White v. Gates

253 F.2d 868, 102 U.S. App. D.C. 346

• Court: Court of Appeals for the D.C. Circuit
• Decided: January 23, 1958
• Docket: No. 13919
• Status: Published

Opinions

EDGERTON, Chief Judge.

These appeals are from an order which dismissed several complaints of non-veteran government employees or former employees alleging that the Veterans’ Preference Act, 58 Stat. 390, 5 U.S. C.A. § 861, discriminates against them in violation of their constitutional rights. We agree with the District Court that there is no substantial constitutional question.

Veterans’ preference in federal employment has been an established policy of Congress for many years. Encouragement and reward of military service are its rational basis. If it is unwise and costly, this does not make it unconstitutional. The Supreme Court and other courts have enforced it, and have done so without suggesting any possible constitutional difficulty. E. g., Hilton v. Sullivan, 334 U.S. 323, 68 S.Ct. 1020, 92 L.Ed. 1416; Reynolds v. Lovett, 91 U.S.App.D.C. 276, 201 F.2d 181, certiorari denied Wilson v. Reynolds, 345 U.S. 926, 73 S.Ct. 784, 97 L.Ed. 1357.

In a one-line per curiam opinion the New York Court of Appeals, of which Justice Cardozo was then Chief Judge, affirmed a lower court’s decision that a preference for veterans in State employment did not violate non-veterans’ constitutional rights. Gianatasio v. Kaplan, 257 N.Y. 531, 178 N.E. 782. Without comment, the United States Supreme Court dismissed an appeal from the Court of Appeals “for the want of a substantial federal question.” Gianatasio v. Kaplan, 284 U.S. 595, 52 S.Ct. 203, 76 L.Ed. 512.

If veterans’ preference legislation conflicted with the President’s constitutional prerogative, so would much of the Civil Service legislation that has been in force for many years. More than 70 years ago the Supreme Court said: “ ‘We have no doubt that when Congress, by law, vests the appointment of inferior officers in the heads of Departments it may limit and restrict the power of removal as it deems best for the public interest. The constitutional authority in Congress to thus vest the appointment implies authority to limit, restrict, and regulate the removal by such laws as Congress may enact in relation to the officers so appointed.’ ” United States v. Perkins, 1886, 116 U.S. 483, 485, 6 S.Ct. 449, 29 L.Ed. 700. In Myers v. United States, decided in 1926, the Court observed that it had “recognized in the Perkins case that Congress, in committing the appointment of such inferior officers to the heads of departments, may prescribe incidental regulations controlling and restricting the latter in the exercise of the power of removal.” 272 U.S. 52, 161, 47 S,Ct. 21, 71 L.Ed. 160. And even if the President were free to ignore such regulations he would still be free to comply with them. Through his subordinates, he is complying and defending compliance in this ease.

Without convening a three-judge court, 62 Stat. 968, 28 U.S.C. §§ 2282, 2284, a single judge may dismiss a complaint that attacks the validity of an Act of Congress but fails to raise a substantial constitutional question. California Water Service Co. v. Redding, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323; Otten v. Baltimore & O. R. Co., 2 Cir., 1953, 205 ; Wicks v. Southern Pacific Co., 9 Cir., 1956, 231 F.2d 130, certiorari denied Wicks v. Brotherhood of Maintenance, etc., 351 U.S. 946, 76 S.Ct. 845, 100 L.Ed. 1471. The District Court rightly dismissed the complaints for this reason. We need not consider whether some of them were subject to dismissal for other reasons also.

Affirmed.