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November 9, 1971

Patrick McL. Dougall et al., Plaintiffs,
Jule M. Sugarman et al., Defendants

Tenney, District Judge; Lumbard, Circuit Judge (concurring).

The opinion of the court was delivered by: TENNEY

TENNEY, District Judge.

Plaintiffs are four of approximately twenty permanent resident aliens who, prior to December 28, 1970, were employed by private organizations which were merged into the New York City Human Resources Administration on that date. The City program was directed to the improvement of job skills among the unemployed and the underemployed. When the private organizations were merged into the City program, plaintiffs were hired by the City and assured their positions and salaries would be the same. *fn1" Shortly after their City employment commenced, however, plaintiffs were discharged pursuant to New York Civil Service Law § 53.1 (McKinney 1959), solely because of their alienage. *fn2"

 On May 11, 1971, by order to show cause plaintiffs, alleging that Section 53 violated the Equal Protection Clause of the fourteenth amendment, the Supremacy Clause of the Constitution, and their right to travel among the states, *fn3" moved for the convening of a three-judge court and other relief. The single district judge D.C., 330 F. Supp. 265, found plaintiffs raised a substantial constitutional question and recommended the convening of a three-judge court. Pursuant to the May 26, 1971 order of Chief Judge Henry J. Friendly, plaintiffs' motions for declaratory judgment, injunctive relief and determination of class action *fn4" were submitted to this statutory three-judge court which heard argument on July 13, 1971. *fn5"

 The issues raised by the instant action were recently the subjects of Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971), in which the Supreme Court held that state laws conditioning welfare assistance either on United States citizenship or, if the beneficiary was an alien, upon his having resided in the United States for a specified number of years were invalid. The rationale and holding of Graham control the outcome of plaintiffs' challenge to Section 53.

 The fourteenth amendment provides "nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws", and the Equal Protection Clause has long been held to apply to aliens as well as citizens. E.g., Yick Wo v. Hopkins, 118 U.S. 356, 369, 30 L. Ed. 220, 6 S. Ct. 1064 (1886). Of course, a state has traditionally been permitted to make classifications provided these have a reasonable basis. E.g., Dandridge v. Williams, 397 U.S. 471, 485, 25 L. Ed. 2d 491, 90 S. Ct. 1153 (1970). Nevertheless, when a state's classification either impinges upon a fundamental right, Shapiro v. Thompson, 394 U.S. 618, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969), or is based upon an inherently suspect classification such as race, nationality or alienage, that classification is subject to "close judicial scrutiny". Graham, supra at 372. Inasmuch as defendants have failed to demonstrate a compelling interest which would justify the classification created by Section 53, the statute violates the Equal Protection Clause of the fourteenth amendment.

 The City and State attempt to justify their refusal to allow aliens the opportunity to compete for employment in the competitive class of civil service (hereinafter referred to as "CCCS") on two grounds: (1) a government is entitled to conduct its affairs through the agency of persons with undivided loyalty, and (2) Section 53 is properly related to efficient and stable government administration.

 Since defendants neither elaborate on their loyalty argument nor contend that aliens, as persons with dual allegiance, are security risks, *fn6" it would appear that this justification is an application of the special public interest doctrine which is a phrase to describe the state's restricting the distribution of its limited resources to its own citizens. "Takahashi v. Fish & Game Commission, 334 U.S. 410, 92 L. Ed. 1478, 68 S. Ct. 1138 (1948), however, cast doubt on the continuing validity of the special public interest doctrine in all contexts." Graham, supra at 374; accord, Purdy & Fitzpatrick v. State, 71 Cal. 2d 566, 79 Cal. Rptr. 77, 456 P. 2d 645, 657-58 (1969).

 The Court in Graham, supra at 374, concluded that an alien's constitutional right to equal protection could not be made to depend upon the concept that government benefits were a privilege, not a right, which is the basis of the special public interest doctrine, see People v. Crane, 214 N.Y. 154, 164, 108 N.E. 427, 430, aff'd, 239 U.S. 195, 36 S. Ct. 85, 60 L. Ed. 218 (1915), especially since resident aliens are subject to the same obligations as citizens, such as taxes and military service. Accord, Purdy & Fitzpatrick, 456 P. 2d at 656. The arbitrariness and unfairness of denying aliens the employment benefits of the City and State are even more apparent when one realizes that an alien who may have resided in New York for a number of years and contributed to its growth and development is denied the opportunity to compete for employment in CCCS whereas any United States citizen (vis-a-vis an American citizen residing in New York) who may not be or have ever been a New York resident and, accordingly, may not have made any contribution to it, is eligible for such employment. Purdy & Fitzpatrick, 456 P. 2d at 656. Therefore, without a showing by defendants that the "loyalty" requirement bears a relationship to a compelling interest of the City and State, it violates the Equal Protection Clause.

 The second justification for Section 53 -- that it is properly related to efficient and stable government administration -- also does not withstand "close judicial scrutiny". Defendants contend that an alien is less likely to remain in the United States during his employment life than is an American citizen and, thus, if an alien is hired into a "career" position of CCCS, a decision to return to his homeland will adversely affect the efficiency and stability of the administration of the governments of the City and State. However, this argument of defendants is inapposite since it is primarily concerned with whether or not a "career" employee is likely to remain in the United States rather than in New York. There is no offer of proof on this issue and defendants would be hard pressed to demonstrate that a permanent resident alien who has resided in New York or the surrounding area for a number of years, as have plaintiffs, and whose family also resides here, would be a poorer risk for a career position in New York (vis-a-vis in the United States) than an American citizen who, prior to his employment with the City or State, had been residing in another state. Judicial notice can be taken of the mobility of today's society and of the numerous persons who flock to places such as New York City and Washington, D.C. for relatively short stays in order to gain valuable experience through government employment or for the adventure and glamour those cities offer. Inasmuch as the defendants do not attempt to distinguish among United States citizens in their hiring of "career" employees, their argument for discriminating against aliens is not valid. Assuming, arguendo, that it were valid, it still cannot withstand the requirements of the fourteenth amendment as enunciated in Graham.

 This efficiency argument of the City and State is an economic one -- if the defendants hire aliens into career positions and the aliens eventually quit and return to their homelands, new employees will have to be hired and trained to replace the experienced and therefore more efficient departed aliens; all of which costs defendants money. Again, however, as pointed out above in response to the "loyalty" argument, aliens pay taxes and often contribute to the welfare of the city and state in which they reside -- certainly more than do American citizens residing in another state or section of the country and, therefore, discriminating against aliens on economic grounds is particularly inappropriate. Furthermore, a state may not attempt to limit expenditures by creating invidious distinctions among persons within the state without violating the Equal Protection Clause, and the Supreme Court in Graham, supra, at 375, so held: " A concern for fiscal integrity is no . . . justification for the questioned classification in these cases. . . ."

 Although Graham did not explicitly overrule two early Supreme Court cases, Crane v. New York, 239 U.S. 195, 60 L. Ed. 218, 36 S. Ct. 85 (1915); Heim v. McCall, 239 U.S. 175, 60 L. Ed. 206, 36 S. Ct. 78 (1915), which are admittedly factually similar to the instant action and which upheld a New York statute prohibiting employment of aliens on public works, they are no longer controlling. In Purdy & Fitzpatrick, supra, the California Supreme Court was faced with a challenge to a statute virtually identical to that in Crane and Heim and unanimously held that the statute was violative of the Equal Protection Clause. In doing so, the court concluded that the original basis for the result in Heim was invalid and that recent developments in the law of equal protection had removed whatever validity Heim had at the time of its decision and that Takahashi warranted the rejection of such cases as Heim and Crane. If there were any doubt about the legitimacy of that California decision, it should have been put to rest by Graham which also strongly criticized the rationale of Crane and Heim and rejected it as a basis for denying welfare benefits to aliens. Taken together, Graham and Takahashi sufficiently weaken the value of Crane and Heim as precedents for upholding state laws denying aliens government employment and, therefore, those cases can be viewed as implicitly overruled and no longer law. That Graham did not explicitly overrule Crane and Heim can be viewed only as reflecting an intention to defer such action until faced with a proper factual setting in which states were given an opportunity to present their justifications for denying aliens employment opportunities. We are now faced with such a case and the City and State have failed to offer sufficient justification for Section 53; accordingly, we have adopted the reasoning of Graham and hold Section 53 violative of the Equal Protection Clause.

 In the opinion of this Court, Section 53 is also unconstitutional because it conflicts with the Supremacy Clause of the Constitution. Specifically, Congress has enacted a comprehensive plan for the regulation of immigration and naturalization and has granted to aliens through 42 U.S.C. § 1981 (1870) *fn7" the full and equal benefits of all laws in this country. "Moreover . . . the Supreme Court has made it clear that . . . aliens lawfully within this country have a right to enter and abide in any State in the Union 'on an equality of legal privileges with all citizens under non-discriminating laws.' Takahashi, 334 U.S. at 420." Graham, supra at 377-78. Relying on these premises, the court in Graham concluded that state laws restricting the eligibility of aliens for welfare assistance solely because of their alienage conflicted with the federal policy and hence were unconstitutional. Section 53 is invalid for these same reasons.

 In Truax v. Raich, 239 U.S. 33, 42, 60 L. Ed. 131, 36 S. Ct. 7 (1915), the court reasoned:

"The authority to control immigration -- to admit or exclude aliens -- is vested solely in the Federal Government. . . . The assertion of an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted to the State would be tantamount to the assertion of the right to deny them entrance and abode, for in ordinary cases they cannot live where they cannot work. And, if such a policy were permissible, the practical result would be that those lawfully admitted to the country under the authority of Congress, instead of enjoying in a substantial sense and in their full ...

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