint fails to allege that the plaintiffs have exhausted, and in fact shows that they have not exhausted fair and adequate administrative remedies provided by the Veterans' Preference Act of 1944, 5 U.S.C.A. § 851 et seq., including an appeal to and determination by the United States Civil Service Commission." The court below dismissed the plaintiffs' complaint solely on this latter ground and the plaintiffs thereupon took the instant appeal.

When this case was tried below, and even when it was argued before us on appeal, it was an open question whether the Veterans' Preference Act of 1944 narrowed, or whether it left unaffected, the long-existing broad scope of the preferences given to veterans by the proviso of § 4 of the Act of 1912, supra, which reads:

"Provided, That in the event of reductions being made in the force in any of the executive departments no honorably discharged soldier or sailor whose...