Appendix — Penn v. Rumsfeld

|! Supreme Court, U.S,

FILED ;

} OCT 23 1974

APPENDIX

) MBBCHAEL RODAK. JR. cies

. t

In the

Supreme Court of the United States

OCTOBER TERM, 1974 —

No. Y4-47

WILLIE PENN and CHARLES F. FOSTER, JR., individually

and on behalf of all persons similarly situated, and

ALABAMA STATE CONFERENCE OF NAACP, INC., a non-

profit Alabama corporation, individually and on behalf of its

black members and on behalf of the class similarly situated,

Petitioners,

-V.-

JAMES R. SCHLESINGER, individually and as SECRETARY

OF DEFENSE, etc., ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

FILED OCTOBER 23, 1974

INDEX FOR APPENDIX

Page

Court of Appeals en bane

GPGMEOB wc cc eee ee ee eee es eee la

Court of Appeals

Panel Opinion .......-. eeeeee 13a

Rule 28 U.S.C. § 1292

Certificate ° . . . . . > . . . . . . . . 46a

District Court Opinion ......+es.-s. 47a

Complaint .....+4+e-s eervreceecs 62a

Amended Complaint ......+++e#e68-s 95a

5 CFR 713 (pertinent sections) ..... 106a

a

la

6218

Willie PENN, Individually, etc.. et al., Plaintiffs-Appellees,

v.

Melvin R. LAIRD, Individually and as Secretary of

Defense, etc., et al, Defendants-Appellants.

No. 72-3684.

United States Court of Appeals,

Fifth Circuit.

July 26, 1974.

A class action was instituted against the United States

and heads of government departments and agencies for al-

leged systematic racial discrimination in hiring and promotion.

The United States District Court for the Northern District of

Alabama, Frank M. Johnson, Jr., Chief Judge, granted the

motion of the government to dismiss but denied a similar

motion by the individual government officials, 350 F.Supp.

752. They appealed. A panel of the Court of Appeals af-

firmed, 490 F.2d 700, but the court en banc held that the

plaintiff association, seeking to represent black employees and

prospective employees of some federal departments, had an

administrative remedy under amended equal opportunity reg-

ulations of the Civil Service Commission and was required to

exhaust such remedy before suing, though such amended

regulations were adopted after the District Court denied the

motion to dismiss.

Opinion of panel reversed; order of District Court re-

versed and cause remanded with i:structions to dismiss.

Tuttle, Senior Circuit Judge, dissented and filed opinion

in which Wisdom, Lewis R. Morgan and Goldberg, Circuit

Judges, joined.

Synopecs. Sytlad: and Key Number Classfiention

- COPYRIGHT © 1974, by WEST PUBLISHING CO

The Synopres, Syllabi and Key Number Clowfi-

calion constitute ro part of the epimen of the court INDEXED

2a

6219 PENN v. LAIRD

Civil Rights «13.9

Association seeking to represent black employees and

prospective employees of some federal departments in poten-

tially massive class action had administrative remedy under

amended equal opportunity regulations of Civil Service Com-

mission, well calculated to ensure ready reception and prompt,

fair disposition of discrimination claims, and association was

required to exhaust such remedy before suing United States

and heads of government departments and agencies for al-

leged systematic racial discrimination in hiring and promotion,

though such amended regulations were adopted after district

court denied motion to dismiss.

Appeal from the United States District Court for the Mid-

dle District of Alabama.

Before BROWN, Chief Judge, TUTTLE, Senior Circuit

Judge, and WISDOM, GEWIN, BELL, THORNBERRY,

COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER,

SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit

Judges.

PER CURIAM:

For the reasons set out in the dissenting opinion of Judge

Godbold, Penn v. Schlesinger, 490 F.2d 700, 707-714 (CA5,

1973), the court en banc concludes that the claims of the

individual plaintiffs should have been dismissed for failure to

exhaust administrative remedies.'

1. The order of the District Court, 350 F.Supp. 752 denying the

motion to dismiss did not refer to the status of the Alabama State

Conference of NAACP, Inc., which joined in the suit as plaintiff

alleging that it sued on behalf of its members and of all blacks in

Alabama situated similarly to the individual plaintiffs. Pretermit-

ting the numerous other issues that surround NAACP’s claim, it

now has an administrative remedy under amended regulations

adopted shortly after the District Court denied the motion to dis-

miss, see 5 Cir., 490 F.2d at 712, footnote 3, and under the

circumstances of this case it too should be required to exhaust.

— ee ee ih. ee ewe

3a

PENN v. LAIRD 6220

The opinion of the panel is reversed. The order of the

District Court is reversed and the cause is remanded to the

District Court with instructions to dismiss the case.

TUTTLE, with whom WISDOM, GOLDBERG and MOR-

GAN, Circuit Judges, join, dissenting:

With deference, | feel that I must dissent from the decision

and the opinion of the Court, sitting en banc, in reversing the

denial by the trial court of a motion to dismiss this section

1981 suit against the heads of the United States Government

departments for ravial discrimination in hiring policies, be-

cause the named plaintiffs in the class action had failed to

exhaust certain Civil Service administrative remedies availa-

ble to them.

There are two important issues presented to the Court, only

one of which could be considered by the original panel because

of the rule of stare decisis within the Circuit. The original

decision is now reversed by the per curiam opinion of this

Court, which adopts the dissenting opinion. For the prevail-

ing and dissenting opinions previously entered see 490 F.2d

700 (5th Cir. 1973).

The two issues which are here presented are: (1) is a black

plaintiff and an association seeking to represent black em-

ployees and prospective employees of some of the departments

of the United States Government, who allege, in a section

1981 complaint, egregious acts of discrimination against blacks

as a class in employment and promotion in the various govern-

ment departments, required to exhaust administrative reme-

dies promulgated as regulations by the Civil Service Commis-

sion to implement Executive Order No. 11478, as amended by

Executive Order No. 11590' as a condition precedent to their

1. This order, in relevant part, reads: '

“Section 1. It is the policy of the government of the United

States to provide equal opportunity in federal employment for all

persons, to prohibit discrimination in employment because of

race, color, religion, sex, or national origin, and to promote the

full realization of equal employment opportunity through a contin-

4a

6221 PENN v. LAIRD

filing either an individual or class action in the United States

Courts against United States Government officials who are

charged with having been responsibie for the acts of discrimi-

nation; (2) then, assuming such exhaustion is a prerequisite to

the filing of a section 1981 suit, did the conduct of the

subordinate officials, acting as Equal Employment counselors,

which the plaintiffs claim aborted their efforts to obtain

redress through administrative means, satisfy the normal re-

quirements of exhaustion.

When this case was before the original panel the first

question was not open for our consideration. This Court had

already in the case of Beale v. Blount, 461 F.2d 1133 (5th Cir.

1972) explicitly held that a section 1981 suit could not be

brought against the Postmaster General of the United States

in a racial discrimination case in federal employment until the

plaintiff had exhausted the administrative remedies which we

have heretofore referred to. Being bound by that prior

decision, as we were, the panel considered merely the second

question which is still in issue here. We concluded that what

uirig affirmative program in each executive department and agen-

ae

“Section 2. The head of each executive department and agency

shall establish and maintain an affirmative program of equal

employment for all civilian employees and applicants

for employment within his jurisdiction in accordance with the

policy set forth in Section 1. It is the responsibility of each

department and agency head, to the maximum extent possible, to

provide sufficient resources to administer such a program in a

positive and effective manner . ...

“Section 3. The Civil Service Commission shall provide leader-

ship and guidance to departments and agencies in the conduct of

equal employment opportunity programs .- .__—_.

“Section 4. 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 counselling for employees who feel aggrieved and shall

encourage the resolution of employee problems on an informal

basis. Procedures for the consideration of complaints shall in-

clude at least one impartial review within the executive depart-

ment or agency and shal! provide for appeal to the Civil Service

Commission. .. .”

we

5a

PENN v. LAIRD Yaa

may be considered to be substantial rebuffs of the plaintiffs in

their efforts to have their racial discrimination charges con-

sidered by their supervisors, who were also EEO counselors,

distinguished this case from Beale v. Blount, supra, in that in

the latter case the plaintiff was expressly invited to file a

complaint with the agency for administrative handling, but he

declined to do so, filing the suit in court instead.

Now, however, this Court en banc writes on a clean sheet, it

of course being within the competence of the Court sitting en

banc to overrule Beale v. Blount, supra, if we conclude that it

incorrectly states the law in this important area dealing with

efforts to put an end to racially discriminatory hiring prac-

tices, whether by private employers, state or local govern-

ments, or the United States Government itself.

I conclude that the mosi striking argument for overruling

the Beale decision is the fact, which none denies, that both the

Supreme Court and this Court have repeatedly held that

where a case of alleged discrimination on account of race is

alleged under section 1983 against a state or under section

1981 against a private employer, or against an individual

under section 1982 even though there are administrative

means which are intended to give the discriminatee an oppor-

tunity to achieve his desired results, the early Civil Rights

statutes are available to a plaintiff as an alternative remedy

to any others that may exist, and he is not denied access to the

courts because of his failure to choose the other way round.

Damico et al. v. California et al., 389 U.S. 416, 88 S.Ct. 526, 19

L.Ed.2d 647 (1967) is a case brought under 42 U.S.C.A. § 1983

and it is described in the following manner in the per curiam

opinion:

“Appellants, welfare claimants under California Welfare

and Institutions Code §§ 11250, 11254, and regulation C-

161.20 thereunder, sought damages, a declaratory judgment

of unconstitutionality and temporary and permanent injunc-

tive relief in this suit under the Civil Rights Act, 42 U.S.C.

§ 1983, 28 U.S.C. § 1343. Their complaint alleges that the

be construed as directly repealing section 1981, the only

means of repeal through preemption would be by implica-

tion. Repeals by implication, however, are not favored and

‘the intention of the legislature must be clear and manifest

.’” citing cases.

We further stated:

“This interpretation also finds support by analogy in Jones

[v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20

L.Ed.2d 1189] where the Court ruled that Title VIII of the

Civil Rights Act of 1968 did not repeal § 1982 by implica-

tion. Moreover, in Sullivan v. Little Hunting Park, Inc., 396

6a

7a id

522: PENN v. LAIRD

PENN v. LAIRD

statute and regulation are discriminatory and that the 6224

appellees, in administering them and in applying them to 0 — 237, 90 S.Ct. 400, 405, 24 L.Ed.2d 386 393

appellants, deprived appellants of equal rights secured by . urt stated: —

the United States Constitution. The three-judge District “We noted in Jones v. Alf

Court dismissed the complaint solely because ‘it appear{ed] Housing Act of 1968, 82 ~ondy 4 vee a “on ro —_

to the Court that all of the plaintiffs [had] failed to exhaust sanction of § 1982. 392 US. at 413-417 te

adequate administrative remedies.’ This was error. In 2189-2192. What we said there is adeq + 88 S.Ct. at

McNeese v. Board of Education, 373 U.S. 668 [83 S.Ct. 1433, the suggestion that the Public pe oa dispose of

10 L.Ed.2d 622], noting that one of the purposes underlying of the Civil Rights Act of 1964, 78 Stat. op PrOvenen

the Civil Rights Act was ‘to provide a remedy in the federal supersedes the provisions of the 1866 Act Fo mer goad

courts supplementary to any remedy any State might have,’ archy of administrative machinery rovided ge

id., at 672 [83 S.Ct. 1433, at 1435] we held that ‘relief under Act is not at war with the vin , " by the 1964

the Civil Rights Act may not be defeated because relief was § 1982.’” Principles embodied in

not first sought under state law which provided [an admin- The case o ;

istrative] remedy,’ id., at 671 [83 S.Ct. 1438, at 1435]. See 1044, (5th on bgt may wane On, OB Fa

Monroe v. Pape, 365 U.S. 167, 180-183 [81 S.Ct. 473, 480— that this Court has made it clear mary a the fact

482, 5 L.Ed.2d 492). . _ = 6 charge of racial Guttntenias poe ee

So far as relates to suits against private employers this section 1981 even where he has delibe aed po

Court, in Sanders v. Dobbs House, 431 F.2d 1097 (5th Cir. EEOC administrative remedies unde sage J bypassed the

1970) made short shrift of the contention that when Congress said: r Title VII. This Court

passed Title VII of the Civil-Rights Act of 1964 this preempt- “We thus ,

ed the general remedial language of section 1981, insofar as on the qu oatian oe onary bo that we have not ruled

the right to contract for employment is concerned. In Sand- dies under Title VII of the Act can Z re reme-

ers we said: , by a § 1981 plaintiff. The Third ice een bypassed

“Since there is no language in Title VII that can remotely this question in Young v. International Sa

e ele-

ee Cir,, 1971, 438 F.2d 757, a case involving facts

a ~ i ro eng in the case at bar. The holding

nothing in Title VII either expressedly or impli

- . . . * . d ' | ;

2 ar any jurisdictional barrier to a suit "sath nl

- oie Pointing to the differences in the scope of the

— . o = under Title VII and § 1981, such as the

e statutes of. limitations and the ie

provision f

So of counsel and the award of attorney’s fees wh

pes _ 2000e-5( eXk)), the Third Circuit concluded that

ppellan an independent remedy under § 1981 without

respect to exhaustion und ,

Pa an ee under Title VII. We agree.” 443

8a

PENN v. LAIRD

Granting the existence of a 1981 remedy against govern-

ment officials, which is not drawn in issue by the dissenting

opinion, which now becomes the opinion of this Court, it

completely escapes my comprehension to understand why the

Cout should fashion a rule that would give federal officials,

acting on behalf of the executive department, preferred status

over both private employers, real estate dealers and state

governments, by hedging about any suit under the Civil

Rights law against federal functionaries by a requirement

that the agencies be first given an opportunity to police

themselves.

I have referred. to’ the allegations of the complaint as

complaining of “egregious acts” of discrimination against

blacks by the named defendants. These allegations, which

must be taken as true for the purpose of this motion to

dismiss, allege, for instance, that in the Department of De-

fense, in which plaintiff Penn is employed, there are 1,899 G.S.

(white collar) Air Force employees in Alabama of which

thirty-three or 1.7% are black; 14,000 G.S. Army employees in

Alabama of which 235 or 1.7% are black; thirty-five Navy

G.S. employees in Alabama of which none is black; forty-

eight G.S. Defense Activities employees in Alabama of which

none is black; and 366 G.S. Defense Supply Agency employees

in Alabama of which fifteen or 4.1% are black. The black

population of Alabama is 26.4%. These statistics would seem,

under all the standards used by this Court, e. g., Morrow v.

Crisler, 491 F.2d 1053 (5th Cir. en bance 1974)* to show a

strong prima facie case of discrimination.

It is alleged that in the district court case of United States

v. Frazier, 317 F.Supp. 1079 (M.D.Ala.1970) the United States

had brought a broad suit to seek the end to segregated

employment by a wide variety of Alabama State agencies to

force equal employment of blacks. It is clear that this was

2. Six blacks out of ninety-one state troopers were hired by Missis-

sippi. The court said: “These figures alone negate the State's

argument that its present practices are nondiscriminatory.”

9a

PENN v. LAIRD 6226

the purpose and effect of the Frazier i

that in a recent such suit the Justice * at rt

the court that it require Alabama State Troopers to hire 9%

blacks because Alabama had no black state troopers. See

pg v. Crisler, supra, and NAACP y. Allen, 5 Cir., 1974,

2d 614. It was further alleged that Alabama, with

19,296 merit system employees (equivalent to G.S.), exceeds

the federal government in i

oe percentage of black employees in

We. cannot but take judicial notice of the fact

United States Department of Justice which is $data

264 G.S. employees in Alabama and had only eleven, or 4.2%

blacks has pictured itself, and has frequently acted out ‘the

part of, being the protagonist of the federal policy to put an

end to racial discrimination in all facets of our national life

that enjoy constitutional protections. This causes me to share

the feeling of the trial court here i

Opinion the court said: where in a footnote to the

“It is, of course, regrettable tha i igorous

’ , t, having so vi l

brought and prosecuted actions against various y wean

ge to insure equal education and employment for

acks, the United States government should now be forced

to interpose such a-defense as the doctrine of sovereign

immunity to a charge of racial discrimination j

ment.” [350 F.Supp. 754.] ae

I would express that same feeling to the defense put forward

by the government in the nature of its claim that the Civil

Rights Act of 1866 may still be used against the state and

private individuals but may not run except conditionall

against federal officials who are derelict in their duties 1

therefore express the deep seated feeling that this Court

should not undertake to create a barrier to the filing of a

section 1981 suit against federal officials which does not exist

in similar actions against eithe i i

ee r state officials or private

10a

6227 PENN v. LAIRD

It is also difficult for me to understand the concern ex-

pressed in the dissenting opinion touching on the “massive”

nature of the law suit in light of the complete lack of

hesitancy on the part of the United States to undertake as it

did in United States v. Frazier, supra, to compel the State of

Alabama to bring all of its merit system employees into

compliance with federal guidelines with respect to discrimina-

tory practices. The government did not move in the trial

court to have the court determine whether the case should

properly proceed as a class action. If, in fact, the case was too

“massive” to be properly handled as a class action there would

be no restraints upon the trial court’s limiting the action to

the class within a single department, the Defense Depart-

ment, for instance, or even the Air Force, or to limit it to Air

Force employees at Maxwell Air Force Base, the site of

plaintiff’s employment. Clearly no such objection as this is

available on a motion to dismiss.

The fact that the NAACP is also a party to the action

further emphasizes the impropriety, to my mind, of the deci-

sion by this Court to direct the dismissal of the law suit.

Under the regulations that existed in 1971, and which were

the only ones in effect at the time the suit was filed, it was

expressly provided that such an organization could not attack

the discriminatory practices in general but could only appear

on behalf of the named plaintiffs. In light of such limitation,

it is inconceivable to me that the Court could hold that there

was any administrative remedy available for the NAACP as a

plaintiff to test out the degree to which the all pervasive

discriminatory practices (as alleged) could be alleviated. The

amendment to the regulations two weeks after the trial

court’s judgment, could not, it seems to me, warrant a dismiss-

al of the suit which, when filed, was not subject to any

objection that the NAACP had failed to exhaust any reme-

dies.

We are not here dealing with a case where a plaintiff relies

upon a federal statute as the basis of his right of action

lla

PENN v. LAIRD

against federal defendants when the statute relied upon itself

prescribes an administrative remedy. The doctrine of exhaus-

tion of administrative remedies is discussed in McKart v.

United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed2d 194

(1969), a case in which the doctrine was not applied. The

Supreme Court quotes with approval the language from

Myers v. Bethlehem Ship Building Corp., 303 U.S. 41, 50-51

58 S.Ct. 459, 463, 82 L.Ed. 638 (1938) as saying: |

“No one is entitled to judicial relief for a supposed or

threatened injury until the prescribed administrative reme-

dy has been exhausted.” (Emphasis added).

Here we are dealing with no “prescribed” remedy.

Such remedy as exists does so simply by virtue of the

existence of the Executive Order. It does not, as we have

seen, either repeal the basic Civil Rights cause of action nor

become an essential part to a plaintiff's reliance on these Civil

Rights sections unless, for reasons satisfactory to i

Court should declare it to be so. 7 ap

With all the mandatory and cogent language as is present in

the executive order and the regulations quoted in the dissent-

ing (now the Court’s) opinion having brought about the miser-

ably poor results as we must take here to be true, I am not

impressed with the plea that “the agency is denied the benefit

of the policy that it be permitted to discover and correct its

own errors.” One cannot but ask: What, in the name of

Justice, has prevented the agency from discovering what must

have been apparent to everyone at Maxwell Air Force Base all

these years? And what, but a conscious intent not to do so

has prevented the proper officials from correcting these crass

“errors.”

I would excuse any imagined requirement of exhaustion of

administrative remedies, if it otherwise existed, on the mas-

sive and pervasive violations of the executive order itself. |

shall not attempt to elaborate on what was said in the original

opinion in the matter of the aborting of the administrative

12a

PENN v. LAIRD

remedies because of the clearly pleaded callous disregard, as

to Penn’s case, and the explicit incorrect response as to Foster,

by the persons whose duty it was “to seek a resolution of the

matter on an informal basis; to counsel the aggrieved person

concerning the issues in the matter; to seek a solution of the

matter on an informal basis,” etc., see 713.213 C.F.R.

I conclude only, that. if exhaustion is normally required,

which I seriously question, then here, there had either been

“exhaustion” or such conduct as would require us to find it to

be excused—not to “penalize” the EEO counselors for bad

performance as suggested by the opinion, but to save a law

suit showing on its face so much merit, after all of this time

has passed. I am loath to say to Mr. Penn, after his 22 years

employment at not exceeding a G.S. Grade 5 and Navy

veteran Foster,’ after his fifteen years of employment at no

better than a G.S. Grade 4 that they have no right to maintain

this section 1981 suit that has now been pending for two and a

half years. In light of the alleged treatment given them I

cannot tell them that they are remanded to the system that

has, according to the facts alleged, treated them with such

callous rejection.‘

I would affirm the order of the trial court.

3. Foster alleged that while serving in the Procurement Office at

Maxwell Air Force Base he received a certificate in accounting from

Floyd Commercial Business School.

4. Of course, I refer only to what is alleged, but by making its motion

to dismiss, the government has elected to say “If everything you

allege is true, you cannot sue.”

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.

13a

‘IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

ane 1 72-3684

WILLIE PENN, Individually, Etc., ET AL,

Plaintiffs-Appellees,

versus

JAMES R. SCHLESINGER,

Individually and as Secretary of Defense, Etc., ET AL,

Defendants-Appellants.

Appeal from the United States District Court for the

Middle District of Alabama

(December 18, 1973)

Before TUTTLE, GODBOLD and MORGAN,

Circuit Judges.

TUTTLE, Circuit Judge: This interlocutory appea!

pursuant to 28 U.S.C. §1292(b)' raises three questions:

1 “When a district judge, . . . shall be of the opinion that

such order involves a controlling question of la

which there is substantial po dk for aitterenen pn

Opinion and that an immediate appeal from the order

may materially advance the ultimate termination of

the litigation, he shall so state in writing in such or-

der. The Court of Appeals may thereupon, in its

roe aaa permit an appeal to be taken from such

l4a

29 PENN, ET AL v. SCHLESINGER, ET AL

(1) Whether racial discrimination in hiring and promo-

tion by federal agencies is actionable by discrimina-

tees; (2) Whether such claims of discrimination are

barred by sovereign immunity; and (3) Whether these

plaintiffs exhausted available administrative remedies

before filing suit in federal court.

Plaintiffs-appellees Willie Penn, Charles Foster, and

the Alabama State Conference of the NAACP, on behalt

of themselves, the organization’s membership, and

“a}] blacks in Alabama similarly situated” brought

this action against the United States and the in-

dividuals heading seventeen federal agencies employ-

ing persons in Alabama.’ Plaintiffs Penn and Foster,

both civilian employees of the Department of Defense

at Maxwell Air Force Base in Alabama allege they

have been denied promotions or advancement solely

because of their race, The district court held that the

plaintiffs had stated a claim upon which relief could

be granted, that sovereign immunity barred relief a-

gainst the United States but not against the individual

government officials, and that the plaintiffs had suf-

ficiently exhausted their administrative remedies be-

fore filing this suit. The court, while permitting dis-

covery to proceed, allowed the defendants to make an

interlocutory appeal on the controlling questions of law

involved in the suit. We affirm.

2The agency heads being sued are the Secretaries of the Depart-

ments of Defense, Treasury, Interior, Agriculture, Commerce,

Labor, Health, Education and Welfare, Housing and Urban

Development, Transportation, The Attorney General, The

Postmaster General, The Directors of the General Services

Administration and The Selective Service System, The Comp-

troller General, and The Chairman of the Railroad Retirement

Board and The National Aeronautics and Space Administration.

1Sa

PENN, ET AL v. SCHLESINGER, ETAL 3

I. CAUSE OF ACTION.

Assuming for purposes of this interlocuto

aan on re have defined a proper oo as

a pth: he they were discriminated against by

Seer a n federal agencies having offices in Ala-

: question remains whether the plaintiffs

have stated a claim upon which relief can be granted.

The parties are agreed that Title VII of the Civil

Rights Act of 1964 is inapposite.+ First, the plaintiffs

claim that Executive Order No. 11478, as amended by

Executive Order No. 11590," creates a cause of parce 4

3Neither of these questions has

yet been litigated. ;

“Though Title VII proscribes unlawful employment practices in-

“Section 1. It is the poli vernme

cy of the go

United States to provide equal opportunity aye hoa

——e for all persons, to prohibit discrimination

— = ~~ t because of race, color, religion, sex,

— -y origin, and to promote the full realization

tag aiiinnation Goagsion fe oak asenn eee

po ag heptane in cach executive department

“Section 2. The head of cach

executive de

= agency shall establish and maintain an a,

- J ae ogy A... equal a opportunity for

ilian ployees applicants for -

= — = hag nag in accordance a

° Section 1. It is the respo i

of cach department and agency head, to the cose tn

pes ry. to provide sufficient resources to ad-

a _ & program in a positive and affective

“Section 3. The Civil Se

vs rvice Commission shal

vide leadership and guidance to pe temo oa

l6a

y PENN, ET AL v. SCHLESINGER, ET AL

by discriminatees against the federal government.

Second, plaintiffs allege that 42 U.S.C. §1981* enables

them to sue the federal government for infringement

of their right to make and enforce employment con--

tracts on equal grounds with white citizens. Third, they |

contend that the Fifth Amendment of the United States

Constitution creates a direct cause of action by dis-—

criminatees against the federal government.’ :

Since, as will subsequently appear, we hold the opin-

ion that the complaint states a claim upon which relief

can be granted under Section 1981, we pretermit the

agencies in the conduct of equal employment oppor-

tunity programs...

“Section 4. The Civil Service Commission shall pro-

vide for the prompt, fair, and impartial considcra-

tion 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 counselling for employecs who feel aggrieved

and shall encourage the resolution of employee prob-

lems on an informal basis. Procedures for the con-

sideration of complaints shall include at least onc

impartial review within the executive department or

agency and shall provide for appeal to the Civil

Service Commission .. .”

“All persons within the jurisdiction of the United

States shall have the same right in every state and

territory to make and enforce contracts, to sue, be

parties, give evidence, and to the full and equal bencfit

of all laws and proceedings for the security of persons

and property as is enjoycd by white citizens, and shall

be subject to like punishment, pains, penaltics, taxes,

licenses, and exactions of every kind, and to no other.”

(Emphasis added).

7The due process clause of the Fifth Amendment restricts the

federal government in some arcas which would be covered

by the cqual protection clause of the Fourteenth Amendment

if applied to a state. See, e.g. Bolling v. Sharpe, 347 U.S, 497

(1954) (holding racial segregation violates due process).

l7a

PENN, ET AL v. SCHLESINGER, ET AL 5°

Meare whether this claim might also be cognizable

under cither the E i :

poncon sh r the Executive Order or oe Fifth Amend-.

Our decision in Sanders v. Dobbs Houses. Inc 431.

F.2d 1097 (1970), held that Section 1981 ‘ peotied.

a cause of action to a black employee allegedly dis-,

charged solely because of her race. Thus, this Sectio 7

creates a cause of action for employment contract pain

crimination against private employers, Though no de-

cision directly in point has been brought to our atten-

tion, we think it clear that the rationale of the Dobbs:

House decision applies to employment discrimination.

by federal officials as well as by private quipleyers.

In District of Columbia v. Carter. 40 |

the Supreme Court said that Section rohan lg

lute’ bar to all such discrimination, private as well

as public, federal as well as state.” 409 U.S. at 422.

The Court held that Section 1982 was intended to pro-

hibit particular types of discrimination regardless of

8Ano

nel —— Order, which we held did not create such a

cause of action, is similar to, albeit distinguishable from,

: ve Order No. 11478, Sec Farkus v. Texas Instru -

nc.. 375 F.2d 629 (5th Cir. 1967). nee

oug ¢ constitutional claim of raci

ally discri

a — —- to be closcly + Maroon ry

n ing v. Sharpe, supra, th ;

cen cause of action under Scction 1981 Poem ay yon

ya or us to decide whether such private actions as this’

ad , to insure compliance with the due process

o r4 poke. +] ore See Bivens v. Six Unknown

med , S. 38

, amd b sane 8 at 398 (1971) (concurring opinion

ry 1981, Section 1982 was part of the Civil Rights Act

=. » enacted pursuant to Congress's power und

rteenth Amendment. we

18a

G PENN, ET AL v. SCHLESINGER, ET AL

their sources. In this respect, Section 1982 was con-

trasted with Section 1983. While the former was enact-

ed to implement the principles enunciated in the ts

teenth Amendment, the latter legislation, oe

eleven years later, was based upon the Fourteen

Amendment. While Section 1982 prohibited discrimina-

tory activity from whatever source, Section 1983 was

directed only at discriminatory activities of the states.

The narrow question in this case is whether Section

1981 is more closely analogous to Section 1982 or to

Section 1983. In our view, there is no doubt but that

Section 1981, like its sister Section, 1982, provides a

cause of action against all discrimination —_ree

blacks, because of race or color, in the making an

enforcement of contracts, Therefore, the allegation

that the federal government has violated the plaintiffs

contract rights on account of their race does wd he

cause of action under Section 1981 of the Civil a s

Act of 1866. Hence, we turn to the question aa

sovereign immunity bars recovery against the fe _

government and its employees when an action

brought under Section 1981.

II. SOVEREIGN IMMUNITY,

In the first place, we agree with the district np

analysis that Section 1981 does not sergueents a og “4

of sovereign immunity by the federal governmen 3

is well settled that a waiver of sovercign genni

must be specific and explicit; such a waiver on

be implied by construction of an CY ao"

See United Slates v. Shaw, 309 U.S. 495 (1940);

19a

PENN, ET AL v. SCHLESINGER, ET AL 7.

field v. Byrd, 320 F.2d 455 (Sth Cir, 1963), cert. denied

376 U.S. 928 (1964), Since Section 1981 contains no ex-

plicit waiver of sovereign immunity by the federal gov-

ernment but merely a general prohibition of discrim-

ination on racial grounds, it does not constitute a waiv-

, er of this immunity. Any doubt concerning disposition

of this issue was put to rest in our decision of Beale

v. Blount, 461 F.2d 1133 (Sth Cir. 1972), which held a

Section 1981 suit for injunctive relief against the fed-

eral government to be barred by the doctrine of sov-

ereign immunity.

While the plaintiffs concede and the district court

held that Beale v. Blount bars this suit as against the

government itself, the plaintiffs present two argu-

ments which they contend circumvent the sovercign

immunity bar with respect to the individual federal

officials. First, they argue that the Fifth Circuit cases

of Beale v. Blount and Blaze v. Moon, 440 F.2d 1348

(5th Cir, 1971) constitutec improper extensions of the

Eighth Circuit case of Gnotta v. United States, 315 F.2d

1271 (8th Cir. 1969), cert. denied, 397 U.S. 934 (1970).

While it is true that Gnotta involved review of an ad-

ministrative finding that no discrimination had been

proven while Blaze and Beale were cases in which dis-

crimination had been admitted, we are bound by prece-

dent in this circuit to accept the extension of Gnotta

to cases of admitted discrimination, Second, the plain-

tiffs contend that Blaze and Beale must be read in

light of two Supreme Court decisions which recognize

certain exceptions to the doctrine of sovereign immuni-

ty in suits against federal officials. Larson v. Domestic

and Foreign Commerce Corporation, 337 US. 682

20a

8 ‘ PENN, ET AL v. SCHLESSINGER, ET AL

(1949) dnd Dugan v. Rank, 372 U.S. 609 (1963). Chief

Justice Vinson stated these exceptions to sovereign im-

munity as follows:

“There may be, of course, suits for specific

relief against officers of the sovereign which

are not suits against the sovereign os

[First,] where the officer’s powers are limit-

ed by statute, his actions beyond those limita-

tions are considered individual and not sover-

eign actions. The officer is not doing the busi-

ness which the sovereign has empowered him

to do or he is doing it in a-way which the sov-

ereign has forbidden. His actions are ultra

vires his authority and therefore may be made

the object of specific relief ... a second type

of case is that in which the statute or order

conferring power upon the officer to take ac- —

tion in the sovercign’s name is claimed to be

unconstitutional . . . . here, too, the conduct

against which specific relief is sought is be-

yond the officer’s powers and is, therefore, not

the conduct of the sovereign.” 337 U.S. 689-90.

-In our opinion, a violation of Section 1981 by a federal

official must be deemed an ultra vires action on the

official’s part. Since this federal statute specifically

prohibits racial discrimination in the making and en-

forcement of employment contracts, we cannot infer

that federal officials responsible for making employ-

ment contract decisions are acting within the scope

of their duties on behalf of the sovereign when they

‘act in a racially discriminatory manner.

2la

PENN, ET AL v. SCHLESINGER, ET AL 9

However, since Beale v. Clount heli further that in-

junctive relief against allegedly racially discrimina-

‘tory practices by individual federal officials in the Post

Office Department was barred by the doctrine of sover-

eign immunity, we must examine in greater detail the

relief requested by the plaintiffs in order to ascertain

what relief would, if granted, run against the sovereign

rather than merely against an officer of the sovercign

acting ultra vires, :

The plaintiffs did not seck to enjoin these officials

from violating Section 1981, However they did scek “a

declaration that the defendants have engaged in

a practice of denial of cqual right to contract with

blacks in Alabama in employment and that such prac-

tice is a violation of Title 42 U.S.C. §1981.” Further,

they requested that defendants institute a practice of

hiring one black for every one white hired until the

ratio of blacks in defendants’ federal jobs in Alabama

is approximately in proportion to the percentage of

blacks in Alabama’s population.

With respect to the individual named plaintiffs, Wil-

lie Penn sought to require that his rating be increased

to G.S. 11 and that he be promoted into the next avail-

‘able position in base procurement for which he is quali-

fied; a further order was sought requiring the Depart-

ment of Defense to pay him a sum of money, including

interest, to represent the salary Penn would have re-

ceived had he been promoted without regard to race.

Plaintiff Foster requested an order requiring the De-

partment of Defense to increase his rating to no less

than G.S.‘5 and promotion into the next available posi-

22a

10 PENN, ET AL v. SCHLESINGER, ET AL

tion in procurement or elsewhere for which he is quali-

fied, an order requiring back pay for wages he would

have earned had he been promoted without regard to

race, and an award of damages for humiliation and

embarrassment suffered as a result of racially dis-

criminatory practices.'®

In Beale v. Blount, this court drew a distinction be-

tween a claim fer injunctive relief and a claim for

reinstatement, holding the former barred by the doc-

trine of sovereign immunity. The latter, being in the

nature of a mandamus action, bypassed this obstacle.

461 F.2d at 1137-38. A declaratory judgment, if equiva-

lent to a claim for injunctive relief would be scatesy

barred by the doctrine of sovereign immunity. (nder

other circumstances, it might be more analogous to

a mandamus action, On this interlocutory appeal, with

no declaratory order before us, we cannot of course

prejudge which classification might be appropriate.

‘The remainder of the relief requested, save the

claims for back wages and for damages, both of which

would impinge upon the Treasury, are in the nature

of mandamus actions. Thus, upon remand, it is =

the power of the court (1) to order promotion of t e

plaintiffs if appropriate and (2) to institute affirmative

remedies on behalf of the class if such remedies are

10Plaintiff Penn's motion for a yon ee ie a ba

tion to

director of the Procurement 5Scc >

j i ssi ing plaintiff Willie Pe

“intimidating, harassing and threaten

inti intiff Penn filing his

class plaintiff as a result of pla

lige A on aaa been pressed upon this appeal. We therefore

decline to discuss this remedy further.

_—— + ee ee

23a

PENN, ET AL v. SCHLESINGER, ET AL il

necessary to overcome ultra vires discrimination by

the individual defendants.

III. EXHAUSTION OF REMEDIES.

cice sovereign immunity does not present a bar

to all the relief requested by plaintiffs, we must now

turn to the question of whether the plaintiffs sufficient-

ly exhausted available administrative remedies before

filing this suit.

Before petitioning to the district court, Penn had re-

peatedly made known his desire for advancement t>

his white supervisor. This supervisor failed to inform

Penn of his right to file a complaint with an Equal

Employment Opportunity Officer. Therefore, Penn did

not enter into the latter stages of the Equal Employ-

ment Opportunity Commission and Civil Service Com-

mission processes for handling racial discrimination

grievances, Plaintiff Foster had likewise complained

about his lack of advancement to his white supervisors,

One of these, who was also an Equal Employment Op-

portunity Counselor, had discouraged Foster from

prosecuting his complaints administratively. This su-

pervisor had advised him “that he would have to file

a Suit if he expected to carry his complaint further.”

We must decide whether these actions taken by Penn

and Foster, in light of the responses they received from

their supervisors, constituted exhaustion of’ their ad-

ministrative remedies.

It has been decided by this Court that one secking

relief in the federal courts from actions taken by fed-

24a

12 PENN, ET AL v. SCHLESINGER, ET AL

eral administrative agencies must first exhaust the

administrative remedies available to him.'' However,

as the Supreme Court pointed out in McKart v. United

States, 395 U.S. 185 (1969), exhaustion of administrative

remedies is not a matter of black letter law. The Court

there said:

“The exhaustion doctrine is applied in a num-

ber of different situations and is, like most

judicial doctrines, : subject to numerous excep-

tions. Application of the doctrine to specific

cases requires an understanding of its pur-

poses and of the particular administrative

scheme involved.” Id. at 193.

In 1971, when Penn and Foster filed this suit,'*

the scheme for filing complaints was set out

in 5 C.F.R. Part 713. Under Section 713.213(a), an

aggrieved employee first had to approach a desig-

nated EEO Counselor within his agency or branch.

This counselor, who was authorized to attempt to

settle the grievance informally, was required to

advise the employce of his right to file a more

formal complaint with the EEO Officer should

11In Beale v. Blount, supra, rt drew a distinction between

federal court actions against fideral officials and federal court

action against a state agency or official. This distinction, hav-

We cannot accept appellant's

ing been drawn, is binding on us. ;

argument, therefore, that we equate the present suit with

one in which a Section 1981 plaintiff may deliberately by-pass

administrative remedies under Title VII of the Civil Rights

Act. See Caldwell v. National Brewing Company, 443 F.2d

1044 (5th Cir. 1971).

12The 1972 Amcndments to the Economic Opportunity Act are irrel-

evant to disposition of the claims herein.

25a

PENN, ET AL v. SCHLESINGER, ET AL 13

the informal attempt fail. The filing of a formal com-

plaint under Section 713.214 triggered an investigation

by the agency’s Director of Equal Employment Oppor-

tunity (5 C.F.R. §713.216). After completion of this

investigation and review of the investigative file by

the complainant, the agency was required to further

provide another opportunity for informa] resolution of

the complaint (5 C.F.R. §713,217(a) ). If this, too, was

unsuccessful, the complainant had to mm notified

in writing of the agency’s proposed disposition of the

complaint and advised of his right to a full evidentiar

hearing before an impartial appeals examiner ‘

C.F.R. §713.217(b)). If a hearing was held, 5 C.F.R

$713.218, the appeals examiner was required to 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 recommend-

ed decision on the merits of the complaint, “including

seanines a. where appropriate.” 5 C.F.R.

The agency head or his delegate then received these

findings and recommended decision, and made a deci-

sion for the agency on the information in the complaint

file. 5 C.F.R. §713.221(a). If the agency head either

rejected or modified the recommended decision, the

reasons for that action had to be set forth. 5 CFR

§713.221(b) (2), At this point, the agency head sould

require “any remedial action authorized by law de-

termined to be necessary or desirable to resolve the

issues of discrimination and to promote the Policy of

equal opportunity.” 5 C.F.R, §713.221(c). This > io

sion had to be transmitted in writing to the com-

26a

14 PENN, ET AL v. SCHLESINGER, ET AL

plainant, together with copies of the hearing record

and the appeals examiner's findings and recommend-

ed decision, and it had to inform him of his right to

appeal to the Civil Service Commission. 5 C.F.R.

§713.221(b) and (d).

After review by the Civil Service Commission, all

the possible administrative remedies which the plain-

‘tiffs might have pursued would have been terminated.

There is no question but that at this point, suit in fed-

eral court alleging that discrimination had occurred

and no remedy had been afforded would have been

proper.

_ If the plaintiffs had deliberately bypassed their ad-

ministrative remedies, this suit would clearly be inap-

propriate. In Beale v. Blount, supra., the plaintiffs had

been invited by postal authorities to file a formal claim

of racial discrimination, Beale failed to do so and ar-

gued that presentation of this claim was unneccssary.

This court held to the contrary, dismissed the suit for

failure to exhaust administrative remedies, and de-

clared:

“%e@ adhere to the time-tested requirement

that available administrative remedies be ex-

hausted prior to the institution of a mandamus

action. The federal bureaucracy’s efforts to

police its own practices with respect to dis-

crimination in employment on the basis of race

should not be undermined. This would be the

predictable effect of sanctioning resort to the

federal courts before completion of the admin-

istrative review process.” 461 F.2d at 1139.

27a

PENN, ET AL v. SCHLESINGER, ET AL 15

This suit, however, is substantially different from

that of Beale v. Blount. Here, rather than deliberately

bypassing their administrative remedies, the plaintiffs

approached the administrative officials charged at the

first level with respons‘hility for processing these com-

plaints. The question before us is whether the plaintiffs

need have done more before filing suit in federal court.

The defendants contend that further e

would allow the Civil Service Commission epee

its authority to rectify discriminatory employment

practices. They argue further that requiring no more

exhaustion than was present here would hamper the

achievement of uniformity in the resolution of com-

mao of discrimination. Finally, they contend that

h a Suit constitutes an uneconomical use of

There is little merit to these arguments. First, it

was the fault of the agency officials, not the plaintiffs

that the Civil Service Commission was given no opper-

tunity to pass upon the complaints. Second, no disuni-

formity is created by a rule which Says that exhaustion

is completed at the point where agency personnel re-

fused to further process grievances and pass them on

to the next link in the chain of command. Third judi-

cial time is not needlessly wasted for our interpretation

of the exhaustion requirement here should help insure

that, in the future, federal agencies process such com-

plaints in accordance with their own procedures rather

than short-circuiting them into federal court.

28a

16 PENN, ET AL v. SCHLESINGER, ET AL

For the reasons stated above, the order of the district

court granting the United States’ mation to a

and denying the individual defendants’ motion to dis-

miss is AFFIRMED and the case REMANDED for

further proceedings not inconsistent with this opinion.

MORGAN, Circuit Judge, specially concurring:

Although I agree fully with the reasoning and oe

of the majority opinion in this case, a few words a m

the issue of exhaustion may be helpful. Judge oo

correctly states that in light of our conclusion that the

plaintiffs exhausted all available administrative rem-

edies, it is unnecessary to decide whether anager on

was required. Nevertheless, it seems clear from ne a

ing precedent that in an action under the Civil | g ;

Act of 1866, 42 U.S.C. § 1981 et seq., exhaustion 0

administrative remedies is not required.

The question may have remained open after

McNeese v. Board of Ed., 373 US. 668 (1963), since

the court held there that resort to the state adminis-

trative remedies may well have been futile. re

the more recent decision of Damico v. U.S., Ts ;

416 (1967), seems to have settled the question, at er

for the time being. Both of these decisions ane fs)

the failure to exhaust state administrative reme os

while in this case we have a question of resort to fe -

eral administrative remedies. However, the policies

behind the requirement of exhaustion of state adminis-

trative remedies are even stronger then those ago

ing exhaustion of federal administrative remedies, be-

cause of comity considerations, Thus, if state exhaus-

29a

PENN, ET AL v. SCHLESINGER, ET AL 17

tion is not required, a fortiori, exhaustion of federal

remedies should not be required.

It is true that McKart v. U.S., 395 U.S. 185 (1969),

while holding that a failure to exhaust remedies within

the Selective Service System did not preclude raising

certain defenses in a criminal prosecution for failure

to report for induction, included strong language in

Support of the exhaustion requirement. However, that

case cannot possibly be held to have overruled Damico.

Therefore, although the wisdom of this exception to

the exhaustion requirement has been questioned,' we

are apparently left with a flat exemption to the re-

quirement of exhaustion in civil rights cases. But see,

Eisen vy. Eastman, 421 F.2d 560 (2 Cir, 1969).

Although this circuit has followed this rule in some

cases, Caldwell v. National Brewing Company, 443 .

F.2d 1044 (5 Cir. 1971), it has not always done so. Beale

v. Blount, 461 F.2d 1133 (5 Cir. 1972). It is this un-

fortunate inconsistency which creates confusion

among the judiciary and the bar. Although this was

not the case in which to do So, we should take the

earliest opportunity to rationalize and make consistent

this confusing area of the law.

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 ad-

ministrative remedies are not a sufficient basis for’

'K. Davis, Administrative Laws Treatise, 1970 Supp., §20.01.

30a

18 PENN, ET AL v. SCHLESINGER, ET AL

transferring this inquiry out of the carefully structured

grievance system provided by the United States gov-

ernment 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 defendants were

the United States and the individual heading each

agency (and his successor), including 10 cabinet of-

ficers of the United States government plus a substan-

tial array of other government officials. The agencies,

the individual defendants, and the number of Alabama

employees of cach 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

Ear] Butz: 1200 employees

Department of Commerce and

Maurice Stans: 128 employees

Department of Labor and

James D. Hodgson: 5 employees

3la

PENN, ET AL v. SCHLESINGER, ET AL 19

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 §, Kleppe: 37 employees -

Selective Service System and

Dr. Curtis W. Tarr: 17 employees

32a

20 PENN, ET AL v. SCHLESINGER, ET AL

Only the individual government officers remain in the

case as defendants, since the United States was or-

dered dismissed on the ground of sovercign immunity

and no cross-appeal was taken from that order, The

case was certified to us for interlocutory appeal under

28 USC $§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 discrim-

inatory practices, including the following: failure to

recruit blacks; use of nonvalidated employment and

advancement tests; oral selection interviews; employ-

ment of persons without employment tests and without

adequate guidelines to insure nondiscriminatory hiring

or with adequate guidelines that are arbitrarily disre-

garded; arbitrary selection of white persons over

equally qualified blacks; promotions of less qualified

whites or whites with less seniority than blacks; dis-

crimination 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 rucial grounds, (b) violated Executive

Order 11476 relating to equal employment opportunity

in the federal government, and (c) denied to blacks

33a

PENN, ET AL v. SCHLESSINGER, ET AL 21

the right to contract regarding their employment; (2)

an order in the nature of mandamus compelling de-

fendants to perform their duties under Executive Or-

der 11478; (3) establishment of a one-to-one hiring ra-

tio in the 17 named agencies in Alabama until the per-

centage of black employees is approximately the per-

centage of blacks in Alabama’s population; and (4)

promotions and back pay for the individual plaintiffs.

The narrow fulcrum employed to lever this plenary

inquiry out of institutional channels and into the fed-

eral court system consists of vague and unverified al-

legations by two individuals employed by a single fed-

eral 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 em-

ployed as a GS-1 and after 20 years had been promoted

to only GS-5, when in fact his experience, ability, train-

ing, seniority and job knowledge entitled him to a rat-

ing of GS-10 or 11, and that failure of his white super-

iors 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 bet-

ter paying [job] or to one that carried more

responsibility. Mr, Penn put his superiors on

notice of his desire of advancement.

34a 35a

22 PENN, ET AL v. SCHLESINGER, ET AL PENN, ET AL v. SCHLESINGER, ET AL 23

versation 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

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. Hunt-

er’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. of-

ficer. 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 plain--

tiff and class representative. He alleged various unsuc-

cessful 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 Op-

portunity at MAFB. Glenn referred Mr. Foster

to A. C. Carter, Equal Employment Opportuni-

ty Officer, a white man. Plaintiff had a meet-

ing with Mr. Carter in which he asked Carter

to check the eligibility roster (promotion reg-

ister) 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 con-

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

€@ constitutional question, and referred to Beale v,

Blount, 461 F.2d 1133 (CA5, 1973), in which this court

affirmed the dismissal of a discharged federal employ-

ee’s complaint for failure to exhaust. The court, how-

ever, distinguished Beale on the ground that the plain-

tiff therein made no attempt to exhaust his adminis-

trative remedies and did not allege that resort to ad-

ministrative 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 ap-

peal.” Characterizing their actions as “abortive at-

tempts to exhaust” and accepting all allegations as

true, the District Court concluded that Penn’s and Fos-

ter’s failure to go farther in the administrative proc-

‘esses was solely due to the breaches of duty ‘expressly

imposed on other governmental employees [pre-

sumably Mrs, Hunter and Glenn, EEO counselors, and

‘Carter, an EEO officer].

36a

24 PENN, ET AL v. SCHLESINGER, ET AL

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 Fos-

ter are twofold — that Glenn and Carter failed to in-

form him of his right to file a complaint and that Car-

ter “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. U.S., 395 U.S. 185, 23 L.Ed.2d 194 (1969),

which points out that “[a]pplication of the coctrine

to specific cases requires an understanding of its pur-

poses and of the particular administrative scheme in-

volved.” Id. at 193, 23 L.Ed.2d at 203. McKart refers

to these purposes, among others: (1) avoiding prema-

ture interruption of the administrative process, in rec-

ognition that it is desirable that the agency develop

a record and have the opportunity to exercise its dis-

cretion 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 com-

pleted its action or exceeded its jurisdiction; (3) prac-

tical notions of judicial efficiency, since the complain-

ing party may vindicate his rights administratively

and the courts may never have to intervene; (4) per-

mitting an administrative agency to discover and cor-

rect its own errors; (5) avoiding the flouting of oe

administrative process that can weaken the agency s

effectiveness by encouraging people to ignore its pro-

cedures.

37a

PENN, ET AL v. SCHLESINGER, ET AL 25

When one scrutinizes the specific administrative sys-

tem here involved in the light of the foregoing policies,

as McKart 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 Or-

der 11478,' the Civil Service Commission promulgated

The Order, which was buttressed by the Equal Opportunity Act

of 1972, Pub. L. 92-261, 86 Stat. 111, 42 US.C. § 2000e-16

(1970), declares that the policy of cqual opportunity is to be.

Promoted “through a continuing affirmative program in cach

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 “{tJhe head of each executive department and

agency shall establish and maintain an affirmative program

of equal employment opportunity for all civilian employces

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., pro-

vision 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 ecual employment opportunity policy. The order directs

that the Civil Service Commission shall, e.g., provide leader-

ship and guidance to departments and agencies in the conduct

of equal employment opportunity programs, review and eval-

uate agency program operations Periodically, and issue such

regulations, orders and instructions at it deems necessary and

appropriate to carry out the Executive Order. And with re-

spect to complaints alleging discrimination, the order directs:

that: ,

38a

26 PENN, ET AL v. SCHLESINGER, ET AL

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,*

an agency must first seek to resolve a charge of dis-

crimination promptly through consultation between

the aggrieved person and an Equal Employment Or-

portunity counselor. 5 C.F.R. § 713.213. If this is un-

successful, the aggrieved person may file a formal

complaint, id. § 713.214, which triggers an investiga-

tion by the agency’s Director of Equal Employment

Opportunity, id. § 713.216. Upon the completion of this

investigative file, the agency must provide another op-

portunity for informal resolution of the complaint, id.

§ 713.217(a).

“The Civil Service Commission shall provide for the

prompt, fair, and impartial consideration of ail com-

plaints of discrimination in Federal employment on

the basis of race, color, religion, sex, or national

origin. Agency systems shall provide access to coun-

scling for employees who feel aggrieved and shall en-

courage the resolution of employec problems on an

informal basis. Procedures for the consideration of

complaints shall include at least one impartial review

wilhin the exceutive department or agency and shall

provide for appeal to the Civil Service Commission.”

The Civil Service Commission has promulgated Equal Oppor-

tunity 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 cach department or agency shall follow in processing

and resolving individual complaints of discrimination.

2The regulations in force at the inception of this suit were promul-

gated in 1971, and were superceded in 1972. Note 3, infra,

discusses certain of the changes made by the 1972 version.

39a

PENN, ET AL v. SCHLESSINGER, ET AL 27

If atternpts 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 im-

partial appeals examiner, id. § 713.217(b). If a hearing

is held, see id. § 713.218, and appeals examiner must

thereafter make findings and analyses of “the matter

which gave rise to the complaint and the general en-

vironment out of which the complaint arose” and ren-

der a recommended decision on the merits of the com-

plaint, “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 informa-

tion in the complaint file. Id. § 713.221(a). If the a-

gency either rejects or modifies the recommended de-

cision, 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 reme-

dial action authorized by law determined to be nec-

essary or desirable to resolve the issues of discrim-

ination and to promote the policy of equal opportuni-

ty.” 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 ex-

aminer’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).

40a

28 PENN, ET AL v. SCHLESINGER, ET: AL

Upon an appeal to the Commission, the 1971 regula-

tions 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 complain-

ant, his representative, and the agency, and when cor-

rective 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 re-

open the decision for consideration of new and material

evidence, if the decision involves an erroneous inter-

pretation of law or regulation or a misapplication of

established policy, or if the decision is of an excep-

tional nature. Id. § 713.235.%

3In 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, Octo-

ber 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 appoint-

ment to the position previously denied with back pay. Id.

§ 713.271.

The earlier regulations permitted an organization acting in

an aggricved person's behalf to file and prosecute his clair

but not to raise general allegations of discrimination unre-

lated to the individual complaint. The amended regulations

broaden this right, providing for filing with an agency of

4la

PENN, ET AL v. SCHLESINGER, ET AL 29.

. In my view the McKart policies are disserved by

permitting these plaintiffs to skip all the administra-

_ tive procedural steps that begin with the filing of a

written complaint. In the beginning it is to be noted

that plaintifis do not claim that the administrative sys-

| tem is insufficient, see NLRB v. Shipbuilding Local

22, 391 U.S, 418, 20 L.Ed.2d 706 (1968), or that resort

to it will be futile. Ogletree v. McNamara, 449 F.2d

93 (CA6, 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 oppor-

tunity to exercise discretion and expertise.

Moreover, the agency is denicd 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’ com-

plaints. But the policy favoring self correction applies

at least as forcefully to procedural slipups as to er-

roneous agency decisions on the merits of discrimina-

tion claims.

“gencral 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

pared ‘shall notify the party submitting the allegation of its

ecision, 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 allega-

tion ordering such corrective action, with or without back pay

as it degms appropriate.” Id.

42a

30 PENN, ET AL v. SCHLESINGER, ET AL

The majority opinion, as I read it, intimates that

excusing plaintiffs from exhausting is appropriate as

a means of penalizing or rebuking erring administra-

tors and impelling them to do better next time.* 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 al-

lowed directly into court.

This brings us to the question of the waste of judi-

cial 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 Regula-

tions, 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 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 ac-

4The 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 plaintiff_s contend. (The relevant por-

tions of the complaint are quoted in the early part of this

opinion.)

43a

PENN, ET AL v. SCHLESINGER, ET AL 31

tually said, or failed to say, what Plaintiffs allege. Ad-

ditionally, 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 per-

mit actually occurs.®

To this point I have addressed myself to broad pol-

icies that relate to the requirement of exhaustion.

There are other and more narrow reasons why plain-

tiffs should not be excused from exhausting. The ma-

terial 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 frus-

tration. But neither plaintiff has alleged that he lacked

actual knowledge of his right to file a formal adminis-

trative complaint, or that his failure to proceed further

in administrative channels was in fact caused by the

remarks made to him. I can find nothing in the amend-

ed 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 re-

*

pair to the court as an advised choice.® <

®The facts and the statistics of the current strains on judicial ca-

pacities nced not be reiterated here. See e.g., Remarks of War-

ren 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 pro-

cedural ,route to follow administratively.

4ha

32 PENN, ET AL v. SCHLESINGER, ET AL

These are not mere niceties of pleading. The

Supreme Court has accepted as desirable ends the es-

tablishment and utilization of institutional remedies,

as has this court. See, e.g., Stevenson v. Board of Edu-

cation of Wheeler County, 426 F.2d 1154 (CA5), cert.

denied, 400 U.S. 957, 27 L.Ed.2d 265 (1970); Lucas v.

Chapman, 430 F.2d 945 (CA5, 1970); Ferguson v.

Thomas, 430 F.2d 852 (CA5, 1970); Wood v. Alamo

Heights Indep. School Dist., 433 F.2d 355 (CAS5, 1970).

If in fact Penn and Foster were not thrown off the

track by the allegedly incomplete or inaccurate in-

formation 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 ade-

quately allege failure on the part of Maxwell Air Force

Base EEO designees to comply with their duties, Coun-

selors, 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 Commis-

sion 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 ex-

haustion be required also mandate that the courts not

permit departure from the requisite exhaustion on any-.

thing less than very strong grounds.

45a

PENN, ET AL vy. SCHLESINGER, ET AL 33

In this case there is an additional factor n

in McKart. The District Court held that the amen

States claims against the individual government of-

ficers under Larson v. Domestic & Foreign Commerce

Corp., 337 U.S. 682, 93 L.Ed. 1628 (1949), and Dugan

v. Rank, 372 U.S, 609, 10 L.Ed.2d 15 (1963). We cannot

know whether under the prayer for other and general

relicf all members of the class will seek back pay

But it seems to me that the mere exposure of individual

government officers to the possibility of personal back

pay liability is manifestly unfair. Under the adminis-

trative procedure there is no problem of sovereign im-

munity, and back pay awards, if an

‘ y, can be ass

against the government. aes

Adm. Office; U.S. Courts—Scofields’ Quality Printers, Inc. N, O,, La

46a

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

DISTRICT OF ALABAMA, NORTHERN DIVISION

’ [Filed October 9, 1972

by Jane P. Gordon, Clerk]

WILLIE PENN, ET AL.,

Plaintiffs,

vs. CIVIL ACTION NO. 3638-N

MELVIN R. LAIRD, ETC.,

)

)

)

)

)

)

)

ET AL., )

)

)

Defendants.

CERTIFICATE

This Court is of the opinion and hereby certi-

fies that the order made and entered in this case

this date, whereby the United States of America

was dismissed as a party defendant and the motion

of the individual defendants seeking dismissal

was denied, involves controlling questions of

law as to which there is substantial ground for

difference of opinion and that an immediate

appeal from the order may materially advance the

ultimate termination of the litigation. This

certificate is made pursuant to 28 U.S.C. § 1292.

Done, this 9th day of October, 1972.

___/s/ Frank M. Johnson, Jr.

UN1TED STATES DISTRICT JUDGE

47a

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

DISTRICT OF ALABAMA, NORTHERN DIVISION

WILLIE PENN, ET AL., )

)

Plaintiffs, )

)

vs. CIVIL ACTION NO. 3638-N

UNITED STATES OF )

AMERICA. ET AL., )

)

Defendants. )

ORDER

Plaintiffs Penn and Foster bring this class

action against the United States and various named

individuals as heads of departments and agencies

of the United States who have offices, agents,

and a portion of their operations located in this

district in Alabama. The plaintiffs charge the

defendants with systematic racial discrimination

in hiring and promotion. Plaintiffs allege juris-

diction under Title 28, United States Code, Sec-

tions 2201, 1331, 1343(4), 1346(a)(2), and 1361.

The gist of the plaintiffs’ allegations of

racial discrimination is that the percentage of

48a

black General Schedule (GS) employees in the

agencies headed by the individual defendants who

are oeprating in Alabama is 2.6 percent of the

total number of said antes” while blacks

comprise 26.4 percent of the population of

Alabama. This disparity is alleged to be the

result of specific practices constituting

systematic discrimination based solely on race.

Plaintiffs Penn and Foster, claiming to repre-

sent the class of those so discriminated against,

allege specific acts of discrimination on the part

of employing and promoting officials of Maxwell

Air Force Base located in Montgomery, Alabama.

Plaintiffs seek a declaration that defendants

have engaged in and continue to engage in the

practice of denying blacks in Alabama an equal

right to contract for employment in violation of

Title 42, United States Code, Section 1981 and

1/ Of the 27,391 GS employees employed in the

various agencies and departments headed by the

individual defendants, only 739 are black.

49a

that defendants have engaged in and continue to

follow a practice of systematic employment dis-

crimination against blacks in Alabama in viola-

tion of the Fifth Amendment to the Constitution

of the United States. They seek an order in the

nature of mandamus compelling defendants to

perform their duty under Executive Order 11478

and further seek an order requiring affirmative

action on the part of the defendants to eliminate

the effects of past discriminatory practices.

The case is now submitted upon defendants’

motion to dismiss claiming that this Court lacks

jurisdiction over the subject matter. Specifi-

cally, the motion to dismiss presente issues as

to whether plaintiffs’ claims are barred by the

doctrine of sovereign immunity and whether plain-

tiffs have failed to exhaust the available admin-

istrative remedies prior to initiating this action.

I. SOVEREIGN IMMUNITY

While the doctrine of sovereign immunity has

been severely criticized by courts and commenta-

tors, it is, nevertheless, well settled in the

50a

Fifth Circuit and throughout the federal judiciary

that the United States cannot be sued without its

consent. See, e.g., Blaze v. Moon, 440 F.2d 1348,

1349 (5th Cir. 1971), and cases cited therein.

The plaintiffs, recognizing this general proposi-

tion, contend, however, that the United States

has consented to be sued in instances such as

those now presented and even if the United States

as an entity has not consented to be sued, this

is in reality a suit against the individual

officers named as defendants. The doctrine of

sovereign immunity does not bar such an action

against individual officers, of the United States.

This Court has concluded that to the extent

that the plaintiffs attempt to sue the United

States their action is barred by the doctrine of

sovereign tementey. 2! This Court is unwilling

2/ It is, of course, regrettable that, having

so vigorously brought and prosecuted actions

against various Alabama agencies to ensure equal

education and employment for blacks, the United

States government should now be forced to inter-

pose such a defense as the doctrine of sovereign

immunity to a charge of racial discrimination in

employment.

5la

to say that Title 42, United States Code, Section

1981 amounts to a consent on the part of the United

States to be sued. In support of their contention

that Section 1981 runs against the federal govern-

ment, plaintiffs argue that consent can be in-

ferred from the language of the statute itself and

from recent cases holding that the statute is

founded on the Thirteenth Amendment as well as the

Fourteenth and is therefore not limited to state

action. It is well-settled law, however, that a

waiver of sovereign immunity must be specific and

explicit and cannot be implied by construction of

an ambiguous statute. United States v. Shaw, 309

U.S. 495 (1940); Barefield v. Byrd, 320 F.2d 455

(Sth Cir. 1963), cert. denied 376 U.S. 928 (1964).

Any doubt as to this issue was put to rest by the

Fifth Circuit's recent decision in Beale v. Blount,

461 F.2d 1133 (Sth Cir. 1972), which held a

Section 1981 suit for injunctive relief against

the federal goverment to be barred by the doc-

trine of sovereign immunity. That decision is

controlling in this circuit and forecloses further

52a

discussion of the sovereign's consent to be sued

under Section 1981. Consequently, as to the United

States, this action will be dismissed.

II. INDIVIDUAL OFFICIALS AS DEFENDANTS

In determining whether an action comes within

the purview of the sovereign immunity doctrine,

the critical consideration is not the identity of

the parties but rather the result of the judgment

or decrees that might be entered. Carter v. Sea-

mans, 411 F.2d 767, 770 (5th Cir. 1969). The

general rule, stated in Larson v. Domestic &

Foreign Commerce Corp., 337 U.S. 682 (1949) and

Dugan v. Rank, 372 U.S. 609 (1963), and reiterated

in this circuit in Carter v. Seamans, is that a

suit is against the sovereign if the judgment

sought would expend itself on the public territory

or domain, or interfere with the public adminis-

tration, or if the effect of the judgment would

be to restrain the government from acting or to

compel it to act.

There are, however, two well-recognized

instances where suits for specific relief against

53a

public officers are not considered to be against

the sovereign.

In these two instances the

sovereign's consent to be sued is

not required and the defense of

sovereign immunity is not avail-

able. Thus, the actions of a public

officer can be made the basis of a

suit for specific relief against

the officer as an individual if,

but only if, (1) the officer's

action is beyond his statutory

powers, or (2) if within those

powers, the powers themselves

or the manner in which they are

exercised are constitutionally

void.

Carter v. Seamans, 411 F.2d at 770, citing Lareon

v. Domestic & Foreign Commerce Corp., supra, and

Dugan v. Rank, supra.

As the court in Carter points out, a determi-

nation of the sovereign immunity issue to some

extent requires a ruling on the ultimate questions

in the suit. In order to avoid deciding a case

on the merits under the guise of resolving the

preliminary jurisdictional issues, however, courts

are said to have adopted the procedure, specifi-

cally applied in Carter, "of accepting at face

value, for jurisdictional purposes, the averments

54a

of the complaint unless they are so transparently

insubstantial or frivolous as to afford no possible

basis for jurisdiction, and of giving the averments

thus accepted their natural jurisdictional conse-

quences." 441 F.2d at 770.

In applying that technique in the case before

it, the court in Carter found that for jurisdic-

tional purposes only "the case sub judice is not

against the United States, but rather one to com-

pel the Secretary of the Air Force to perform a

clear legal duty." 411 F.2d at 771. Accordingly,

it was held that the defense of sovereign immunity

was not available and that defendant's jurisdic-

tional objection based thereon must fail.

To the extent that the present case resembles

Carter, the doctrine of sovereign immunity is like-

wise not available to defendants, and their juris-

dictional objections based thereon must comse-

quently fail. This result is not affected by

Beale v. Blount, 461 F.2d 1133 (5th Cir. 1972),

Blaze v. Moon, 440 F.2d 1348 (Sth Cir. 1971),

or Gnotta v. United States, 415 F.2d 1271 (8th

55a

Cir. 1969), on which defendants rely. The court

in Beale and the court in Blaze found no Larson-

Dugan exceptions to the doctrine of sovereign

immunity. The Gnotta court mentioned the excep-

tions but concluded that the evidence and findings

the court had before it by virtue of a prior admin-

istrative proceeding reflected that the case

“obviously” did not come within either of the

Lareon-Dugan exceptions.

Thus, adhering to the principles of Carter v.

Seamans, this Court must accept at face value for

jurisdictional purposes the averments of the

complaint. With regard to the individual defen-

dants, the averments of the complaint clearly

state claims falling within the Larson-Dugan

exception to the doctrine of sovereign immunity

which permits actions against officers of the

United States whose exercise of their powers is

alleged to be constitutionally void.2/

3/ This Court finds it unnecessary to rule on

whether Section 1981 runs against federal offi-

cers. Consequently, it is unnecessary to deter-

mine whether a claim based on Section 1981 falls

within the Larson-Dugan exception which allows

suits against officers whose acts are alleged to

be beyond their statutory powers.

56a

III. SOVEREIGN IMMUNITY IN ACTIONS AGAINST

INDIVIDUAL OFFICIALS

In a footnote in Larson v. Domestic & Foreign

Commerce Corp., supra, the Supreme Court dis-

cussed the possibility that even though one of the

exceptions to sovereign immunity might be applica-

ble, certain types of relief would not be granted:

Of course, a suit may fail, as one

against the sovereign, even if it is

claimed that the officer being sued

has acted unconstitutionally or be-

yond his statutory powers, if the

relief requested can not be granted

by merely ordering the cessation of

the conduct complained of but will

require affirmative action by the

sovereign or the disposition of unques-

tionably sovereign property.

337 U. S. at 692, n. 11 (emphasis added). The

Court of Appeals for the Ninth Circuit, however,

reaffirmed in State of Washington v. Udall, 417

F.2d 1310 (9th Cir. 1969), its pre-Larson position

that "may" did not mean “must.” The court con-

cluded that even affirmative relief should be

granted except where “an intolerable burden on

government functions" would result. 417 F.2d at

1318.

ae

57a

Nothing in Ogletree v. McNamara, 449 F.2d 93

(6th Cir. 1971), cited by defendants, holds con-

trary to State of Washington v. Udall. To grant

relief of the type prayed for in Ogletree would

clearly place an intolerable burden on government

functions within the meaning of State of Washing-

ton v. Udall. However, in the case sub judice

the relief requested would not constitute such a

burden. The Larson-Dugan exceptions to the doc-

trine of sovereign immunity are, of course,

normally limited, as the court in larson made

clear, to suits for specific relief. However, the

court in Larson defines specific relief as "the

recovery of specific property or monies .. . or

injunction either directing or restraining the

defendant officer's actions." 337 U.S. at 688.

Thus, it is clear that specific relief allowable

by Zareon includes claims for back wages as well

as a request for injunctive relief.

IV. EXHAUSTION OF REMEDIES

It is rather basic that available administra-

tive remedies must be exhausted before a court

58a

will decide a constitutional question. W.E.B.

DuBoie Clube of America v. Clark, 389 U.S. 309

(1967). In Beale v. Blount, supra, on which

defendants heavily rely, the Fifth Circuit

affirmed the dismissal of a discharged federal

employee's complaint for failure to exhaust

administrative remedies. An important distinc-

tion between Beale and the present case, however,

is that in Beale the plaintiff made no attempt to

exhaust his administrative remedies with respect

to his claim of racial discrimination or even to

allege that resort to the administrative processes

would be a meaningless ritua1.4/ The plaintiff

in Beale merely claimed that he did not need to

present his claim of racial discrimination for

administrative determination before bringing suit

in federal cowrt. In the case sub judice

4/ The Sixth Circuit's decision in Ogletree v.

McNamara, supra, relied on by defendants, is like-

wise distinguishable inasmuch as that case was a

case brought under Executive Order 11478 which

created the remedies defendants claimed had not

been exhausted.

Sse

59a

plaintiffs specifically allege that they attempted

to exhaust administrative remedies, only to be

thwarted in the initial stages of those proceed-

ings by federal officials charged with the duty of

hearing complaints of racial discrimination and

informing plaintiffs of additional channels of

appeal. Plaintiff Penn claims he was not told by

his Equal Employment Counselor, to whom he

complained, of his right to file a complaint.

Plaintiff Foster, who did register a complaint

with the Equal Employment Officer, claims he was

told there was nothing left for him to do but

bring suit in federal court. Thus, the issue of

exhaustion of administrative remedies in the

present case reduces to an issue of the legal

sufficiency of plaintiffs' abortive attempts to

exhaust available remedies. 4

Accepting plaintiffs’ allegations as true for

the limited purpose of considering defendants’

motion to dismiss, it is clear that with regard

to those remedies granted by Bxecutive Order 11478

plaintiffs have adequately exhawsted their

60a

administrative remedies. Their failure to go

further in the administrative processes is solely

due to the breach of duty expressly imposed on

certain employees of the individual defendants.

See 5 C.F.R. §§ 713.213-713.215.2/

It clearly appears, therefore, that to the

extent necessary the plaintiffs in the case now

before this Court have sufficiently alleged

exhaustion of their administrative remedies.

5/ Defendants’ reliance on Douglas v. Hampton,

Civil Action No. 313-71 (D.C.D.C., February 17,

1972) is misplaced. Douglas is no authority for

the proposition that individuals such as the

plaintiffs must pursue the administrative reme-

dies created by the Equal Employment Opportunity

Act of 1972. The court in Douglas was acting on

a motion to remand to the Civil Service Commission,

not a motion to dismiss.

In considering that motion, the cowrt said

"although not required by plaintiffs’ failure to

exhaust later-created remedies, [the court]

has discretion, in the interest of sound judicial

administration, to remand where the agency has )

general jurisdiction of, and a particular exper-

tise in, the issues presented.

6la

In accordance with the foregoing, it is the

ORDER, .TUDGMENT and DECREE of this Court:

1. That the motion to dismiss filed by the

United States of America be and the same is hereby

granted.

2. That the motion to dismiss filed by the

individual defendants be and the same is hereby

denied.

Ie is further ORDERED that the parties be and

they are hereby, after the expiration of fifteen

daye from this date, awthorized to proceed with

their discovery.

Done, this the 9th day of October, 1972.

s/ Frank M. Johnson, Jr.

UNITED STATES DISTRICT JUDGE

62a

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA,

NORTHERN DIVISION

WILLIE PENN, Individually

and on behalf of the class

similarly situated.

ALABAMA STATE CONFERENCE

OF NAACP, INC., a nonprofit

Alabama corporation indivi-

dually on behalf of its black)

members and on behalf of the )

class similarly situated.

Plaintiffs,

vs.

UNITED STATES OF AMERICA

MELVIN R. LAIRD, indivi-

dually and as Secretary of

Defense, his agents, assigns,

and successors in office.

JOHN B. CONNALLY, JR., indi-

vidually and as Secretary

of the Treasury, and his

agents, assigns, and succes-

sors in office.

RICHARD KLEINDEINST, indi-

vidually and as acting

Attorney General, Justice

Department, and his agents,

assigns, and successors in

office.

Nee eee ele le laes a

CIVIL ACTION

NO. 3638-N

oe

63a

ROGERS C.B. MORTON, indivi-

dually and *s Secretary of

)

)

the Interiox and his agents,)

acsigns, and successors in

office.

EARL L. BUTZ, individually

and as Secretary of Agricul-

ture, and his agents,

assigns, and successors in

office.

MAURICE H. STANS, indivi-

dually and as Secretary of

Commerce, and his agents,

assigns, and successors in

office.

JAMES D. HODGSON, indivi-

dually and as Secretary of

Labor, and his agents,

assigns, and successors in

office.

ELLIOT L. RICHARDSON, indi-

vidually and as Secretary of

Health, Education and Wel-

fare, and his agents,

assigns, and successors in

office.

GEORGE W. ROMNEY, indivi-

dually and as Secretary of

Housing and Urban Develop-

ment, and his agents,

assigns and successors in

office.

JOHN A. VOLPE, individually

and as Secretary of Trans-

portation, and his agents,

a ee ee ee ee a ee a a a_i

64a

assigns, and successors in

office.

ROBERT L. KUNZIG, indivi-

dually and as Director,

General Services Adminis-

tration, United States

Government, and his agents,

assigns, and successors in

office.

ELMER B. STAATS, indivi-

dually and as Comptroller

General, General Accounting

Office, United States

Government, and his agents,

assigns, and successors in

office.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

DR. JAMES C. FLETCHER, )

individually and as Chairman, )

National Aeronautics and )

Space Administration, and )

his agents, assigns, and )

successors in office. )

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

ELMER T. KLASSEN, indivi-

dually and as Postmaster

General, U.S. Postal Service,

and his agents, assigns,

and successors in office.

HOWARD W. HABERMEYER, indi-

vidually and as Chairman,

Railroad Retirement Board,

United States Government,

and his agents, assigns, and

successors in office.

THOMAS S. KLEPPE, indivi-

dually and as Administrator,

~

«bat cena

65a

Small Business Administra-

tion, and his agents,

assigns, and successors in

office.

DR. CURTIS W. TARR, indi-

vidually and as Director,

Selective Service System,

United States Government,

and his agents, assigns,

and successors in office.

ee a a a ee ee ee

Defendants.

COMPLAINT

I

JURISDICTION

The jurisdiction of this Court is invoked

under the Fifth Amendment to the Constitution of

the United States; Title 42 U.S.C 1981; Title

28 U.S.C. 2201, 1331, 1343 (4), 1346 (2), and

1361; Executive Order No. 11478, 34 F.R. 12985

as amended by Executive Order No. 11590, 36 F.R.

7831. The amount in controversy exceeds the sum

of Ten Thousand Dollars ($10,000), exclusive of

interest and cost.

66a

II

CLASS ACTION

Willie Penn and The Alabama State Conference

of NAACP, Inc. bring this action on his own be-

half, on behalf of the members of said organiza-

tion and on behalf of all blacks in Alabama

similarly situated pursuant to Rule 23, FRCP.

There are common questions of law and fact

affecting the rights of such persons to be free

from violations of their civil rights by persons

acting under color of law and/or acting indivi-

dually. The members of plaintiff's class are so

numerous as to make it impractical to bring them

all before this Court. The claims of the indi-

vidual piaintiff and the claims that the organi-

zational plaintiff assert on behalf of itself

and its members and the class are typical of the

claims of the class, as to relief requested.

The prosecution of separate actions by indivi-

dual members of the class would create a risk

of:

abelian hota Glee te TT a

| MN nl ree OE mines yo :

67a

(a) inconsistent or varying adjudications

with respect to individual members of the class,

or

(b) adjudications with respect to indivi-

dual members of the class which would, as a

practical matter, be dispositive of the interest

of the other members not parties.

The questions of law and fact common to the

class predominate over any affecting only indivi-

dual members of the class, and the class action

is the superior and most efficient method for

fair adjudication of the controversy.

IIl

PARTIES

PLAINTIFFS:

(1) Willie Penn is over the age of 21, a

U.S. citizen and a resident of Montgomery County,

Alabama. He has been employed by the defendant

United States of America through the Department

of Defense since August, 1952. He is a member

of the black race.

68a

(2) The Alabama State Conference of NAACP,

Inc., commonly known as and referred to hereinafter

as the NAACP, is a nonprofit Alabama corporation

with several thousand members residing in Alabama.

The great majority of the members of the NAACP

are black. The chartered purpose of the NAACP is

the representation of its members in specific, and

blacks in general, to eliminate racial prejudice

and discrimination against blacks and to take all

lawful action to secure the exercise of Federal

and state laws securing their civil rights. Members

of the NAACP, primarily blacks, join the organiza-

tion and pay dues to enable the NAACP to carry out

the objectives set out above. Black members of

the NAACP in Alabama have interests in common and

these interests center around the elimination of

racial discrimination in any form, particularly in

economic matters. The interests of the NAACP and

its members are the same. The NAACP asserts and

protects the interests of all members of the black

race in Alabama against discrimination, both

governmental and individual, regardless of whether

69a

these black persons are members of the NAACP. The

NAACP, in the legal actions it undertakes, is

furthering and protecting both the interests of

its members and all Alabama blacks. The NAACP is

adequate and able to represent and protect the

interests of Alabama blacks. WAACP ut Allen, __

F.Supp. ___- (MD Ala. 1972); WAACP v. Alabama ex

rel. Patterson, 357 U.S. 449 (1958).

DEFENDANTS:

(3) The United States of America is the

employer of the individual plaintiffs, throughout

its various departments, agencies, and other

offices created either by Congress or Executive

Order. The United States of America, through its

various departments, agencies, and other offices,

is the agent of racial discrimination purpor-

trated against the plaintiffs as more fully set

out herein. €

(4) Melvin R. Laird is Secretary of Defense.

He is over the age of 21, a U.S. citizen and main-

tains his office in Washington, D.C. He is the

70a

person ultimately responsible in the Department

of Defense.

(5) John B. Connally, Jr., is Secretary of

the Treasury. He is over the age of 21, a U.S.

citizen and maintains his office in Washington,

D.C. He is the person ultimately responsible in

the Department of the Treasury.

(6) Richard Kleindeinst is acting Attorney

General, Justice Department. He is over the age

of 21, a U.S. citizen and maintains his office in

Washington, D.C. He is the person ultimately

responsible in the Justice Department.

(7) Rogers C.B. Morton is Secretary of the

Incerior. He is over the age of 21, a U.S.

citizen and maintains his office in Washington,

D.C. He is the person ultimately responsible in

the Department of the Interior.

(8) Earl L. Butz is Secretary of Agriculture.

He is over the age of 21, a U.S. citizen and main-

tains his office in Washington, D.C. He is the

person ultimately responsible in the Department

of Agriculture.

ee ee ae ee

Ree ee eh hee

7la

(9) Maurice H. Stans is Secretary of Commerce.

He is over the age of 21, a U.S. citizen and main-

tains his office in Washington, D.C. He is the

person ultimately responsible in the Department

of Commerce.

(10) James D. Hodgson is Secretary of Labor.

He is over the age of 21, a U.S. citizen and main-

tains his office in Washington, D.C. He is the

person ultimately responsible in the Department

of Labor. |

(11) Elliot L. Richardson is Secretary of

Health, Education and Welfare. He is over the

age of 21, a U.S. citizen and maintains his office

in Washington, D.C. He is the person ultimately

responsible in the Department of Health, Educa-

tion and Welfare.

(12) George W. Romney is Secretary of Housing

and Urban Development. He is over the age of 21,

a U.S. citizen and maintains his office in

Washington, D.C. He is the person ultimately

responsible in the Department of Housing and

Urban Development.

72a

(13) John A. Volpe is Secretary of Transpor-

tation. He is over the age of 21, a U.S. citizen

and maintains his office in Washington, D.C. He

is the person ultimately responsible in the

Department of Transportation.

(14) Robert L. Kunzig is Director, General

Services Administration, United States Government.

He is over the age of 21, a U.S. citizen and main-

tains his office in Washington, D.C. He is the

person ultimately responsible in the General

Services Administration.

(15) Elmer B. Staats is the Comptroller

General, General Accounting Office, United States

Government. He is over the age of 21, a U.S.

citizen and maintains his office in Washington,

D.C. He is the person ultimately responsible

in the General Accounting Office.

(16) Dr. James C. Fletcher is Chairman,

National Aeronautics and Space Administration. He

is over the age of 21, a U.S. citizen and main-

tains his office in Washington, D.C. He is the

AL 1, aman tet. tata tots waccmmmamnaasll

Ss

ee ee ee ee ee ee ae ee ee

73a

person ultimately responsible in the National

Aeronautics Administration.

(17) Elmer T. Klassen is Postmaster General,

U.S. Postal Service. He is over the age of 21,

a U.S. citizen ami maintains his office in

Washington, D.C. He is the person ultimately

responsible in the U.S. Postal Service.

(18) Howard W. Habermeyer is Chairman, Rail-

road Retirement Board, United States Government.

He is over the age of 21, a U.S. citizen and main-

tains his office in Chicago, Illinois. He is the

person ultimately responsible in the Railroad Re-

tirement Board.

(19) Thomas S. Kleppe is Administrator, Small

Business Administration. He is over the age of 21,

a U.S. citizen and maintains his office in

Washington, D.C. He is the person ultimately

responsible in the Small Business Administration.

(20) Dr. Curtis W. Tarr is Director, Selective

Service System, United States Government. He is

over the age of 21, a U.S. citizen and maintains

his office in Washington, D.C. He is the person

74a

ultimately responsible in the Selective Service

System.

IV

CAUSE OF ACTION

Plaintiffs reassert and incorporate para-

graphs one through twenty above, and further state:

(21) The United States of America has 52,242

employees in Alabama. See Exhibit 1, Table l. Of

this total, 22,201 are blue collar or non General

Schedule (GS) employees. Fifteen (15) percent of

these non GS employees are blacks. The United

States, through its departments, agencies and

other offices, employs 30,041 GS employees (white

collar) in Alabama. Only 6 percent of these GS

employees in Alabama are black.

(22) Plaintiffs do not contend that every

department, agency or other office of the United

States of America is guilty of violating blacks’

right to contract in employment based on race nor

are the plaintiffs making every department, agency,

or other office of the United States of America

. Peer ae _—

75a

a defendant even where the facts show that a

prima facie case of racial discrimination exists.

The following Federal departments, agencies or

other offices appear not to deny blacks equal

right to contract in employment: Equal Employ-

ment Opportunity Commission (51.5% black employees);

Tennessee Valley Authority (8.7% blacks in an area

of the State of Alabama that contains 12% blacks);

and the Veterans Administration (43.3% blacks).

See Exhibit 2, Table 2. If the number of black

employees of the above agencies (T.V:A. has no GS

designations) in the GS categories are eliminated

from the total number of black GS employees in

Alabama, the percentage of black GS employees of

the defendants is reduced to 2.6%. (27,391 GS

employees of which 739 are black.) The black pop-

ulation of Alabama is 26.4%. |

The following departments, agencies, or

offices indicate a prima facie case of denial of

equal right to contract in employment to blacks,

but the number of total employees of said agency

in Alabama is so small so as to make inclusion of

76a

said agency as a defendant in this action meaning-

less: Federal Communications Commission (2 em-

ployees, no blacks); Federal Home Loan Bank Board

(2 employees, no blacks); Federal Mediation and

Consiliation Service (5 employees, no blacks);

Interstate Sumepes Commission (3 employees, no

blacks); National Labor Relations Board (2

employees, no blacks). See Exhibit 2, Table 2.

(23) Defendant Melvin R. Laird, through the

Department of Defense, has 1,899 GS Air Force

employees in Alabama of which 33 or 1.7% are black;

14,000 GS Army employees in Alabama of which 235

or 1.7% are black; 35 Navy GS employees in Alabama

of which none are black; 48 GS Defense Activities

employees in Alabama of which none are black; and

366 GS Defense Supply Agency employees in Alabama

of which 15 or 4.1% are black.

(24) Defendant John B. Connally, through the

Treasury Department, has 689 GS employees in Ala-

bama of which 24 or 3.5% are black. There are no

black alochol and tabacco (sic) tax enforcement agents

in Alabama.

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atin: ue nelle ties’

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Bin.

77a

(25) Richard Kleindeinst, through the Depart-

ment of Justice, has 264 GS employees in Alabama

of which 11 or 4.2% are black. There are no

black F.B.I. agents in Alabama.

(26) Defendant Rogers C.B. Morton, through the

Department of Interior has 170 GS employees in

Alabama of which 2 or 1.2% are black. There are

no black Federal game wardens in Alabama.

(27) Defendant Earl Butz, through the Depart-

ment of Agriculture, has 1,200 G.S employees in

Alabama of which 33 or 2.7% are black.

(28) Defendant Maurice H. Stans, through the

Department of Commerce, has 128 GS employees in

Alabama of which 7 or 5.5% are black.

(29) Defendant James D. Hodgson, through the

Department of Labor, has 81 GS employees in Alabama

of which 5 or 6.2% are black.

(30) Defendant Elliot L. Richardson, through

the Department of Health, Education, and Welfare,

has 2,161 GS employees in Alabama of which 289 or

13.4% are black.

78a

(31) Defendant George Romney, through the

Department of Housing and Urban Development, has

182 GS employees in Alabama of which 13 or 7.12%

are black.

(32) Defendant John A. Volpe, through the

Department of Transportation, has 414 GS employees

in Alabama of which 4 or 1.0% are black.

(33) Defendant Elmer T. Klassen, through the

U.S. Postal Service has 901 rural mail carriers in

Alabama of which 2 or .002% are black. Said Defen-

dant has 167 Fourth Class postmasters in Alabama,

all in rural areas, of which 3 or 1.8% are black.

The U.S. Postal Service has 7,329 PFS (equivilant

to GS ratings) employees in Alabama of which 1,169

or 15.9% are black. A larger percentage of these

black employees are in the lower PFS salary cate-

gories than white employees. See Exhibit 3, Table

3.

(34) Defendant Robert L. Kunzig, through the

General Services Administration, employs 46 GS

employees in Alabama of which 2 or 4.3% are black.

ee Res

Pe St Oe eS Ee NY te see teers eee 2 eC eS SS ey

eg On pe ee ee ae ae Oe

79a

(35) Defendant Elmer B. Staats, through the

General Accounting Office, employs 12 GS employees

in Alabama, none of which are black.

(36) Defendant Dr. James C. Fletcher, through

the National Aeronautics and Space Administration,

employs 5,454 GS employees in Alabama of which

57 or 1.0% are black.

(37) Defendant Howard W. Habermeyer, through

the Railroad Retirement Board, employs 10 GS

employees in Alabama, none of which are black.

(38) Defendant Thomas S. Kleppe, through the

Small Business Administration, employs 37 GS

employees in Alabama of which 4 or 10.8% are

black.

(39) Defendant Dr. Curtis W. Tarr, through

the Selective Service System, employs 17 GS

employees in Alabama, none of which are black.

(40) Each of the above named defendants has

engaged in a practice of denial of equal right to

contract in employment in Alabama based on race

in both hiring and promotion after hiring. Each

of the above named defendants has engaged in a

systematic practice of racial discrimination in

employment of blacks in Alabama. The methods of

denial of equal right to contract in employment

es

and systematic discrimination based solely on race

are: (a) the failure to actively and effectively

recruit blacks, (b) the use of employment selection

procedures such as nonvalidated employment and

advancement tests, (c) oral selection interviews,

(d) certification of three potential employees

allowing the rejection of two to be based on any

reason including race, (e) employment of persons

without employment tests and without adequate

guidelines to insure a nondiscriminatory hiring

gi eee ee ee ae ee a

practice or with adequate guidelines that are

arbitrarily disregarded, (f) the arbitrary selec-

tion of white persons over equally qualified

blacks, (g) the promotion of less qualified whites

or whites with less seniority than black employees;

thereby causing the black employees of defendants

in Alabama to be in the lower pay categories, and

(h) invidious discrimination and denial of the

right to equal contract in employment based solely

on race.

(41) Executive Order 11478 as amended by

Executive Order 11590 directs defendant heads of

departments and agencies to recruit black job

candidates from all sources, to fully utilize

present employment skills of blacks, to enhance

upward mobility of presently employed blacks, and

to in general take steps to increase the number of

black employees in their departments. The defen-

dants have failed and refused to carry out the

letter and spirit ef these Executive Orders and

have totally failed to accomplish any meaningful

increase in employment of blacks in the Federal

work force in Alabama. Also the defendants have

failed to “enhance the upward mobility" of their

black Alabama employees. The percentage of black

GS employees in the defendants’ departments and

agencies that are under this lawsuit is only 2.6%

(27,391 with 739 blacks). The black population

of Alabama is 26.4%.

82a

(42) Defendant Kleindeinst, through the

Justice Department, and defendant Richardson,

through the Department of Health, Education, and

Welfare, have brought suits, entered suits as

amicus, issued agency rulings, and have taken

numerous other punitive actions against states,

school boards, and other state agencies receiving

Federal funds to force equal employment of blacks.

U.S. v. Frazier, 317 F.Supp. 1079 (MD Ala., 1970).

In a recent such suit, the Justice Department urged

the Court to require Alabama State Troopers to hire

25% blacks because Alabama had no black State

Troopers. Yet Alabama, with 19,296 merit system

employees (equivalent to GS), exceeds the Federal

Government in percentage of black employees in

GS positions with 7.22%.

(43) Plaintiff Willie Penn was employed by

the Department of Defense in December, 1952, as a

non GS employee in the Motor Pool at Maxwell Air

Force Base, Alabama. In 1955 he was transferred

to Base Procurement, Maxwell Air Force Base,

Department of Defense and given a GS 1 rating.

83a

After 20 years as an employee of the Defense

Department in the Base Procurement section at

Maxwell Air Force Base, Mr. Penn has only been

promoted to GS 5. Based on his experience, ability,

training, seniority, and job knowledge, he should

be in the GS 10 to 11 category. The failure of

Mr. Penn's white superiors to promote him Is based

solely on his race. At frequent intervals since

1955, positions carrying a higher GS rating in the

Base Procurement section at Maxwell were announced.

Mr. Penn consistently applied for these positions.

In each instance, a white person received the posi-

tion, and in each instance Mr. Penn was equally or

better qualifed for the position by experience,

training, or seniority. Mr. Penn let his super-

visor know that he was desirous of receiving a pro-

motion to any better paying or to one that carried

more responsibility. Mr. Penn put his superiors

on notice of his desire of advancement. “Mr. Penn's

superiors, under a directive by Executive Order

11478 to “enhance upward mobility" of existing

black employees and to “fully utilize the present

84a

skills of black employees," failed and refused to

advance Mr. Penn on an equal basis with white

employees. Mr. Penn's superiors in the Base Pro-

curement section of the Defense Department denied

to Mr. Penn the equal right to contract in employ-

ment. This violation of Mr. Penn's employment

rights continued from 1960 to date. The last

violation of Mr. Penn's right to equal contract

occurred in June, 1971, when two Procurement

Analyst positions carrying GS ratings up to 9

were filled by whites with less experience, train-

ing, and seniority than Mr. Penn. Mr. Penn's

superiors have a duty under Executive Order 11478

to seek out blacks in the Base Procurement section

for these positions, especially in light of the

few blacks employed by the section (3 out of 40)

and the low GS ranking of existing black employees

who were qualified for the positions by experience,

training and seniority. No test or competitive

examination was given to determine the best

qualified person for these promotions. The white

person making the selection artibrarily selected

85a

less qualified white persons to fill the positions

thereby violating Mr. Penn's statutory ard consti-

tutional rights. The loss of income to Mr. Penn

from these continued violations of his equal

right to contract in employment exceeds

$10,000.00.

(44) The failure of defendants to effectively

recruit blacks in Alabama for employment in their

departments or agencies as directed by Executive

Order 11478 and as mandated by the Constitution

of the United States and T42 U.S.C. 1981 have

violated the rights of all blacks in Alabama who,

because of the failure of defendants to adequately

recruit blacks, were not offered a job opportunity

and a job preference created by the law.

(45) The use by defendants of employment

entrance tests in Alabama where blacks scored

lower than whites on the average and where such

tests had not been validated to job performance,

resulted in many blacks not receiving jobs. The

use of such tests violated the rights of black

test takers.

86a

v

RELIEF REQUESTED

Plaintiffs request the following relief for

themselves and for the class:

(46) A declaration that the defendants have

engaged in a practice of denial of equal right to

contract with blacks in Alabama in employment

and that such practice is a violation of 42

U.S.C. 1981.

(47) A dec'aration that the defendants have

engaged in a practice of systematic discrimina-

tion against blacks in employment based solely

on race and that such practice is a violation

of the Fifth Amendment to the United States

Constitution.

(48) A declaration that the defendants have

violated Executive Order 11478.

(49) An order compelling the defendants to

perform their duty under Executive Order 11478.

This order is in the nature of mandamus as

authorized under 28 U.S.C. 1361.

87a

(50) An order requiring the defendants to

institute a practice of hiring one black for

every one white hired until the ratio of blacks

in defendants’ Federal jobs in Alabama is approx-

imately in proportion to the percentage of blacks

in Alabama's population. A further order that no

exception shall be made in the above hiring ratio

without approval of the Court.

(51) An order requiring the Department of

Defense to immediately increase the GS rating of

Plaintiff Willie Penn to GS 11 and to promote

Plaintiff Penn into the next available position

in Base Procurement for which he is qualified

comparable to flis new GS rating. A further order

requiring the Department of Defense to pay plain-

tiff a sum of money, including interest, to

represent the salary that Plaintiff Penn would

have received had he been promoted during his

employment with the Department of Defense without

regard to race on a nondiscriminatory basis.

(52) An order granting the Plaintiffs and the

class such other and further relief the Court

88a

deems necessary to protect the rights of Plaintiffs

and the class.

(53) An order setting this case down for an

early hearing.

Respectfully submitted,

s/ Morris Dees

89a

TABLE 1

Federal Employees in Alabama

All Job Categories*

Total Blacks 2% White %

Morris Dees

Box 2087

Montgomery, Alabama

(205) 264-1412

s/ Orzell Billingslea, Jr.

Orzell Billingslea, Jr.

1630 Fourth Ave., N.

Birmingham, Alabama

s/ J. L. Chestnut, Jr.

All Jobs 52,242 5,230 10 £47,013 90

Non Genegal

Schedule 22,201 3,343 15 18,853 85

Total Gen-

eral Sche-

dule? 30,041 1,887 6 28,154 9%

Defendants

General

Schedu}e

Totals 27,391 739 2.6 26,654 97.4

J. L. Chestnut, Jr.

1020 Broad Street

Selma, Alabama

PLAINTIFF'S ATTORNEY

Of Counsel:

Joseph J. Levin, Jr.

General Counsel

The Southern Poverty Law Center

Room 105

Washington Building

Montgomery, Alabama

Minority Group Employment in the Government,

November 30, 1970, SM 70-70B. United States

Civil Service Commission.

2Blue Collar jobs. Also included in this

category are United States Postal Service jobs.

These jobs carry Postal Field Service (PFS)

ratings and not General Schedule. The Tennessee

Valley Authority does not use General Schedule

ratings. See Table 2 for the number of employees

in these departments.

3Total General Schedule or white collar jobs.

Included in this total are the departments or

agencies not included in this suit.

EXHIBIT 1

(page 1 of 2)

90a 9la

4votal General Schedule employees of the TABLE 2

it.

defendants in this suit GENERAL SCHEDULE

Federal Employees in Alabama

By Departments and Agencies!

i

Total

General

Department Schedule 2

or Agency Employees Black Black

Cabinet Level

Departments:

Dept. of Defense:

Air Force 1,899 33 1.7

Army 14,100 235 1.7

Navy 35 0 0

Other Defense

Activities 48 0 0

Defense Supply

Agency 366 15 4.1

Dept. of Agriculture 1,200 33 2.7

Dept. of Commerce 128 7 5.5

Dept. of Justice 264 1l 4.2

Dept. of Labor 81 5 6.2

Dept. of Interior 170 2 1.2

Dept. of Health,

Education and

Welfare 2,161 289 §=613.4

Dept. of Housing

and Urban

Development 182 13 7.1

Dept. of

Transportation 414 4 1.0

Dept. of Treasury 689 24 3.5

EXHIBIT 2

EXHIBIT 1 (sane 1 of 3)

(page 2 of 2)

TABLE 2 (continued)

(page 2 of 3)

Total

General

Department Schedule y 4

or ency Employees Black Black

Agencies and Executive

Divisions:

U.S. Civil Service 39 3 7.7

Equal Employment

Opportunity

Commission 33 17 51.5

Federal Communications

Commissions 2 0 0

Federal Depository

Insurance Corp. 18 0 0

Federal Home Loan

Bank Board 2 0 0

Federal Mediation and

Consiliation Service 5 0 0

General Services

Administration 46 2 4.3

Interstate Commerce

Commission 3 0 0

General Account ing

Office 12 0 0

National Labor

Relations Board 2 0 0

National Aeronautics

and Space

Administration 5,454 57 1.0

U. S. Postal Service: 2

Rural Mail Carriers 901 2 - 002

Fourth Class

Postmasters 167 3 1.8

Postal Employees 7,329 1,169 15.9

EXHIBIT 2

See i

eat andl tig: ntl CAINE GR es peel NG ha FH RS bts Tt

Pe ee Ce Se ae ee See

eS i ably AB Be = gO) oh at

TABLE 2 (continued)

Total

General

Department Schedule v4

or Agency _ Employees Black Black

Railroad Retirement

Board 10 0 0

Small Business

Administration 37 4 10.8

Selective Service

System 173 0 0

Tennessee Valley

Authority 6,338 551 8.7

Veterans Admin-

istration 2,617 1,133 43.3

Minority Group Employment in the Federal

Government, November 30, 1970, SM 70-70B. United

States Civil Service Commission.

2See Table 3. United States Postal Service

uses PFS (Postal Field Service) pay categories.

Blacks are clustered in the lower PFS categories.

3selective Service in Alabama has 139

employees in Alabama of which 17 are in General

Schedule categories. All 139 are white.

EXHIBIT 2

(page 3 of 3)

94a

TABLE 3

SALARY CLASSIFICATIONS

United States Postal Service

In the State of Alabena*

2 Percentage

PFS Category Total Black Black

1-4 1,829 267 14.5

5-8 5,192 4 893 17.0

9-17 104 9 2.3

Totals 7,329 1,169 15.9

Iuinority Group Employment in the Government,

November 30, 1970, SM 70-70B. United States

Civil Service Commission.

2postal Field Service (PFS) is the designa-

tion of salary categories similiar to General

Schedule.

EXHIBIT 3

95a

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

WILLIE PENN, ET AL., )

Plaintiffs,

vs. CIVIL ACTION NO. 3638-N

UNITED STATES OF ‘

AMERICA, ET AL., )

Defendants.

AMENDMENT TO COMPLAINT

Come now the Plaintiffs pursuant to Rule

15(a), FRCP, and amend their complaint by adding

as a named plaintiff, Charlie H. Foster, Jr., and

by adding additional averments under sections I,

III and IV of the original complaint. The amend-

ment is as follows.

I

JURISDICTION

Plaintiffs also invoke jurisdiction under

the Thirteenth Amendment to the Constitution

of the United States.

96a

III

PARTIES

PLAINTIFFS:

(1 a.) Charlie H. Foster, Jr. is over the

age of twenty-one (21), a U. S. citizen and resi-

dent of Montgomery, Alabama. He has been employed

by the United States of America through the Depart-

ment of Defense since July, 1966. He is a member

of the Negro race.

IV

CAUSE OF ACTION

(43.) 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 (see Original Complaint, pp. 9-10,

paragraph 43). In addition to Mrs. Hunter's

position as head of Procurement, she is also the

alternate Chief Counselor for Equal Employment

Opportunity at MAFB (Ex. A). Mrs. Hunter never

informed Plaintiff Penn of his right to file a

complaint with an E. E. 0. Officer. Under 5 CFR

97a

713.213(a) it was Mrs. Hunter's legal duty to

advise Plaintiff of his right to file such com-

plaints.

(43 a.) Charlie H. Foster, Jr. served in

the United States Navy from 1955 to 1959 when he

was honorably discharged. His principal activi-

ties consisted of duties related to the engine

rooms of ships and he was expertly trained in

the operation of steam and boiler room-type

equipment.

In July, 1966, Mr. Foster accepted

employment with the Department of Defense at a

grade of Wage Board II and a salary of $1.58 per

hour. His duties were those of Mess Attendant at

Maxwell Air Force Base (MAFB), Alabama. He

remained in that position until January, 1969,

when he was promoted to Wage Board VI at a salary

of $2.31 per hour. His job description was con-

verted to that of Motor Vehicle Operator at

Gunter Air Force Base (GAFB), Alabama.

Plaintiff Foster, during early 1967,

while serving as Mess Attendant at MAFB, was

98a

informed by several white airmen that slots in a

Wage Board 10 grade were open in the MAFB steam

plant. Mr. Foster immediately went to a Mrs.

Taylor at Base Personnel and made application for

such a position. He continued to hear of openings

and every day for a period of some six months he

went to Personnel, but was never considered for

the opening. Finally, Mrs. Taylor informed Mr.

Foster that he was coming to Personnel too often

and he gave up. A Wage Board 10 employee at that

time received a salary of sowe $8,000 per year.

The duties encompassed at the MAFB

steam plant were much less complicated than those

which Mr. Foster performed while in the Navy. He

was eminently qualified for such work. His

qualifications were included in his personnel

record at MAFB and he also verbally informed

Personnel of his experience.

No black man has ever been

employed in the steam plant position sought by

Mr. Foster. It is well known among blacks at MAFB

that this is strictly "a white man's job."

99a

Mr. Foster continued in the position

of Motor Vehicle Operator until February, 1970,

when he was promoted to GS-3 in the clerk-typist

category at a salary of $5,200 per year. In order

to accept the position he was required to transfer

to the Procurement Office at MAFB. The job slot

which Mr. Foster filled was previously held by a

white man whose grade was that of GS-4. When Mr.

Foster questioned Mrs. Ruth Hunter as to why the

slot was downgraded, he was informed that that

was the only way Mr. Foster could qualify for the

job. However, Mr. Foster believes that such a

statement was not true. Subsequently (after Mr.

Foster assumed the position) two men were trans-

ferred from Wage Board to GS status in Procurement

and were permitted to fill the graded slots as

they existed with no downgrade.

In October of 1969, Mr. Foster, after

two years of study, received a certificate in

Accounting from Floyd Commercial Business School.

Mr. Foster remained a GS-3 in Pro-

curement for twenty-one months. In November, 1971,

Mrs. Denoise, his supervisor, upgraded his job

description to that of Procurement Clerk. a GS-4,

at a salary of $5,853 per year.

During Summer, 1971, Mr. Foster

became aware of two GS-5 positions which were

opening up in Procurement. He then made Mrs.

Ruth Hunter aware that he would like to fill one

of these vacancies. The jobs were as follows:

(1) Contract Specialist, at

salary of $7,000 per year

and,

(2) Procurement Assistant, at

salary of $7,000 per year.

Mr. Foster never received a response to his

request for consideration, but learned that the

jobs had been given to two white women. Neither

had better than a high school education, both had

been in MAFB Procurement for less than one year

and both had been GS-4's. As a matter of fact

one of the women because of her failure to have

been in Procurement for more than one year was

placed in her slot in an acting capacity until

the one year requirement had been met. She is

now a GS-5.

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. Plaiutii* had a meeting with Mr.

Carter in which he esked Carter to check the eligi-

bility 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 avail-

able to hin.

After Foster had made known to Mrs. Hunter

his desire to fill one of the GS-5 vacancies Mrs.

Hunter began to exclude him from general Procure-

ment office meetings. Plaintiff complained to

Mrs. Hunter and was told by her, "Charlie, you've

102a

gone about as far as you can expect to go in

Procurement." Foster then put in for a transfer

from Procurement, but was told only that he would

be considered for transfer along with GS-3's seek-

ing promotion to GS-4 slots. Foster went once

again to see Carter, but Carter referred his case

back to Kenneth Hovey, the Procurement representa-

tive, MAFB Personnel.

Plaintiff remains in his GS-4 slot

in Procurement to this date. Plaintiff alleges

that he was well qualifed to fill the two GS-5

slots and that he was discriminated against due

to the fact that he is a member of the Negro

race, and claims back pay and other relief

amounting to Fifteen Thousand ($15,000.00) Dollars

for this illegal and unconstitutional discrimina-

tion practiced against him.

Vv

RELIEF REQUESTED

(54.) Plaintiff Foster requests (a) an

order requiring the Department of Defense to

103a

increase immediately the GS rating of Piaintiff

Charlie H. Foster, Jr. to that of no less than

GS-5 and to promote Plaintiff Foster into the next

available position in Procurement or elsewhere at

MAFB for which he is qualified comparable to his

new GS rating; (b) a further order requiring the

Defendant Department of Defense to pay back salary

for the wages Plaintiff would have earned had he

been promoted without regard to race on a nondis-

criminatory basis; and (c) an award of damages for

the humiliation and embarrassment suffered by

Plaintiff as a result of the illegal and uncon-

stitutional racially discriminatory practices.

Respectfully submitted,

s/ J. J. Levin, Jr.

JOSEPH J. LEVIN, JR.

Washington Building

Montgomery, Alabama

ATTORNEY FOR PLAINTIFFS

104a

EQUAL EMPLOYMENT OPPORTUNITY OFFICERS

12 June 1970

1. MR. JAMES P. GOODE is the Director of Equal

Employment Opportunity for the Air Force. His

address is: Director of Equal Employment Oppor-

tunity (DEEO), Hq USAF (AFPCPL), Washington, D.C.

20330.

2. MR. CLYDE W. BRADLEY, (EEOOC), Programs & Re-

quirements Division, DCS/Personnel, Hq AU, is the

Equal Employment Opportunity Officer for Air

University. He is located in Building 800, Max-

well Air Force Base; his telephone extension is

5223.

3. MR. JOHN F. AVERY, (EEOOA), Civilian Personnel

Officer, 3800th Air Base Wing, serves as the Equal

Employment Opportunity Officer For Maxwell and

Gunter Air Force Bases. He is located in Building

744, Maxwell Air Force Base; his telephone exten-

sion is 5208. He carries out the EEO responsi-

bilities outlined in AFR 40-713.

4. MR. ARTHUR C. CARTER, Hq 3800th Air Base Wing,

is the Assistant Equal Employment Opportunity

Officer for Maxwell and Gunter Air Forceases. He

is located in Building 744, Maxwell Air Force

Base; his telephone extension is 5997. His respon-

sibility is to vigorously promote the Equal En-

ployment Opportunity Program and the Maxwell and

Gunter Air Force Bases Plan of Action and to make

changes as necessary to meet the needs of the

installation. He serves as representative of the

Commander in community affairs and activities and

in dealing with organizations and agencies seeking

to improve the employability of the work force,

current and potential.

EXHIBIT A

(page 1 of 2)

105a

5. MAJOR SAMUEL M. PIERSON, III, Staff Judge

Advocate, Hq 3800th Air Base Wing, is the Alternate

Equal Employment Opportunity Officer for Maxwell.

He is located in Building 1; his telephone exten-

sion is 7646.

6. The following persons have been designated

Equal Employment Opportunity Counselors:

Mr. Moses L. Glenn, Chief Counselor, (ECICU-L),

Bldg 220, Gunter AFB, 279-3215

Mrs. Ruth Hunter (BMP) Alternate Chief Counse-

lor, Bldg 853, Maxwell AFB, Ext 5319

Mr. Orrin Williams (BIT-7), Bldg 1020, Maxwell

AFB, Ext 5584

Mr. George W. Jackson (BSMF), Bldg 1020,

Maxwell AFB, Ext 6739

Mrs. Hattie Minter (ASAUR), Bldg 1211, Max-

well AFB, Ext 7641

Employees must consult one of the above EEC

Counselors before a formal complaint of discrimi-

nation may be filed.

7. This notice supersedes previous notice dated

14 Jan 1970. Remove previous notice from Bulle-

tin Boards and post this notice as required by

AFR 40-713.

EXHIBIT A

(page 2 of 2)

106a

CODE OF FEDERAL REGULATIONS

TITLE 5

§ 713.213 Precomplaint processing.

(a) An agency shall require that an aggrieved

person who believes that he has been discriminated

against because of race, color, religion, sex, or

national origin consult with an Equal Emplcyment

Opportunity Counselor when he wishes to resolve

the matter. The agency shall require the Equal

Employment Opportunity Counselor to make whatever

inquiry he believes necessary into the matter; to

seek a solution of the matter on an informal

basis; to counsel the aggrieved person concerning

the merits of the matter; to keep a record of his

counseling activities so as to brief, periodi-

cally the Equal Employment Opportunity Officer on

these activities; and, when advised that a com-

plaint of discrimination has been accepted from

an aggrieved person, to submit a written report

to the Equal Employment Opportunity Officer, with

a copy to the aggrieved person, summarizing his

actions and advice both to the agency and the

aggrieved person concerning the merits of the

matter. The Equal Employment Opportunity Coun-

selor shall, insofar as is practicable, conduct

his final interview with the aggrieved person not

later than 15 workdays after the date on which

the matter was called to his attention by the

aggrieved person. The Equal Employment Oppor-

tunity Counselor shall advise the aggrieved

person in the final interview of his right to

file a complaint of discrimination with the

organization's Equal Employment Opportunity

Officer if the matter has not been resolved to

his satisfaction and of the time limits gov-

erning the acceptance of a complaint in § 713.214.

The Equal Employment Opportunity Counselor shall

not reveal the identity of an aggrieved person who

has come to him for consultation, except when

107a

authorized to do so by the aggrieved person,

until the agency has accepted a complaint of

discrimination from hin.

(b) The Equal Employment Opportunity

Counselor shall be free from restraint, inter-

ference, coercion, discrimination, or reprisal

in connection with the performance of his duties

under this section.

[34 F.R. 5369, Mar. 19, 1969]

§ 713.214 Filing and presentation of complaint.

(a) Time limits. (1) An agency shall re-

quire that a complaint be submitted in writing

by a complainant or his representative. The

agency may accept the complaint for processing

in accordance with this subpart only if—

(i) The complainant brought to the atten-

tion of the Equal Employment Opportunity Counse-

lor the matter causing him to believe he had been

discriminated against within 15 calendar days

of the date of that matter or, if a personnel

action, within 15 calendar days of its effective

date, and

(ii) The complainant submitted his written

complaint to the Equal Employment Opportunity

Officer within 15 calendar days of the date of

his final interview with the Equal Employment

Opportunity Counselor.

(2) The agency shall extend the time limits

in this section (i) when the complainant shows

that he was not notified of the time limits

and was not otherwise aware of them, or that he

was prevented by circumstances beyond his control

from submitting the matter within the time limits,

or (ii) for other reasons considered sufficient by

the agency.

(b) Presentation of complaint. At any

stage in the presentation of a complaint, includ-

ing the counseling stage under § 713.213, the

complainant shall be free from restraint, inter-

ference, coercion, discrimination, or reprisal

108a

and shall have the right to be accompanied,

represented, and advised by a representative of

his own choosing. If the complainant is an

employee of the agency, he shall have a reason-

able amount of official time to present his com-

plaint if he is otherwise in an active duty

status. If the complainant is an employee of

the agency and he designates another employee

of the agency as his representative, the repre-

sentative shall be free from restraint, inter-

ference, coercion, discrimination, or reprisal,

and shall have a reasonable amount of official

time, if he is otherwise in an active duty

status, to present the complaint.

[34 F.R. 5369, Mar. 19, 1969]

§ 713.215 Rejection or cancellation of complaint.

When the head of the agency, or his designee,

decides to reject a complaint because it was not

timely filed or because it is not within the

purview of § 713.212 or to cancel a complaint

because of a failure of the complainant to pro-

secute the complaint or because of a separation

of the complainant which is not related to his

complaint, he shall transmit the decision by

letter to the complainant and his representative.

The decision letter shall inform the complainant

of his right to appeal the decision of the agency

to the Commission and of the time limit within

which the appeal may be submitted.

(E.O. 11491; 3 CFR, 1969 Comp., p.191) [35 F.R.

14917, Sept. 25, 1970]

§ 713.216 Investigation.

(a) The Equal Employment Opportunity

Officer shall advise the Directur of Equal Employ-

ment Opportunity of the acceptance of a complaint.

The Director of Equal Employment Opportunity shall

provide for the prompt investigation of the com-

plaint. The person assigned to investigate the

109a

complaint shall occupy a position in the agency

which is not, directly or indirectly, under the

jurisdiction of the head of that part of the

agency in which the complaint arose. The agency

shall authorize the investigator to administer

oaths and require that statements of witnesses

shall be under oath or affirmation, without a

pledge of confidence. The investigation shall

include a thorough review of the circumstances

under which the alleged discrimination occurred,

the treatment of members of the complainant's

group identified by his complaint as compared with

the treatment of other employees in the organiza-

tional segment in which the alleged discrimina-

tion occurred, and any policies and practices

related to the work situation which may consti-

tute, or appear to constitute, discrimination

even though they have not been expressly cited

by the complainant. Information needed for an

appraisal of the utilization of members of the

complainant's group as compared to the utiliza-

tion of persons outside the complainant's group

shall be recorded in statistical form in the

investigative file, but specific information as

to a person's membership or nonmembership in the

complainant's group needed to facilitate an

adjustment of the complaint or to make an

informed decision on the complaint shall, if

available, be recorded by name in the investiga-

tive file. (As used in this subpart, the term

“investigative file" shall mean the various

documents and information acquired during the

investigation under this section—including

affidavits of the complainant, of the alleged

discriminating official, and of the witnesses and

copies of, or extracts from, records, policy

statements, or regulations of the agency—organized

to show their relevance to the complaint or the

general environment out of which the complaint

rose.) If necessary, the investigator may obtain

information regarding the membership or nonmem-

bership of a person in the complainant's group by

asking each person concerned to provide the

110a

information voluntarily; he shall not require or

coerce an employee to provide this information.

The agency shall furnish the complainant or his

representative a copy of the investigative file.

(b) The Director of Equal; Employment

Opportunity shall arrange to furnish to the person

conducting the investigation a written authoriza-

tion (1) to investigate all aspects of complaints

of discrimination, (2) to require all employees

of the agency to cooperate with him in the conduct

of the investigation, and (3) to require employees

of the agency having any knowledge of the matter

complained of to furnish testimony under oath or

affirmation without a pledge of confidence.

[34 F.R. 5369, Mar. 19, 1969, as amended at

34 F.R. 13656, Aug. 26, 1969]

§ 713.217 Adjustment of complaint and offer of

hearing.

(a) The agency shall provide an opportunity

for adjustment of the complaint on an informal

basis after the complainant has reviewed the

investigative file. If an adjustment of the

complaint is arrived at, the terms of the adjust-

ment shall be reduced to writing and made part of

the complaint file, with a copy of the terms of

the adjustment provided the complainant.

(b) If an adjustment of the complaint is not

arrived at, the complainant shall be notified in

writing of the proposed disposition thereof. In

that notice, the agency shall advise the com-

plainant of his right to a hearing with a subse-

quent decision by the head of the agency or his

designee and his right to such a decision with-

out a hearing. The agency shall allow the com-

plainant 7 calendar days from receipt of the no-

tice to notify the agency whether or not he

wishes to have a hearing.

(c) If the complainant fails to notify the

agency of his wishes within the 7-day period pre-

scribed in paragraph (b) of this section, the

appropriate Equal Employment Opportunity Officer

llla

may adopt the disposition of the complaint

proposed in the notice sent to the complainant

under paragraph (b) of this section as the decision

of the agency on the complaint when delegated the

authority to make a decision for the head of the

agency under those circumstances. When this is

done, the Equal Employment Opportunity Officer

shall transmit the decision by letter to the com-

plainant and his representative which shall in-

form the complainant of his right of appeal to

the Commission and the time limit applicable

thereto. If the Equal Employment Opportunity

Officer does not issue a decision under this

paragraph, the complaint, together with the

complaint file, shall be forwarded to the head of

the agency, or his designee, for decision under

§ 713.221.

(E.O. 11491; 3 CFR, 1969 Comp., p.191) [34 F.R.

5369, Mar. 19, 1969; 34 F.R. 9795, Jume 25, 1969,

as amended at 34 F.R. 15595, Oct. 8, 1969; 35

F.R. 14917, Sept. 25, 1970]

§ 713.218 Hearing.

(a) Appeals examiner. The hearing shall be

held by an appeals examiner who must be an

employee of another agency except when the agency

in which the complaint arose is (1) the govern-

ment of the District of Columbia or (2) an agency

which, by reason of law, is prevented from divul-

ging information concerning the matter complained

of to a person who has not received the security

clearance required by that agency, in which event

the agency shall arrange with the Commission for

the selection of an impartial employee of the

agency to serve as appeals examiner. (For pur-

poses of this paragraph, the Department of

Defense is considered to be a single agency.)

The agency in which the complaint arose shall

request the Commission to supply the name of an

appeals examiner who has been certified by the

Commission as qualifed to conduct a hearing under

this section.

1l2a

(b) Arrangements for hearing. The agency

in which the complaint arose shall transmit the

complaint file containing all the documents des-

cribed in § 713.222 which have been acquired up

to that point in the processing of the complaint,

including the original copy of the investiga-

tive file (which shall be considered by the

appeals examiner in making his recommended

decision on the complaint), to the appeals

examiner who shall review the complaint file to

determine whether further investigation is needed

before scheduling the hearing. When the appeals

examiner determines that further investigation

is needed, he shall remand the complaint to the

Director of Equal Employment Opportunity for fur-

ther investigation or arrange for the appearance

of witnesses necessary to supply the needed infor-

mation at the hearing. The requirements of

§ 713.216 apply to any further investigation by

the agency on the complaint. The appeals

examiner shall schedule the hearing for a conven-

ient time and place.

(c) Conduct of hearing. (1) Attendance at

the hearing is limited to persons determined by

the appeals examiner to have a direct connection

with the complaint.

(2) The appeals examiner shall conduct the

hearing so as to bring out pertinent facts,

including the production of pertinent documents.

Rules of evidence shall not be applied strictly,

but the appeals examiner shall exclude irrelevant

or unduly repetitious evidence. Information

having a bearing on the complaint or employment

policy or practices relevant to the complaint

shall be received in evidence. The complainant,

his representative, and the representatives of the

agency at the hearing shall be given the oppor-

tunity to cross-examine witnesses who appear and

testify. Testimony shall be under oath or affir-

mation.

(4d) Powers of appeals examiner. In addi-

tion to the other powers vested in the appeals

ll3a

examiner by the agency in accordance with this

subpart, the agency shall authorize the appeal

examiner to: :

(1) Administer oaths or affirmations;

(2) Regulate the course of the hearing;

(3) Rule on offers of proof;

(4) Limit the number of witnesses whose

testimony would be unduly repetitious; and

(5) Exelude any person from the hearing

for contumacious conduct or misbehavior that

obstructs the hearing.

(e) Witnesses at hearing. The appeals

examiner shall request the agency to make avail-

able as a witness at the hearing an employee

requested by the complainant when he determines

that the testimony of the employee is necessary.

He shall aiso request the appearance of any other

employee whose testimony he desires to supplement

the information in the investigative file. The

appeals examiner shall give the complainant his

reasons for the denial of a request for the

appearance of employees as witnesses and shall

insert those reasons in the record of the hearing.

The agency shall make its employees available as

witnesses at a hearing on a complaint when

requested to do so by the appeals examiner and it

is administratively practicable to comply with

the request. When it not administratively prac-

ticable to comply with the request for a witness,

the agency shall provide an explanation to the

appeals examiner. If the explanation is inade-

quate, the appeals examiner shall so advise the

agency and request it to make the employee avail-

able as a witness at the hearing. If the explana-

tion is adequate, the appeals examiner shall

insert it in the record of the hearing, provide a

copy to the complainant, and make arrangements to

secure testimony from the employee through a

written interrogatory. Employees of the agency

shall be in a duty status during the time they are

made available as witnesses. Witnesses shall be

free from restraint, interference, coercion,

ll4a

discrimination, or reprisal in presenting their

testimony at the hearing or during the investiga-

tion under § 713.216.

(f£) Record of hearing. The hearing shall

be recorded and transcribed vertabim. All docu-

ments submitted to, and accepted by, the appeals

examiner at the hearing shall be made part of the

record of the hearing. If the agency submits a

document that is accepted, it shall furnish a

copy of the document to the complainant. If

the complainant submits a document that is

accepted, he shall make the document available

to the agency representative for reproduction.

(g) Findings, analysis, and recommenda-

tions. The appeals examiner shall transmit to

the head of the agency or his designee (1) the

complaint file (including the record of the

hearing), (2) the findings and analysis of the

appeals examiner with regard to the matter which

gave rise to the complaint and the general envir-

onment out of which the complaint arose, and

(3) the recommended decision of the appeals

examiner on the merits of the complaint, includ-

ing recommended remedial action, where appro-

priate, with regard to the matter which gave

rise to the complaint and the general environ-

ment out of which the complaint arose. The

appeals examiner shall notify the complainant

of the date on which this was done. In addition,

the appeals examiner shall transmit, by separate

letter to the Director of Equal Employment Oppor-

tunity, whatever findings and recommendations

he considers appropriate with respect to condi-

tions in the agency having no bearing on the

matter which gave rise to the complaint or the

general environment out of which the complaint

arose.

[34 F.R. 5370, Mar. 19, 1969, as amended at 34

F.R. 13657, Aug. 26, 1969]

§ 713.219 Relationship to other agency appellate

procedures.

1l5a

(2) Except as provided in paragraphs (b) and

(c) of this section, when an employee makes a

written allegation of discrimination on grounds of

race, color, religion, sex, or national origin, in

connection with an action that would otherwise be

processed under a grievance or appeals system of

the agency the agency may process the allegation

of discrimination under that system when the

system meets the principles and requirements

in §§ 713.212 through 713.220 and the head of the

agency, or his designee, makes the decision of the

agency on the issue of discrimination. That deci-

sion on the issue of discrimination shall be in-

corporated in and become a part of the decision

on the grievance or appeal.

(b) An allegation of discrimination made

in connection with an appeal under Subpart B of

Part 771 of this chapter shall be processed under

that subpart.

(c) An allegation of discrimination made in

connection with a grievance under Subpart C of

Part 771 of this chapter shall be processed

under this part.

(E.O. 11491; 3 CFR, 1969 Comp., p. 191) [35 F.R.

14917, Sept. 25, 1970]

§ 713.220 Avoidance of delay.

(a) The complaint shall be resolved prompt-

ly. To this end both the complainant and the

agency shall proceed with the complaint without

undue delay so that the complaint is resolved,

except in unusual circumstances, within 60 calen-

dar days after its receipt by the Equal Employ-

ment Opportunity Officer, exclusive of time spent

in the processing of the complaint by the appeals

examiner under § 713.218. When the complaint has

not been resolved within this limit, the complain-

ant may appeal to the Commission for a review of

the reasons for the delay. Upon review of this

appeal, the Commission may require the agency to

take special measures to insure prompt processing

ll6a

of the complaint or may accept the appeal for

consideration under § 713.234.

(b) The head of the agency or his designee

may cancel a complant if the complainant fails to

prosecute the complaint without undue delay.

However, instead of canceling for failure to

prosecute, the complaint may be adjudicated if

sufficient information for that purpose is

available. ;

(E.0O. 11491, 3 CFR, 1969 Comp.) [34 F.R. 5370,

Mar. 19, 1969, as amended at 35 F.R. 14917, Sept.

25, 1970]

§ 713.221 Decision by head of agency or designee.

(a) The head of the agency, or his designee,

shall make the decision of the agency on a com-

plaint based on information in the complaint file.

A person designated to make the decision for

the head of the agency shall be one who is fair,

impartial, and objective.

(b) (1) The decision of the agency shall

be in writing and shall be transmitted by letter

to the complainant and his representative.

(2) When there has been a hearing on the

complaint, the decision letter shall transmit a

copy of the findings, analysis, and recommended

decision of the appeals examiner under § 713.218

(g) and a copy of the hearing record. The deci-

sion of the agency shall adopt, reject, or modify

the decision recommended by the appeals examiner.

If the decision is to reject or modify the

recommended decision, the decision letter shall

set forth the reasons for rejection or modifi-

cation.

(3) When there has been no hearing and no

decision under § 713.217(c), the decision letter

shall set forth the findings, analysis, and

decision of the head of the agency or his

designee.

(c) The decision of the agency shall require

any remedial action authorized by law determined

ll7a

to be necessary or desirable to resolve the issues

of discrimination and to promote the policy of

equal opportunity.

(d) The decision letter shall inform the

complainant of his right to appeal the decision

of the agency to the Commission and of the time

limit within which the appeal may be submitted.

(E.0. 11491; 3 CFR, 1969 Comp., p-191) [35 F.R.

14917, Sept. 25, 1970]

§ 713.222 Complaint file.

The agency shall establish a complaint file

containing all documents pertinent to the conm-

plaint. The complaint file shall include copies

of (a) the written report of the Equal Employ-

ment Opportunity Counselor under § 713.213 to

the Equal Employment Opportunity Officer on what-

ever precomplaint counseling efforts were made

with regard to the complainant's case, (b) the

complaint, (c) the investigative file, (d) if the

complaint is withdrawn by the complainant, a

written statement of the complainant or his repre-

sentative to that effect, (e) if adjustment of

the complaint is arrived at under § 713.217, the

written record of the terms of the adjustment,

(f) if no adjustment of the complaint is arrived

at under § 713.217, a copy of the letter noti-

fying the complainant of the proposed disposi-

tion of the complaint and of his right to a

hearing, (g) if decision is made under § 713.217

(c), a copy of the letter to the complainant

transmitting that decision, (h) if a hearing

was held, the record of the hearing, together

with the appeals examiner's findings, analysis,

and recommended decision on the merits of the

complaint, (i) if the Director of Equal Employ-

ment Opportunity is not the designee, the recom-

mendations, if any, made by him to the head of

the agency or his designee, and (j) if decision

is made under § 713.221, a copy of the letter

transmitting the decision of the head of the

118a

agency or his designee. The complaint file

shall not contain any document that has not been

made available to the complainant or to his

designated physician under § 294.401 of this

chapter.

(E.0O. 11491; 3 CFR, 1969 Comp., p.191) [35 F.R.

14917, Sept. 25, 1970]