Petition — City of Philadelphia v. Rumsfeld
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IN THE Supreme Court, U. $.
SUPREME COURT OF THE UNITED STATES °
JUL 21 1976
October Term, 1976 MICHAEL RODAK, JR. cLeRy
No. 76-43
CITY OF PHILADELPHIA AND JOSEPHINE Brown, Petitioners
AND
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, INC.
LocaL R3-2, et al.,
Intervenors in D.C., Petitioners
v.
HONORABLE JAMES R. SCHLESINGER, Secretary of Defense,
and
HONORABLE MARTIN R. HOFFMANN, Secretary of the Army,
Respondents
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT
OF APPEALS FOR THE THIRD CIRCUIT
Louis F. Hinman, III
Assistant City Solicitor
Harry Fuiman
Assistant City Solicitor
Joseph R. Lally
Assistant City Solicitor
Stephen Arinson
15th floor Chief Deputy City Solicitor
Municipal Services Bldg. Sheldon L. Albert
Phila., Penna. 19107 City Solicitor
TWE LEGAL INTELLIGENCER, 66 NORTH JUNIPER STREET, PHILA, PA. 19107 (215) 561-4058
TABLE OF CONTENTS
Page
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eS Br SE WHT 0 ov vc ec ccccnesecsenceses 5
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eile cae tie tee ee hese 19
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TABLE OF CITATIONS
Cases:
Alexander v. Gardner-Denver Co., 415 U.S. 36 1974 .. 10
Atlee v. Laird, 339 F.Supp. 1347 (E.D. Pa. 1972) .... 5
Baker v. Carr, 369 U.S. 186 (1962) ................ 5, 6
Bela Seating Company v. Advance Transportation Co.,
344 F.Supp. 854 (N.D. Ill., E.D. 1972) ......... 5
Bell v. Hood, 327 U.S. 678 (1964) .............e000. 5,6
Conley v. Gibson, 355 U.S. 41 (1957) ............... 10
Dailey v. Quality School Plan, Inc., 380 F.2d 484 (5th
ee De oie noha eked a wuheeekeenes ees 10
Eley v. Morris, 390 F.Supp. 913 (N.D. Ga. 1975) .... 5
Henderson v. Defense Contract Adm. Serv. Region, 370
A OB 8) eee 8
Jemsura v. Beldon, 281 F. Supp. 200 (N.D.N.Y. 1968).. 5
Knuth v. Erie-Crawford Dairy Corp. Assn., 395 F.2d 420
CE OE Gnas sekesaveseckveudansesanel 9, 10
TABLE OF CITATIONS—(Continued)
Cases: Page
Littleton v. Berbling, 468 F.2d 389 (7th Cir. 1972)
reversed sub. nom., O'Shea v. Littletea, 414 U.S.
EE 665 05s Rk SRRRD ROWERS ORO RERS ARES SS 6
Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971) ..... 5
Moody v. Albermarle Paper Company, 474 F.2d 134
Fe ED bch eked sen stenstasddncesdens 1]
Moore v. Ill. Central R. Co., 312 U.S. 630 (1911) ..... 14
Richardson v. Civil Service Comm. of State of New
York, 387 F.Supp. 1267 (S.D. N-Y. 1973) ...... 5
Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir.
ERE ee or rere Pree re rer 11, 13
Textile Workers vy. Darlington Mfg. Co., 380 U.S. 263
Sh nde path ea tk ke eK Ne aeee ee Reeeanns 12
United States v. Cook, 432 F.2d 1093 (7th Cir. 1970).. 14
United States v. Nixon, 418 U.S. 683 (1974) ........ 1]
Statutes:
Arsenal Act., 10 U.S.C. §4532 ........ 10, 13, 14, 15, 18
Civil Rights Act of 1964, as amended, Title VII, 42
es EN EE ic ows Maceensceceeeneens 8, 10
Statutory Construction Act of Pennsylvania, 1937 May
es SE MD 6.0 bacceenconcecneess 15
United States Constitution, Art. I, §8, Clauses 1, 12, 14,
ES RP ee er re een eye eee 14, 18
Regulations:
Executive Order No. 11478, August 9, 1969, 34 C.F-.R.
EE 56k. 444s cond tan ee abs 4 bte eekeeeeauens 7, 8
i
|
TABLE OF CITATIONS—(Continued)
Cases: Page
Other Authorities:
16 Am. Jur. 2d §§144-147, §§150-151, Constitutional
OPT CTE ES POTEET TT eT eee eee 14
Pe OW ats SUED BEDE os vk cccccusevevecsees 15
Webster’s Third Edition Unabridged English Dictionary
DE EE Su Unaatharaeeencavareonerenes 15, 16, 17
“How Much Is Enough”, Alain C. Enthoven and (Harper
Colophon 1971) K. Wayne Smith .............. 17
The Permanent War Economy—American Capitalism
in Decline, Seymour Melman—Simon & Schuster
EN sete a4b 6a tees FOssen ss ee wéieere cud 17
APPENDIX
Motion for Preliminary injunction ................. 2A
Complaint of Petitioner-Plaintiffs .................. 6A
Opinion and Order of the United States Court of
Ey ia. cess ceed nip nae acme wena 1B
Opinion and Order of the United States District Court.. 1C
RIN tae einen a es eee
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1976
No.
City of Philadelphia and Josephine Brown, Petitioners
And
National Association of Government Employees, Inc.
Local R3-2, et al.,
Intervenors in D.C., Petitioners
v.
Honorable James R. Schlesinger, Secretary of Defense,
and
Honorable Martin R. Hoffmann, Secretary of the Army,
Respondents
Petition for Writ ef Certierari te the United States
Court of Appeals for the Third Circuit
To THE CHIEF JUSTICES AND ASSOCIATE JUSTICES
OF THE SUPREME COURT OF THE UNITED STATES:
The herein petitioners respectfully pray that a Writ
of Certiorari issue to review the final judgment of the
United States Court of Appeals for the Third Circuit,
entered in the above entitled matter on April 15, 1976.
1
2
OPINIONS BELOW
The Opinion of the United States Court of Appeals
for the Third Circuit dated April 15, 1976, is officially
reproduced in, and is printed in the Appendix hereto
(App. 1B-7B). The opinion of the United States District
Court for the Eastern District of Pennsylvania is officially
represented in, and is printed in the appendix hereto
(App. 1C-9C).
JURISDICTION
The judgment of the United States Court of Appeals
was entered on April 15, 1976, and is printed in the Appen-
dix being the last line of the said Court’s Opinion. The
jurisdiction of this Court is invoked under 28 U.S.C. §1291.
QUESTIONS PRESENTED
1. Was it error for the court below to refuse a hearing
on the merits so that petitioners could establish by evi-
dence that respondents’ closure of Frankford Arsenal was
in bad faith, and part of a scheme to discriminate racially
against a minority class?
2. Does petitioners’ complaint aver sufficient charges
of bad faith, impropriety and violations of statutory and
constitutional mandates by respondents’ arbitrary closure
of Frankford Arsenal to afford a federal court jurisdiction
to enjoin respondents, pending a factual adversary hear-
ing on the merits relative to the economic operation of
Frankford Arsenal?
3
STATEMENT OF THE CASE
On November 22, 1974, the Secretary of the Army
announced the phased closure of Frankford Arsenal in
Philadelphia, Pennsylvania. The closure of Frankford
Arsenal will result in the transfer or elimination of 3,600
civilian jobs.
Petitioners brought an equity suit on May 16, 1975,
and filed a motion for preliminary injunction averring
impending irreparable harm as a result of respondents
unlawful decision to close the Frankford Arsenal. It was
alleged, inter alia, that the decision to close the Arsenal
was not founded on a statutorily mandated economic basis
and that the effect of the closure would engender a dis-
proportionate racial impact on government employment
opportunities for the facility's almost 600 non-white
employees.
The thrust of petitioners’ case is that the threatened
closure is part of the Defense Department's plan to abolish
the manufacturing and watchdog functions of the arsenal
system in the United States. This system has historically
provided skilled, civilian Arsenal personnel to monitor and
supervise private armament contractors. The present clo-
sure decision is aimed at replacing that system with pri-
vate contractors, less subject to the monitoring and
supervisory influence of arsenal personnel. Petitioners also
charge respondents with bad faith by way of conflicts of
interest and other derelictions of duty.
In addition, petitioners alleged that the closure deci-
sion will result in racial discrimination as to the petitioner,
Josephine Brown, a black, individually as a taxpayer and
to the members of her class. Even though the petitioner,
Josephine Brown, has been employed at the arsenal for
more than 25 years, no promise of continued employment
or other provisions (other than early retirement) have
been planned by the Army for her and others like her.
Presently, Arsenal facilities in Rock Island, Illinois are
4
accepting Frankford Arsenal transferres. However, the
facility does not offer minority members the socio-eco-
nomic advantages of the City of Philadelphia, nor is the
proportion of minority population in that area as great as
in Philadelphia. Therefore, the closure of the Frankford
Arsenal will eliminate the government employment oppor-
tunity for a substantial number of minority citizens, while
creating employment opportunity at another facility
located in an area of the country where the proportionate
number of non-whites is substantially and effectively
fewer than in Philadelphia.
The District Court completely ignored the well-
pleaded averments of discrimination and the absence of
economic basis for the Secretary of the Army’s decision to
close the Frankford Arsenal and dismissed petitioners’
complaint for lack of jurisdiction (App. 9C) on Novem-
ber 4, 1975.
On November 26, 1975, the petitioners filed an appeal
to the United States Court of Appeals for the Third Circuit,
which on April 15, 1976, affirmed, per curiam, the District
Court's decision to deny petitioners an adversary hearing
for an injunction.
5
REASONS FOR GRANTING THE WRIT
I. Scope of Review
THE IssUES PRESENTED FOR REVIEW BEFORE THIS
Court CONCERN CONCLUSIONS OF FACT AND LAW
MADE BY THE Disrrict CourT WITH RESPECT TO
ITs JURISDICTION OVER PFTIFIONERS CLAIMS, AND
SHOULD BE REVERSED UNLESS IT CLEARLY AP-
PEARS THAT THE ALLEGED CLAIMS ARE IMMA-
TERIAL, ARE MADE SOLELY FOR THE PURPOSE
OF OBTAINING JURISDICTION, OR WHERE SUCH
CLAIMS ARE WHOLLY INSUBSTANTIAL AND FRIV-
OLOUS.
The law is clear that a suit may be dismissed for
want of jurisdiction where the alleged claim under the
Constitution or federal statutes clearly appears to be imma-
terial and made solely for the purpose of obtaining juris-
diction or where such claim is wholly insubstantial and
frivolous. Bell v. Hood, 327 U.S. 678, 683 (1964); Mindes
v. Seaman, 453 F.2d 197, 198 (5th Cir. 1971); Eley v.
Morris, 390 F. Supp. 913, 919 (N.D. Ga. 1975); Richard-
son v. Civil Serv. Comm. of State of New York, 387 F.Supp.
1267, 1271 (S.D. N.Y. 1973); Atlee v. Laird, 339 F.Supp.
1347, 1351 (E.D. Pa. 1972); Bela Seating Company v.
Advance Transportation Co., 344 F. Supp. 854, 855 (N.D.
Ill., E.D. 1972); Jemsura v. Beldon, 281 F. Supp. 200, 205
(N.D. N.Y. 1968).
in Baker v. Carr, 369 U.S. 186, 199 (1962), the
Supreme Court stated:
“Dismissal of [a] complaint upon the ground of
lack of jurisdiction would be justified only if that
claim were so attenuated and unsubstantial as to be
absolutely devoid of merit.”
6
Rather, for the Court to dismiss a suit for lack of
jurisdiction, the cause of action alleged must be so pa-
tently without merit as to justify the court’s dismissal for
want of jurisdiction. Bell v. Hood, supra.; Littleton v.
Berbling, 468 F.2d 389, 395 (7th Cir. 1972), reversed (on
other grounds) sub nom., O’Shea v. Littleton, 414 U.S. 488
(1974), vacated sub nom., Spomer v. Littleton, 414 U.S.
514 (1974).
The court below affirmed not on the basis of the plead-
ings herein, but on statements by respondents not under
oath. Respondents filed no answer, made no discovery;
they simply supplied to the court as part of their brief,
what they called an Addenda. From these the Circuit Court
in its opinion accepted as Fact 111 alleged arsenal closings,
transfer of arsenal employees, 24 million dollars in savings
annually. Respondents not only did not plead these facts,
they never disputed or denied any fact or informational
averments in petitioners’ complaint, which must be ac-
cepted as true, in considering respondents’ motion to
dismiss. This is precisely the nub of the suit herein.
Respondents claim sub rosa that the arsenal closing will
save money. That saving, if any, is only one factor in an
inquiry as to the economic basis of operating Frankford
Arsenal. Were petitioners given their day in court for
adversary hearing, they have ready and can produce
massive evidence to support their theory that the proposed
Arsenal closing is without economical basis, but rather a
planned scheme by the Army to dominate the United States
economy in substitution of the Congress and our society.
Thus, this Court has jurisdiction and petitioners have
stated a cause of action.
A. Petitioners Have Presented a Cause of Racial Discrim-
ination When the Subject Matter Alleged Demon-
strates That the Contemplated Closing of the Frank-
7
ford Arsenal Engenders a Disproportionate Discrimi-
natory Racial Impact Upon Minority Arsenal Em-
ployees.
In their complaint for injunctive relief and declaratory
judgment, the petitioners alleged that the phased closing
of the Frankford Arsenal would cause a serious impact on
minority employment opportunities in the Philadelphia
area (App. 7A) and that the transfers contemplated by
the Army in the wake of the Arsenal closing would effect a
racially discriminatory impact (App. 8-9A).
In support of the claims, petitioners alleged that Secre-
tary of the Army’s decision to close the Arsenal violated
the statutory mandate of the Civil Rights Act of 1964, as
amended, and Presidential Executive Order No. 11478
implementing 42 U.S.C. §2000e. (App. 6A).
Section 2000e-16 of the Civil Rights Act provides:
“(a) All personnel actions affecting employees
or applicants for employment . . . in military depart-
ments as defined in Section 102 of Title 5, in execu-
tive agencies . . . as defined in Section 105 of Title 5
. Shall be free from any discrimination based on
race, color, religion, sex or national origin . . .
“(e) Nothing contained in this Act shall relieve
any Government agency or official of its or his
primary responsibility to assure non-discrimination in
employment as required by the Constitution and
Statutes or of its or his responsibilities under Execu-
tive Order 11478 relating to equal employment oppor-
tunity in the Federal Government.” [emphasis added]
Executive Order 11478, August 9, 1969, 34 C.F.R.
12937 provides:
“Section 1. It is the policy of the Government of the
United States to provide equal opportunity in Federal
8
employment for all persons, to prohibit discrimina-
tion in employment because of race, color, religion,
sex, or national origin, and to promote the full realiza-
tion of equal employment opportunity through a con-
tinuing affirmative program in each executive depart-
ment and agency. This policy of equal opportunity
applies to and must be an integral part of every
aspect of personnel policy and practice in the employ-
ment, development, advancement, and treatment of
civilian employees of the Federal Go, :rnment.
“Section 2. The head of each executive department
and agency shall establish and maintain an affirma-
tive program of equal employment opportunity for
all civilian employees and applicants for employment
within his jurisdiction in accorcdance with the policy
set forth in section 1. It is the responsibility of each
department and agency head, to the maximum extent
possible, to provide sufficient resources to administer
such a program in a positive and effective manner. . .
“Section 6. This Order applies (a) to military depart-
ments as defined in section 102 of title 5 United
States Code, 5 U.S.C.A. §102.”
Although §2000e-16 was not included in the original
enactment of the Civil Rights Act of 1964,- Title VII, 42
U.S.C. §2000e et seq,’ the right of federal employees to be
free from the effects of employment discrimination was
recognized when Congress enacted amendments to Title
VII in March of 1972.2 Henderson v. Defense Contract
Administration Services Region, 370 F. Supp. 180 (S.D.
N.Y. 1973).
1. Pub. L. 88-352, Title VII, §701, July 2, 1964, 78 Stat. 253.
2. Pub. L. 92-261, §11, March 24, 1972, 86 Stat. 111.
9
In support of the claim that the closing of the Frank-
ford Arsenal would engender a disproportionate racial
impact on the minority employees working at the Arsenal,
petitioners alleged statistical data which clearly indicated
the discriminatory impact of the planned abolition of the
arsenal.
It was alleged that the majority of job transfers (ap-
proximately 1,239) are to the Army’s Rock Island, Illinois
facility. The statistical data demonstrated the following:
(1) Total Philadelphia SMSA (Stan-
dard Metropolitan Statistical Area )
Population 5,000,000 (Est. )
(2) Total Philadelphia SMSA Minority
Population 845,000 or 18%
(3) Total Rock Island, Illinois SMSA
Population 365,000 (Est. )
(4) Total Rock Island SMSA Minority 13,000 ( Est. )
Population or 3.7%
(5) Present minority employment at 589 or 17% of Total
Frankford Arsenal Frankford Arsenal
employment;
(6) Present minority employment at 450 (Est.)* or 6% of
Rock Island facility total employment
(App. 12a-14a)
Despite all of the above allegations, the District Court
herein granted respondent's motion to dismiss for lack of
jurisdiction. On a motion to dismiss, the court must accept
as true all material allegations of the complaint, Knuth v.
3. The Army has refused to supply exact statistical data con-
cerning the actual number of non-white employees at the various
facilities accepting transfers. However, if the decision of the Dis-
tric Court herein is reversed and remanded for trial on the merits.
the plaintiffs could obtain needed information by discovery.
10
Erie-Crawford Dairy Corp. Assn., 395 F.2d 420, 423 (3d Cir.
1968); Dailey v. Quality School Plan, Inc., 380 F.2d 484,
486 (5th Cir. 1967). In appraising the sufficiency of any
complaint, it is axiomatic that it should not be dismissed
unless it appears, beyond doubt, that a plaintiff can prove
no set of facts in support to his claims which would
entitle him to relief. Conley v. Gibson, 355 U.S. 41 (1957).
Instead, the District Court herein decided that the
closing of a military arsenal did not constitute “personnel
action” within the meaning of the Civil Rights Act, 42
U.S.C. §2000e-16(2). (A.52a). The District Court ven-
tured this opinion based on its determination that the
Secretary of the Army had unqualified authority over such
installations.‘
There is no question that such an interpretation of the
phrase “personnel actions” completely repudiates the ex-
press purpose of the Civil Rights Act and its amendments:
to eliminate those practices and devices that discriminate
on the basis of race, color, religion, sex or national origin.
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974).
The District Court’s analysis herein defies logic and flies
in face of established legal precedent. Nowhere can it be
found that the Secretary of the Army may ignore the Civil
Rights Acts and Executive Order No. 11478 which ex-
pressly state that it is the primary responsibility® of all
officials to provide equal employment opportunity. The
4. This decision was based on the erroneous assumption that
10 U.S.C. §4532(b) granted untrammeled discretion to the Sec-
retary of the Army to abolish any arsenal in the United States
despite the preceding paragraph (a) requiring an economic basis
for closure of arsenals. See, Argument part B, infra.
5. 42 U.S.C. §2000e-16(e) and Executive Order No. 11478
Section 2.
Furthermore, Congress in enacting this section, intended to
provide for federal employees the same right to judicial review of
discrimination as provided private employees. Henderson. supra.
1]
Secretary of the Army’s authority and control of United
States arsenals cannot be beyond the power of the federal
courts to enjoin illegal conduct and to command compli-
ance with the law. See, United States v. Nixon, 418 U‘S.
683 (1974).
Although the reasons behind the Secretary's decision
to close the Frankford Arsenal may be lawful, the peti-
tioners are erroneously being denied an opportunity to
prove their case. The petitioners have alleged sufficient
facts to demonstrate that the closure of the Frankford
Arsenal will result in a loss of equal employment for the
minority employees of the Frankford Arsenal and will
cause an adverse racial impact on minority personnel who
may desire transfer. As the Supreme Court has stated:
“The Act [42 U.S.C. §2000e et seq.] proscribes not
only overt discrimination but also practices that are
fair in form, but discriminatory in operation. Griggs
v. Duke Power Co., 401 U.S. 424, 431 (1971).”*
The petitioners have clearly demonstrated that the
closing of the Frankford Arsenal will have a differential
racial impact. Therefore, the Government should be put to
the test of proving that their action in closing the arsenal
was motivated by business necessity. See Moody v. Alber-
marle Paper Company, 474 F.2d 134 (4th Cir. 1973).
By interpreting Section 2000e-16 in such a manner
as to place the Secretary of Army’s action beyond the
jurisdictional power of the federal courts, the District
6. See also, Rowe v. General Motors Corporation, 457 F.2d
348, 354 (5th Cir. 1972) where the Court stated “the only justifi-
cation for standards and procedures which may, even inadver-
tently, eliminate or prejudice minority group employees is that
such standards or procedures arise from a non-discriminatory
business necessity.”
However, here respondents do not even have to prove busi-
ness necessity, since petitioners are precluded from making a
case!
12
Court has departed from established legal concepts. See,
Nixon, supra. Furthermore, the Army is not closing the
Frankford Arsenal in the sense that the Army is terminat-
ing its business; rather the Army is transferring to other
facilities (i.e. Rock Island, Ill. and private enterprise) the
activities performed by the Frankford Arsenal.
By analogy, the Supreme Court has held that an em-
ployer may terminate his entire business for any reason he
pleases, but such right does not include the ability to close
part of a business no matter what the reason. Textile
Workers v. Darlington Mfg. Co., 380 U.S. 263, 268 (1965).
In Darlington, an employer attempted to circumvent the
purposes of the National Labor Relations Act, 29 U.S.C.
§158, by closing down part of his business operations in
one area of the country where union organizing activity
was occurring, while maintaining part of his business in
another area where he was free from union interference.
The Supreme Court reversed the Court of Appeals and
affirmed the decision of the Labor Board by holding:
“Thus it is not questioned in this case that an employer
has the right to terminate his business, whatever the
impact of such action on concerted activities, if the
decision to close is motivated by other than discrimin-
ating reasons.” 380 U.S. 269. [emphasis added}
Just as one of the purposes of the National Labor
Relations Act was to prohibit the discriminatory use of
economic weapons to destroy a union, 380 U.S. 271,. the
purpose behind the Civil Rights Act, and more particularly
§2000e-16, was to eliminate discriminatory employment
practices in government, Henderson, supra.
Therefore, when a cause alleges that the purpose of
the Secretary of Army in closing the Frankford Arsenal is
not motivated by economic necessity, and that such closing
will result in an adverse racial impact on minority employ-
ment opportunity at that facility then it is imperative that
13
ihe federal court grant jurisdiction and give the petitioners
herein their “day in court” to prove their allegations.
Moreover, the Civil Rights Act, unlike the National
Labor Relations Act, does not require intentional miscon-
duct or discrimination before the federal courts may act.
In employment discrimination cases, the federal courts
are empowered under the Civil Rights Act to enjoin conduct
which, even inadvertently, discriminates. Rowe, supra.
B. Petitioner’s Complaint Does Allege Sufficient Jurisdic-
tion From Which a Court Could Reasonably Infer
Impropriety and Violations of Statutory and Consti-
tutional Mandates, Which Would Afford the Federal
Court the Power and Duty to Enjoin the Unauthor-
ized, Unjustified Closing of the Frankford Arsenal
Pending a Factual Adversary Hearing Before the
Court as to the Economic Basis of the Arsenal Opera-
tion and Bad Faith of Respondents.
Petitioners’ complaint avers many issues of fact which
require petitioners to have their day in court to proffer
evidence that respondents, individually, have violated the
Arsenal Act; have a conflict of interest in their official
capacity; intend to elimina e this country’s prime security
guard for military and definse safety of the nation; and
that the Frankford Arsenal operated on an economical
basis.
1. The Arsenal Act, 10 U.S.C. §4532 reads:
“Factories and Arsenals: Manufacture at; abolition of
(a) The Secretary of the Army shall have supplies
needed for the Department of the Army made in
factories or arsenals owned by the United States,
so far as those factories or arsenals can make
those supplies on an economical basis.
(b) the Secretary may abolish any United States
Arsenal that he considers unnecessary. Aug. 10,
1956, c. 1041, 70A Stat. 254.”
14
The words “Shall” in section (a), and “May” in section
(b) in the Code must be read to effect the validity of the
Arsenal Act, by showing the harmonious relation between
these two sections. That is, both are essential to operation
of the Act. First, to justify abolition of an arsenal, it must
be established that an arsenal is not being operated on an
“economical basis”, before the Secretary of the Army can
exercise his discretion, to abolish, as evidenced by “May”
in the Act. [Section (b)].
Our authority is 16 Am. Jur. 2d Constitutional Law,
Sections 144, 145, 146, 147, 150, 151. The latter section,
151, pp. 356-359, deals with the judicial technique for the
determination of the validity of a statute, which may
appear ambiguous. The text states that the eyes of the
court are never limited to the mere letter of the law, but
that they may look behind the letter to determine the true
purpose and effect.
Among the cases cited in 16 Am. Jur. 2d, supra, are:
United States v. Cook, (7th Cir. 1970), 432 F.2d 1093, 1098;
and Moore v. Ill. Central R. Co., 312 U.S. 630-636, 85 L. Ed.
1059 (1911). Both cases involve regulations or acts which
employ word “shall” and “may”.
It is the opinion of the writer in the instant case that
the Arsenal Act offers no real ambiguity; instead the order
of the words “shall” and “may” show beyond question that
under the U.S. Constitutional Mandate of Article I, Section
8, Clauses 1, 12 and 17, Congress required the United States
Secretary of the Army to set up and maintain, first inter
alia, defensive military supplies, factories—arsenals such
as Frankford Arsenal, and the Secretary is “required to”
retain them as long as they operate on an economical basis,
secondly, the Secretary may at his discretion, if the eco-
nomical basis is not operative, abolish such arsenal that he
considers unnecessary. The Secretary's discretion cannot
be arbitrary. To permit that is to disregard the mandatory,
directory character of “shall” in the Section (a) of the
Arsenal Act.
15
In accord with petitioners’ analysis of the Arsenal Act
are the general rules for the Construction of Statutes, as
set forth in the Statutory Construction Act of Pennsylvania,
46 P.S. §§551, 552, 1937; May 28. P.L. 1019, article IV,
§51, §52. See also 34 P.L.E. Statutes §§123-128, on Con-
struction To Effect Legislative Purpose, at 430.
It is always presumed that a statute was intended to
have the most reasonable and beneficial operation that its
language permits. A purpose to disregard sound public
policy must not be imputed to a legislature except upon
the most cogent and clear evidence. However, the function
of the courts in this regard is solely that of interpretation.
Plain and unambiguous words may not be disregarded
—§128, 36 P.L.E., supra. “Shall” and “May” are plain, un-
ambiguous terms. Therefore, they must be both used har-
moniously to effect application of the Arsenal Act, 10
U.S.C. §4532.
It follows that the significance of “economical basis”
must be determined, by evidentiary means; which the peti-
tioners intend to supply factually at the trial of this suit.
Economics is not a science like physics or chemistry,
or mathematics; its meaning is not exactly nor precisely
clear. Many definitions have been applied to “economic”
“economy”, “economical”, as reported in dictionaries—law
and general—as well as in many textbooks. What is com-
mon to these definitions is their circuitry of thought, their
variety in application, and the number of disagreements
among text writers and economists as to the meaning of
the terms involved herein.
For example, “economics” and “economy” are thus
treated in Webster’s Third Edition Unabridged English
Dictionary :
“ec-o-nom-ic/ .. . also ec-o-nom-i-cal . . . adj. [economic
fr.LL oeconomicus of or relating to a divine dispensa-
tion. fr. LGK oikonomikos, fr. Gk, skilled in the man-
agement of a household, frugal, fr. oikonomos steward
16
& -ikos -ic; economical fr. LL oeconomicus & E -al
—more at ECONOMY] 1 usu economical, archaic: of
er relating to a household or its management: of or
relating to a divine dispensation or system of govern-
ment 2 usu economical: given to thrift (a sturdy,
handsome, high-colored woman . . . economical and
sensitile — Carl Van Doren): productive of saving
(sea power is the . . . most economical form of mili-
tary power—Time ): sparing in quantit (as of words )
(a style as economical and exact as a theorem in
geometry — Richard Harrity)
“3.a: of or relating to the science of economics (re-
jected the doctrines of Richardo): of, relating to, or
concerned with the production, distribution, and con-
sumption of commodities (a program to prevent in-
flation and colJapse) (a council of advisers): MATE-
RIAL (moved exclusively by motives) b: having
practical or industrial significance, uses or application
(the plants of a region): affecting or liable to affect
material resources or welfare (two — pests were in-
tercepted by . . . inspectors during recent weeks —
Farm Chemicals) c: operated or produced on a profit-
able basis: producing an excess of returns over ex-
penditures (reactor types which might be developed
to produce — power—U.S. Code): capable of or liable
to profitable exploitation ( beds of phosphate are
found only under marine conditions — A.M. Bate-
man): PROFITABLE (barely — since she paid a nurse
almost as much as she made herself — Elizabeth
Janeway) syn see sparing.”
Vol. 14, Words and Phrases, pp. 114 to 118 and pocket
part 1974, pp. 17-21 inclusive, also pursue definition for
the meaning of “economic concept, through the phrases
“economic”, “economical”, “economically attributed to the
wife”, “economic benefit”, “economic burden”, “economic
control”, “economic gain”, “economic interest”, “economic
17
need”, “economic obsolescence”, “economic relationship’,
“economic value”, “economic adulteration”, “economically
significant section of country”, “economic appraisal to
value”, “economic benefit or cash value”, “economic du-
ress”, “economic hardship”, “economic income”, “economic
loss”, “economic power”, “economic reality”, “economic
reasons”, “economic rental”, “economic strike”, “economic
unity”, “economic waste.”
Examination of the above cited terms, their defini-
tions and legal references leave the student, the lawyer,
or the inquirer, with no clear notion of the meaning of the
term “economic” and its allied words and language. Yet,
the economical is an all pervasive influence in the lives of
everyone. Inquiry into the means and application of this
topic and its meaning to the City of Philadelphia, Jose-
phine Brown, the respondents, as mandated by Congress,
must be sought in the facts to be adduced by petitioners
in the trial of this cause.
The crisis issue is not merely a matter of saving
money for our defense, but the economic damage this
country has suffered anc will continue to do so, because
of the uneconomic behaviour of our Defense Department
in the Pentagon since 1960. One authority is “How much
is Enough?” (1971) by K. Wayne Smith (Harper (Colo-
phon )); another is Seymour Melman, whose most recent
publication is “The Permanent War Economy”, American
Capitalism In Decline. (Simon and Schuster (1974), in
which the author shows that our modern defense system,
far from ensuring prosperity, has in fact drained Amer-
ican industry of its initiative, its ability to produce » rofit
and its competitive spirit. Tracing the history of our belief
that a “War economy” produces prosperity, Melman shows
how the enormous and wasteful investments in defense
spending has led to America’s decline as an industrial
power and to the stagnation of the once powerful Amer-
ican economy. He analyzes the great defense schemes that
have cost billions and delivered little, and shows just what
18
effects those disastrous programs have had on our national
life and culture. He demonstrates how defense spending
has led us to ignore the areas of capital investment that
would, in fact, renew our falling economy, and how our
war economy has contributed to inflation.
In light of the foregoing which makes clear our eco-
nomic dangers engendered by the Pentagon's flouting of
the U.S. Constitution, Article I, Section 8, Clauses 1, 12, 14,
17; The Arsenal Act, 10 U.S.C. §4532, under which Congress
exercised its power to erect and maintain arsenals, and
likewise, violating the congressional order to maintain
economically-based arsenals, while the Defense Depart-
ment’s prime officials enjoyed their conflicts of interest,
and ignored their duties during their Pentagon officialdom,
it seems that petitioners have presented adequate grounds
for the Court’s jurisdiction as well as stated a substantial
cause of action, under oath, and involving a most serious
issue affecting the economic safety of this country. Verbal
abstractions, like “Arsenal”, “jurisdiction”, “standing”,
“cause of action”, and so on fail to pinpoint cleariy the
issues involved here, in the absence of concrete evidence
of Respondents’ wrongs, which petitioners are prepared to
show on their day in court in an adversary contest.
This Court has the common law jurisdiction to right
the grievous wrong done to petitioners by the respondents.
19
CONCLUSION
For all of the foregoing reasons, petitioners respect-
fully request that the Petition for Certiorari should be
granted.
Respectfully submitted,
Louis F. Hinman, III
Assistant City Solicitor
Attorney for Petitioners
20
CERTIFICATION
I, Louis F. Hinman, III, Assistant City Solicitor, Attor-
ney for appellants in the Case of City of Philadelphia, et al
v. Schlesinger, et al, do hereby certify that copies of peti-
tioners’ Petition for Certiorari were mailed to Arnold
Anderson Vickery, Assistant to General Counsel, at his
office in Washington, D.C., and other counsel of record,
by mailing same by first class mail, postage prepaid on
July 13, 1976.
Louis F. Hinman, III
1A
IN THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT
OF PENNSYLVANIA
No. 75-1405
CITY OF PHILADELPHIA
15th Floor
Municipal Services Bldg.
Philadelphia, Pa.
and
JOSEPHINE BROWN
5751 N. 20th Street
Philadelphia, Pa.
Plaintiffs
v.
JAMES R. SCHLESINGER
Secretary of Defense, et al
Room 3E718, The Pentagon
Washington, D. C. 20310
and
MARTIN R. HOFFMANN
Secretary of the Army
Room 3E718, The Pentagon
Washington, D.C. 20310
Defendants
Civil Action
2A
Motion for Preliminary Injunction
Upon the verified Complaint and the Affidavit of the
Plaintiff, City of Philadelphia, which is annexed hereto,
plaintiffs move the Court as follows:
1. To issue a Preliminary Injunction enjoining the
defendants, JAMES R. SCHLESINGER, Secretary of Defense
and HOWARD H. CALLAWAY, Secretary of the Army. their
successors, agents, officers and ail other acting under
their supervision and control, freza proceeding with, caus-
ing, or ordering the closing 2nd/or abolition of the Frank-
ford Arsenal, Philadelphia, Pennsylvania, or the transfer
or relocation of facilities located at the Frankford Arsenal,
or the transfer or elimination of jobs held by the plaintiffs
and persons similarly situated in connection with a pro-
posed closure of Frankford Arsenal on the grounds that:
(a) Such action by defendants is in violation of Title
10 U.S.C. §4532, August 10, 1956, C.1041-70A
Statute 254, known as The Arsenal Statute, and
Executive Order 11478 dated August 8, 1969.
(b) Unless restrained by this Court, defendants will
continue to perform the acts referred to, in viola-
tion of the law.
(c) Such action, if continued by defendants, will re-
sult in irreparable harm, loss and damage in that
the individual taxpayer plaintiff will suffer loss
of employment, and taxpayers will bear the cost
of the contemplated illegal and uneconomic clos-
ing of the Arsenal.
(d) Such action, if continued by the defendants, will
result in irreparable harm, loss and damage to
the City of Philadelphia, plaintiff, in that the
City of Philadelphia will suffer loss of tax income,
and the attendant economic harm to the com-
merce and general welfare of the community.
3A
(e) The issuance of a Preliminary Injunction herein
will not cause inconvenience or loss to the de
fendants, but will prevent irreparable harm and
injury to the plaintiffs, and will prevent further
violation by the defendants of the law, to wit,
Title 10 U.S.C. §4532, known as the Arsenal
Statute.
2. To grant the plaintiffs such other relief under the
circumstances as is just and reasonable.
Respectfully submitted,
Joseph R. Lally
Assistant City Solicitor
Stephen Arinson
Chief Deputy City Solicitor
Sheldon L. Albert
City Solicitor
Attorneys for City of Philadelphia
4A
(Caption Omitted in Printing)
Affidavit
Commonwealth of Pennsylvania
SS.
County of Philadelphia
The undersigned, Harry R. Belinger, in the within
action being duly sworn according to law, deposes and
says that:
1. He is City Representative and Director of Com-
merce for the City of Philadelphia, with authority to exe-
cute this affidavit and with knowledge of matters herein
stated.
2. Defendants’ action in proceeding with the closure
of the Frankford Arsenal will cause severe hardship to the
minority as well as other employees at the Arsenal and
will further aggravate the present minority unemployment
situation in this urban area.
3. This is an action to enjoin the defendants from
closing the Federal installation known as Frankford
Arsenal in violation of Title 10 U.S.C. §4532(a), which
provides that the Secretary of the Army shall have sup-
plies needed for the Department of the Army made in
factories or arsenals owned by the United States, so far as
those factories or arsenals can make those supplies on an
economical basis.
4. The action to close Frankford Arsenal is now be-
yond the proposal stage. It is present and continuing, and
actually proceeding according to a timetable plan for
closure, formulated by the defendants, and their respective
departments and subordinates.
5. Included in and a necessary part of the closure of
Frankford Arsenal is the elimination of 3,500 jobs now
held by the individual plaintiff and all other employees of
Frankford Arsenal.
5A
6. Defendants, through their agents and subordinates
are preparing and are about to distribute notices to federal
civilian employees at Frankford Arsenal, advising them of
the termination of their employment or the transfer of
their positions to other facilities not in the Philadelphia
area.
7. Such action, if continued by the defendants will
result in irreparable harm, loss and damage to the City of
Philadelphia, plaintiff, in that, aside from the racially
discriminatory impact of the closing, it will also result in
a loss of commerce, and a loss of tax income and attend-
ant economic harm to the City generally.
8. Unless the defendants are enjoined and restrained
during the pendency of this action from proceeding as
above, the closure of the Frankford Arsenal will progress
to such a point that, by the time this litigation is termi-
nated, the defendants will have accomplished the closure
of the Frankford Arsenal, even though the same is being
accomplished contrary to law.
Harry R. Belinger
Sworn to and Subscribed
before me this day
of , 1975
6A
(Caption Omitted in Printing)
Complaint for Injunctive Relief and Declaratory
Judgment and in the Nature of Mandamus
1. Jurisdiction
A. Plaintiffs institute these proceedings and invoke
the original jurisdiction of this Court under:
(1) 28 U.S.C., Sections 1331, 1361, 2201 and 2202
and 5 U.S.C. Sections 701-706;
(2) 42 U.S.C. §1981;
(3) Executive Order 11478, Dated August 9, 1969;
(4) Article I, Section 8 of the U.S. Constitution;
(5) The Law of August 10, 1956, C.1041, 70 A. Stat.
254, 10 U.S.C.A. §4532, known as The Arsenal
Statute.
2. Plaintiff
A. The plaintiff, City of Philadelphia, is a municipal
corporation, a City of the first class of the Commonwealth
of Pennsylvania, wherein is located the Frankford Arsenal.
B. Plaintiff, Josephine Brown, is a resident of the City
of Philadelphia, residing at 5751 North 20th Street, a black
civilian employee of the Frankford Arsenal, a taxpayer
paying income taxes and other federal taxes to the United
States Government, and a taxpayer paying wage and prop-
erty taxes to the City of Philadelphia.
C. All others who are similarly situated and desire to
join in this action.
3. Defendants
A. The Defendant, James R. Schlesinger, is Secretary
of the Department of Defense.
7A
B. The defendant, Howard H. Callaway, is Secretary
of the U.S. Department of the Army.
C. The acts herein complained of are within the re-
sponsibilities of the defendants and their duly authorized
representatives, agents and employees.
4. Basis of the Action
(a) The Frankford Arsenal, located in Philadelphia,
Pennsylvania, is a Federal installation, under the juris-
diction and authority of the Department of Defense, and
is operated by the Department of the Army, Munitions
Command, and employs approximately 3,500 civilian em-
ployees, whose combined annual salaries total approxi-
mately $57,000,000.00. These civilian employees are payers
of wage taxes to the City of Philadelphia, and the majority
of these employees are residents of the City of Philadel-
phia, subject to the other City taxes, including property
taxes.
(b) On November 22, 1974, the defendants announced
the intention of the Department of the Army. to close and
abolish the Frankford Arsenal. The effective closing of the
base would be completed prior to June 30, 1978. As part
of the announced closing, certain positions are to be trans-
ferred to other Army facilities. Of the total of approxi-
mately 3,500 employees to be effected by the closing, ap-
proximately 1,600 of their positions are to be transferred.
The remaining employees’ positions are to be abolished.
The majority of the job transfers (1,239) are to the Army’s
Rock Island, Illinois facility.
CountT I
(a) This Count is being brought by the City of Phila-
delphia parens patriae with a public property right to col-
lect and receive taxes due it from and by the plaintiff,
Josephine Brown, to enjoin the defendants from continu-
8A
ing to implement a planned, unauthorized, unlawful,
Congressionally unsanctioned abolition of the Frankford
Arsenal under said Arsenal Statute, and for declaratory
judgment relief.
(b) The planned abolition of the Arsenal is in viola-
tion of Presidential Executive Order No. 11478, implement-
ing 42 U.S.C. §2000(e), in that the planned abolition and
transfers will and must effect a racially discriminatory im-
pact on the present minority employees and will seriously
impair the ability of the Federal Government to meet its
obligation to provide equal employment opportunities in
accordance with the above referenced Presidential Order.
Under the terms of Executive Order No. 11478, gov-
ernment agencies, including the U.S. Army are charged
with the duty to “promote the full realization of equal
employment opportunity through a continuing affirmative
program in each executive department and agency.” The
Executive Order further mandates that “[T]his policy of
equal opportunity applies to and must be an integral part
of every aspect of personnel policy and practices . . .”
The following statistics clearly indicate the discrimi-
natory impact on the planned abolition:
(1) Total Philadelphia SMSA (Stan-
dard Metropolitan Statistical Area)
Population 5,000,000 (Est. );
(2) Total Philadelphia SMSA Minority
Population 845,000 or 18% ;
(3) Total Rock Island, Illinois SMSA
Population 365,000 (Est. );
(4) Total Rock Island SMSA Minority 13,000 (Est. ) or
Population 3.7%
(5S) Present minority employment at 589 or 17% of Total
Frankford Arsenal Frankford Arsenal
employment;
(6) Present minority employment at 450 (Est.) or 6% of
Rock Island facility total employment.
9A
In the planned abolition of the Frankford Arsenal,
defendants have failed to consider the impact on minority
employment in violation of Executive Order No. 11478.
The discriminatory impact is further aggravated by the
fact that, aside from the positions that are abolished, most
of the personnel to be transferred will be unable, as a
practical matter, to accept the planned transfers. It is
estimated that, based on past experience, the percentage
of actual personnel transfers will be approximately 5%.
Plaintiffs believe and therefore aver that unless the
defendants are restrained from continuing to implement
the planned abolition, there will be a serious impact on
minority employment opportunities in this area, and a
great many of the existing minority employees at the
Frankford Arsenal will be subjected to a prolonged period
of unemployment.
Plaintiffs believe and therefore aver that the defend-
ants have failed to consider the mandate of Executive
Order No. 11478 to promote equal employment opportu-
nities and have failed to implement the Executive Order's
mandate to consider that policy as an “integral part of
every aspect of personnel policy.”
Count II
Plaintiff, City of Philadelphia, as the governing civil
agency of its 2,000,000 citizens, among them the 3,500
Frankford Arsenal employees, as parens patriae, aver that
the threatened action by defendants will result in injury
to the economy and prosperity of the City of Philadelphia,
including a diminution of taxes and a general curtailment
of the City’s commerce. Plaintiff believes and therefore
avers that the threatened closing of the Frankford Arsenal
is part and parcel of a conscious plan to unlawfully evade
and ignore the command and law set forth in Article I,
Section 8 of the U.S. Constitution, as well as the Congres-
sional command of the Arsenal Statute, 10 U.S.C. §§4531
and 4532.
10A
Section 4532 provides as follows:
Factories and arsenals: manufacture at; abolition of
(a) The Secretary of the Army shall have supplies
needed for the Department of the Army made in
factories or arsenals owned by the United States,
so far as those factories or arsenals can make
those supplies on an economical basis.
(b) The Secretary may abolish any United States
arsenal that he considers unnecessary. Aug. 10,
1956, c. 1041, 70A Stat. 254.
The said Title 10 Sections are part of a national policy
of insuring control by U.S. agencies of the research, de-
velopment and monitoring the production of diverse arm-
aments and related supplies, so as to guarantee quality and
fairness of price of armaments supplied to the U.S. Army,
to avoid an excessive reliance on private concerns in the
armament production business.
In the course of years, since 1816 when the Frankford
Arsenal was established, the personnel of that facility have
trained and developed highly skilled civilian employees
who have effectively monitored the design and production
of various armaments, all to the safety, economy and
benefit of the U.S. Government.
In or about the early part of 1962, U. S. Army officials
publicly announced the Army’s desire to abolish all statu-
tory authority over the Army with regard to the establish-
ment and abolition of defense facilities. The Army has
attempted to avoid the mandated Congressional control
over changes in the status of Army facilities.
In the years since 1962, under the guise of Army re-
organization, representatives of the U.S. Army and its
defense facilities have successfully eroded the Congres-
sionally mandated role cf Army facilities, such as the
Frankford Arsenal, to monitor arms production by private
industry.
11A
In its role as a monitor to control the quality, cost and
timely production of armaments by private industry, the
Frankford Arsenal has proven to be a restraining influence
on private concerns in the armament production business,
and has aided in avoiding inefficiencies, breaches of con-
tract, delays and deficiencies in production by private in-
dustry.
The erosion of the legally mandated monitoring and
supervisory role of arsenals over private industry, and the
tendency to excessively rely on private interests is evi-
denced in part by the following:
(a) On or about March 10, 1975, Edwin Greiner,
De, ity Assistant Secretary of the Army for In-
stallation and Supplies stated that the proposed
Frankford Arsenal action was part of a plan to
eliminate all arsenal production and turn it over
to private industry.
(b) Maj. Gen. Robert Fairburn, USMC (Ret.) for-
merly the Commander of the Philadelphia Marine
Corps Activity, who was instrumental in the de-
cision to move that facility to Albany, Ga., with
the resultant loss of 1,000 jobs in Philadelphia,
is presently a $1,000 a month consultant to the
City of Albany, Georgia.
(c) Defendant Secretary of the Army, Callaway, on
or about April 24, 1975, claimed he knew nothing
about The Arsenal Statute nor the announced
plan to abolish the Frankford Arsenal, even
though he is charged by Congress in 10 U.S.C.
§4532, with the responsibility of determining the
necessity of any existing arsenal.
(d) Herman R. Staudt, Under Secretary of the Army,
until his resignation several weeks ago, was a
vice president of Martin Marietta Corporation, a
major private Army contractor, and in that ca-
pacity was personally in charge of a Martin-
Marietta-Frankford Arsenal contract under which
12A
that company was paid $3.3 million for a product
the company never produced.
(e) The defendants and their representatives have
been provided with detailed information by the
City of Philadelphia indicating that the planned
action wiil result in increased, as opposed to de-
creased costs to the taxpayers, and that the
economic justification for the closure does not
exist. In accordance with the Arsenal Statute, a
showing of economic necessity by the Army is a
legal precondition to the planned closure, and
in the absence of such showing, the planned
closure is a violation of 10 U.S.C. §4532, to the
injury of the City of Philadelphia and the tax-
payers.
In the threatened violation of the Arsenal Act, as set
forth above, the defendants and their agents have taken,
and continue to take, all necessary steps toward the accom-
plishment of the closure and abolition of the Frankford
Arsenal. In furtherance of the alleged plans described
above, the defendants and their representatives have:
(a) issued orders and directives that the Production
Support and Equipment Replacement Projects at Frank-
ford Arsenal be reviewed and phased out.
(b) issued orders and directives that procurement of
materials and services by Frankford Arsenal be stopped.
(c) engaged, and are now engaging in planning the
equipment designation preparatory to removal and closure
of all facilities at Frankford Arsenal.
(d) engaged, and are now engaging, in preparation
of notices to civilian employees of Frankford Arsenal, with
regard to the termination of their employment.
(e) ordered teams of representatives from within The
Department of the Army to visit Frankford Arsenal in
order to implement the reduction and transfer of personnel
and facilities from Frankford Arsenal, preparatory to
closure.
13A
(f) formulated a specific time table for the closure
of Frankford Arsenal.
(g) engaged, and are engaging, in other affirmative
action in the nature of planning and preparation for the
closure of Frankford Arsenal.
The defendants’ conduct in closing and abolishing the
Frankford Arsenal is in violation of their statutory au-
thority as set forth by the provisions of Title 10 U.S.C.
§4532.
Respectfully submitted,
Joseph R. Lally
Assistant City Solicitor
Stephen Arinson
Chief Deputy City Solicitor
Sheldon L. Albert
City Solicitor
Attorneys for City of Philadelphia
1B
IN THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 76-1090
CITY OF PHILADELPHIA AND JOSEPHINE Brown, Appellants
AND
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, INC.,
Loca. R3-2, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES,
Epwarp LEWANDOWSKI, VINCENT SMITH, VINCENT SABATINO,
EARL CONAWAY, EDWARD YUENGLING, HUGH PHILLIPs,
Patricia A. Myers, CHARLES SIMPSON, JAMES D. McKENNA.,
RUSSELL BuTTs, NEIL MULHERN
(Intervenors in District Court )
v.
Hon. DoNALpD H. RUMSFELD, Secretary of Defense, and
Hon. MARTIN R. HOFFMANN, Secretary of the Army
D.C. Civil Action No. 75-1405
Appeal from the United States District Court for the
Eastern District of Pennsylvania
2B
Before SEITZ, Chief Judge, ROSENN and GARTH, Circuit
Judges
Argued March 22, 1976
Louis F. Hinman, III
Assistant City Solicitor
Harry Fuiman
Assistant City Solicitor
Joseph R. Laliy
Deputy City Solicitor
Stephen Arinson
Chief Deputy City Solicitor
Sheldon L. Albert
City Solicitor
1560 Municipal Services Building
Philadelphia, Pa. 19107
Attorneys for Appellants
Robert E. J. Curran
United States Attorney
C. Oliver Burt, III
Assistant United States Attorney
Arnold Anderson Vickery
Assistant to the General Counsel
Office, the Secretary of the Army
Robert Alan Garrett
Assistant to the General Counsel
Office, the Secretary of the Army
Attorneys for Appellees
Opinion of the Court
Per Curiam:
By this action, the City of Philadelphia and individual
plaintiffs and intervenors seek to enjoin the closing of the
Frankford Arsenal. The district court dismissed the action
3B
for lack of jurisdiction and failure to state a cause of
action. For the reasons stated hereinafter, we affirm.
On November 22, 1974, the Secretary of Defense an-
nounced 111 separate base closure/realignment actions,
among which was the phased closure oi the Frankford
Arsenal. The research and development work of the Arse-
nai will be transferred to other United States owned
facilities. The oduction work currently performed by the
Arsenal will be partly transferred to other Government
facilities and partly contracted to private industry. Closure
of the Arsenal will result in the loss of approximately 3,500
jobs with an annual payroll of about 56 million dollars to
the Philadelphia area. Thus, the Department of the Army
seeks to realize 24 million dollars savings per year.
The City of Philadelphia brought this suit parens
patriae alleging loss of taxes as a result of the closing.’
Individual plaintiff Josephine Brown is a civilian employee
of the Arsenal. Several individuals and the National Asso-
ciation of Government Employees have intervened.
1. We have grave reservations that a parens patriae suit may
be maintained by a state, much less a city, against the federal
gov-rnment or one of its agencies. See Commonwealth of Penn-
sylvania v. Kleppe, No. 74-1960 (D.C. Cir. March 4, 1976), noted
in U.S.L.W. 2455 (1976):
The general supremacy of federal law gives some reason to
conclude that the federal parens patriae power should not as
a rule be subject to the intervention of states seeking to rep-
resent the same interests of the same citizens. In the terms
of the parens patriae cases, the state can not have a quasi-
sovereign interest because the matter falls within the sov-
ereignty of the Federal Government. . .
As a result of this federalism interest, which reduces most
basically to the avoidance of state interference with the exer-
cise of federal powers, the cases evidence an extreme reluc-
tance to recognize state parens patriae standing against a
federal defendant. There is some basis for reading the pre-
ponderance of case law as flatly prohibiting such actions.
4B
The complaint is in two counts, the first of which
alleges that the closing of the Arsenal will have a racially
discriminatory impact in violation of Executive Order No.
11478 and 42 U.S.C. §2000e-16 (Supp. II 1972). The count
alleges that most of the work of the Arsenal is being trans-
ferred to Government facilities at Rock Island, Illinois;
that Philadelphia has a minority population of 18 percent,
while the percentage of minority group members in the
Rock Island population is 3.7 percent; and that present
minority employment at Frankford Arsenal is 17 percent
of total Arsenal employees, while present minority em-
ployment at the Rock Island facility is 6 percent of the
total employees there. The complaint states that if the
closure goes forward, many of the Arsenal’s current minor-
ity employees will be subjected to “a prolonged period of
unemployment.”
Count II is based on Article I, Section 8 of the Con-
Stitution'* and on the Arsenal Act, 10 U.S.C. §§4531, 4532
(1970).? Plaintiffs’ argument is that the use of “shall” in
subsection (a) of §4532 and the use of “may” in subsec-
tion (b) of that provision is a difference with significance:
the Secretary shall have supplies made at an arsenal, must
operate them so long as they operate on an economical
basis, and may close an arsenal only if he can establish
that it cannot be operated on an economical basis.
1A. United States Constitution, Article I, Section 8 lists the
powers of Congress. Plaintiffs do not specify upon which of the
enumerated powers they rely.
2. Plaintiffs’ argument is based principally upon 10 U.S.C.
§4532, which provides:
Factories and Arsenals: manufacture at; abolition of.
(a) The Secretary of the Army shall have supplies needed
for the Department of the Army made in factories or arse-
nals owned by the United States, so far as those factories or
arsenals can make those supplies on an economical basis.
(b) The Secretary may abolisn any United States arsenal
that he considers unnecessary.
5B
The Government raises several defenses against these
claims, including lack of jurisdiction, failure to state a
cause of action, sovereign immunity, lack of standing, and
failure to exhaust administrative remedies prescribed by
42 U.S.C. §2000e-16. The Government's arguments have
merit, but we need treat only two to sustain the action of
the district court.
First, we deem plaintiffs’ allegations in Count I of
racial discrimination in violation of 42 U.S.C. §2000(e) to
be “so attenuated and unsubstauitial as to be absolutely
devoii of merit,” Newburyport Water Co. v. Newburyport,
193 U.S. 561, 579 (1904), quoted in Baker v. Carr, 369 U.S.
186, 199 (1962), and thus federal jurisdiction under 28
U.S.C. §1331 (1970) is not established.* The closing of the
Arsenal will deprive a group of persons, 82 percent of
whom are white and 18 percent of whom are minority
group members, of their jobs. It is patently frivolous to
claim that an action uniformly affecting all members of an
overwhelmingly white group is racially discriminatory. To
adopt plaintiffs’ argument would bar the Government from
transferring activities whenever the transfer would ad-
versely affect any minority employees. Effectively, plain-
tiffs’ argument would prevent the transfer of Government
functions from one locale to another. Such a claim is
“obviously without merit.” Ex parte Poresky, 290 U.S. 30,
32 (1933).‘
3. We also note that plaintiffs failed to allege the requisite
jurisdictional amount.
4. The only other jurisdictional provision invoked by plain-
tiffs is 28 U.S.C. §1361 (1970), which provides for district court
jurisdiction in cases “in the nature cf mandamus to compel any
officer . . . of the United States . . . to perform a duty owed to
the plaintiff.” While Government officers have a duty not to act
in a racially discriminatory manner, the allegations of the com-
plaint neither support mandamus relief nor establish discrimina-
tory action.
6B
Second, we hold that Count II of plaintiffs’ complaint
fails to state a cause of action because there is no implied
private right of action to enforce the essentially regulatory
provisions of the Arsenal Act.> That result follows from
Cort v. Ash, 422 U.S. 66 (1975).®
Accordingly, the order of the district court dismissing
the action will be affirmed.
TO THE CLERK:
Please file the foregoing opinion.
‘$s
Circuit Judge
5. The complaint appears also to allege a cause of action
under Article I, Section 8 of the Constitution, but does not specify
upon which of the Congressional powers enumerated in Section 8
it places reliance. Plaintiffs’ brief makes no argument based on
that Constitutional provision. While we doubt that a private cause
of action can be implied from any provision of Article I, Section
8, see Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971), we believe that in any event
the actions challenged herein do not exceed Congress’ powers or
the powers that Congress properly delegated to the Secretary.
6. Judge Garth would not reach or decide this question but
would dismiss Count II on the ground that the City of Philadel-
phia had no standing to sue as parens patriae. See note 1.
7B
IN THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 76-1090
City OF PHILADELPHIA AND JOSEPHINE BROWN Appellants
AND
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, INC.,
Loca R3-2, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES.
EpWarRpD LEWANDOWSKI, VINCENT SMITH, VINCENT SABATINO.
EarRL CoNAWAY, EDWARD YUENGLING, HUGH PHILLIPs,
Patricia A. Myers, CHARLES SIMPSON, JAMES D. MCKENNA.
Russev Butts, NEIL MULHERN
(Intervenors in D.C. )
v.
Hon. DoNALD H. RUMSFELD, Sec. of Defense and
Hon. MARTIN R. HOFFMANN, Sec. of the Army
(D.C. Civil Action No. 75-1405)
On Appeal From the United States District Court
for the Eastern District of Pennsylvania
Present: Seitz, Chief Judge and Rosenn and Garth, Circuit
Judges
Judgment
This cause came on to be heard on the record from
the United States District Court for the Eastern District
of Pennsylvania and was argued by counsel.
8B
On consideration whereof, it is now here ordered and
adjudged by this Court that the judgment of the said
District Court, entered November 4, 1975, be, and the same
is hereby affirmed. Costs taxed against appellants.
Attest:
Ss
THOMAS F. QUINN
Clerk
April 15, 1976
1C
IN THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT
OF PENNSYLVANIA
City OF PHILADELPHIA Civil Action
AND
JOSEPHINE BROWN
Vv.
JAMES R. SCHLESINGER,
Secretary of Defense, et al
AND
Howarp H. CALLAWAY
Secretary of the Army No. 75-1405
Memorandum and Order
Newcomer, J. November 4, 1975
We have before us a motion by defendant to dismiss
plaintiff's claim, or in the alternative for summary judg-
ment. For the reasons set forth below, we have determined
that we must grant defendant’s motion to dismiss.
Plaintiffs instituted this suit to enjoin the United
States Government’s closing of the Frankford Arsenal
(“Arsenal”), one of 111 base closure/realignment actions
announced by the Secretary of Defense on November 22,
1974. Plaintiffs claim the proposed closing violates the
Arsenal Statute, 10 U.S.C. §4532 (1970), Executive Order
11478, 42 U.S.C. §2000e (1972) Supp. II), and clauses,
1, 12, 14, and 17 of Article I, Sec. 8 of the United States
Constitution.
After consideration of the briefs and oral arguments
of all parties, we believe we must grant defendant’s motion
to dismiss for lack of jurisdiction.
2C
First, plaintiffs have no cause of action under the
two statutes, the executive order, or the Constitutional
provisions which plaintiff invoke.
As to 10 U.S.C. Sec. 4532,’ we find not only no cause
of action set forth therein, but also no violation of any of
the provisions of that statute in defendants’ decision to
close the Arsenal. Subsection (b) of Sec. 4532 unequiv-
ocally states that the Secretary of the Army has it within
his subjective discretion to determine whether to close an
arsenal, exactly the type of decision which defendants
have made in this case.
Plaintiffs contend that subject (a) of Sec. 4532 obli-
gates the Secretary to make a determination of relative
costs before he contracts to have supplies made by private
contractors rather than Government arsenals. Plaintiffs
then argue that the same obligation to make a relative
cost determination implicitly exists under subsection (b)
for any decision by the Secretary to close an arsenal
Finally, plaintiffs conclude that Sec. 4532 empowers a
court to review the cost determination made by the Secre-
tary in any proposed arsenal closing under subsection (b).
We fail to agree with this argument. To begin with,
subsections (a) and (b) of Sec. 4532 deal with different
matters. The Secretary of the Army may close a particular
arsenal without deciding to contract for supplies from
private sources. He may instead simply obtain the neces-
sary supplies from arsenals or government operations that
continue in existence.
1. The Arsenal Act, 10 U.S.C. Sec. 4532 reads.
“Factories and Arsenals: manufacture at; abolition of
(a) The Secretary of the Army shall have supplies needed
for the Department of the Army made in factories or arse-
nals owned by the United States, so far as those factories or
arsenals can make those supplies on an economical basis.
(b) The Secretary may abolish any United States Arsenal
that he considers unnecessary. Aug. 10. 1956, 70A Stat. 254.
3C
As to the provisions of the two subsections of Sec.
4532, we do not read the obligations set for the Secretary
in subsection (a) to apply as well to the subject matter of
subsection (b), which contains no hint of any limit on
the Secretary's authority in the sphere to which subsection
(b) applies. We see no reason whatsoever to take a statute
which expressly and unequivocally confers the power to
close an arsenal upon the Secretary of Defense, and con-
Strue it to place review of the Secretary’s decision in the
courts, thus in effect limiting the authority which the
statute in terms gives to the Secretary.
With respect to 42 U.S.C. Sec. 2000e-16, plaintiffs
have no cause of action because we believe that the com-
plete closure of a military arsenal does not constitute a
“personnel action” within the terms of that statute? We
believe that a “personnel action” under the terms of that
statute refers to an action affecting employees in a func-
tioning installation. We so conclude because to conclude
otherwise would interpret 42 U.S.C. Sec. 2000e-16 so as to
qualify the unqualified authority which Congress gave the
Secretary of the Army in 10 U.S.C. Sec. 4532. We find no
evidence that Congress intended such qualification when
2. §2000e-16(a) reads:
“All personnel actions affecting employees or applicants
for employment (except with regard to aliens employed out-
side the limits of the United States) in military departments
as defined in section 102 of Title 5, in executive agencies
(other than the General Accounting Office) as defined in
section 105 of Title 5 (including employees and applicants
for employment who are paid from nonappropriated funds),
in the United States Postal Service and the Postal Rate Com-
mission, in those units of the Government of the District of
Columbia having positions in the competitive service, and in
those units of the legislative and judicial branches of the
Federal Government having positions in the competitive ser-
vice, and in the Library of Congress shall be made free from
any discrimination based on race, color, religion, sex, or
national origin.
ee ee ee
4C
it enacted 42 U.S.C. Sec. 2000e-16; indeed, this statute
does not even refer to Sec. 4532.
We reach a similar conclusion as to Executive Order
11478.° While this Order does establish certain obligations
for federal agencies, the violation of which obligations a
private party may assert as a cause of action, 42 U.S.C.
$2000e-16(c), we do not believe a decision by the Secre-
tary of the Army to close an arsenal, pursuant to his clear
authority under 10 U.S.C. §4532, can constitute a violation
of Executive Order 11478, whatever the black percentage
of the work force at the arsenal in question. Order 11478
obligates an agency head to observe the Government's
policy of equal employment opportunity, and to maintain
an affirmative program to further this policy. We do not
3. Executive Order 11478 reads:
Section 1. It is the policy of the Government of the
United States to provide equal opportunity in Federal employ-
ment for all persons, to prohibit discrimination in employ-
ment because of race, color, religion, sex, or national origin,
and to promote the full realization of equal emvloyment
opportunity through a continuing affirmative program in each
executive department and agency. This policy of equal oppor-
tunity applies to and must be an integral part of every aspect
of personnel policy and practice in the employment, develop-
ment, advancement, and treatment of civilian employees of
the Federal Government.
Section 2. The head of each executive department and
agency shall establish and maintain an affirmative program
of equal employment opportunity for all civilian employees
and applicants for employment within his jurisdiction in
accordance with the policy set forth in section 1. It is the
responsibility of each department and agency head, to the
maximum extent possible, to provide sufficient resources to
administer such a program in a positive and effective man-
ner.
Section 6. This Order applies (a) to miliary depart-
ments as defined in section 102 of title 5, United States Code,
5 U.S.C.A. §102.
5C
see that a decision entirely to close a military operation
violates such provisions. If we had any doubt on this inter-
pretation of Order 11478, we would reach the same con-
clusion in order to avoid limiting or qualifying the power
given the Secretary of the Army under 10 U.S.C. §4532,
especially since nothing about Order 11478 suggests in any
way that it was meant to have a liiniting effect on $4532.
Finally, plaintiffs have no cause of action under any
of the constitutional provisions they invoke. The action of
defendants which plaintiffs challenge does not even argu-
ably come close to transgressing the constitutional provi-
sions which plaintiffs cite.‘
Nor do we have jurisdiction under any of the other
grounds which plaintiffs invoke. The Administrative Pro-
cedure Act (“APA”) grants us no jurisdiction since 45
U.S.C. §4532(b) clearly commits the decision to close
the arsenal to the discretion of the Secretary of the Army,
and the APA, whether or not it is a jurisdictional statute at
all,> does not permit judicial review of agency action “com-
mitted to agency discretion by law.” 5 U.S.C. $701 (a)(2)
(1970). avd
Plaintiffs argue that the APA nonetheless permits ju-
4. Plaintiffs invoke Article I Sec. 8,
cl. 1: “The Congress shall have power to. . . provide
for the commondefense ... ,
cl. 12: “To raise and support armies... ,
cl. 14: “To make Rules for the Government and Regu-
laticn of the land and naval forces;
cl. 17: “. . . amd to exercise like authority over all
Places purchased by the Consent of the Legislature of the
state in which the same shall be, for the Erection of Forts,
Magazines, Arsenals.. .”
5. See Richardson v. U. S., 465 F.2d 844, 849, n.2 (3d Cir.
1972) (en banc), revd on other grounds 418 U.S. 166 (1974);
but see Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402,
410 (1971); Borough of Morrisville v. Delaware River Basin Com-
mission; 382 F.Supp. 543 (E.D. Pa. 1974).
6C
dicial review of action committed to agency discretion for
abuse of discretion. In support of this position, plaintiffs
cite American Federation of Government Emplovees, Local
1858, et al. v. Calloway, (Civil Action 75-G-0652-NE, N.D.
Ala., June 18, 1975), a copy of which plaintiffs furnished
the Court at oral argument.
We disagree with plaintiffs argument, and find no
support for it in the above-cited authority, in which the
Court at page 16 of its opinion expressly said that it had
jurisdiction under the APA to review the governmental
agency action in question because the agency had no discre-
tion in that action, but instead had to follow “quite spe-
cific” instructions which plaintiffs claimed the defendants
in that case had violated. This decision thus in no way
conflicts with our holding that the APA does not permit
review of action which a Congressional statute® expressly
authorizes the Secretary of Army to take according to his
subjective determination.
Similarly, we have no jurisdiction under the Declara-
tory Judgment Act, 28 U.S.C. §§2201-02 (1970), because
this Act is not a jurisdictional statute. Schilling v. Rogers,
363 U.S. 666, 677 (1960).
Nor do we have jurisdiction under 28 U.S.C. §1331
since, as we noted above, we have no cause of action in
this case under the Constitution or any federal statuie,
and an action does not come within §1331 unless a right
or immunity created by the Constitution or laws of the
United States is an essential part of the plaintiff's claim.
Gully v. First National Bank in Meridian, 299 U.S. 109, 112
(1936).
In like fashion, we have no jurisdiction under the
Federal Mandamus Act, 28 U.S.C. §1361, since we have
6. 10 U.S.C. §4532 (b), which reads, as noted above,
“the Secretary may abolish any United States Arsenal
that he considers unnecessary. (emphasis added )
|
7C
in this case no clearly ministerial duty which defendants
owe to plaintiffs.
Finally, because we find no cause of action or juris-
diction for this case in the statutes or Executive Order
which plaintiffs invoke, we accordingly find that the
United States has not consented to this suit, in which case
the suit is barred by the principle of sovereign immunity.
Although plaintiffs have filed this action against the indi-
vidual personal defendants in their capacities as Secretaries
respectively of Defense and the Army, an action is none-
theless considered to be against the sovereign “if the effect
of the judgment would be to restrain the Government
from acting or compel it to act.” Dugan v. Rank, 372 US.
609, 620-22 (1963), in which the Court heid that sovereign
immunity barred a suit to enjoin officers of the Bureau of
Reclamation from impounding water behind Friant Dam
in California. The instant case, in which plaintiffs seek to
prevent the United States from closing the Arsenal, thus
constitutes a suit against the sovereigi).
The doctrine of sovereign immunity will not bar a suit
against the sovereign if the suit alleges either that the
challenged action is not within the authorized powers of
the officer in question, or that the action, even if statu-
torily authorized, is nonetheless constitutionally void. Lar-
son v. Domestic and Foreign Commerce Corp., 337 US.
682 (1949); Malone v. Bowdoin, 369 U.S. 643; Dugan v.
Rank, 372 U.S. 609 (1963). In the instant case, however,
plaintiffs allege neither of these grounds, and contend only
that defendants, while statutorily and constitutionally
authorized to close a military arsenal, have erred in their
determination to make this particular closing. Unlike the
allegations that an official’s action is constitutionally void
or ultra vires, an allegation as in this case of mere official
error in the application of valid powers does not remove
the bar of sovereign immunity from a suit against the
sovereign. Larson, Malone, Dugan, supra.
8C
Accordingly, because we find for the above reasons
that we have no jurisdiction to hear this case, we shall
today enter an order dismissing plaintiffs’ complaint.’
/S/
Clarence C. Newcomer, J.
7. Because we believe that lack of jurisdiction clearly war-
rants dismissal of plaintiffs’ complaint, we reach no decision on
the issue of plaintiffs’ standing to bring this suit, or plaintiff
Brown's failure to exhaust administrative remedies.
9C
(Caption Omitted in Printing)
ORDER
AND Now, to wit, this 4th day of November, 1975, it is
hereby Ordered that defendants’ motion to dismiss plain-
tiffs’ complaint is GRANTED, and plaintiffs’ complaint
against defendants is DISMISSED in its entirety.
AND It Is So ORDERED.
/S/
Clarence C. Newcomer, J.
ee
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