Zapata v. Smith

¶4GOLDBERG, Circuit Judge:

¶5Though we are asked to engage in the esoterics of constitutional and statutory construction, we find it unnecessary because our decision here can be rested on more mundane grounds.

¶6Plaintiffs brought this suit against the Governor of Texas and the Director of the Office of Economic Opportunity, alleging that they had been illegally and unconstitutionally removed from participation in the Val Verde County VISTA project. Suing under 42 U.S.C.A § 1983 and § 1985(3), plaintiffs sought (1) a declaratory judgment that the Governor either had no power to remove certain volunteers, or, even if the power to remove existed, the manner of its exercise violated standards of due process; and (2) damages for the back pay they would have received if they had not been illegally removed. We need not investigate the details or the merits of plaintiff’s arguments save to note that the relief requested was in part a money judgment for back pay and all parties now appear to agree that all claims save that for the back pay are moot. Finding that in such a case the United States is an indispensable party, we must dismiss since the United States has not been joined as a party defendant.

¶7It is well settled that when an administrative official is sued individually, the suit is in fact one against the United States

“if ‘the judgment sought would expend itself on the public treasury or domain or interfere, with the public administration.’ ” Dugan v. Rank, 1963, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15, 23.

¶8Accord: Land v. Dollar, 1947, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209; Morrison v. Work, 1925, 266 U.S. 481, 45 S.Ct. 149, 69 L.Ed. 394; Simons v. Vinson, 5 Cir. 1968, 394 F.2d 732; American Guaranty Corp. v. Burton, 1 Cir. 1967, 380 F.2d 789.

¶9There is, however, a line of cases, usually spoken of as an exception to this rule, which hold that a suit against an official is not one against the United States if it is alleged either that the official acted beyond the statutory limitations of his power or, even though within the scope of his authority, the powers themselves are constitutionally void. See Dugan v. Rank, supra;Malone v. Bowdoin, 1962, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168; Larson v. Domestic and Foreign Commerce Corp., 1949, 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628, 1631. Suit is justified on the theory that the official’s conduct cannot be attributed to the sovereign because the official had no power in fact to do the challenged act. Larson v. Domestic and Foreign Commerce Corp., supra.

¶10At first glance our case would appear to come within this exception since the plaintiffs have pled that the dismissal of the VISTA volunteers was both unauthorized by statute, or, if authorized, was an unconstitutional deprivation of due process. However, there is a well recognized exception to the exception which applies to this case and which makes it clear that, despite the statutory and constitutional allegations of the plaintiffs, the suit is nevertheless one against the United States. In Larson v. Domestic and Foreign Commerce Corp., supra, the majority explained:

“Of course, a suit may fail, as one against the sovereign, even if it is *1026claimed that the officer being sued has acted unconstitutionally or beyond his statutory powers, if the relief requested cannot be granted by merely ordering the cessation of the conduct complained of but will require affirmative action by the sovereign or the disposition of unquestionably sovereign property. North Carolina v. Temple, 134 U.S. 22, 10 S.Ct. 509, 33 L.Ed. 849 (1890).” 337 U.S. at 691, n. 11, 69 S.Ct. at 1462.

¶11Mr. Justice Frankfurter explained further in his dissenting opinion:

“To the second category belong the cases where an official asserts the authority of a statute for his action but the injured plaintiff challenges the constitutionality of the statute. Threatened injury will then be enjoined if the plaintiff otherwise satisfies the requirements for equitable intervention. Allen v. Baltimore & O. R. Co., 114 U.S. 311, 5 S.Ct. 925, 962, 29 L.Ed. 200; Reagan v. Farmers’ Loan & T. Co., 154 U.S. 362, 14 S.Ct. 1047, 38 L.Ed. 1014, 4 Inters Com 560; Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, 13 L.R.A.,N.S., 932, 14 Ann.Cas. 764; Rickert Rice Mills v. Fontenot, 297 U.S. 110, 56 S.Ct. 374, 80 L.Ed. 513. So also recovery may be had of property in an action against an official when the statute under which the seizure of the property was made is unconstitutional. Poindexter v. Greenhow, 114 U.S. 270, 5 S.Ct. 903, 962, 29 L.Ed. 185. In these cases the suit against one holding office is deemed “a suit against him personally as a wrongdoer, and not against the State.” Ex parte Young, 209 U.S. 123, 151, 28 S.Ct. 441, 52 L.Ed. 714, 725, 13 L.R.A.,N.S., 932, 14 Ann.Cas. 764, supra.

These cases likewise apply a principle that is clear. There is an appearance of inconsistency in some of the cases only because opinions also are prey to the frailties of composition. Familiar phrases are not always used with critical precision or with due relevance to the circumstances of a particular case.

Specifically, there are instances where the unconstitutionality of a statute was conceded and yet the language of sovereign immunity was invoked to bar suit. See, e. g., North Carolina v. Temple, 134 U.S. 22, 10 S.Ct. 509, 33 L.Ed. 849; Christian v. Atlantic & N. C. R. Co., 133 U.S. 233, 10 S.Ct. 260, 33 L.Ed. 589; Louisiana ex rel. New York Guaranty & I. Co. v. Steele, 134 U.S. 230, 10 S.Ct. 511, 33 L.Ed. 891. These cases do not qualify the principle of the eases in category two. Regard for the facts of these cases brings them within the first category because the nature of the relief requested makes them either cases in which Government property would have to be transferred, or cases where the person sued could satisfy the court decree only by acting in an official capacity. The tortfeasor, that is, is not immunized because he happened to hold office, but because the tort cannot be redressed, or if threatened, averted, without bringing into operation governmental machinery.” 337 U.S. at 712, 713, 69 S.Ct. at 1473.

¶12The same principle was recognized earlier in Mine Safety Appliances Co. v. Forrestal, 1945, 326 U.S. 371, 66 S.Ct. 219, 90 L.Ed. 140, where the Court said:

“The sole purpose of this proceeding is to prevent the Secretary from taking certain action which would stop payment by the government of money lawfully in the United States Treasury to satisfy the government’s and not the Secretary’s debt to the appellant. The assumption underlying this action is that if the relief prayed for is granted, the government will pay and thus relinquish ownership and possession of the money. In effect, therefore, this is an indirect effort to collect a debt allegedly owed by the government in a proceeding to which the government has not consented. The underlying basis for the relief asked is the alleged unconstitu*1027tionality of the Renegotiation Act and the sole purpose of the proceeding is to fix the government’s and not the Secretary’s liability. Thus, though appellant denies it, the conclusion is inescapable that the suit is essentially one designed to reach money which the government owns. Under these circumstances the government is an indispensable party, Minnesota v. United States, 305 U.S. 382, 388, 59 S.Ct. 292, 83 L.Ed. 235, 241, even, though the Renegotiation Act under which the Secretary proposed to act might be held unconstitutional.” 326 U.S. at 374-375, 66 S.Ct. at 221 (citations and footnotes omitted).

¶13In the instant ease it is clear beyond peradventure that the suit is one against the United States since the remedy sought is back pay which can be satisfied only out of the public treasury. It follows, therefore, that the corollary is clear — the United States is an indispensable party to the action. Mine Safety Appliances Co. v. Forrestal, supra;Morrison v. Work, supra; Simons v. Vinson, supra.

¶14The usual result of a determination that the United States is an indispensable party is dismissal because the United States is protected by sovereign immunity and has not consented to the suit. See, e. g., Dugan v. Rank, supra;Malone v. Bowdoin, supra;Larson v. Domestic and Foreign Commerce Corp., supra; Mine Safety Appliances Co. v. For-restal, supra; Morrison v. Work, supra.

¶15In the present case such a result was not at the onset necessary since the United States apparently has waived its immunity in cases of this sort. Suits against the United States for back pay may be brought in the Court of Claims, 28 U.S.C.A. § 1491, or after 1964 in the district court, 28 U.S.C.A. § 1346.

¶16The fact remains, however, that the United States was not made a party to this action and was not served pursuant to Rule 4(d) (4) Fed.Rules Civ. Proc. We have no choice, therefore, but to dismiss this action. The United States may not be sued behind its back. Mine Safety Appliances Co. v. Forrestal, supra.

¶17Affirmed.

¶18INGRAHAM, Circuit Judge

¶19(specially concurring):

¶20I must respectfully disagree with the manner in which my brothers have disposed of this case and with their refusal to “engage in the esoterics of constitutional and statutory construction.” I feel that this court, in shirking its responsibility, has enabled plaintiffs to refile the entire suit again, at the expense of the federal judiciary’s valuable time and energy.

¶21The majority opinion begins with the erroneous assumption that plaintiffs brought suit “for damages for the back pay they would have received if they had not been illegally removed.” An examination of the original complaint filed in this cause and the proceedings of the district court conducted pursuant thereto indicates that the cause of action was strictly equitable in nature.1 Nowhere in the complaint or in the proceedings below is there any mention of damages or back pay, nor do I feel it could be reasonably inferred. Back pay was never suggested until plaintiffs’ brief on this appeal.2

¶22*1028Nevertheless, the majority opinion, by this bootstrap operation, now asserts that this was a suit for back pay and must be dismissed for failure to join the United States as a party defendant. This was despite the fact that the Director of OEO has the apparent authority to make such payments as are necessary in the administration of the agency. 42 U.S.C. § 2942.

¶23The court below, in dismissing the suit and denying plaintiffs’ motion for a temporary restraining order, found “as a matter of law the ‘Vista’ programs from Val Verde were never terminated but only the individual volunteers working in those programs were removed from service under Title 42 U.S.C., Section 2992(b).” The court further found “that defendants can remove said volunteers from service without stating reasons or cause therefor.” The majority opinion does not sanction this language, thereby permitting plaintiffs to bring this same suit again. I would affirm this language of the district court and these findings, with the reasons stated herein and with a careful explanation of the factual underpinnings:

¶24Plaintiffs were former Volunteers in Service to America (VISTAs) and members of the community of Val Verde County, Texas, and commenced this action against appellees, the Governor of Texas and the Director of the Office of Economic Opportunity (OEO), for the allegedly illegal and unconstitutional removal of appellants from participation in the Val Verde County VISTA project. It was an action in equity, pursuant to 42 U.S.C. §§ 1983 and 1985(3), to redress deprivation of basic Constitutional rights, and an action under 28 U.S.C. § 2201 for a declaratory judgment declaring the acts of appellees unconstitutional as applied to plaintiffs and the class they represent.

¶25The record indicates that there were two VISTA programs in Val Verde County: National VISTAs, responsible to supervisors in the regional office in Austin, Texas, and the Minority Mobilization Program (M.M. VISTAs), composed of Mexican-Americans recruited from the local community. The latter program, funded by the Federal Government and administered by a private agency, was established pursuant to an agreement between OEO/VISTA and the Val Verde County Community Action Agency (the local sponsor). Dissatisfaction over a local incident apparently resulted in considerable friction between local public officials and VISTA workers. On March 10, 1969, the Commissioners Court of Val Verde County passed a resolution requesting the Governor to terminate the VISTA programs in the county. The Governor then formally requested the Director of OEO to terminate both VISTA programs and to dismiss all VISTAs assigned thereunder, explaining that the workers had contributed to the abdication of the respect for law and order, disruption of the democratic process, and provocation of disunity among the citizens. The Director dismissed all of the nineteen volunteers participating in the two projects, although the projects themselves were not abolished. The statutory authority for this action was asserted under 42 U. S.C. § 2992, which has been set out in the footnote.3

¶26*1029The three questions this court should had addressed itself to are as follows:

¶27I. Was there statutory authority to remove the M. M. VISTAs under 42 U. S.C. § 2992(b)?

¶28II. Did the removal of the appellant VISTAs from Val Verde County constitute a violation of their First Amendment rights of freedom of speech and freedom of expression?

¶29III. Did the removal of appellant VISTAs without a hearing or confrontation of their accusers constitute a violation of due process of laws ?

¶30I. The Statutory Basis for Removal

¶31Appellants contend that the M. M. VISTAs are not subject to the removal provision of 42 U.S.C. § 2992(b), swpra. They assert that the M. M. VISTAs were created pursuant to 42 U.S.C. §§ 2993 and 2993a,4 as a special volunteer *1030program, and that these sections vest no power of removal in the Governor.

¶32Appellants concede that the Governor possessed the power to remove the National VISTAs under § 2992(b). but argue that the M. M. VISTAs were commissioned under § 2993a. In my opinion, the M. M. VISTAs were workers within § 2992 and their removal was legal under § 2992(b).

¶33While it is clear that the M. M. VISTA program differed in its manner of recruitment, training and supervision of workers, there are several factors which lead to the conclusion that the M. M. VISTAs were § 2992 workers. In the first place, volunteers recruited under § 2992 are considered full-time workers and are to be enrolled for one year periods.5 Appellant workers were all serving on a full time-time basis.6 On the other hand, § 2993 calls for programs on a part-time basis. Moreover, § 2993(b) specifically prohibits a living allowance or stipend, as authorized by § 2992b. Plaintiffs’ primordial assertion, however, is that they are or were § 2993 workers. Should we conclude that the prayer for relief can be construed to include a request for back pay, as the majority opinion has done, we have placed the plaintiffs in the unenviable position of having to admit that which they adamantly deny — that they are § 2992 workers (subject to removal) — all to se*1031cure relief which they have not asked for.

¶34Finally, there is nothing in § 2992 which prohibits the Director of OEO from using full-time workers in the Special Volunteer Programs, such as the M. M. program.7 Thus, although the administration of the programs may have been different, the appellants were § 2992 workers. There was statutory authority for their removal. Aside from this authority, the agreement between OEO/VISTA and the local sponsor provided that the sponsor could request the removal of any volunteer, and that OEO/VISTA could recall any volunteer at any time, and a volunteer could resign at any time. It seems quite clear that the Director of OEO acted within his powers by withdrawing appellants from Val Verde County.

¶35II. First Amendment Freedoms of Speech and Association

¶36Appellants allege that the National and M. M. VISTA’s First Amendment rights of freedom of speech and association have been violated when they were removed from their positions in Val Verde County. In support of this contention, appellants assert that the request for their removal was a result of their membership in a local organization dedicated to the improvement of the conditions of the Mexican-American in Texas. Appellants believe that freedom of association requires that VISTA volunteers be allowed to join an organization whose purposes are exactly the same as the stated goals of the VISTA program.

¶37There is little merit in these arguments. In essence, we must balance the inhibitions on freedom of speech and association against the legitimate interests of the government and the manner in which these interests are protected. See, e. g., Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); Ferguson v. Thomas, 430 F.2d 852, at 859 (5th Cir. 1970).

¶38Any organization in which appellants might have participated could have held goals identical to those of VISTA. Fighting poverty, achieving better conditions, etc. are broad goals which organizations running the gamut of the political spectrum might share. Could appellants, as VISTAs, participate in any organization regardless of the means used by such organization to achieve its goals? We think not. Although Congress cannot actively seek to suppress opposition to local political activities and associations, it is not required to support such actions. Appellants could have remained in Val Verde County, participated in demonstrations and helped members of the community assert their political rights. They cannot, however, engage in said activities as members of this federally sponsored program, especially when the result is friction and disruption on the state and local levels of government.

¶39Appellants were well aware of the power of recall by the Director and the veto power of the Governor. These represented a valid recognition by Congress that it could not sponsor activities antagonistic to local governing authorities

¶40without some means of control.

¶41The cases appellants cite, mainly involving the rights of teachers with respect to unions, loyalty oaths, etc., are not controlling. For example, even in McLaughlin v. Tilendis, 398 F.2d 287 (7th Cir. 1968), in which the state’s interest did not outweigh the plaintiff’s associational freedoms, the court ex*1032plained that “[i]t is possible of course that at some future time plaintiffs may-engage in union-related conduct justifying their dismissal.” 398 F.2d at 289.

¶42Appellants in the instant case could have requested a transfer to other areas, or, in the alternative, resigned their appointments as VISTAs and pursued their political activities. Appellants’ First Amendment freedoms have not been violated. The action taken by ap-pellees, pursuant to § 2992(b), supra, which specifically refers to restrictions on political activities, was justifiable in the exercise of a legitimate governmental interest. See Jenson v. Olson, 353 F.2d 825, 828 (8th Cir. 1965); London v. Florida Department of Health & Rehab. Serv., 313 F.Supp. 591, 596 (N.D. Fla.1970).

¶43III. Constitutional Due Process

¶44Appellants submit the argument that their removal without a hearing or opportunity to confront their accusers violated their right to due process of law, and that the government was vested with an arbitrary unlimited power.

¶45To my knowledge, the minimum requirements of due process in the termination of a VISTA volunteer’s employment have never been passed upon by a federal appellate court. I do not feel inclined to conduct the searching analysis of the agency procedures necessary for such a determination. In the first place appellants were not “terminated” or “fired”. They were withdrawn from the project in Val Verde County. The VISTA Volunteer Handbook for 1968 (§ VIII) provides that “it may become necessary to transfer a Volunteer to another project or terminate his service if this is in the best interest of the total VISTA program. Consideration will always be given to a transfer before terminating a Volunteer’s service.” Appellants, however, chose other avenues of endeavor, such as returning to college or seeking other employment.

¶46Moreover, even in a case of dismissal from public employment, whether or not a hearing is required depends upon a balance of factors such as the need for the government to act summarily and the extent to which the employee will be harmed by the dismissal. Meredith v. Allen County War Memorial Hospital Com’n., 397 F.2d 33, 36 (7th Cir. 1968); Birnbaum v. Trussell, 371 F.2d 672 (2nd Cir. 1966). See Cafeteria & Restaurant Workers Union, etc. v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). The extent of harm to the employee is often indicative of his interest, and in these cases and others, the substantial interests usually involved are reputation and the ability to pursue a profession. Birnbaum v. Trussell, supra,371 F.2d at 678.

¶47The action taken against appellants did not deprive them of the pursuit of a profession, and they do not wear a “badge of infamy” because of their removal. Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 97 L.Ed. 216 (1952); Norton v. Macy, 135 U.S.App.D.C. 214, 417 F.2d 1161, 1164 (1969). They are unlike the plaintiff in Lucas v. Chapman, 430 F.2d 945 at 947 (5th Cir., 1970), whose “long employment in a continuing relationship through the use of renewals of short-term contracts was sufficient to give him the necessary expectancy of reemployment that constituted a protectable interest.” In the case at bar, appellants were not protected by Civil Service laws. In 42 U.S.C. § 2994b, it is specifically provided that VISTAs are not subject to laws relating to federal employment, and are not federal employees, except for tax and social security purposes. They are also subject to Hatch Act restrictions on political activities. Thus, they are similar to temporary or probationary workers. In Jaeger v. Freeman, 410 F.2d 528 (5th Cir. 1969), plaintiff was under a one-year probationary employment as a government poultry inspector and was dismissed. In denying him reinstatement and back pay, this court held that due *1033process does not in every instance require the government to grant a trial-type hearing to a discharged employee, and found no compelling reasons to impose such a requirement prior to dismissal of probationary employees. See Medoff v. Freeman, 362 F.2d 472 (1st Cir. 1966).

¶48We should thus have rejected appellants’ claim that they were deprived of a constitutional hearing. The Eighth Circuit, in Freeman v. Gould Special Seh. Dist. of Lincoln County, Ark., 405 F.2d 1153 (1969), stated:

“IT] here are many public employees who are separated from their employment by a purely arbitrary decision, upon a change of administration or even a change of factual control where the appointments are not protected by civil service or some type of tenure, statutory or contractual.

•X- …

“Absent statutory or contractual requirements, persons discharged for inefficiency, incompetency, or insubordination have no constitutional right to a hearing with rights of cross examination and confrontation of witnesses.”

¶49405 F.2d at 1160, 1161. See Jones v. Hooper, 410 F.2d 1323, 1327-1328 (10th Cir. 1969). Even among presidential cabinet members and governors’ aides, transfers and removals are frequently made without regard to procedural safeguards. Appellant VISTAs are “volunteers” in the executive branch in the true sense of the term, and must accept a similar policy of summary transfer.

¶50Such a decision might seem harsh, but this court should have taken note of the importance of the reputation of the VISTA program as a whole. Its very survival may depend upon its achieving an adequate level of cooperation and rapport with local governing officials.

¶51I would affirm the district court without qualification.