# Appendix — Penn v. Rumsfeld

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0235%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1976
- **Citation:** 426 U.S. 934

## Text

|! 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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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 Fiel

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0235%3A2. Public record. Not legal advice.