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May 27, 1950

ROSSELL et al. Thaller et al. v. KELLEY et al.

The opinion of the court was delivered by: KAUFMAN

The Court has before it orders to show cause in the above-named actions why the defendants should not be enjoined pending the final hearing and determination of the actions from removing or separating the plaintiffs William N. Reeber and Harry G. Gilbert from their present positions with the Veterans' Administration or from reducing them in rank or salary. Similar requests for relief by the other plaintiffs in Civil Action No. 58-143 have been adjourned to a later date. Since the facts in the two actions are related, the orders to show cause will be considered together; the term 'plaintiffs' will refer to Reeber and Gilbert; the 'action' will mean the two actions, and the 'defendants' indicates the officers of the Veterans' Administration named as defendants in the actions.

The fact situations alleged by the plaintiffs are substantially identical. Plaintiffs are honorably discharged disabled veterans of World War II who were employed subsequent to their military service in the Brooklyn Regional Office of the Veterans' Administration. A reduction in force at this office was ordered recently and plaintiffs were given separation notices by the defendants. Attempts were made prior to issuing the separation notices to re-assign both plaintiffs to positions in different classifications held by nonveterans, but it was concluded that the plaintiffs could not be so re-assigned for they were not 'fully qualified' for these positions as provided in the Civil Service Commission's Retention Preference Regulations, Sec. 20-9(b), 15 F.R. 49(1950). The plaintiffs appealed from this action of the defendants to the United States Civil Service Commission, Second Region. Reeber's appeal was denied and he then appealed to the Board of Appeals and Review of the Civil Service Commission in Washington, D.C. Reeber's appeal is now pending before the Board, and Gilbert's appeal is before the Second Region Board. Pending these appeals both plaintiffs have been ordered dismissed. So, while the administrative appeals are still pending, the administrative action has not been made inoperative. The administrative processes have therefore become and remain effective.

The plaintiffs have brought this action for a declaratory judgment, to declare the action of the defendants in separating them from their employment to be null and void and in violation of the Act of 1912, 5 U.S.C.A. § 648, and the Veterans' Preference Act of 1944, 5 U.S.C.A. § 861, called the 'Acts' hereafter. They allege that they are basically qualified for other available positions presently held by nonveterans; that they are entitled to those positions by virtue of the aforementioned Acts, and that an efficiency rating of 'good' or better is the sole qualification of their absolute right to the positions.

 Plaintiffs also ask that the defendants, their officers, agents, servants, employees and attorneys, be enjoined from removing or separating them from their present positions or from reducing them in rank or salary.

 Pending the final hearing and determination of this suit on the merits, plaintiffs now seek a preliminary injunction for the same injunctive relief sought in the complaint.

 There are several objections to the jurisdiction and power of the Court to grant a temporary injunction in this action which must be considered at the outset.

 The defendants contend that the allegation in the complaints that 'the matter in controversy exceeds the sum or value of $ 3,000, exclusive of interest and costs' as required by Section 1331 of Title 28, U.S.C.A., is sham since as of this moment plaintiffs have not been deprived of this amount, and may never be, depending on future circumstances. The sum claimed in good faith by the plaintiffs is controlling on the question of jurisdiction, and only if it appears to a legal certainty that the claim is really for less than the jurisdictional amount can there be a dismissal on that ground. St. Paul Mercury Indemnity Co. v. Red Cab Co., 1938, 303 U.S. 283, 58 S. Ct. 586, 82 L. Ed. 845. It is sufficient if the plaintiff show the threat of a loss exceeding the jurisdictional requirement, and where permanent civil service positions paying approximately $ 5,000 a year are threatened, as in this case, the Court believes the jurisdictional requirement has been satisfied. Cf. Carroll v. Somervell, 2 Cir., 1941, 116 F.2d 918.

 Secondly, the defendants claim that the Administrator of Veterans' Affairs and the Chairman of the United States Civil Service Commission, neither of whom is within this Court's jurisdiction, are indispensable parties and that therefore the action should be dismissed. It is now settled that an administrative superior is not indispensable if 'the decree which is entered will effectively grant the relief desired by expending itself on the subordinate official who is before the court.' Williams v. Fanning, 1947, 332 U.S. 490, 494, 68 S. Ct. 188, 189, 92 L. Ed. 95. The decree which the Court is asked to grant in this case is directed solely at the officers in charge of the New York District Office of the Veterans' Administration. If granted, it will effectively give the relief desired and therefore the Administrator of Veterans' Affairs and the Chairman of the Civil Service Commission are not indispensable parties. Farrell v. Moomau, D.C.N.D. Cal. 1949, 85 F.Supp. 125. *fn1"

 The Administrator of Veterans' Affairs has merely issued an order directing a reduction in force in the Brooklyn Regional Office. The manner of effectuating this reduction is before the Court and is in the hands of the defendants. 'Any decree this Court could enter would not require that new positions be created of that new allocations be made for the payment of their salaries.' Farrell v. Moomau, supra, 85 page 127. The Civil Service Commission may be more directly affected by this suit, since they have promulgated regulations upon which the validity of the plaintiffs' discharge is based. However, the Court is asked to construe federal statutes in this action, and not Civil Service regulations. Whereas the Civil Service Commission may be a proper party to the action, it is not indispensable.

 The third contention of the defendants is that the decree here requested is in the nature of mandamus, which this Court cannot grant. 28 U.S.C.A. § 1651. That the Court cannot compel the restoration of the plaintiffs to their positions by writ of mandamus is conceded and it is for that very reason that the plaintiffs seek this injunction enjoining the defendants from proceeding with the allegedly illegal removal from office. See Farrell v. Moomau, supra. The Court believes that it has jurisdiction to protect rights granted in the Acts by means of injunctive relief.

 We come then to the most substantial of defendants' jurisdictional objections; that plaintiffs have failed to exhaust their administrative remedies. Defendants claim that this is an absolute bar to judicial relief at this time.

 This objection essentially involves not one, but two major considerations: (a) whether the requisite administrative remedies as a condition precedent to any judicial relief have been exhausted and (b) whether there exists jurisdiction in equity to grant the relief requested regardless of the stage of appellate proceedings, whether before an administrative agency or before a court of law. See Aircraft & Diesel Equipment Corp. v. Hirsch, 1947, 331 U.S. 752, 764, 67 S. Ct. 1493, 91 L. Ed. 1796. The exhaustion problem and that of equity jurisdiction are closely related.

 Considering the first category mentioned above, application for relief to a court of law has been allowed in cases either where there existed a clear violation of a statute, or where application of administrative regulations was clear and no special familiarity with complicated factual situations peculiar to the field was required. Wettre v. Hague, 1 Cir., 1948, 168 F.2d 825; Breiner v. Wallin, D.C.E.D. Pa. 1948, 79 F.Supp. 506; see Aircraft & Diesel Equipment Corp. v. Hirsch, supra, 331 page 773, 67 S. 1503; Trans-Pacific Airlines v. Hawaiian Airlines, 9 Cir., 1949, 174 F.2d 63.

 In this action plaintiffs claim primarily under the Act of 1912, Section 648, of Title 5 U.S.C.A., which provides in part that: 'In the event of reductions being made in the force in any of the executive departments no honorably discharged soldier or sailor whose record in said department is ...

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