Petition for Writ of Certiorari — Penn v. Rumsfeld

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SPREME COURT. U.S | aS he

In The

Supreme Court of the United | States

October Term, 1974

No. YG4- 4%

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 TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JOSEPH J. LEVIN, JR.

CHARLES F. ABERNATHY

MORRIS S. DEES, JR.

PAMELA S. HOROWITZ

129 South McDonough Street

Mo:itgomery, Alabama 36101

Attorneys for Petitwners

DG AY Lal REEL NDOMOALESG BEAD A ALE IAIGB ONE D0 AE SESE EAI PMA Ap STERTREE AEN votes Un Cnr oe FE

INDEX

Opimioms Belew. « +e se se ee 6 ee

PUPSEOee ee & ss 6 6 eee Oe SH KH

Questions Presented .......2.+e2e-.

Constitutional, Statutory and Regulatory

Provisions Involved ........

Statement of the Case .........

Reasons for Granting the Writ

I. The Issues Presented Concern

the Effective Operation of our

National Government's Adminis-

trative System for Eradicating

Federal Employment

Discrimination ........

II. The Court Below Erred in

Holding that the Plaintiffs

had not Exhausted all Avail-

able Administrative

Remegten «<4 « «6 6 & se © Gs

III. This Case Offers the Court

an Opportunity to Settle

Troubling and Long-Standing

Issues Concerning the Appli-

cability of the Exhaustion

Requirement to Federal

Versus State Defendants in

Suits to Protect Constitu-

Ciomel RAMRES 2 ss tl tt le

CONCLUSION «6s SS As OE ee eee

— ——- 4 em ae a P

Page

TABLE OF AUTHORITIES

Page

CASES:

Barney v. C. of New York, 193

ee ee ee a ee 22

Beale v. Blount, 461 F.2d 1133,

1139 (5th Cir. 1972) ...... .- 8, 15, 20

Blaze v. Moon, 440 F.2d 1348

a a a 8

Bolger v. Marshall, 193 F.2d 37,

; 7 es Gs BD ow 6 et tl le 8 22

5 Bolling v. Sharpe, 347 U.S. 497

i ok = >} + + & & 6 6 © © © 8

ee aye

District of Columbia v. Carter,

3 ae Game Gee GeewePe « + oo 0 8 8 ew 19

Dugan v. Rank, 372 U.S. 609

et kn es ee oe eh + ee 7 8 8

Eisen v. Eastman, 421 F.2d 560,

568-69 (2d Cir. 1969), cert.

denied, 400 U.S. 841 (1970) ..... 15

Frontiero v. Richardson, 411 U.S.

a on +. . wel s a ew ee 8 8 8 le 11

Gnotta v. United States, 415 F.2d

1271 (8th Cir. 1969), cert.

denied, 397 U.S. 934 (1970) ..... 8

Home Telephone and Telegraph

Co. v. C. of Los Angeles, 227

ES | ee 22

—

Aa Pak 2 i ihe 4 Peon . "

eee ference Dee Warkis Ain abedceuintl Bt ait

rere rt —)

“es = LIT CALI ool

Houghton v. Shafer, 392 U.S. 639,

640 (1968) (per curiam) .....

Jones v. Alfred Mayer Co., 392

et |

Larson v. Domestic & For. Commerce

Corp., 337 U.S. 682 (1949) ....

Leedom v. Kyne, 358 U.S. 184 (1958)

McKart v. United States, 395

w.9. BBS, B93 CRO) « « © te

McNeese v. Board of Education,

373 U.S. 668 (1963) .......

Monroe v. Pape, 365 U.S. 167

(1961) . _ . . e . . . ° . .

Myers v. Bethlehem Shipbuilding

Corp., 303 U.S. 41, 50-51 (1938)

NAACP v. Allen, 493 F.2d 970

Le. ee.)

Ogden v. Zuckert, 298 F.2d 312,

317 (D.C. Cir. 1961) ..

Sanders v. Dobbs Houses, Inc.,

431 F.2d 1097 (5th Cir. 1970) .

Tillman v. Wheaton-Haven,

410 u.S. 431, n.11 (1973) .

United States v. Frazer, 317 F.Supp.

1079 (M.D. Ala. 1970) .

United States v. Raines, 362 U.S.

17, 25-26 (1960) ‘

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Page

18, 21

20, 22

Williams v. Richardson, 347

Wilwording v. Swenson, 404

U.S. 249 (1971) ....

CONSTITUTIONAL PROVISIONS

CODE OF FEDERAL REGULATIONS:

: 5 CFR, Section 713 (1971)

28 U.S.C., Section 1254(1) .

sande SSR aaa eh so a

42 U.S.C., Section 1981

ee 6s 6s a a ee

28 U.S.C., Section 1292(b) .

Phe RSI Fase oa 2

42 U.S.C., Section 2000e-16

iia

5 U.S.C., Section 7151 .

: 42 U.S.C., Section 1982 .

42 U.S.C., Section 1983

F.Supp. 544 (W.D.N.C. 1972) ..... 15

U. S. Constitution, Amendment V.... 4, 11

eee 4

: 5 CFR, Section 713.214—713.221 (1971) . 7, i?

5 CFR, Section 713.214(a) (1973) .... 17

: 5 CFR, Section 213(a) (1971) ...... 17

STATUTES:

- 3, 4, 10, 11, 13, 22

19, 20

Page

OTHER AUTHORITIES:

Exec. Order No. 11478,

34 Fed. Reg. 12985 . . . «© «© «© © © © © 11

Exec. Order No. 11590,

36 Fed. Reg. 7831 e. ° . 7. * _ . - o 7. . 1l

Public Interest Research Group;

Behind the Promise: Equal Employment

in the Federal Govermment (1972)... . 11

R. Rittenoure, Black Employment in the

South: The Case of the Federal Govern-

ment (contract study no. 81-46-70-24,

Manpower Administration, U.S. Dept. of

Labor, 1972) [Published by the Center

for the Study of Human Resources,

Unitersity of Texas, Austin, Texas] .. 11

H.R. Rep. No. 92-238, on H.R. 1746,

92d Cong., lst Sess., 23-24 (1971)... 12

1972 Equal Employment Act ....... 13

3 K. Davis Administrative Law,

Sectiem fase «ss eo eet ewe ee he 15

1974 Duke Law Journal 408, 421

and n.69 (April 1974) ......2... 21

—~—~—bt © AE Ft er

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1974

No.

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 TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Petitioners Willie Penn, Charles F. Foster,

Jr., and the Alabama State Conference of NAACP,

Inc., on behalf of its members, respectfully

pray that a writ of certiorari issue to review

— : : _ — _ .

PODR COPY

THF OU GH

the judgment of the United States Court of Appeals

for the Fifth Circuit entered in this case on

July 26, 1974.

OPINIONS BELOW

The opinion of the Court of Appeals, sitting

en bane, is appended to this petition at la. The

judgment and panel opinions of the Court of

Appeals, the dissenting opinion of which was

adopted in its entirety by the court sitting en

bane, is reported at 490 F.2d 700 (5th Cir. 1974)

and is appended at 13a. The order of the United

States District Court for the Middle District of

Alabama, which is reported at 350 F.Supp. 752

is appended at 46a.

JURISDICTION

The judgment of the Court of Appeals,

sitting en banc, was entered on July 26, 1974.

The petition for writ of certiorari was filed

: within ninety (90) days of that date. This

Court's jurisdiction is invoked under 28 U.S.C.

§1254(1).

POOLE LUINGANG IL OL, 5 EGE SIME EILEEN EPS! ON TEN ER ne -™

— cine’ ren J

FLEED THF OUG!)

QUESTIONS PRESENTED

I. In a suit brought by current and prospec-

tive employees of the federal government charging

racial discrimination in employment contrary to

42 U.S.C. §1981 and the fifth amendment to the

Constitution, must administrative remedies set

up by executive order but unprescribed by §1981

be exhausted before the suit may be filed?

II. In a suit brought by current and pros-

pective employees of the federal government, were

administrative remedies adequately exhausted

where administrative officers refused to permit

the filing of a written complaint, such written

complaint being required by administrative regu-

lations in order to pursue further administra-

tive remedies?

III. In a suit brought by current and pros-

pective employees of the federal government, were

administrative remedies adequately exhausted

where the administrative regulations provided no

complaint procedure whatsoever for prospective

i inciceeicileiiniaaieaii OLRM LTE LLL ELMS SERIO NG REID eri |

PODR COPV

ate Wola bo ae

employees discriminated against or for the

organization representing them?

IV. In a suit brought by current and pros-

pective employees of the federal government, were

administrative remedies adequately exhausted

where as to one plaintiff, the administrative

officer charged with the duty of informing the

aggrieved employee of his right to file a com-

plaint, failed to perform this duty?

CONSTITUTIONAL, STATUTORY

AND REGULATORY PROVISIONS

INVOLVED

Involved in this case are the fifth amend-

ment to the United States Constitution, 42 U.S.C.

Section 1981 and 5 C.F.R. 713, et seq. The

provisions of 5 C.F.R. 713, et seq. are set out

in pertinent part at Appendix, p. 10la.

STATEMENT OF THE CASE

Willie Penn and Charles F. Foster, Jr.,

are civilian employees of the Department of

RLEED THF

THF OUGH

Defense at Maxwell Air Force Base, in Montgomery,

Alabama. The Alabama Conference of the NAACP is

a black membership organization which has sued

in the past to protect the right of its members

to equal access to public employment opportuni-

ties.2/ Mr. Penn and Mr. Foster brought this

action after thay had been repeatedly denied

promot ions;2/ the NAACP joined in the suit,

1/ See NAACP v. Allen, 493 F.2d 970 (5th

Cir. 1974).

2/ Over a period of seventeen years, dating

from 1955, Mr. Penn was consistently denied mean-

ingful job advancement, most recently just eight

months before the instant complaint was filed.

At that time two white persons with less experi-

ence and seniority were chosen over him for a

position as procurement analyst. (App. p. 84a.)

Mr. Foster, who served in the Navy for

four years as a boiler expert, applied for pro-

motion to a position in the Maxwell A.F.B. steam

plant, theretofore an all-white facility widely

known as having jobs for whites only. (App. p.

98a.) Mr. Foster was subsequently placed in a

clerk position, the salary for which was down-

graded for him alone, whites in the category

receiving a higher salary. Finally, Mr. Foster,

with two years of business school study recently

finished, was rejected for two higher procurement

positions, his white supervisor choosing instead

two white women who had only high school diplomas

PODR CCPY

recognizing that the federal government — which

had just successfully sued the state for racial

discrimination in emp loyment2/ — had an even

worse record of racist hiring than the state

itself. The plaintiffs named as defendants the

officials heading the seventeen federal agencies

and departments which showed the most egregious

statistical record for hiring blacks. 4/

The defendants twice moved to dismiss the

complaint, submitting briefs which argued that

the federal officials were protected from suit

by sovereign immunity and that the plaintiffs

had failed to exhaust their administrative

remedies. In response to the first of these

motions the plaintiffs added to their complaint

and were less qualified than he. Indeed, one

had so little experience that she was appointed

in an “acting” capacity until experience was

obtained. (App. p. 100a.)

3/ United States v. Frazer, 317 F.Supp.

1079 (M.D. Ala. 1970).

4/ App. p. 75a.

SLT PRR REBE eReS Fae _—

FLEED THF OU

paragraphs showing their attempts to resolve

their grievances within the administrative com-

plaint process.2/ Mr. Penn alleged that he had

made known to his Equal Employment Opportunity

(E.E.0.) Counselor his frustration at non-

advancement, but she failed in her prescribed

duty to advise Penn of his right to consult an

E.E.0. officer who could accept his complaint.

(App. p- 96a.) Mr. Foster alleged that he had

approached his E.E.0. counselor, who dutifully

referred him to an E.E.0. officer, but the E.E.O.

officer refused to permit Foster to file a

written administrative grievance.— (App. p. 10la.)

Since no procedures existed for an admin-

istrative complaint by the NAACP, it had taken

5/ The amended complaint also presented an

opportunity for Mr. Foster to join Mr. Penn as

co-plaintiff. (App. p. 95a.)

6/ The regulations establishing the com-

plaint procedure required the filing of a

written complaint as a prerequisite for taking

an appeal to the Civil Service Commission. 5

C.F.R. §713.214 (1971).

EE RAINES EB TS TN

- OU GH

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SPIRE, tart Sebi Ciba 6 Sob Diteateit ad

fai i lidar

Kugte

1 Siac NN Dn Shit ig lh Sy od

no administrative action that could be set out in

the amended complaint. The district court, Johnson,

C. J., denied the motions to dismiss (App. p. 6la),

but found the issues sufficiently troublesome in

light of contrary precedent_/ that it certified

7/ See Beale v. Blount, 461 F.2d 1133 (5th

Cir. 1972), Blaze v. Moon, 440 F.2d 1348 (1971),

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

1969) (per Judge, now Justice, Blackmun), cert.

denied, 397 U.S. 934 (1970). The plaintiffs pre-

sented apparently convincing arguments to show

that Beale and Blaze ignored overriding Supreme

Court precedents which established that the

sovereign immunity defense is unavailable to

defendant federal officials who either act uncon-

stitutionally or ultra vires their authority.

See, Dugan v. Rank, 372 U.S. 609 (1963); Larson

v. Domestic & For. Commerce Corp., 337 U.S. 682

(1949). The Eighth Circuit's decision in

Gnotta v. United States, supra, noted that the

plaintiff's attack on his supervisor's national-

origin discrimination "obviously" did not fall

within the Larson-Dugan exceptions to sovereign

immunity. 415 F.2d 127 . The plaintiffs in the

case sub judice were able to show (1) that

racial discrimination was unconstitutional and

thus fell within the Larson-Dugan exceptions,

see, Bolling v. Sharpe, 347 U.S. 497 (1954), and

(2) that the plaintiff in Gnotta had apparently

failed to make the key allegation that the

claimed discrimination was unconstitutional or

exceeded the defendant's authority, see Brief

for Appellant in Gnotta v. United States, 397

U.S. 934 (1970), denying cert. to 415 F.2d 1271

(8th Cir. 1969).

FLEED TI

“ED THF OUGH

them for interlocutory appeal pursuant to 28

U.S.C. §1292(b). (App. p. 46a.) By order

entered November 21, 1972, the Court of Appeals

granted the defendant federal officials leave

to appeal the district court's order.

A panel of the Court of Appeals affirmed

Judge Johnson's ruling, one judge dissenting.

The federal officials asked and were granted

rehearing en banc, the full court reversing the

panel and adopting the opinion of the panel

dissenter as its own. (App. p. la.) That

opinion held that the plaintiffs had not suffi-

ciently exhausted their administrative remedies,

reasoning that the administrative officers’

refusal to advise plaintiff Penn of his right

to file a grievance and refusal to allow plain-

tiff Foster to file a written grievance were

mere "procedural slipups" which should have been

subjected to administrative "self correction."

(App. p. 4la.) Judge Tuttle, joined by three

POOR COPY

eee

nts

others, dissented, arguing that exhaustion was

not required in suits brought under 42 U.S.C.

§1981 and that, in any event, remedies had been

exhausted in the instant case.—

REASONS FOR GRANTING THE WRIT

THE ISSUES PRESENTED CONCERN THE EFFECTIVE

OPERATION OF OUR NATIONAL GOVERNMENT'S ADMINIS-

TRATIVE SYSTEM FOR ERADICATING FEDERAL EMPLOY-

MENT DISCRIMINATION.

The federal government has a substantial and

unequivocal commitment to outlawing discrimina-

tory employment practices in its public service

occupations. The prohibition against discrimina-

tion is set forth in a long string of executive

8/ By dismissing the complaint for failure

to exhaust remedies, the en bane court skirted

the major issue raised in the district court,

the availability of sovereign immunity as a

defense for discriminating federal officials.

SME EEL ELLE NEL ALE DASE LEC LLNER OLS ALE LE IEG GOES ELE RGN EOE

RFLEED 1

poe!

Dee eS

=D THF OUGH

orders?! and federal statutesl0/ and even in the

11/

Constitution itself.—/ But our decisive legal

commitments to ending discrimination is a mockery

unless the administrative system which enforces

our commitment does its job.

And our present system has indeed failed in

its job. Two massive studies undertaken in

1972 came to that conclusion,22/ as did the

Congress. In passing the first modern statutory

scheme for remedying federal employment discrim-

ination, Congress pointedly alluded to the

9/ E.g., Exec. Order No. 11478, 34 Fed.

Reg. 12985, as amended by Exec. Order No. 11590,

36 Fed. Reg. 7831.

10/ Civil Rights Act of 1866, 42 U.S.C.

§1981; 42 U.S.C. §2000e-16; 5 U.S.C. §7151.

11/ U. S. Constitution, Amendment V; cf.

Frontiero v. Richardson, 411 U.S. 677 (1973).

12/ Public Interest Research Group; BEHIND

THE PROMISE: EQUAL EMPLOYMENT IN THE FEDERAL

GOVERNMENT (1972); R. Rittenoure, Black Employ-

ment in the South: The Case of the Federal

Government (contract study no. 81-46-70-24,

Manpower Administration, U. S. Dept. of Labor,

1972) [published by the Center for the Study

of Human Resources, University of Texas,

Austin, Texas].

PODR COPY

failures of the administrative system for

handling complaints:

Th[e] disproportionate distribution

of minorities and women throughout the

Federal bureaucracy and their exclusion

from higher level policy-making and

supervisory positions indicates the

government's failure to pursue its

policy of equal opportunity.

A critical defect of the Federal

equal employment program has been the

failure of the complaint process. That

process has impeded rather than advanced

the goal of the elimination of discrimi-

nation in Federal employment . 13

While Congress, privately funded reformers,

and government-contract researchers have recom-

mended or enacted strong measures for rejuvena-

ting the anti-discrimination complaint procedures,

the Fifth Circuit has frustrated that goal by

refusing to police the administrative process.

Indeed, by sanctioning the wrong-doing of admin-

istrative officers and counselors in the case

sub judice, i4/ the Court of Appeals has

13/ H.R. Rep. No. 92-238, on H.R. 1746,

92d Cong., lst Sess., 23-24 (1971).

14/ See p. 9 supra.

SLEED |

undermined the effectiveness of the entire

complaint process. While professing respect for

the administrative system, the decision below

reinforces those elements which have brought the

system disrespect. Only if administrative

officers are made to fulfill their duties in

processing grievances can the administrative

process work.

Although the plaintiff-petitioners' claims

arose before the effective date of the 1972 Equal

Employment Act, and are prosecuted under the

older 1866 Civil Rights Act,22/ the administra-

tive procedures which petitioners attempted to

exhaust are substantially identical to those in

16/

force today. By reviewing and reversing the

judgment below, the Court will promote the

a .

— pT

15/ 42 U.S.C. §1981 is derived from the 1866

Act, as was 42 U.S.C. §1982. See Tillman v.

Wheaton-Haven, 410 U.S. 431, 439, n. ll (1973);

Sanders v. Dobbs Houses, Inc., 431 F.2d 1097

(5th Cir. 1970).

16/ See App. at 38a. n. 2, 40a n. 3.

D THF OU GH

RELIED LILIES EI OIE EGE LE LALA DOES SELES SFE LY RENE 5 ARE ~~ RE Ie egy

PODR COPY

effectiveness of the anti-discrimination complaint

process, and thereby increase respect for the

process and satisfaction with its results. By

agreeing that petitioners’ need not return again

to the administrative procedure, the Court will

force the government's equal opportunity adminis-

trators to exercise their duties responsibly in

the future, at the risk of losing their adminis-

trative power .22/ As Judge Tuttle said in his

panel opinion, App. at 27a,

our interpretation of the exhaustion re-

quirement here should help insure that,

in the future, federal agencies process

such complaints in accordance with their

own procedures rather than short-circuiting

them into federal court.

17/ To the extent that more effective admin-

istration would increase the number of adminis-

tratively resolved disputes, it would decrease

the number of cases which would be filed in

federal court by unsatisfied employees. By

reviewing and reversing the single case sub

judice, the Court could act to limit the workload

of the lower courts, a goal worthy of promotion

by use of the certiorari jurisdiction.

II.

THE COURT BELOW ERRED IN HOLDING THAT THE

PLAINTIFFS HAD NOT EXHAUSTED ALL AVAILABLE ADMIN-

ISTRATIVE REMEDIES.

In an earlier case concerning federal employ-

ment discrimination, the Court below had required

exhaustion of administrative remedies, but with

the notation that the administrative procedure

there available would not have been a "meaningless

ritual." Beale v. Blount, 461 F.2d 1133, 1139

(5th Cir. 1972). The Fifth Circuit's initial

view that foreseeably futile procedures need not

be ritualisticly exhausted is supported by sub-

stantial other authority.28/

In the case sub judice, the plaintiffs went

far beyond merely alleging that resort to the

18/ See, e.g., Houghton v. Shafer, 392 U.S.

639, 640 (1968) (per curiam); Eisen v. Eastman,

421 F.2d 560, 568-69 (2d Cir. 1969), cert.

denied, 400 U.S. 841 (1970); Williams v. Richard-

son, 347 F.Supp. 544 (W.D.N.C. 1972); 3 K. DAVIS

ADMINISTRATIVE LAW §20.07.

rere ar fa ran raws

Ce nah Eee nares kN renil on er!

nie Tali SRR te

06 ASE ad 06: Meee

administrative remedies would be futile; they

alleged that they had resorted to these remedies,

and that they had in fact proved futile. Cf.

Leedom v. Kyne, 358 U.S. 184 (1958).

Judge Godbold's panel dissent, adopted by

the court en hana, at thought this allegation

insufficient to excuse exhaustion. (App. p. 35a.)

But that opinion is based upon a quite basic

misunderstanding of the administrative scheme at

issue. While Judge Godbold believed that the

petitioners should have persevered with their

complaints, taking them to the Civil Service

Commission, the administrative procedure did

not permit such a move. Appewls to the Civil

Service Commission were allowed only after the

filing of written complaint with the Equal

19/ App. at la.

FLEED THF

THF OUGH

20/

Opportunity Officer.— Mr. Foster was not even

permitted to file his written complaint. (App. p.

10la.) Therefore, he could not have done what

the Court of Appeals demanded of him. 22/ Mr. Penn

was similarly excluded from administrative resolu-

tion of his claim.22/

20/ 5 C.F.R. §§713.214-713.221. The current

regulations retain the requirement that the com-

plaint be made in writing in order to make the

aggrieved employee eligible for further appeals

in the administrative hierarchy. See 5 CFR

§713.214(a) (1973). Thus the action at issue

here — refusal to accept a written complaint —

continues to be of overriding importance in the

complaint process.

21/ Judge Godbold's opinion referred to the

refusal to process Mr. Foster's claim as a

"procedural slipup" which could be the subject

of "self correction" by higher levels of command

within the agency. App. p. 4la. But the admin-

istrative procedure in effect did not permit

appeals which would correct these "procedural

slipups." See note 20, supra.

22/ When Mr. Penn approached his E.E.0O.

Counselor she failed in her duty (5 C.F.R.

§213(a) (1971)) to send him to the E.E.0. Officer

for filing of a grievance. The system not only

worked theoretically by imposing information-

dispensing duties on such counselors; advice to

see them was the only publicly displayed

notice to employees. (App. p. 104a.)

POO GOry

Exhaustion of prescribed remedies is not a

wooden formula, but rather requires an under-

standing of the administrative grievance procedure

in question. McKart v. United States, 395 U.S.

185, 193 (1969). The court below erred by

sternly requiring the petitioners to take

appeals and file claims22/ which the administra-

tive procedure itself did not permit.

III.

THIS CASE OFFERS THE COURT AN OPPORTUNITY

TO SETTLE TROUBLING AND LONG-STANDING ISSUES

CONCERNING THE APPLICABILITY OF THE EXHAUSTION

REQUIREMENT TO FEDERAL VERSUS STATE DEFENDANTS

IN SUITS TO PROTECT CONSTITUTIONAL RIGHTS.

23/ The Court of Appeals excluded the

NAACP's complaint, filed on behalf of its members

who were refused employment, even though it is

uncontested that no administrative procedure what-

soever was available to organizational plaintiffs

or for unhired persons who had been discriminated

against. See App. p. 2a, n. l.

FLEED THF

—

THF OU GH

Two terms ago in District of Colwnbia v.

Carter, 409 U.S. 418 (1973), the Court indicated

that the old 1866 Civil Rights Act, which had

been revitalized in 1968, 24/ applied not only to

private and state acts of racial discrimination

but to misconduct by federal officials as well.

In the course of explaining why the 1870 Civil

Rights Act, 42 U.S.C. §1983, did not cover the

District of Columbia, the Court specifically dis-

tinguished that statute from the 1866 Act. The

1866 Act, said the Court, establishes an ‘absolute’

bar to all such racial discrimination, private

as well as public, federal as well as state."

409 U.S. at 422. (Emphasis added.)

This case presents the Court with its first

opportunity to determine how suits brought under

the 1866 Act, which prescribes no administrative

remedies, should be treated in light of executive

orders and more recent legislation which do

24/ See Jones v. Alfred Mayer Co., 392 U.S.

409 (1968).

EIEN DE IE LS OE LIE GLUE ALINE IEA SPRAIN

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eae kt meee

require resort to federal administrative

remedies.

The Court of Appeals’ decision to require

exhaustion of federal administrative remedies

also raises substantial problems of federalism,

for while the court below required exhaustion

of federal administrative remedies, exhaustion

of state remedies is not required in similar

discrimination suits brought against state

officials under 42 U.S.C. §1983. See Wilwording

v. Swenson, 404 U.S. 249 (1971), McNeese v. Board

of Education, 373 U.S. 668 (1963); cf. Monroe v.

Pape, 365 U.S. 167 (1961). While the court of

appeals below has explained this discrepancy in

respect for administrative remedies by pointing

out that the federal government is "on record" as

opposing racial éiecriminat ion, 2! that excuse is

readily transparent, for many states whose admin-

istrative machinery is ignored by federal judges

25/ Beale v. Blount, 461 F.2d 1133,

(Sth Cir. 1972).

PLIES Ea BF ey "6¢

wee

FLEED THF OUC

are also on record as opposing racial discrimi-

nation. See Note, “Exhaustion of Federal Adminis-

trative Remedies Under Section 1981 of the Civil

Rights Act," 1974 DUKE LAW JOURNAL 408, 421 and

n. 69 (April 1974).

On a more general level the instant case,

brought under a century-old statute prescribing

no administrative exhaustion, also presents funda-

mental questions as to the very nature of the

exhaustion of remedies doctrine as it is applied

in the federal courts. Does the exhaustion of

administrative remedies doctrine require exhaus-

tion of only congressionally "prescribed" remedies

as this Court has often said, 20/ or does the

exhaustion doctrine extend to those administra-

tive remedies which are "available" but unpre-

scribed by the statutes creating the cause of

action. Those opinions which have extended the

26/ McKart v. United States, 395 U.S. 185,

193 (1969); Myers v. Bethlehem Shipbuilding Corp.,

303 U.S. 41, 50-51 (1938).

» SE RF EAE BREESE ES LAN et ores

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OU GH

doctrine to "all available" remedies generally

cite for support only decisions from this Court

involving Congressionally prescribed remedies. 27/

The petitioners contend that if exhaustion of

unprescribed remedies is to be required, it must

be made after a principled inquiry into the

28/

interests to be served.— The case sub judice

provides the opportunity for this inquiry in the

context of §1981 actions against federal officials.

CONCLUSION

aoa

The above premises considered, a writ of

certiorari should issue to review and reverse

the judgment of the court below, and the case

should be remanded to the district court for trial

on the merits.

27/ See, e.g., Bolger v. Marshall, 193 F.2d

37, 39 (D.C.Cir. 1951); Ogden v. Zuckert, 298 F.2d

312, 317 (D.C.Cir. 1961) (dissenting opinion).

28/ See, e.g., Monroe v. Pape, 365 U.S. 167

(1961); Home Telephone and Telegraph Co. v. C. of

Los Angeles, 227 U.S. 278 (1913). Compare Barney

v. C. of New York, 193 U.S. 430 (1904), with

United States v. Raines, 362 U.S. 17, 25-26 (1960).

RS ee ER, ee ee

=e SPT NS NM AAI TORE EOL ANE RRL SREY ROOT BELO RENO IRD |

FLEED THF OUGH

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Respectfully submitted,

JOSEPH J. LEVIN, JR.

CHARLES F. ABERNATHY

MORRIS S. DEES, JR.

PAMELA S. HOROWITZ

119 South McDonough Street

Montgomery, Alabama 36101

Attorneys for Petitioners

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e LIBRARY sag ton

& sUPREMF COURT, U. & FILED

22 é

4 OCT 23 19% §

APPENDIX :

In the i

Supreme Court of the United States

OCTOBER TERM, 1974

No. 74-476

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

RLEED THF OUGI

INDEX FOR APPENDIX

Court of Appeals en banc

Opinion e. . e e e* . - * e . . om o oa . . la :

Court of Appeals 4

ee ee ae a ee ee 13a :

Rule 28 U.S.C. § 1292 f

Certificate * e e e . 2 = e - oa . . am o -_ 46a ‘

District Court Opinion ......... 47a

See + 6 6 Se ee Ee eee 62a

Amended Complaint ............ «95a

CEM Thelin ot

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

1U GH

hhh A ge DOME UDG EATER pce

RLEED ©

~ |

6218

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

Vv.

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

motien 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 instructions to dismiss.

Tuttle, Senior Circuit Judge, dissented and filed opinion

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

Judges, joined.

Synopses, Syllabi and Key Number Classification

The Synopses, Syllabi and Key Number Clasifi-

calion constitute no part of the opinion of the court INDEXED

ERE ELE TIO ISAM. an L88

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6219 PENN v. LAIRD

Civil Rights 139 |

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.

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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, I 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 racial 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. 1978).

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-

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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 responsible 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

uing affirmative program in each executive department and agen-

oe . ts

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

shall establish and maintain an affirmative program of equal

employment opportunity for all civilian employees and applicants

for employment within his jurisdiction in 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

j prompt, fair, and impartial consideration of all complaints of

discrimination in Federal employment on the basis of race, color,

3 religion, sex, or national origin. Agency systems shall provide

7 access to counselling for employees who feel aggrieved and shall

F 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 shall provide for appeal to the Civil Service

Commission. .

eS sete se

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PENN v. LAIRD 5227

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 most 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

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i2Z2 PENN v. LAIRD

statute and regulation are discriminatory and that the

appellees, in administering them and in applying them to

appellants, deprived appellants of equal rights secured by

the United States Constitution. The three-judge District

Court dismissed the complaint solely because ‘it appear{ed]

to the Court that all of the plaintiffs [had] failed to exhaust

adequate administrative remedies.’ This was error. In

McNeese v. Board of Education, 373 U.S. 668 [83 S.Ct. 1433,

10 L.Ed.2d 622], noting that one of the purposes underlying

the Civil Rights Act was ‘to provide a remedy in the federal

courts supplementary to any remedy any State might have,’

id., at 672 [83 S.Ct. 1433, at 1435] we held that ‘relief under

the Civil Rights Act may not be defeated because relief was

not first sought under state law which provided [an admin-

istrative] remedy,’ id., at 671 [83 S.Ct. 1433, at 1435]. See

Monroe v. Pape, 365 U.S. 167, 180-183 [81 S.Ct. 473, 480-

482, 5 L.Ed.2d 492].

So far as relates to suits against private employers this

Court, in Sanders v. Dobbs House, 431 F.2d 1097 (5th Cir.

1970) made short shrift of the contention that when Congress

passed Title VII of the Civil-Rights Act of 1964 this preempt-

ed the general remedial language of section 1981, insofar as

the right to contract for employment is concerned. In Sand-

ers we said:

“Since there is no —_— in Title VII that can remotely

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 ferther 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

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PENN v. LAIRD 6224

U.S. 229, 237, 90 S.Ct. 400, 405, 24 L.Ed.2d 386, 393,

the Court stated:

“We noted in Jones v. Alfred H. Mayer Co., that the Fair

Housing Act of 1968, 82 Stat. 81, in no way impaired the

sanction of § 1982. 392 U.S., at 413-417, 88 S.Ct. at

2189-2192. What we said there is adequate to dispose of

the suggestion that the Public Accommodations provision

of the Civil Rights Act of 1964, 78 Stat. 243, in some way

supersedes the provisions of the 1866 Act. For the hier-

archy of administrative machinery provided by the 1964

Act is not at war with the principles embodied in

§ 1982.’”

The case of Caldwell v. National Brewing Co., 443 F.2d

1044, (5th Cir. 1971) even more clearly demonstrates the fact

that this Court has made it clear that a plaintiff may file suit

on a charge of racial discrimination in employment under

section 1981 even where he has deliberately bypassed the

EEOC administrative remedies under Title VII. This Court

said:

“We thus are faced with the fact that we have not ruled

on the question whether the E.E.0.C. administrative reme-

dies under Title VII of the Act can be deliberately bypassed

by a § 1981 plaintiff. The Third Circuit recently considered

this question in Young v. International Telephone & Tele-

graph Co., 3 Cir., 1971, 438 F.2d 757, a case involving facts

virtually identical to those in the case at bar. The holding

was that nothing in Title VII either expressedly or implied-

ly imposes any jurisdictional barrier to a suit brought under

§ 1981. Pointing to the differences in the scope of the

remedies afforded under Title VII and § 1981, such as the

applicable statutes of limitations and the provision for ap-

pointment of counsel and the award of attorney’s fees under

Title VII (§ 2000e—5(e\(k)), the Third Circuit concluded that

appellant has an independent remedy under § 1981 without

respect to exhaustion under Title VII. We agree.” 443

F.2d 1044, 1046.

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6225 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

Court 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 bane 1974)° to show a |

strong prima facie case of discrimination.

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

ee es

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.”

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PENN v. LAIRD 6226

the purpose and effect of the Frazier case. It is also alleged

that in a recent such suit the Justice Department urged upon

the court that it require Alabama State Troopers to hire 25%

blacks because Alabama had no black state troopers. See

Morrow v. Crisler, supra, and NAACP v. Allen, 5 Cir., 1974,

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

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

the federal government in percentage of black employees in

G.S. positions.

LA PIQOMIRP PS, TA

We cannot but take judicial notice of the fact that the

United States Department of Justice which is alleged to have

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 where in a footnote to the ‘

opinion the court said:

“It is, of course, regrettable that, having so vigorously

brought and prosecuted actions against various Alabama

agencies to insure equal education and employment for

blacks, 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 in employ- :

| ment.” [350 F.Supp. 754.]} f

| 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 conditionally

against federal officials who are derelict in their duties. I

therefore express the deep seated feeling that this Court

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

section 1981 suit against federal officials which does not exist iB

in similar actions against either state officials or private

individuals.

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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 B

expressly provided that such an organization could not attack j

the discriminatory practices in general but could only appear i

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 asa

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 Pe

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PENN v. LAIRD 6228

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.Ed.2d 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 us, this

Court should declare it to be so.

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. I

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

opinion in the matter of the aborting of the administrative

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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.

See -

Cah Ae aw a eee

13a

‘IN THE

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 72-3684

WILLIE PENN, Individually, Ete., 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 appeal

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 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, he shall so state in writing in such or-

"4 der. The Court of Appcals may thereupon, in its

3 discretion, permit an appeal to be taken from such

y order...”

——eooOoO

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2 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

“all 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.

es ce Lae

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.

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PENN, ET AL v. SCHLESINGER, ET AL 3

I. CAUSE OF ACTION.

Assuming for purposes of this interlocutory appeal

that the plaintiffs have defined a proper class under

Rule 23 and that they were discriminated against by

some seventeen federal agencies having offices in Ala-

bama,® the 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. 11590,5 creates a cause of action

‘

3Neither of these questions has yet been litigated.

4Though Title VII proscribes unlawful employment practices in-:

cluding racially discriminatory hiring and promotion, the fed-

eral government is not included within the definition of ‘‘em- :

ployer” under the Act. 42 U.S.C. §2000e(b).

8This 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, scx,

or national origin, and to promote the full realization

of equal employment opportunity through a continu-

ing affirmative program in cach executive department

and agency... ;

“Section 2. The head of cach executive department

and agency shall establish and maintain an affirma-

tive program of equal employment opportunity for

all civilian employees and applicants for employ-

ment within his jurisdiction in accordance with the

policy set forth in Scction 1. It is the responsibility

of cach department and agency head, to the maximum

extent possible, to provide sufficient resources to ad-

minister such a program in a positive and affective

manner...

, Section 3, The Civil Service Commission shall pro-

vide leadership and guidance to departments and

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-45. 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 employees 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 one

impartial review within the executive department or

agency and shall provide for appeal to the Civil

Service Commission ., .”

6 “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

partics, 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, penalties, 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 segrcyation violates due process).

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PENN, ET AL v. SCHLESINGER, ET AL 5"

questions whether this claim might also be cognizable.

under cither the Executive Order or the Fifth Amend-.

ment.®

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

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

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

charged solely because of her race. Thus, this Section.

creates a cause of action for employment contract dis-

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 ernployment discrimination.

by federal officials as well as by private employers.

In District of Columbia v. Carter, 409 U.S. 418 (1973),

the Supreme Court said that Section 1982° is “an ‘abso-.

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

SAnother Exccutive Order, which we held did not create such a.

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

Executive Order No. 11478, Sec Farkus v. Texas Instruments,

Inc., 375 F.2d 629 (5th Cir. 1967).

Though the constitutional claim of racially discriminatory

employment practices appears to be closely analogous to the

claim of the plaintiffs in Bolling v. Sharpe, supra, the existence

of a statutory cause of action under Section 1981 renders it un-.

necessary for us to decide whether such private actions as this

one are necessary to insure compliance with the due process

clause by the federal government. See Bivens v. Six Unknown,

Named Agents, 403 U.S. 388 at 398 (1971) (concurring opinion

I by Mr. Justice Harlan.)

®Like Section 1981, Section 1982 was part of the Civil Rights Act

of 1866, enacted pursuant to Congress’s powcr under the

Thirteenth Amendment.

. .

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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 Thir-

teenth Amendment, the latter legislation, enacted

eleven years later, was based upon the Fourteenth

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 against

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

enforcement of contracts. Therefore, the allegation

that the federal government has violated the plaintiffs’

contract rights on account of their race does state a

cause of action under Section 1981 of the Civil Rights

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

sovereign immunity bars recovery against the federal

government and its employees when an action is

brought under Scction 1981.

sina

} II. SOVEREIGN IMMUNITY.

In the first place, we agree with the district court’s

analysis that Section 1981 docs not constitute a waiver

of sovereign immunity by the federal government. It

is well settled that a waiver of sovereign immunity

must be specific and explicit; such a waiver cannot

be implied by construction of an ambiguous statute.

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

i caeieeeaies CELA yp PEG A LEE RT OLS AE a GENES NC - ——————— |

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PENN, ET AL v. SCHLESINGER, ET AL 7

field v. Byrd, 320 F.2d 455 (5th 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

I iia his | ae |

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

v. Blount, 461 F.2d 1133 (5th Cir. 1972), which held a

Section 1981 suit for injunctive relief against the fed-

eral government to be barred by the doctrine of sov-

ercign 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 U.S. 682

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8 ' PENN, ET AL v. SCHLESINGER, ET AL

(1949) and 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

[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

officia] 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

fact in a racially discriminatory manner.

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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 seek “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 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-

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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 for 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 similarly

barred by the doctrine of sovereign immunity. Inder

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 within

the powcr of the court (1) to order promotion of the

plaintiffs if appropriate and (2) to institute affirmative

remedies on behalf of the class if such remedies are

10Plaintiff Penn's motion for a preliminary injunction against the

director of the Procurement Scction to prevent her from

“intimidating, harassing and threatening plaintiff Willie Penn

or any class plaintiff as a result of plaintiff Penn filing his

law suit’ has not been pressed upon this appeal. We thercfore

decline to discuss this remedy further.

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PENN, ET AL v. SCHLESINGER, ET AL il

necessary to overcome ultra vires discrimination by

the individual defendants.

23a |

III. EXHAUSTION OF REMEDIES.

Since sovereign immunity does not present a bar 4

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 ts

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- i

ment Opportunity Commission and Civil Service Com- F

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.

SORTA? eb aE erty ayy

et RO ARPA IORI EUG

It has been decided by this Court that one seeking

relief in the federal courts from actions taken by fed-

EPI NEI IERIE TE IIR geen a

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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, the Court drew a distinction between

federal court actions against federal officials and federal court

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

ing been drawn, is binding on us. We cannot accept appcellant’s

argument, therefore, that we cquate 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 arc irrel-

evant to disposition of the claims hercin.

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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 informal resolution of

the complaint (5 C.F.R. §713.217(a) ). If this, too, was

unsuccessful, the complainant had to be notified

in writing of the agency’s proposed disposition of the

complaint and advised of his right to a full evidentiary

hearing before an impartial appeals examiner (5

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

remedial action, where appropriate.” 5 C.F.R.

§713.218(g).

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 C.F.R.

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

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 deci-

sion had to be transmitted in writing to the com-

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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:

“We 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.

Bie ila <B¥iptes OPEN Ie AG Biot OTK eh eg te PRR

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PENN, ET AL v. SCHLESSINGER, ET AL

This suit, however, is substantially different from

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

bypassing their administrative remedies, the plaintiffs 7

approached the administrative officials charged at the

first level with responsibility for processing these com- ;

plaints. The question before us is whether the plaintiffs

need have done more before filing suit in federal court:

judicial time.

i 2 ee STEN AT SLE TE LR RIL INF HIF OEE

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c= —rT FEL Ie™ CaLi cowl

The defendants contend that further exhaustion

would allow the Civil Service Commission to exercise

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-

plaints of discrimination. Finally, they contend that

allowing the 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 oppor-

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.

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16 PENN, ET AL v. SCHLESINGER, ET AL

_ For the reasons stated above, the order of the district

court granting the United States’ motion to dismiss

and denying the jndividual 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 results

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

the issue of exhaustion may be helpful. Judge Tuttle

correctly states that in light of our conclusion that the

plaintiffs exhausted all available administrative rem-

edies, it is unnecessary to decide whether exhaustion

was required. Nevertheless, it seems clear from exist-

ing precedent that in an action under the Civil Rights

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

administrative remedies is not required.

The question may have remained open after

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

the court held there that resort to the state adminis-

trative remedies may well have been futile. However,

the more recent decision of Damico vy. U.S., 389 U.S.

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

for the time being. Both of these decisions related to

the failure to exhaust state administrative remedies,

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

eral administrative remedies. However, the policies

behind the requirement of exhaustion of state adminis-

trative remedies are even stronger than those requir-

ing exhaustion of federal administrative remedies, be-

cause of comity considerations, Thus, if state exhaus-

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PENN, ET AL v. SCHLESINGER, ET AL

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 :

ms PEPE LEO ee

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 v. 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

1K, Davis, Administrative Laws Treatise, 1970 Supp., §20.01.

ne Dae a RETIN

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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 Klcindienst: 264 employees

Department of the Interior and

Rogers C. B, Morton: 170 employees

Department of Agriculture and

Earl Butz: 1200 employees

Department of Commerce and

Maurice Stans: 128 employees

Department of Labor and

James D, Hodgson: 5 cmployees

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PENN, ET AL v. SCHLESSINGER, 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 S. Kleppe: 37 employees

Selective Service System and

Dr. Curtis W. Tarr: 17 employees

».. SRR SEAS LILO LIE LO LAI EP

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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

agencics 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 guidclines 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 racial grounds, (b) violated Exccutive

Order 11475 relating to equal employment opportunity

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

eR eeeeaerennnnaneestll

FLEED TH

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PENN, ET AL v. SCHLESINGER, 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 recciving a promotion to any bet-

ter paying [job] or to one that carricd more

responsibility. Mr, Penn put his superiors on

notice of his desire of advancement.

a at a ie Naa a ee a ee a nt,

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22 PENN, ET AL v. SCHLESINGER, ET AL

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--

PS PR er eet > ~ = —

— . soeeiiiliiiead was 00 SS ER RE AEP rT EE —

FLEED THF

~a-§

=D THF OUGH

35a

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

to him.

In its order on motion to dismiss the District Court

noted the basic principle that available administrative

remedies must be exhausted before a court will decide

a constitutional question, and referred to Beale v.

Blount, 461 F.2d 1133 (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].

Od LO UATE.

aieaineel matin aie ae —

mae: lett

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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 doctrine

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 the

administrative process that can weaken the agency’s

effectiveness by encouraging people to ignore its pro-

cedures.

FLEED TH

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PENN, ET AL v. SCHLESINGER, ET AL 25

When one scrutinizes the specific administrative sys-

tem here involved in the light of the foregoing policics,

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

AE ONS to

{The Order, which was buttressed by the Equal Opportunity Act

of 1972, Pub. L. 92-261, 86 Stat. 111, 42 U.S.C. § 2000c-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 “(t]he 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 thcir 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

hE WR TP

omnes

2 Teg eR GE Syeraar Yisera. >

POP AIS oLPTENO

FPL Ee 8 SN,

PEP RPI ILS OF eR RIN 5

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

spect to complaints alleging discrimination, the order directs ¢

that: ;

ee |

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"ED THF OUGH

WE ne aPiew e a

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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 Op-

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 all 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 employee problems on an

informal basis. Procedures for the considcration of

complaints shall include at least one impartial revicw

wilhin the exccutive 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 dircctives 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.

FLEED 7

ite |

EED THF OUGH

———aoOO- SS S—“‘;*~*”

39a

PENN, ET AL v. SCHLESINGER, ET AL 27

If attempts at informal resolution fail again, the

complainant must be notified in writing of the agency’s

proposed disposition of the complaint and advised of

his right to a full evidentiary hearing before an 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).

—_ TROPA ME AAG oF ss

FRU ASE SA

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LPL RIE

Dee PF SIE I MOR KM IIR sd SINE

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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 “ew days after the District Court had entered

its order, the Equal Opportunity Regulations were revised by

the Civil Service Commission (sce 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 cvidentiary hearing. 5 C.F.R. § 713.220. The

regulations now specify the relicf which an agency must offer

employees and applicants for employmeni 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 denicd with back pay. Id.

§ 713.271.

The earlicr regulations permitted an organization acting in

an aggricved person’s behalf to file and prosccute his claim

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

aN ei | [Seer

RLEED THF OUGH

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.

RORY AE AE ROLE TAILS

Moreover, the agency is denied the benefit of the

policy that it be permitted to discover and correct its

own errors. The majority refers to this consideration

but declines to give it weight on the ground that it

PARR Ne

ART RODE RPOR

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 i

at least as forcefully to procedural slipups as to er- ;

roneous agency decisions on the merits of discrimina- i

tion claims. f

» ¢

“general allegations by organizations or other third parties of A

discrimination in personnel matters within the agency which

are unrelated to an individual complaint.” Id. § 713.251.

Any such allegation shall be stated with sufficient specificity ;

so that the agency may conduct an investigation, and the

agency “shall notify the party submitting the allegation of its

decision, including any corrective action taken on the general

allegations.” The third party may appeal the agency decision

to the Commission, which ‘shall issue a decision on the allega-

tion ordering such corrective action, with or without back pay,

as it degms appropriate.” Id.

REL PAT SR

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LIGH

Oh aR pM Piha rans a! 2 Re a ee es OLR htt

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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 plaintiffs contend. (The relevant por-

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

opinion.)

RLEED THF OUGH

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.®

MYo we

ee RTT

SRI EIEIO OM

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.

Res eh at ad a greene

‘ eal

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sternly

CP Ot Ee SO

44a

32. PENN, ET AL v. SCHLESINGER,.ET AL

Thesc 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 (CA5, 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,

AR. Le Ge Rae es - ben EY eT ohh we. — _ . - - . 7 , -

aS ce ESTER PR AIPTT Ss Re tos . aera mv 2) Perr ee De > 3 “yes

Pee fF rem i=see som sees ——

45a

PENN, ET AL v. SCHLESINGER, ETAL 3%

In this case there is an additional factor not present

in McKart. The District Court held that the complaint

States claims against the individual government 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 any, can be assessed

against the government.

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

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——ao |

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.

ee ee ee ee ee

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, cies 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.

UNITED STATES DISTRICT JUDGE

FPLEED THF OUGH

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

POOR COPY

PA eA ee a . ato = —

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 enteen.” 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.

FLEED THF OUGH

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 F

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'

pei die 4a

motion to dismiss claiming that this Court lacks ;

jurisdiction over the subject matter. Specifi-

cally, the motion to dismiss presents esi as é

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

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UGH

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, coritend, 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 tmnsey 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.

-} & — 7. We )

— es

Bs REAR Mew rete

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

(5th 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 (5th Cir. 1972), which held a

Section 1981 suit for injunctive relief against

the federal goverrment to be barred by the doc-

trine of sovereign immunity. That decision is

controlling in this circuit and forecloses further

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SEA EE NET O

Se eee ee

Pt aia

PS RAT A LR ich

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 (Sth 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

RLEED THF OUGH

_— —

53a

public officers are not considered to be against

the sovereign. é

In these two instances the :

sovereign's consent to be sued is i

not required and the defense of ‘

sovereign immunity is not avail- z

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. Seanans, 411 F.2d at 770, citing Larson

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

SES AMIEL OL SLOT LLL SIE OEE IIE

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}GH

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, che court in Carter found that for jurisdic-

tional purposes only "the case sub judice is not

against the United States, but rather one to con-

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

i Carter, the doctrine of sovereign immunity is like-

wise not available to defendants, and their juris-

dictional objections based thereon must conse-

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 (5th Cir. 1971),

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

eee EIS ITT ET PES OR PL ONES ESSN HE AE | RA RES tt a

FLEED THF

By NSO TIES REET

D THF OUGH

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

Larson-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.=

3/ This Court finds it unnecessary to rule on

vhether 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.

ett ET A ET CCE. I RE IE BAS TE

ESTE

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Renee's Ss Tithe gre Ae tae ean at

TERI SE REE

ever

LAL OPE NL ROE

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.

Ee a A OE |

—_

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 Zarson 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 Larson 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

i ene

ONLI ES CONS OTS

AERIS MIP LEI ES I MI TER NN EIR es __|

Ot et OSE RY RE CN ROOTS 7 Ree we s ham ~ " ~ y

58a

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

DuBois 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 eed

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 cienat

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 court. 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.

RALEED THF OUG

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

Re te)

informing plaintiffs of additional channels of

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.

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 Executive Order 11478

plaintiffs have adequately exhausted their

SP COONLA e gu HT <

EEL EEL LILLE LE LIT LIL LEPL ee NT

POOR COPY

a le le DREE LRN ESAS WN tl APR RNG RRS BN ABE NEE

viele Celhieeae

Mask

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 court 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, JUDGMENT and DECREE of this Court:

1. That tie 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.

It is further ORDERED that the parties be and

they are hereby, after the expiration of fifteen

days from this date, authorized to proceed with

their discovery.

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

s/_ Frank M. Johnson, Jr. _

UNITED STATES DISTRICT JUDGE

peers

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.

i a a a

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.

ON NWN OS oS oS oS Ss SS eS SS

CIVIL ACTION

NO. 3638-N

en e@ SS ==em, aee a

63a

ROGERS C.B. MORTON, indivi-

dually and as Secretary of

)

the Interior, and his agents,)

assigns, 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,

PODR COCOFY

i ee ee ee ee ee ee ee a a a a a a a oe a a a a a a a a hh

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,

ee ee a a a a a a o_o 444444444 444

x ;

—————EEEE NEB ERE STEIGER I ILI AIOE EET ie BATONS EO _s

FLEED THFOI

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.

Defendants.

i i i de ed a

COMPLAINT

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.

PODR COFV

66a

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 plaintiff 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 prosecuzion of separate actions by indivi-

dual members of the class would create a risk

of:

Qe rcjcanrn rit Fl 1.

67a

(a) inconsistent or varying adjudications

with respect to individual members of the class,

(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.

III

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.

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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

ay SY RAT Te Sat Ras SD ae Barna ce

FLEED THF OUC

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 v. 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

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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

Interior. 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.

FLEED THFO

.. “oe iain. the “4d. es i aoe hl ee! UP, ee 3

ied. Said Viteeih Meena Eki at iad

71a

(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.

POOR COPY

Earner PEO MOE

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 i: 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

“a5 Sipg Pk BRL ELI ED —

a ica A Fs PE SARTRE TE i as E

Daw A al aa a a ee oe

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 and 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

PODR COPY

74a

ultimately responsible in the Selective Service

System.

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 1. 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

PO ee ey ey ee

department, agency or other office of the United

States of America is guilty of violating blacks'

ry pe

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

™ EDEL PTL SRN IO LITE ET RE EPR ARE

yr vadaly

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

reer Pe ae om >

76a

said agency as a defendant in this action meaning-

less: Federal Communications Commission (2 en-

ployees, no blacks); Federal Home Loan Bank Board

(2 employees, no blacks); Federal Mediation and

Consiliation Service (5 employees, no blacks);

Interstate Commerce Commission (3 employees, no

blacks); National Labor Relations Board (2

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

his

(23) Defendant Melvin R. Laird, through the

Department of Defense, has 1,899 GS Air Force 4

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.

FLEED THFOI

Bats COS IN aE get

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 i

no black Federal game wardens in Alabama.

(27) Defendant Earl Butz, through the Depart- é

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 5.5Z 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, ona Welfare,

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

reereny

13.4% are black.

Beir eecer ees EP OSS TADS AP RE oe ner EO

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78a

(31) Defendant George Romney, through the

Department of Housing and Urban Development, has

182 GS employees in Alabama of which 13 or 7.1%

are black.

(32) Defendant John A. Volpe, through the

Department of Transportation, has 414 GS employees

in Alebena 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

(34) Defendant Robert L. Kunzig, through the

General Services Administration, employs 46 GS

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

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(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

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nies el.

5 GMI Ale NAN RRL BAMA a Ceri wed,

Daa yh it sen

AT ANd et ON be Aacl Sow WY

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systematic practice of racial discrimination in

employment of blacks in Alabama. The methods of

denial of equal right to contract in employment

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

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

r?roenwcrece,..h6Ule

“Iis7 Li

8la

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 tae 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 of 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%.

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(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.

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PAD 7 REA TERRE RIEL SULA EE SH ON

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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

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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

co 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

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LYALL LIL ONLI PILI UNDO A LE IE jE IIE AIR UF RN ADORE AGP GRR, ESL E EDLY RAN IES AMEE IIE SIE 3

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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.

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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 declaration 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.

% ee ts err

HASNT STAY REIGN ENR SLANT LP EEG ER RELI OTT TNE BSR NL a re

See PRIOR

a aegyar Te

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(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 his 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

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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

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.

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

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TABLE 1

Federal Employees in Alabama

All Job Categories!

Total Blacks 2% White %

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 94

Defendants

General

Schedu}e

Totals 27,391 739 2.6 26,654 97.4

Minority Group Employment in the Government,

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

Civil Service Commission.

2Blue Collar jobs. Also included in this

category are United States Postal Service jobs.

These jobs carry Postal Field Service (PFS)

ratings and not General Schedule. The Tennessee

Valley Authority does not use General Schedule

ratings. See Table 2 for the number of employees

in these departments.

Total General Schedule or white collar jobs.

Included in this total are the departments or

agencies not included in this suit.

EXHIBIT 1

(page 1 of 2)

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a a

90a

4total General Schedule employees of the

defendants in this suit.

EXHIBIT 1

(page 2 of 2)

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TABLE 2

GENERAL SCHEDULE

Federal Employees in Alabama

By Departments and Agencies!

Total

General

Department Schedule %

or Agency Employees Black Black

Cabinet Level

Departments:

Dept. of Defense:

Air Force 1,899 33 1.7

Army 14,100 235 1.7

Navy 35 0 0

Other Defense

Activities 48 0 0

Defense Supply

Agency 366 15 4.1

Dept. of Agriculture 1,200 33 207

Dept. of Commerce 128 7 5.5

Dept. of Justice 264 11 4.2

Dept. of Labor 81 5 6.2

Dept. of Interior 170 2 | >

Dept. of Health,

Education and

Welfare 2,161 289 13.4

Dept. of Housing

and Urban

Development 182 13 7.1

Dept. of

Transportation 414 4 1.0

Dept. of Treasury 689 24 3.5

EXHIBIT 2

(page 1 of 3)

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TABLE 2 (continued)

Total :

General s

Department Schedule % 3

or Agency Employees Black Black ;

Agencies and Executive

Divisions:

U.S. Civil Service 39 3 7.7

Equal Employment

Opportunity

Commission 33 17 51.5

Federal Communications

Commissions 2 0 0

Federal Depository

Insurance Corp. 18 0 0

Federal Home Loan

Bank Board 2 0 0

Federal Mediation and

Consiliation Service 5 0 0

General Services

Administration 46 2 4.3

Interstate Commerce

Commission 3 0 0

General Accounting

Office 12 0 0

National Labor

Relations Board 2 0 0

National Aeronautics

and Space

Administration 5,454 57 1.0

U. S. Postal Service:2

Rural Mail Carriers 901 2 - 002

Fourth Class

Postmasters 167 3 1.8

Postal Employees 7,329 1,169 15.9

EXHIBIT 2

(page 2 of 3)

SOLELY SLES ELLOS II

93a

TABLE 2 (continued)

Total

General _

Department Schedule vA

or Agency Employees Black Black

Railroad Retirement

Board 10 0 0

Small Business

Administration 37 4 10.8

Selective Service

System 173 0 0

Tennessee Valley

Authority 6,338 551 8.7

Veterans Admin-

istration 2,617 1,133 43.3

Iuinority Group Employment in the Federal

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

States Civil Service Commission.

2See Table 3. United States Postal Service

uses PFS (Postal Field Service) pay categories.

Blacks are clustered in the lower PFS categories.

3selective Service in Alabama has 139

employees in Alabama of which 17 are in General

Schedule categories. All 139 are white.

EXHIBIT 2

(page 3 of 3)

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EET eS tect a ee es ties fo -

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TABLE 3

SALARY CLASSIFICATIONS

United States

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