for dismissing the complaint as to plaintiffs Breiner, Beeson, and Callahan.
There have been several suits filed in this Court which have arisen out of a readjustment of the supervisory force in the Shipyard. One of these suits was Hopkins et al. v. Wallin et al., Civil Action No. 8848.
The facts of this case, as they now exist, are identical with the facts in the Hopkins case, and the relief sought here is the same as that which was granted in the Hopkins case. The plaintiffs have been demoted, and nonveterans have been retained in the positions from which the plaintiffs were demoted. Each of the plaintiffs had efficiency ratings of 'good' or better. They contend that whether or not the nonveterans were actually more efficient than they, their rights under the aforementioned Acts have been violated by their demotions.
A preliminary mandatory injunction, restoring the plaintiffs to their former position, was granted in the Hopkins case. On appeal the Court of Appeals for the Third Circuit vacated that injunction and remanded the case for further consideration on the grounds that no findings of fact had been made, and that no band had been deposited. Hopkins et al. v. Wallin et al., 179 F.2d 136. However, in a dictum statement, that Court also added a word of caution to this Court when it said, 'The question of whether relief can be granted at all is not passed upon. But see the excellent opinion of Judge Driver in Palmer v. Walsh, D.C., 78 F.Supp. 64.' 179 F.2d at page 137.
In the Palmer case, the plaintiff was a discharged civil service employee of the War Department who was seeking reinstatement in her former or a comparable position. Judge Driver ruled that whether the action be treated '(1) as in the nature of a petition for a writ of mandamus (2) as a suit for a declaratory judgment, or (3) as a suit for a mandatory injunction,' 78 F.Supp.at page 65, the complaint must be dismissed for lack of jurisdiction.
There has been some quibbling in this case whether the plaintiffs desire restoration to or reinstatement in their former positions. Whatever is the proper term, the plaintiffs want to get their old jobs back. The basic problems raised by the primary relief sought in this case are the same as those which confronted Judge Driver in the Palmer case. In view of the admonition given by the Court of Appeals in the Hopkins case, I do not deem it necessary to repeat the logic of Judge Driver's words in order to reach a like conclusion in this case. Cf. Money v. Wallin et al., D.C.E.D. Pa. 1950, 88 F.Supp. 980.
Nor does the fact that they are veterans give the plaintiffs any consolation. I find nothing in the Acts under which this suit has been brought which gives this Court the jurisdiction to grant the desired relief.
Neither do I have the jurisdiction to remove the defendants summarily from office.
The Act of August 23, 1912 provides in part that 'Any person knowingly violating the provisions of this section (which gives veterans a preference over nonveterans in the event of reductions in force) shall be summarily removed from office. * * * .' 5 U.S.C.A. § 648.
I will not do indirectly that which I have no jurisdiction to do directly. In order to determine whether any violation, knowingly or unwittingly, has been committed by the defendants, I would have to determine the very issues which are the heart of the primary relief requested by the plaintiffs. This I will not do.
Furthermore, this statute is found in that portion of the United States Code Annotated which outlines the duties and responsibilities of the Civil Service Commission. 5 U.S.C.A. c. 12, Sec. 631 et seq. The finding and conclusion that the defendants should be summarily removed from office should come originally from that commission. No jurisdiction has been given to this Court to make such a determination. Cf. White v. Berry, 171 U.S. 366, 18 S. Ct. 917, 43 L. Ed. 199.
Inasmuch as this Court has no jurisdiction to hear this cause, it is not necessary for me to rule on the other motions which have been presented. Nor have I determined the validity of the other contentions advanced by the defendants in support of their motion to dismiss.
The plaintiffs' motion for summary judgment is denied. The defendants' motion to dismiss the complaint is granted.