# Penn v. Schtlesinger

> Court of Appeals for the Fifth Circuit · December 18, 1973 · 490 F.2d 700

URL: https://www.frixlaw.com/law-library/cases/8892083

## Case

- **Full name:** Willie PENN, Individually, Etc. v. James R. SCHTLESINGER, Individually and as Secretary of Defense, Etc.
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** December 18, 1973
- **Citations:** 490 F.2d 700; 6 Fair Empl. Prac. Cas. (BNA) 1109; 8 Empl. Prac. Dec. (CCH) 9487; 1973 U.S. App. LEXIS 6398
- **Precedential status:** Published
- **Opinion:** Dissent by Godbold
- **Judges:** Godbold, Morgan, Tuttle
- **Cited by:** 35 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8892083

## Opinion text

GODBOLD, Circuit Judge
(dissenting) :
This is not run of the mill litigation but potentially a massive case. In my view the allegations of plaintiffs concerning their reasons for failing to utilize their administrative remedies are not a sufficient basis for transferring this inquiry out of the carefully structured grievance system provided by the United States government and into the federal courtroom.
The suit is a class action directed at the employment practices of 17 agencies of the United States operating in the State of Alabama. Named as defend *708 ants were the United States and the individual heading each agency (and his successor), including 10 cabinet officers of the United States government plus a substantial array of other government officials. The agencies, the individual defendants, and the number of Alabama employees of each agency are:
Department of Defense and Melvin R. Laird: 16,348 employees
Treasury Department and John B. Connally: 689 employees
Department of Justice and Richard Kleindienst: 264 employees
Department of the Interior and Rogers C. B. Morton: 170 employees
Department of Agriculture and Earl Butz: 1200 employees
Department of Commerce and Maurice Stans: 128 employees
Department of Labor and James D. Hodgson: 5 employees
Department of Health, Education and Welfare and Elliot L. Richardson: 2,161 employees
Department of Housing and Urban Development and George Romney: 182 employees
Department of Transportation and John A. Volpe: 414 employees
U.S. Postal Service and Elmer T. Klassen: 901 rural mail carriers, 167 Fourth Class postmasters and 7,329 employees
General Services Administration and Robert L. Kunzig: 46 employees
General Accounting Office and Elmer B. Staats: 12 employees
NASA and Dr. James C. Fletcher: 5,454 employees
Railroad Retirement Board and Howard W. Habermayer: 10 employees
Small Business Administration and Thomas S. Kleppe: 37 employees
Selective Service System and Dr. Curtis W. Tarr: 17 employees
Only the individual government officers remain in the case as defendants, since the United States was ordered dismissed on the ground of sovereign immunity and no cross-appeal was taken from that order. The case was certified to us for interlocutory appeal under 28 U.S.C. § 1292 (b). The District Court has not ruled on the class action feature, but if plaintiffs are permitted to represent the class they have staked out they will be entitled to pervasively investigate and litigate the employment practices of a wide spectrum of agencies with thousands of employees.
In addition to alleging a prima facie statistical case of discrimination, the complaint states that the listed agencies have engaged in a broad range of discriminatory practices, including the following: failure to recruit blacks ; use of nonvalidated employment and advancement tests; oral selection interviews; employment of persons without employment tests and without adequate guidelines to insure nondiserim-inatory hiring or with adequate guidelines that are arbitrarily disregarded; arbitrary selection of white persons over equally qualified blacks; promotions of less qualified whites or whites with less seniority than blacks; discrimination and denial of the right to equal contract in employment based solely on race.
The judicial remedies sought are far-reaching: (1) a declaration that defendants have (a) systematically and unconstitutionally discriminated against blacks in employment on racial grounds, (b) violated Executive Order 11478 relating to equal employment opportunity in the federal government, and (c) denied to blacks the right to contract regarding their employment-; (2) an order in the nature of mandamus compelling defendants to perform their duties under Executive Order 11478; (3) establishment of a one-to-one hiring ratio in the 17 named agencies in Alabama until the percentage of black employees is approximately the percentage of blacks in Alabama’s population; and (4) promo *709 tions and back pay for the individual plaintiffs.
The narrow fulcrum employed to lever this plenary inquiry out of institutional channels and into the federal court system consists of vague and unverified allegations by two individuals employed by a single federal agency (and at one location) concerning informal remarks alleged to have been made to them by two (or three) other government employees designated as EEO “counselors” or “officers.” Seldom was so small a camel’s nose employed to drag so large a camel into the tent.
In the original complaint the plaintiffs were the NAACP and Penn. Penn charged that he had been employed as a GS-1 and after 20 years had been promoted to only GS-5, when in fact his experience, ability, training, seniority and job knowledge entitled him to a rating of GS-10 or 11, and that failure of his white superiors to promote him was based solely upon his race. As to exhaustion, Penn originally alleged only this:
Mr. Penn let his supervisor know that he was desirous of receiving a promotion to any better paying [job] or to one that carried more responsibility. Mr. Penn put his superiors on notice of his desire of advancement.
The government filed a motion to dismiss asserting failure to exhaust, and by an amended complaint this language was added regarding Penn :
The supervisor to whom Plaintiff Penn made complaints and made known his desire to fill any better paying or more responsible position was Ruth Hunter. ... In addition to Mrs. Hunter’s position as head of Procurement, she is also the alternate Chief Counselor for Equal Employment Opportunity at MAFB. Mrs. Hunter never informed Plaintiff Penn of his right to file a complaint with an E.E.O. officer. Under 5 CFR 713.213(a) it was Mrs. Hunter’s legal duty to advise Plaintiff of his right to file such complaints.
The amended complaint also added Foster as a plaintiff and class representative. He alleged various unsuccessful efforts to seek better employment at Maxwell Air Force Base, and then as to exhaustion alleged:
Plaintiff Foster then called a Mr. Glenn, Chief Counselor for Equal Employment Opportunity at MAFB. Glenn referred Mr. Foster to A. C. Carter, Equal Employment Opportunity Officer, a white man. Plaintiff had a meeting with Mr. Carter in which he asked Carter to check the eligibility roster (promotion register) to determine where his (Foster’s) name was in relation to the two ladies who had been promoted. Carter would not give Foster that information, and during the course of the conversation indicated to Mr. Foster that he would have to file a suit if he expected to carry his complaint further. Carter and Glenn did not inform Foster of any other remedies available to him.
In its order on motion to dismiss the District Court noted the basic principle that available administrative remedies must be exhausted before a court will decide a constitutional question, and referred to Beale v. Blount, 461 F.2d 1133 (CA 5, 1973), in which this court affirmed the dismissal of a discharged federal employee’s complaint for failure to exhaust. The court, however, distinguished Beale on the ground that the plaintiff therein made no attempt to exhaust his administrative remedies and did not allege that resort to administrative processes would be a meaningless ritual, but merely claimed that he did not need to present his claim administratively before bringing suit, while the instant plaintiffs alleged that they had attempted to exhaust “only to be thwarted in the initial stages of those proceedings by federal officials charged with the duty of hearing complaints of racial discrimination and informing plaintiffs of additional channels of appeal.” Characterizing their actions as “abortive attempts to exhaust” and accepting all al *710 legations as true, the District Court concluded that Penn’s and Foster’s failure to go farther in the administrative processes was solely due to the breaches of duty expressly imposed on other governmental employees [presumably Mrs. Hunter and Glenn, EEO counselors, and Carter, and EEO officer].
The amended allegations as to Penn charged no more than that Mrs. Hunter failed to inform him of his right to file a complaint. The allegations as to Foster are twofold — that Glenn and Carter failed to inform him of his right to file a complaint and that Carter “indicated” to him that he would have to file suit if he expected to go farther.
The exhaustion requirement is fully discussed in McKart v. United States, 395 U.S. 185 , 89 S.Ct. 1657 , 23 L.Ed.2d 194 (1969), which points out that “ Mpplication of the doctrine to specific cases requires an understanding of its purposes and of the particular administrative scheme involved.” Id. at 193 , 89 S.Ct. at 1662 , 23 L.Ed.2d at 203 . Mc-Kart refers to these purposes, among others: (1) avoiding premature interruption of the administrative process, in recognition that it is desirable that the agency develop a record and have the opportunity to exercise its discretion and apply its expertise; (2) recognizing that the exhaustion doctrine is an “expression of executive and administrative autonomy” and that the courts should not interfere with the agency until it has completed its action or exceeded its jurisdiction; (3) practical notions of judicial efficiency, since the complaining party may vindicate his rights administratively and the courts may never have to intervene; (4) permitting an administrative agency to discover and correct its own errors; (5) avoiding the flouting of the administrative process that can weaken the agency’s effectiveness by encouraging people to ignore its procedures.
When one scrutinizes the specific administrative system here involved in the light of the foregoing policies, as Mc-Kart instructs judges to do, it becomes apparent that the issue of the possibly discriminatory hiring practices of these numerous agencies in an entire state cries out for nonjudicial handling.
Pursuant to the sweeping mandate of Executive Order 11478, 1 the Civil Serv *711 ice Commission promulgated comprehensive regulations that are particularly well calculated to ensure ready reception and prompt, fair disposition of discrimination claims.
Under the procedural provisions of the regulations, 2 an agency must first seek to resolve a charge of discrimination promptly through consultation between the aggrieved person and an Equal Employment Opportunity counselor. 5 C. F.R. § 713.213. If this is unsuccessful, the aggrieved person may file a formal complaint, id. § 713.214, which triggers an investigation by the agency’s Director of Equal Employment Opportunity, id. § 713.216. Upon the completion of this investigative file, the agency must provide another opportunity for informal resolution of the complaint, id. § 713.217(a).
If attempts at informal resolution fail again, the complainant must be notified in writing of the agency’s proposed disposition of the complaint and advised of his right to a full evidentiary hearing before an impartial appeals examiner, id. § 713.217(b). If a hearing is held, see id. § 713.218, an appeals examiner must thereafter make findings and analyses of “the matter which gave rise to the complaint and the general environment out of which the complaint arose” and render a recommended decision on the merits of the complaint, “including remedial action, where appropriate, with regard to the matter . and general environment out of which the complaint arose.” Id. § 713.218(g). These findings and recommended decision must be transmitted to the agency head or his designee, who then makes the decision of the agency on the information in the complaint file. Id. § 713.-221(a). If the agency either rejects or modifies the recommended decision, as opposed to adopting it, the reasons for that rejection or modification must be set forth. Id. § 713.221(b)(2). The agency “shall require any remedial action authorized by law determined to be necessary or desirable to resolve the issues of discrimination and to promote the policy of equal opportunity.” Id. § 713.221(c). The agency decision must be transmitted in writing to the complainant, together with copies of the hearing record and the appeals examiner’s findings and recommended decision, and the decision must also inform the complainant of his right to appeal to the Civil Service Commission. Id. § 713.-221(b) and (d).
Upon an appeal to the Commission, the 1971 regulations provide for a review by the Board of Appeals and Review, without a hearing, of the complaint file and all relevant written representations made to the Board. Id. § 713.234. The .Board, which may remand a complaint to the agency for further investigation or rehearing, must issue a written decision setting forth the reasons for its conclusions. Id. § 713.234. Copies of the Board’s decision must be sent to the complainant, his representative, and the agency, and when corrective action is ordered, the agency “shall report promptly to the board that the corrective action has been taken.” Id. § 713.234. The Board’s decision is final, but the Commissioners, upon request, may reopen the decision for consideration of new and material evidence, if the decision involves an erroneous interpretation of law or regulation or a misapplication of established policy, or if the *712 decision is of an exceptional nature. Id. § 713.235. 3
In my view the McKart policies are disserved by permitting these plaintiffs to skip all the administrative procedural steps that begin with the filing of a written complaint. In the beginning it is to be noted that plaintiffs do not claim that the administrative system is insufficient, see NLRB v. Shipbuilding Local 22, 391 U.S. 418 , 88 S.Ct. 1717 , 20 L.Ed.2d 706 (1968), or that resort to it will be futile. Ogletree v. McNamara, 449 F.2d 93 (CA 6, 1971). There has been no opportunity for a record to be developed at the agency level. The agency appeal bodies and the Civil Service Commission, which handles these matters nationwide, will have no opportunity to exercise discretion and expertise.
Moreover, the agency is denied the benefit of the policy that it be permitted to discover and correct its own errors. The majority refers to this consideration but declines to give it weight on the ground that it was the fault of the agency and not plaintiffs that the agency had no opportunity to pass on plaintiffs’ complaints. But the policy favoring self correction applies at least as forcefully to procedural slipups as to erroneous agency decisions on the merits of discrimination claims.
The majority opinion, as I read it, intimates that excusing plaintiffs from exhausting is appropriate as a means of penalizing or rebuking erring administrators and impelling them to do better next time. 4 With deference, it seems to me that this misconceives the policies undergirding exhaustion. The sound reason for lowering the barrier is not to teach the agency a lesson but to ensure that when a complaining employee faces a genuinely futile administrative effort, he will be allowed directly into court.
This brings us to the question of the waste of judicial tools which this case entails. When the District Court ruled, the plaintiffs’ right to an administrative remedy was still viable, and it remains viable at this time. See 5 C.F.R. § 713.213 (a). Under the 1972 Regulations, now in effect, the complaint must be acted upon by the agency within 180 days from filing. We are now, more than a year after the District Judge denied the motion to dismiss, and pursuant to an appeal certified to us by the District Judge, striving at the appellate level to reach decision on the threshold question of whether plaintiffs should be in federal court at all. Although the *713 majority says they should, all may still be in vain, since at this juncture there has been no determination whether in the informal conferences the supervisory personnel at Maxwell Air Force Base actually said, or failed to say, what plaintiffs allege. Additionally, of course, the judicial time and manpower already expended will be but the tip of an iceberg once the broad investigation which the majority would permit actually occurs. 5
To this point I have addressed myself to broad policies that relate to the requirement of exhaustion. There are other and more narrow reasons why plaintiffs should not be excused from exhausting. The material in the complaint bearing on plaintiffs’ informal contacts with Maxwell personnel designated as EEO officials was added by amendment after exhaustion surfaced as an issue and in an effort to allege frustration. But neither plaintiff has alleged that he lacked actual knowledge of his right to file a formal administrative complaint, or that his failure to proceed further in administrative channels was in faot caused by the remarks made to him. I can find nothing in the amended complaint to support the District Court’s conclusion that plaintiffs’ failure to go farther was solely due to the misbehavior of others. Rather, the pleadings do not exclude the possibility that plaintiffs knew of the procedures available to them and determined to repair to the court as an advised choice. 6 ,
These are not mere niceties of pleading. The Supreme Court has accepted as desirable ends the establishment and utilization of institutional remedies, as has this court. See, e. g., Stevenson v. Board of Education of Wheeler County, 426 F.2d 1154 (CA 5), cert, denied, 400 U.S. 957 , 91 S.Ct. 355 , 27 L.Ed.2d 265 (1970); Lucas v. Chapman, 430 F.2d 945 (CA 5, 1970); Ferguson v. Thomas, 430 F.2d 852 (CA 5, 1970); Wood v. Alamo Heights Indep. School Dist., 433 F. 2d 355 (CA 5, 1970). If in fact Penn and Foster were not thrown off the track by the allegedly incomplete or inaccurate information given them, or if they learned of the correct procedure before reaching the doors of the courthouse, the policies undergirding exhaustion require that they must exhaust.
I am not unmindful that the complaint may adequately allege failure on the part of Maxwell Air Force Base EEO de-signees to comply with their duties. Counselors, for example, whom aggrieved employees must consult before taking any other step, are charged with the affirmative duty of providing written notice of the right to file a formal complaint. See 5 C.F.R. § 713.213 (a). Nevertheless, I believe the review procedures set-up by the Civil Service Commission regulations are objectively so comprehensive and so fair that McKart requires us to find the failures here alleged insufficient to justify permitting these plaintiffs to circumvent them. The same factors which, when applied as McKart sets out, command that exhaustion be required also mandate that the courts not permit departure from the requisite exhaustion on anything less than very strong grounds.
In this case there is an additional factor not present in McKart . The District Court held that the complaint states claims against the individual government officers under Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 , 69 S.Ct. 1457 , 93 L.Ed. 1628 (1949), and Dugan v. Rank, 372 U.S. 609 , 83 S.Ct. 999 , 10 L.Ed.2d 15 (1963). We cannot know whether under the prayer for other and general relief all members of the class will seek back pay. But it seems to me that the mere exposure of individual government officers to the *714 possibility of personal back pay liability is manifestly unfair. Under the administrative procedure there is no problem of sovereign immunity, and back pay awards, if any, can be assessed against the government.
. The Order, which was buttressed by the Equal Opportunity Act of 1972, Pub.L. 92-261, 86 Stat. 111, 42 U.S.C. § 2000e-16 (1970), declares that the policy of equal opportunity is to be promoted “through a continuing affirmative program in each executive department and agency” and “must be an integral part of every aspect of personnel policy and practice in the employment, development, advancement, and treatment of civilian employees in the Federal Government.” The order provides that “[tlhe head of each executive department and agency shall establish and maintain an affirmative program of equal employment opportunity for all civilian employees and applicants for employment within his jurisdiction * * In this regard, the order specifies that the responsibilities of executive department and agency heads include, e. g., provision of sufficient resources to administer the program “in a positive and effective manner”, recruitment which reaches “all sources of job candidates”, full utilization of the present skills of each employee, provision of “the maximum feasible opportunity to employees to enhance (their) skills so they may perform at their highest potential and advance in accordance -with their abilities”, and provision of training and advice to supervisors to assure their understanding and implementation of this equal employment opportunity policy. The order directs that the Civil Service Commission shall, e. g., provide leadership and guidance to departments and agencies in the conduct of equal employment opportunity programs, review and evaluate agency program operations periodically, and issue such regulations, orders and instructions as it deems necessary and appropriate to carry out the Executive Order. And with respect to complaints alleging discrimination, the order directs that:
“The Civil Service Commission shall provide for the prompt, fair, and impartial consideration of all complaints of discrimination in Federal employment on the basis of race, color, religion, sex, or national origin. Agency systems shall provide access to counseling for employees who feel aggrieved and shall encourage the resolution of employee problems on an informal basis. Procedures for the consideration of complaints shall include at least one impar *711 tial review within the executive department or agency anil shall provide for appeal to the Civil Service Commission.”
The Civil Service Commission has promulgated Equal Opportunity Regulations which implement all of the directives of Executive Order 11478, as amended (5 C.F.R. Part 713 (1972 rev.)). These regulations specify in detail the procedures which each department or agency shall follow in processing and resolving individual complaints of discrimination.
. The regulations in force at the inception of this suit were promulgated in 1971, and were superceded in 1972. Note 3, infra, discusses certain of the changes made by the 1972 version.
. In October 1972, a few days after the District Court had entered its order, the Equal Opportunity Regulations were revised by the Civil Service Commission (see 37 Fed.Reg. 22717, October 21, 1972). As a result of this revision, the regulations now additionally require that an agency resolve a complaint within 180 calendar days after it is filed, including the time spent in conducting an evidentiary hearing. 5 C.F.R. § 713.220 . The regulations now specify the relief which an agency must offer employees and applicants for employment against "whom the agency is found to have discriminated, including, for example, retroactive promotion with back pay and retroactive appointment to the position previously denied with back pay. Id. § 713.271.
The earlier regulations permitted an organization acting in an aggrieved person’s behalf to file and prosecute his claim but not to raise general allegations of discrimination unrelated to the individual complaint. The amended regulations broaden this right, providing for filing with an agency of “general allegations by organizations or other third parties of discrimination in personnel matters within the agency which are unrelated to an individual complaint.” Id. § 713.251. Any such allegation shall be stated with sufficient specificity so that the agency may conduct an investigation, and the agency “shall notify the party submitting the allegation of its decision, including any corrective action taken on the general allegations.” The third party may appeal the agency decision to the Commission, which “shall issue a decision on the allegation ordering such corrective action, with or without back pay, as it deems appropriate.” Id.
. The majority refers to agency personnel’s “refusing to further process grievances and pass them on to the next link in the chain of command.” This seems to me a somewhat exaggerated characterization of what plaintiffs contend. (The relevant portions of the complaint are quoted in the early part of this opinion.)
. The facts and the statistics of the current strains on judicial capacities need not be reiterated here. See e. g., Remarks of Warren E. Burger, Chief Justice of the United States, to the American Bar Association, August 6, 1973.
. Where alleged frustration of administrative remedy is based on lack of information or misinformation concerning the correct procedural route to follow, it is at least questionable whether failure to exhaust should be excused if before suit is filed the complaining party is advised by counsel of the correct procedural route to follow administratively.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8892083. Public record. Not legal advice.