This case presents the questions whether the Civil Service Commission, consonant with the Fifth Amendment, may deny to a resident alien the opportunity to take the competitive examination for federal civil service employment, and whether appropriation acts may prohibit the use of appropriated funds to pay aliens employed in the civil service of the United States.

Appellant, Dr. Jalil, is a citizen of the Republic of India. On August 8, 1968, he was admitted to the United States for permanent residence. Two days later, he applied to the Civil Service Commission to be admitted to the examination for a Civil Service rating. The application was denied on the ground that, by its regulations, the Commission may accept applications only from citizens.

On September 22, 1969, Dr. Jalil filed a class action against the Chairman of the Commission1 seeking declaratory relief that those portions of the regulations2 which disqualify aliens are illegal and void and that any provisions in Congressional enactments3 prohibiting the use of appropriated funds for payment of salaries of alien employees of the Executive Branch are also void. In addition, he sought injunctive relief ordering the Chairman to instruct the Commission and its staff that the regulations are void, that aliens must be admitted to competitive civil service examinations, and that there shall be no discrimination on the ground of alienage. In his complaint, Dr. Jalil stated he desired to be employed in forestry, agriculture or malaria control,4 and did not desire to be employed in any position involving national security. He further stated that he was prepared to execute an oath of allegiance to the United States as a condition of employment.5

The Government moved to dismiss the complaint for failure to state a claim upon which relief could be granted and for failure to join indispensable parties.6 Dr. Jalil cross-moved for summary judgment. The district court denied Dr. Jalil's motion for summary judgment and granted the Government's motion to dismiss.7 This appeal followed.

Preliminarily, it should be noted that this is not a case involving the discharge of an employee already appointed to a federal position. In such a case, it has been held that the due process clause of the Fifth Amendment circumscribes arbitrary dismissals. Norton v. Macy, 135 U.S.App.D.C. 214, 417 F.2d 1161 (1969). Nor does this action involve the exercise of control over a federal employee. In such situations the power of the President may not be absolute. See Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 610-613, 9 L. Ed. 1181 (1838). Rather, this case presents an attack on one facet of the power of the President to appoint federal employees.

The Constitution provides that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." U.S.Const. Art. II, Sec. 2, cl. 2. Federal courts "have no general supervising power" over the appointment of federal officials, and have been reluctant to impose restrictions upon the power of the President in this area. See Keim v. United States, 177 U.S. 290, 293, 20 S. Ct. 574, 44 L. Ed. 774 (1900).8

It is well settled by custom as well as by law that Congress may limit and has for many years limited the presidential power of appointment by specifying qualifications for the positions it has created. The civil service laws constitute one such restriction, and it is now generally accepted that these laws raise no constitutional questions.

We recognize that Dr. Jalil's complaint and argument raise a substantial issue as to the limits of the President's authority over the appointment of employees of the Executive Branch of the Government. However, because of the view we take of this case, it is not necessary for us to decide that question at this time.

The Civil Service Commission operates pursuant to an authorizing statute and to an Executive Order. The statute provides in part:

The President may-

(1) 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;

(2) ascertain the fitness of applicants as to age, health, character, knowledge and ability for the employment sought; and

(3) appoint and prescribe the duties of individuals to make inquiries for the purpose of this section. 5 U.S.C. Sec. 3301 (Supp. VI 1970).

In accordance with that statute, the President has promulgated the following Executive Order:

* * * The [Civil Service] Commission is authorized to establish standards with respect to citizenship, age, education, training and experience, suitability, and physical and mental fitness, and for residence or other requirements which applicants must meet to be admitted or rated in examinations. Executive Order 10577, Sec. 2.1(a), 10 Fed.Reg. 7521 (November 22, 1954).

On the basis of this authority, the Commission has issued regulations providing:

(a) A person may be admitted to competitive examination only if he is a citizen of or owes permanent allegiance to the United States.

(b) A person may be given appointment only if he is a citizen of or owes permanent allegiance to the United States. 5 C.F.R. Sec. 338.101 (1971).9

If the quoted regulation of the Commission exceeds the authority given it by the Executive Order, then it is invalid and may not be applied to exclude Dr. Jalil from the examination. Similarly, if the Executive Order exceeds its Congressional authorization, then it is inapplicable to the extent it is not in conformity with the Civil Service Act. See Cole v. Young, 351 U.S. 536 (1956). A decision that either the regulation or the order is beyond the authority of its issuer obviates the need to reach the constitutional question raised in this case10 as to the regulations or Executive Order.

These matters were asserted by Dr. Jalil in paragraph 9 of the "Cause of Action" section and paragraphs 2 and 3 of the "Relief" section of his complaint, but because the district court dismissed the complaint without opinion, we are unable to determine to what extent that court considered these non-constitutional issues.

The ultimate determinations whether either the President or the Commission acted without authority are, of course, mixed questions of law and fact which are inappropriate for decision on this sparse record. No findings of fact are included in the district court's order dismissing the complaint. In particular, there are no findings pertinent to the question whether the exclusion of aliens from the Executive Branch will "best promote the efficiency of that service."Consequently, in the interest of the orderly administration of justice, this case will be remanded to the district court for consideration of these issues.11 On the remand for the determination of the validity of the regulation, the district court may, of course, if it is necessary, decide the constitutional claims.12

After the district court dismissed the complaint in this case, the Supreme Court announced its decision in Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971). Although that decision is not squarely controlling here because it dealt with the states' power to discriminate against aliens vis-a-vis the Fourteenth Amendment and the federal power over the entrance and residence of aliens, it is nonetheless quite significant. The Court, in discussing standards applicable to the states, said:

"[C]lassifications based on alienage, like those based on nationality or race are inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime example of a 'discrete and insular' minority * * * for whom such heightened judicial solicitude is appropriate." Id. at 372, 91 S.Ct. at 1852 (footnotes and citations omitted).

The Court went on to hold that the special public-interest doctrine was not an adequate justification for the denial of welfare to aliens because the Court no longer bases constitutional decisions on the distinction between benefits which are rights and benefits which are privileges. Id. at 374, 91 S. Ct. 1848. In short, the states were required to justify such discrimination on the ground of a compelling governmental interest. See id. at 376, 91 S. Ct. 1848.

In Nielsen v. Sec'y of Treasury, 137 U.S.App.D.C. 345, 424 F.2d 833 (1970), which considered a federal regulation, this Court referred to the decisions invalidating state measures discriminating against aliens in the absence of special justification. Nielsen is inapposite because of the difference in the issues actually litigated, but it teaches that there is the need for a special showing by the federal government, just as there is a requirement of special justification by the states. The federal government has interests different from those applicable to the states, but nonetheless it must demonstrate that its interests justify the discrimination against aliens.

As to this justification, the language of Judge Lumbard, in his concurring opinion in Dougall v. Sugarman, 339 F. Supp. 906 (S.D.N.Y.1971), is instructive:

"Nothing in our decision should be construed to mean that a state may not lawfully maintain a citizenship requirement for those positions where citizenship bears some rational relationship to the special demands of the particular position."

The district court must hear testimony, and make the underlying factual determinations and rulings on the validity of the Executive Order and regulation with the justification put forward.13 The court will be able to determine the actual impact of the ban on aliens,14 the number of aliens who might apply for federal positions, the number and type of positions for which citizenship might be a bona fide qualification, and the possibility that the Government's proper interests may be adequately safeguarded by a lesser restriction, which identified particular positions or classes of positions for which alienage might be a disqualification,15 e. g., on grounds of sensitivity or security.

On the basis of the record which will then be developed below, this Court will be able properly to decide the important questions presented in this litigation.16

Accordingly, this case will be remanded to the District Court for further proceedings consistent with this opinion.

In my opinion, a remand to the District Court for a factual hearing in this case is not only unnecessary, but also embarks that court on the improper course of re-drafting invalid regulations on an ad hoc basis to make them comply with the Constitution. I must therefore respectfully dissent from the majority's decision.

The Civil Service regulation which excludes all aliens from admission to competitive examination1 violates the Constitution under the principles announced by the Supreme Court in Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971). In Graham, the Court held that classifications based on nationality or alienage are "inherently suspect" and must be subjected to close judicial scrutiny. Graham at 372, 91 S. Ct. 1848. Thus a compelling state interest, apart from the now discredited "special public interest" in dispensing financial benefits to citizens over aliens, must be found if such classifications are to be sustained under the Equal Protection Clause.2 Graham at 376, 91 S. Ct. 1848. The principles announced in Graham apply fully to the federal government, Nielsen v. Secretary of Treasury, 137 U.S.App.D.C. 345, 424 F.2d 833 (1970), and protect an individual's opportunity for public employment as well as his interest in welfare payments, Dougall v. Sugarman, 339 F. Supp. 906, (S.D.N.Y.1971).

In Dougall v. Sugarman, supra, a three-judge panel struck down, without a factual hearing, a New York statute which excluded all aliens from the competitive class of the Civil Service, on the grounds that none of the interests which New York advanced were adequate justification for this classification under the standards of Graham v. Richardson. In the case before us, the federal government raises no different, or more compelling, interests. It is therefore inconceivable that the Government could establish a compelling state interest at a factual hearing to justify the exclusion of all aliens from all positions requiring the competitive Civil Service examination.

The only interest which could possibly rise to that level is the perceived necessity for employing persons of undivided loyalty in policy-making positions, or positions involving national security interests. But the weakness of this interest as a justification for the total exclusion of aliens from competitive positions becomes apparent upon examination of the entire text of the Civil Service regulations. These provide explicit exceptions for the employment of aliens.3 Furthermore, positions in the highest branches of the Executive, and those of a "confidential or policy-determining character" constitute an "excepted service" which is exempt from the Civil Service regulations and to which it seems aliens might be appointed.4 In view of the accessibility of these undeniably responsible positions to aliens, it is rather incongruous for the Government to maintain that there is still a compelling need to exclude them from the entire rank and file of the Civil Service because of their questionable loyalty. Accord, Dougall v. Sugarman, supra, 339 F.Supp. at 908, n. 6.

Even if some Civil Service positions might be foreclosed to aliens because of their sensitive nature,5 it is neither proper nor possible for a District Court to undertake to identify those particular positions whose special demands make citizenship a compelling requirement. This is precisely the task which the Civil Service should perform, or else the District Court must suffer litigation on a case-by-case basis to determine the suitability of an alien for the type of job he seeks. Once the Civil Service attempts to set standards for the admission of aliens which reflect compelling governmental interests, courts can properly review them. But until then, there is nothing to be learned on remand even remotely comparable to the factual issues this court remanded in Quaker Action Group v. Hickel, 139 U.S.App.D.C. 1, 429 F.2d 185 (1970) and the other cases cited by the majority in note 10, supra.6 A regulation which simply excludes all aliens from all competitive positions on its face sets no standards, reflects no compelling interests, and is therefore invalid. We should not hesitate to say so.

Thus I find no merit to the majority's contention that a factual hearing must be held in the District Court in order to resolve appellant's constitutional attack on the Civil Service regulations. I detect an intimation in the majority's opinion that we should forebear ruling on this constitutional question, since the case can be disposed of on a non-constitutional ground-namely, that the regulations are an illegal extension of the authority delegated by Congress to establish requirements for employment in the Executive branch. The majority focuses on the issue of whether exclusion of all aliens "best promote the efficiency of that service." 5 U.S.C. Sec. 3301(1).

It is clear to me, however, that this issue cannot be considered without taking full account of another Congressional enactment, the Public Works Appropriation Act, 1970, Sec. 502, P.L. 91-144, 83 Stat. 336, which specifically provides for the exclusion of aliens from the federal payroll. This statute applies the same blanket exclusion of aliens from all positions7 in the federal government, and will be of crucial weight in the determination of whether the Civil Service regulations are ultra vires.

Thus, the constitutionality of the Public Works Act must be considered by the District Court in the first instance, and it raises the same constitutional question I have outlined above. Graham v. Richardson applies with equal force to require "compelling" interests to justify exclusion of aliens from the entire federal payroll, and the Government has offered none.

Since confrontation of the constitutional question simply cannot be avoided or ignored, there is no judicial principle or practice which would have us remand the case to the District Court for an unnecessary and impermissable factual hearing.

On principles of law, I would reverse the decision below and hold both the Civil Service regulation and the Public Works Appropriation Act invalid.