The opinion of the court was delivered by: BRIEANT
By his complaint filed July 10, 1979 pursuant to 42 U.S.C. § 1983, plaintiff Bolivar Andrade challenges the constitutionality, as applied to him, of New York Civil Service Law § 85(I)(a) and the provisions of Article V, § 6 of the New York State Constitution, which together condition upon American citizenship eligibility for a veteran's preference for appointments pursuant to competitive examination in the New York State classified civil service.
Defendants Nadel and Foy are New York City officials charged with the administration of the New York Civil Service law with respect to municipal employment by the New York City Transit Authority. The action has been discontinued without prejudice as to defendant Harold L. Fisher. The Attorney General of the State of New York has been permitted to intervene and has filed a responsive pleading. Plaintiff seeks summary judgment pursuant to Rule 56, F.R.Civ.P.
The facts are not in dispute. Plaintiff is a native of Ecuador, who entered the United States prior to his 14th birthday, and has resided in the United States and in the State of New York from about 1956 to the present time. He is a lawful permanent resident alien.
On or about September 25, 1967, while a resident of New York State, plaintiff enlisted in the United States Army. He served in Viet Nam for thirteen (13) months and received six service medals: National Defense Service Medal, The Viet Nam Service Medal, The Viet Nam Campaign Medal, The Combat Infantryman's Badge, The Army Commendation Medal, and The Bronze Star. Returning to New York following his honorable discharge, Andrade took the civil service competitive examination for a Railroad Clerk, and through some unexplained administrative oversight, was awarded the 5 point added Veterans Preference Bonus to his test score. As a non-citizen, he was not entitled to this preference, under a literal reading of the statute and state constitution quoted below. As a result of his 5 point added Veterans Preference Bonus, he received a test score and list number which brought him a probationary appointment on or about November 13, 1978 as a Railroad Clerk for the Metropolitan Transit Authority. He has performed satisfactory work since his appointment, but on June 10, 1979 received a letter from the defendant Deputy New York City Personnel Director, informing him that he was to be terminated on July 13, 1979, solely for the reason that he was "not a citizen of the United States at the time of (Civil Service) list establishment, " and therefore was ineligible to receive a veteran's preference. Except for the requirement of citizenship, plaintiff is otherwise entitled to a veteran's preference. At the request of the Court, the parties stipulated that plaintiff would be allowed to retain his job pending resolution of this litigation.
The relevant constitutional provision and statutory enactment read as follows:
New York State Constitution, Article 5, § 6.
". . . veterans' preference . . .
(Any) member of the armed forces of the United States who served therein in time of war, who is a Citizen and resident of this state and was a resident at the time of his entrance into the armed forces of the United States and was honorably discharged or released under honorable circumstances from such service, shall be entitled to receive five points additional credit in a competitive examination for original appointment . . . . Such additional credit shall be added to the final earned rating of such member after he has qualified in an examination and shall be granted only at the time of establishment of an eligible list." (Emphasis added).
New York Civil Service Law, § 85.
"Additional credit allowed veterans in competitive examinations . . .
1. Definitions. (a) The terms "veteran' and "non-disabled veteran' mean a member of the armed forces of the United States who served therein in time of war, who was honorably discharged or released under honorable circumstances from such service, who was a resident of this state at the time of entrance into the armed forces of the United States and who is a Citizen and resident thereof at the time of application for appointment or promotion or at the time of retention, as the case may be." (Emphasis added).
No claim is made here that citizenship is required for appointment as a Railroad Clerk in the classified service. Indeed, if plaintiff had scored five points higher on the examination, he would have been hired without the veteran's preference, and defendants would not have sought to fire him.
The sole issue in this litigation is whether aliens, lawfully resident, who are veterans and who were residents of the State of New York at the time they entered United States military service, may be excluded from the benefits of ...