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Vergara v. Hampton


decided: August 24, 1978.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 73-C-2537 - James B. Parsons, Chief Judge .

Before Pell and Tone, Circuit Judges, and Campbell, Senior District Judge.*fn*

Author: Tone

In Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S. Ct. 1895, 48 L. Ed. 2d 495 (1976), the Court held that a Civil Service Commission regulation barring lawfully admitted resident aliens from the federal competitive civil service deprived those aliens of due process rights. In so holding, the Court assumed but did not decide that the same bar would not be unconstitutional if it were imposed by Congress or the President. The President then issued an executive order renewing the bar.*fn1 The question before us is the validity of that order. Two district courts, one deciding the Mow Sun Wong case on remand, and the other a three-judge court in the First Circuit, have held the order valid. Mow Sun Wong v. Hampton, 435 F. Supp. 37 (N.D.Cal.1977), appeal pending, 9th Cir., No. 77-2649; Santin Ramos v. U. S. Civil Service Commission, 430 F. Supp. 422 (D.P.R.1977) (District Judge Toledo, with Circuit Judge Campbell and District Judge Pesquera). We reach the same result.

Plaintiffs are three lawfully admitted resident aliens who allege that they wish to take civil service examinations for federal employment, one as an auditor, the second as an office assistant, and the third as a carpenter. One of them has executed a declaration of intent to become a United States citizen. All aver that they are prepared to swear permanent allegiance to the United States. They allege that the executive order exceeds the President's constitutional and statutory authority and violates 42 U.S.C. § 1981 and the due process clause of the Fifth Amendment. Plaintiffs seek to represent a class consisting of all lawfully admitted aliens residing in Illinois who desire civil service employment. The District Court denied class status and, pursuant to defendants' motions to dismiss and for summary judgment, entered judgment against plaintiffs.*fn2

In the executive order, the President stated that he was acting "by virtue of the authority vested in (him) by the Constitution and statutes of the United States," including 5 U.S.C. §§ 3301 and 3302. The order is explained in identical letters of the same date, September 2, 1976, from the President to the Speaker of the House of Representatives and the President of the Senate, in which the President described the Mow Sun Wong case as stating "that either the Congress or the President might issue a broad prohibition against the employment of aliens in the civil service, but (holding) that neither the Congress nor the President had mandated the general prohibition contained in the regulations of the Commission."*fn3


Class Representation

The first question is whether the District Court properly refused to allow the action to proceed as a class action. Plaintiffs sought to bring the action on behalf of themselves "and all other nationals and citizens of foreign states living in Illinois who have been admitted into Illinois for permanent residence and who desire to apply and be eligible for appointment in the United States Civil Service." We hold that plaintiffs were entitled to a class determination in their favor.

The prerequisites to bringing a class action under Rule 23(b)(2), Fed.R.Civ.P., were established. The sole purpose of this action is to determine a legal question which is common to every member of the proposed class, who are in the same position with respect to that question as are plaintiffs.*fn4 It was unnecessary in circumstances such as these to establish that every member of the class "desired" to obtain Civil Service employment. Cf. Sosna v. Iowa, 419 U.S. 393, 397, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975). The numerosity requirement was satisfied by the census figures as to resident aliens in Illinois and the number of federal Civil Service positions in that state.*fn5 Cf. Senter v. General Motors Corp., 532 F.2d 511, 522-523 (6th Cir. 1976). The difficulty in determining the exact number of class members does not preclude class certification. Doe v. Charleston Area Medical Center, Inc., 529 F.2d 638, 644-645 (4th Cir. 1975). Cf. Jones v. Diamond, 519 F.2d 1090, 1100 (5th Cir. 1975). Finally, whatever may be the rule elsewhere, See Martinez v. Richardson, 472 F.2d 1121, 1127 (10th Cir. 1973); Ihrke v. Northern States Power Co., 459 F.2d 566, 572 (8th Cir.), Vacated on other grounds, 409 U.S. 815, 93 S. Ct. 66, 34 L. Ed. 2d 72 (1972), the rule in this circuit is that class certification may not be denied on the ground of lack of "need" if the prerequisites of Rule 23 are met. Fujishima v. Board of Education, 460 F.2d 1355, 1360 (7th Cir. 1975); Vickers v. Trainor, 546 F.2d 739, 747 (7th Cir. 1976). Accordingly, this action will proceed as a class action.


The President's Constitutional and Statutory Authority

Plaintiffs' first ground of attack on the executive order is that issuance of the order was beyond the President's constitutional and statutory authority. We agree with Judge Peckham's answer to this same argument in his opinion on remand in the Mow Sun Wong case, Supra, 435 F. Supp. at 41-42, Viz., that the question of authority was settled by the Supreme Court's opinion in that case.

The controlling question in the Supreme Court's analysis in Mow Sun Wong was whether the national interests asserted by the government to justify the Civil Service Commission's citizenship requirement, 426 U.S. at 103-104, 96 S. Ct. 1895, were interests on which that agency could properly rely as a basis for that requirement, Id. at 113-114, 96 S. Ct. 1895. The Court held they were not, Id. at 114-116, 96 S. Ct. 1895, and that therefore the adoption of the citizenship requirement deprived the plaintiff aliens of a liberty interest without due process, Id. at 116, 96 S. Ct. 1895.

In order to reach that controlling question, it was necessary to determine, Inter alia, whether Congress had authorized the President, who had delegated his authority to Civil Service Commission, to adopt the citizenship requirement. The respondent aliens had argued in their brief in the Supreme Court that Congress had not so authorized the President. Brief for Respondent in Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S. Ct. 1895, 48 L. Ed. 2d 495 (1976), at 53, Et seq. The Court held, 426 U.S. at 112-113, 96 S. Ct. 1895, that Congress had done so through 5 U.S.C. § 3301(1), which gives the President the authority to "prescribe such regulations for the admission of individuals into the civil service in the executive branch as will best promote the efficiency of that service." The President in turn had delegated the authority to the Commission.*fn6 If the Court had believed the statutory delegation to the President was insufficient to authorize the regulation, the case would presumably have been decided on that statutory ground, and the Court would not have reached the constitutional issue. See Jalil v. Hampton, 148 U.S.App.D.C. 415, 419, 460 F.2d 923, 927, Cert. denied, 409 U.S. 887, 93 S. Ct. 112, 34 L. Ed. 2d 144 (1972) (question of Civil Service Commission's authority under 5 U.S.C. § 3301 and Executive Order No. 10,577 to adopt the regulation later held unconstitutional in Mow Sun Wong must be determined before reaching constitutional issue); See also Ashwander v. TVA, 297 U.S. 288, 341, 347, 348, 56 S. Ct. 466, 80 L. Ed. 688 (1936) (Brandeis, J., concurring). We need not rely on this presumption, however, because the Court stated that it had "no doubt" that the statute and the executive order gave the Commission discretion "either (to) retain or modify the citizenship requirement without further authorization from Congress or the President." 426 U.S. at 113, 96 S. Ct. at 1910. Clearly, then, the statute granted authority to the President, which he had delegated to the Commission before Mow Sun Wong but has now exercised himself, to impose the citizenship requirement.


Section 1981

Plaintiffs argue that the executive order violates 42 U.S.C. § 1981, derived from § 16 of the Civil Rights Act of 1870, 16 Stat. 140, 144, which provides in pertinent part as follows:

All persons . . . shall have the same rights . . . to make and enforce contracts . . . as is enjoyed by white citizens . . . .

The argument is that aliens are among the persons protected from discrimination by § 1981, Graham v. Richardson, 403 U.S. 365, 377, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971); that the section is applicable to the federal government and its officials, City of Milwaukee v. Saxbe, 546 F.2d 693, 703 (7th Cir. 1976); that the section applies to discrimination in employment generally, including federal employment, Bowers v. Campbell, 505 F.2d 1155, 1157 (9th Cir. 1974); and that the President is subject to a valid act of Congress. This argument seems not to have been presented in Mow Sun Wong or the two cases holding the executive order valid (cited in the first paragraph of this opinion).

We reject the argument. If, as the Supreme Court concluded in Mow Sun Wong, 5 U.S.C. § 3301(1) confers authority on the President to impose a citizenship requirement for the federal civil service, 42 U.S.C. § 1981 is presumably inapplicable to such a requirement. Moreover, for at least the past forty years, Congress itself has adopted a series of enactments excluding, in varying degree, aliens from the federal civil service.*fn7 In view of its failure to take note of § 1981 in considering and adopting these statutes inconsistent with the interpretation of § 1981 urged here, it is unlikely that Congress has ever considered that section applicable to the citizenship qualification for federal civil service. In addition, as the Supreme Court noted in Mow Sun Wong, Congress has acquiesced for over a century in the imposition of citizenship requirements by the Civil Service Commission and other agencies, and although this acquiescence cannot be viewed as express approval, it is at least another indication that Congress has never viewed the citizenship requirement as contravening a federal statute. Cf. Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 94 S. Ct. 334, 38 L. Ed. 2d 287 (1973).*fn8 In view of this history, we are unable to hold § 1981 applicable to the citizenship requirement for the federal civil service.


Due Process

Mr. Justice Stevens' opinion for the majority in Mow Sun Wong "assume(d), without deciding," 426 U.S. at 114, 96 S. Ct. 1895, that the President may lawfully exclude aliens from the civil service. Justices Brennan and Marshall, whose approval of that opinion was necessary to make it an opinion of the Court, joined in it with the express understanding that the constitutional question was reserved. Id. at 117, 96 S. Ct. 1895. Nevertheless, there seem to us to be strong indications that the Court would sustain the President's power. The four dissenting justices, who thought the Civil Service Regulation valid, would, A fortiori, hold the executive order valid. A careful reading of the majority opinion convinces us that, notwithstanding the express reservations of two of the justices, at least some members of the majority would reach a different conclusion with respect to the validity of the executive order than they did with respect to the validity of the regulation. We note the recognition "that overriding national interests may provide a justification for a citizenship requirement in the federal service even though an identical requirement may not be enforced by a State,"*fn9 Id. at 119, 96 S. Ct. at 1913, and the Court's view that the argument in favor of the Commission's regulation "draws support from both the federal and the political character of the power over immigration and naturalization." Id. The latter proposition is underscored by the Court's unanimous decision the same day in Mathews v. Diaz, 426 U.S. 67, 96 S. Ct. 1883, 48 L. Ed. 2d 478 (1976), which sustained the constitutionality of a federal statute that limited Medicare eligibility to citizens and to aliens who had filed an application for permanent residence and had continuously resided in the United States for at least five years. Compare Graham v. Richardson, supra, 403 U.S. at 376, 91 S. Ct. 1848, which invalidated a state's conditioning an alien's eligibility to receive welfare benefits on residence in United States for fifteen years. The Court in Mow Sun Wong also "assume(d) with the petitioners that if the Congress or the President had expressly imposed the citizenship requirement, it would be justified by the national interest in providing an incentive for aliens to become naturalized, or possibly even as providing the President with an expendable token for treaty negotiating purposes . . . ." 426 U.S. at 105, 96 S. Ct. at 1906, See also, id. at 116, 96 S. Ct. 1895. Also the Court remarked that "if the rule were expressly mandated by the Congress or the President, we might presume that any interest which might rationally be served by the rule did in fact give rise to its adoption," Id. at 103, 96 S. Ct. at 1905, a presumption that would make it unnecessary for the defenders of the order to demonstrate what in fact gave rise to the adoption of the ban. Finally, the concluding paragraph of the opinion contains the following sentence:

Since these residents were admitted as a result of decisions made by the Congress and the President, implemented by the Immigration and Naturalization Service acting under the Attorney General of the United States, due process requires that the decision to impose that deprivation of an important liberty be made Either at a comparable level of government or, if it is to be permitted to be made by the Civil Service Commission, that it be justified by reasons which are properly the concern of that agency.

426 U.S. at 116, 96 S. Ct. at 1911 (emphasis supplied). Leaving out the alternative of the Civil Service Commission's decision to impose the citizenship requirement, the quoted sentence states that because the plaintiff aliens were admitted as the result of decisions made by Congress and the President, due process requires that the decision of whether to deny them the right to federal civil service employment while they remain resident aliens must be made "at a comparable level of government," which we understand to mean either Congress or the President. That requirement is satisfied by the executive order.

Elsewhere in the Court's opinion, as we have said, the question of whether due process imposes still other requirements is reserved. We believe, however, that the national interests asserted by the government to support the executive order, which the Supreme Court said in Mow Sun Wong might be sufficient, are sufficient, and that the Supreme Court would so hold.

It is unnecessary, we believe, to say more. Because the constitutionality of the citizenship requirement has so recently received intensive consideration from the Supreme Court, and, no doubt, will soon be before the Court again, a further discussion of that subject in this opinion would be of little value to the Court or others.


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