deeming timely filed an appeal that the plaintiff filed on the Monday after the preceding Saturday’s deadline
How later courts described this case
- deeming timely filed an appeal that the plaintiff filed on the Monday after the preceding Saturday’s deadline
Written by the judges who cited it.
The opinion
CoweN, Chief Judge,
dissenting:
None of the parties in the Allison and Chambers cases called the court’s attention to Section 701 of the Civil Eights Act of 1964 ( 78 Stat. 253 ). It was not mentioned or alluded to in the oral arguments, in the briefs, or otherwise. However, *222 on September 23, 1973, about three weeks before our decisions in Allison and Ohambers, the Sixth Circuit issued its decision in Ogletree v. McNamara, 449 F. 2d 93 (6th Cir. 1971). The decision was not published or otherwise brought to our attention before the decisions in Allison and Ohambers were announced.
In that case plaintiffs, who were Negro employees of Wright Patterson Air Force Base, sued Secretary McNamara, seeking several forms of relief because of alleged racially discriminatory practices by the Air Force. The Sixth Circuit affirmed a decision of the District Court, which held that the action was basically one against the United States and that the United States had not consented to be sued in such cases.
The Sixth Circuit’s decision was based upon Section 701 of the Civil Eights Act of 1964, 78 Stat. 253 , as amended, 42 U.S.C. §2000e(b) (1970), which expressly excludes the United States from the definition of an employer against whom suit may be maintained to enjoin an employer from engaging in racially discriminatory employment practices, or to recover back pay, or to seek reinstatement to a position from which the employee has been discharged. These remedies are provided for in Section 706(g) of the Civil Eights Act of 1964,42 U.S.C. § 2000e-5 (g).
While the various Executive orders relied upon by plaintiffs in Allison and Ohambers and by plaintiff in this case provide for certain administrative remedies, the Ogletree case makes it quite clear to me that Congress expressly withheld consent to suits against the Government by Government employees who seek back pay or other remedies based on racially discriminatory practices by Government agencies. Ogletree cannot be distinguished on the ground that the plaintiffs there sought an injunction against the Government because, as pointed out above, both injunctions and suits for back pay are included among the judicial remedies employees may pursue against private employers under the provisions of Section 706(g) of the Civil Eights Act of 1964, 42 U.S.C. § 2000e-5(g). However, these judicial remedies were not available to employees of the Government until the enactment of the Equal Opportunity Act of 1972, *223 86 Stat. 103 , which has no application to plaintiff’s case.
It is axiomatic that this court has no jurisdiction of a suit against the United States based upon a regulation of an executive department if the regulation is in conflict with a law enacted by Congress. That is the situation here. In fact, in Ogletree v. McNamara, the plaintiffs relied upon Executive Order 11,246, as modified by Executive Order 11,478. The court also took into account the Equal Opportunity Regulations issued by the Civil Service Commission, 5 C.F.R.. § 713, upon which the plaintiff in this case relies.
In view of the foregoing, I find it unnecessary to discuss any other question raised in this case. The long and short of it is that we did not have jurisdiction of the suits brought in the Chambers and Allison cases, and we do not have jurisdiction of plaintiff’s action.