Hills

(dissenting).

I find myself unable to concur. The judgment below was based upon the claimed insufficiency of the allegations of the complaint, and this court sustains that action upon the stated ground that plaintiffs had not first exhausted an administrative remedy.

The statement of facts in the majority opinion is too brief to disclose the real grounds of the complaint. As I read it, the complaint undertakes to negative any suggestion that this was a reduction in force, 1 or a removal, suspension or discharge for cause. It makes plain that appellants complain because they, long time civilian civil service employees, are about to be replaced in their positions by military personnel in direct violation of the direction of the Secretary of Defense that such should not be done.

As Civil Service employees they cannot be ousted without compliance with law. Roth v. Brownell, 94 U.S.App.D.C. 318 , 215 F.2d 500 . Their removal by an expedient particularly prohibited by the Secretary is not only unlawful, but void.

The case of Fitzpatrick v. Snyder, 1 Cir., 220 F.2d 522, 525 , cited in the majority opinion, expressly recognized the continuing validity of the rule in Wettre v. Hague, 1…

On October 24, 1957, in the United States District Court for the Northern District of California, Northern Division, appellants and two other plaintiffs brought a civil action against appellees, hereafter called defendants. The complaint alleged, in substance, that plaintiffs (appellants and their two coplain-tiffs) were civilians employed in civil service positions at Travis Air Force Base; that defendants were United States Air Force officers at said base; that defendants had threatened to and would, unless enjoined, discharge plaintiffs from their positions in violation of 5 U.S.C.A. §§ 652 and 861; that there was an actual controversy between plaintiffs and defendants as to plaintiff's rights under 5 U.S.C.A. §§ 652 and 861; and that, as to each plaintiff, the matter in controversy exceeded the sum or value of $3,000 exclusive of interest and costs.

The complaint prayed for a temporary restraining order, a preliminary injunction and a permanent injunction restraining and enjoining defendants from discharging plaintiffs from their positions; for a declaratory judgment declaring the respective rights of plaintiffs and defendants under 5 U.S.C.A. § 652 et seq.; and for such…