Appellee's complaint making a challenge to the constitutionality
of a New York statute governing leave of absence for mentally unfit
civil service employees must be dismissed for lack of standing to
assert such a challenge where the record discloses that the statute
was never, in fact, properly applied to appellee.
409 F.
Supp. 994, vacated and remanded.
PER CURIAM.
A three-judge District Court was convened in response to
appellee's complaint alleging that N.Y. Civil Service Law § 72
(1969), governing leave of absence for mentally unfit civil service
employees, denied her the procedural due process guaranteed her by
the Fourteenth Amendment of the United States Constitution. Joined
as defendants in her action, which sought both declaratory and
injunctive relief, were the appellants Civil Service Commission of
the State of New York and its members, and the city of New
York.
The District Court sustained appellee's federal constitutional
claims, and enjoined the defendants from taking any action under
the challenged statutory provision, and also ordered that appellee
be reinstated in her civil service position and given backpay by
the city of New York. The city has not appealed from the judgments.
Appellee, in addition to the previously described allegations, also
asserted in her complaint that the city of New York in suspending
her
had not followed the procedures set forth in § 72. She
particularly alleged that the doctor who examined her had not been
selected
Page 425 U. S. 458
in the manner prescribed by that statute. Appellants have not
denied this allegation and, indeed, now acknowledge that the state
law was not followed. The record therefore now establishes that the
statutory procedure which appellee challenged has not been applied
to her. It follows that she may have had a claim under state law
against the city of New York; she may indeed have had a claim
against the city of New York based on the procedural guarantees of
the Fourteenth Amendment by reason of the procedure which the city,
in fact, followed in suspending her. Since the city has not
appealed, we have no occasion to consider any aspect of her claim
against it, other than to say that neither of the claims just
described would authorize the convening of the three-judge District
Court under 28 U.S.C. § 2281.
Phillips v. United States,
312 U. S. 246,
312 U. S. 253
(1941).
"In so far as it is alleged that the assessments are void
because unauthorized by the Arizona statute, the injunction sought
is obviously not upon the ground of the unconstitutionality of the
state statute as tested by the Federal Constitution."
Ex parte Bransford, 310 U. S. 354,
310 U. S. 358
(1940).
Stripped of these related contentions, appellee's claim against
appellant state Civil Service Commission amounts to a request for a
determination of the constitutionality of a statute which, while
administered by the Commission has never, in fact, been properly
applied by the Commission or indeed by the city of New York to her.
Since the record now makes it clear that she has no standing to
assert such a challenge, her complaint as to the constitutionality
of § 72 should be dismissed.
See Hagans v. Lavine,
415 U. S. 528
(1974).
Appellee asserted no claim against appellant Civil Service
Commission and its members other than her constitutional claim. On
their appeal, therefore, the
Page 425 U. S. 459
judgment of the District Court as to them is vacated, and the
case is remanded with instructions to dismiss appellee's complaint
insofar as it sought relief against them.
So ordered.
MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, MR. JUSTICE MARSHALL,
and MR. JUSTICE BLACKMUN would affirm without hearing oral
argument.
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