RESPONDENT: Patrick McL. Dougall et al.
LOCATION: New York City Human Resources Administration
DOCKET NO.: 71-1222
DECIDED BY: Burger Court (1972-1975)
CITATION: 413 US 634 (1973)
ARGUED: Jan 08, 1973
DECIDED: Jun 25, 1973
Lester Evens - argued the cause for the appellees
Samuel A. Hirshowitz - First Assistant Attorney General of New York, argued the cause for the appellants
Samuel A. Hirshowitz - for appellants
Facts of the case
Patrick Dougall was a federally registered resident alien. He was employed by a nonprofit organization that was absorbed into the Manpower Career and Development Agency (MCDA) of New York City's Human Resources Administration. He was ineligible for employment by the city under Section 53 of the New York Civil Service Law because he was a noncitizen. He was terminated for this reason alone. Dougall and other noncitizens who were terminated under Section 53 challenged the statute in the United States District Court for the Southern District of New York, which held the statute unconstitutional. New York appealed the decision.
Did Section 53 of the New York Civil Service Law violate the Equal Protection Clause of the Fourteenth Amendment?
Media for Sugarman v. Dougall
Audio Transcription for Oral Argument - January 08, 1973 in Sugarman v. Dougall
Warren E. Burger:
We’ll hear arguments next in 71-1222, Sugarman against Mc Dougall.
Mr. Hirshowitz, you may proceed.
Samuel A. Hirshowitz:
Mr. Chief Justice, may it please the Court.
This case involves the question of validity of a Section of the New York State Civil Service Law the -- which the -- a three-judge District Court held invalid.
The particular language that the Court dealt with is found on page 91 of the record in a footnote, “Except as herein otherwise provided, no person shall be eligible for appointment for any position in the competitive class unless he is a citizen of the United States.”
There is a second subdivision which doesn’t appear in the record but which is discussed in the opinion which provides that where the appointing authority cannot find any person to fill a position, he may apply to the Local Civil Service Commission or to the State Civil Service Commission and if they are satisfied that there is no one available for that position they may certify this appointment which last only for the -- to the end of the year and cannot be continued unless this appointee has taken steps to become a citizen by filing a declaration of intention.
The particular appellees here were appointed by the City of New York as provisional appointees.
That means they never took any examination.
As provisionals they were entitled to hold their position at the discretion of the appointing authority for a period of which is generally regarded as nine months provided that there was no eligible list, and in this case the answer of the City of New York shows that there was an eligible list established but in this case, the appellees would terminate it not because of the existence of the eligible list but because of the existence of this statute the City of New York found that they were not citizens.
The Civil Service System in New York as this Court knows is based on the merit system and the competitive class which is established after examination and qualifications.
One who is appointed after examination obtains rights of tenure, seniority and promotional preferences together with pension benefits.
The appellees have been residents according to their affidavits have been residents in the City of New York for varying years.
Some six years, some ten years and none of them have taken even the first step to obtain citizenship.
The first appellee, Mc Dougall for instance was a resident to the City of New York since 1964 and never took any steps to become a citizen.
None of the appellees, because of a question of preemption which will be discussed, none of the appellees were ever certified by United States Secretary of Labor for the position he or she was filling.
As a matter of fact, Mc Dougall was the only one that took an examination.
And let me point out that prior to 1968, the statute which I read provided that nobody could take an examination for our position but that was altered and amended to provide that no one could be appointed.
The difference being that one who is an alien could take the examination and the meantime take steps to become a citizen as the usual process that takes from six months to a year before the examinations are marked and a list established, and the list one established is usually good for varying period of three to five years.
The District Court in this case sustained the appellee’s challenge on both Equal Protection and Supremacy Clause grounds relying principally on a case decided by this Court, Graham against Richardson which we are sure was misapplied.
The Graham case has spawned a flock of litigation in various federal courts throughout the land.
According to our computation, there are seven cases in various federal courts and various stages of litigation raising questions as to the validity of discrimination against aliens.
Let me also point out that the Federal Government has a quibbling practice which is as a result of authority given to this Civil Service Commission to establish the conditions of employment and by Executive Order aliens have been barred from United States employment except the same way as New York does.
Certification where there's no available employee.
The -- in addition to that, Congress in the annual appropriation bills has specifically provided that no payment of compensation can be made to an employee if he is not a citizen of the United States.
That is an employee on American soil.
A copy of the federal provision, we have attached to our brief as exhibit 1.
And in this Court here, the appellees have persisted in the claim at the right to travel of the aliens as being interfered with as if they ever posses such right which is important in part in this case and they have apparently, as we read their briefs, argued that the statute is overbroad which was not a contention what was made below.
In the sense that the lower grade of employees should not be barred by this statutory provision but the higher grade employees may be barred.
The first question that suggests itself is whether there is any equation of equal protection available to the appellees whether the court was right in considering equal protection at all.
We suggest that his very precedent and principle required this Court to hold that the States have not been by divested of the power to limits its public employees as citizens.