(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 Cir., 168 F.2d 825, that where “plaintiffs are able to show a clear *612violation of some incontestible right under a federal statute” then there need be no exhaustion of administrative remedies. We recognized the rule of the Wet-tre case in Dragna v. Landon, 9 Cir., 209 F.2d 26, 28, as another statement of the rule of Skinner & Eddy Corp. v. United States, 249 U.S. 557, 562, 39 S.Ct. 375, 63 L.Ed. 772.
Another reason why the failure to exhaust administrative remedies is not material here is that there were no such remedies for appellants to employ. Title 5, §§ 652 and 863 refer to discharges for cause; § 861 refers to reduction in personnel. Neither situation is presented here, and administrative remedies in those circumstances furnish no aid here. The regulations relating to Administrative Personnel relate to those other kinds of situations.2 3 *S.One looks in vain for a regulation dealing with the remedy of an employee who is simply replaced with military personnel.
In fact, the complaint shows that appellants did indeed “exhaust” this nonexistent administrative remedy, for they were advised by the Civil Service Commission : “In reply to your recent, letter, you are advised that the agency’s determination to run a reduction in force in any particular kind of work is not ap-pealable to the U. S. Civil Service Commission under the Retention preference regulations. An agency determination to effect a reduction in civilian personnel and to assign military personnel to carry on the duties formerly performed by civilian personnel is a problem outside our jurisdiction and is not the basis upon which we could accept a reduction in force appeal.” I cannot see what more could be expected.
The result of all this is, in my view, that these appellants have rights, established by law, which they are entitled to have determined in the court below, for they have presented a justiciable issue. As in Stark v. Wickard, 321 U.S. 288, 64 S.Ct. 559, 570, 88 L.Ed. 733, the right to a judicial determination of appellants’ rights “is found in the existence of courts.”3
1 would remand the case for its consideration on the merits. In a case as important as this (if this case stands real protection for civilian civil service in the Defense Department is gone) I think it particularly unwise to dispose of the case on the complaint alone for the same reasons stated in Kennedy v. Silas Mason Co., 334 U.S. 249, 256-257, 68 S.Ct. 1031, 92 L.Ed. 1347.
. The complaint is not too clear, and perhaps should be ordered to be made more definite. It sets out (paragraph III) an order to “effectuate a 5% reduction of civilian payroll funding”, with “reduction in civilian personnel levels * * * without replacement by military personnel,” and alleges (par. V) that defendants, contrary to the stated restriction replaced appellants with military personnel. See the final pargraph of this opinion.
. Code of Federal Regulations, Title 5, Chap. I, "Civil Service Commission”, particularly Parts 9 and 20.
. “When Congress passes an Act empowering administrative agencies to carry on governmental activities, the power of those agencies is circumscribed by the authority granted. This permits the courts to participate in law enforcement entrusted to administrative bodies only to the extent necessary to protect jus-ticiable individual rights against administrative action fairly beyond the granted powers. The responsibility of determining the limits of statutory grants of authority in such instances is a judicial function entrusted to the courts by Congress by the statutes establishing courts and marking their jurisdiction.” 321 U. S. at pages 309-310, 64 S.Ct. at page 571.
For a recent expression of this view of a court’s jurisdiction, see Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 435, 2 L.Ed.2d 503:
“Generally, judicial relief is available to one who has 'been injured by an act of a government official which is in excess of his express or implied powers. • * * The District Court had not only jurisdiction to determine its jurisdiction but also power to construe the statutes involved to determine whether the respondent did exceed his powers. If he did so, his actions would not constitute exercises of his administrative discretion, and, in such circumstances as those before us, judicial relief from this illegality would be available.”