Brown v. General Services Administration Brief for Appellant
Public Court Documents
January 1, 1975
Cite this item
-
Brief Collection, LDF Court Filings. Brown v. General Services Administration Brief for Appellant, 1975. 66ab78ab-b69a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/21097047-92c7-4c38-ad3f-14b12bae6d85/brown-v-general-services-administration-brief-for-appellant. Accessed July 17, 2025.
Copied!
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
No. 73-2628
CLARENCE BROWN,
Plaintiff-Appellant,
-v-
GENERAL SERVICES ADMINISTRATION, et al.,
Defendants-Appellees.
Appeal From The United States District Court
For The Southern District of New York
BRIEF FOR APPELLANT
JEFF GREENUP
Greenup & Miller
200 West 135th Street Suite 218
New York, New York 10030
JACK GREENBERG
JAMES M. NABRIT, III
JOHNNY J. BUTLER JOSEPH P. HUDSON
ERIC SCHNAPPER10 Columbus CircleNew York, New York 10019
Attorneys for Plaintiff-Appellant
TABLE OF CONTENTS
Statement of Issues Presented for Review ................. 1
1' Statement of the Case .................................... 2
t
A Statement of the Facts ................................... 3
ARGUMENT:
I. Introduction ................................... 5
II. Jurisdiction Over This Action Is Conferred
By 28 U.S.C. § 1361 ............................ 13
III. Jurisdiction Over This Action Is Conferred
By The Administrative Procedure Act ............ 21
IV. Jurisdiction Over Plaintiff's Claims For
Back Pay And Damages Is Conferred By The
Tucker Act, 28 U.S.C. § 1346 ................... 28
V. Jurisdiction Over This Action Is Conferred
By The 1866 Civil Rights Act, 42 U.S.C.
§ 1981 And 28 U.S.C. § 1343(4) ................. 36
A. (a) The 1866 Civil Rights Act, 42 U.S.C.
, § 1981, forbids Discrimination In
Employment By The United States.......... 36
(b) The 1866 Civil Rights Act Waived
Sovereign Immunity And Created
Jurisdiction Over This Action............ 46
VI. This Action Against The Individual Defendants
Does Not Constitute A Suit Against The United
States ............................ 54
CONCLUSION ............................................... 61
• Page
l
TABLE OF AUTHORITIES
PaqeCASES
Abbott Laboratories v. Gardner, 387 U.S. 136
(!967) ............................................ 22
Adams v. Witmer, 271 F.2d 29 (9th Cir. 1959) ........ 25
Alcoa S. S. Co. v. United States, 80 F. Supp. 158
(S.D.N.Y. 1948) ................................... 30
Allison v. United States, 451 F.2d 1035 (Ct. Cl.
!971) 33
American Stevedore, Inc. v. Porrello, 330 U.S.
446 (1947) ........................................ 52
Arrington v. Massachusetts Bay Transportation
Authority, 306 F. Supp. 1355 (D. Mass. 1969) ...... 36
Arrow Meat Company v. Freeman, 261 F. Supp. 622
(D. Ore. 1966) 24
Aycock-Lindsey Corporation v. United States, 171
F. 2d 518 (5th Cir. 1948) 30
Beale v. Blount, 461 F.2d 1133 (5th Cir. 1972) ... 16,17,19,33
Bell v. Hood, 327 U.S. 678 (1946) ................... 62
Beers v. Federal Security Administrator, 172 F.2d
34 (2nd Cir. 1949) 30
Bennett v. Gravelle, 323 F. Supp. 203 (D. Md. 1971)... 37,61
Berk v. Laird, 429 F.2d 302 (2nd Cir. 1970) ......... 58
Bivins v. Six Unknown Federal Narcotics Agents,
403 U.S. 388 (1971) 29
Blanc v. United States, 244 F.2d 708 (2nd cir.
1957) 35
Board of Trustees of Arkansas A & M College v.
Davis, 396 F.2d 730 (8th Cir. 1971) ............... 59
Bolling v. Sharpe, 347 U.S. 497 (1954) ........ 14,28,56,60
- ii -
Table of Authorities (Continued)
Boudreau v. Baton Rouge Marine Contracting, 437 F .2d
1011 (5th Cir. 1971) ................................ 37
Brady v. Bristol Myers, 452 F .2d 621 (8th Cir.
1972) ............................................... 37
Brooks v. United States, 337 U.S. 49 (1949) ........... 33
<- ' Brown v. Gaston County Dyeing Machine Co., 437 F.2d
(4th Cir. 1972), cert, denied, 93 S.Ct. 319 (1972).... 37
Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966) .... 24
Carriso v. United States, 106 F.2d 707 (9th Cir.
1939) ............................................... 29
Carter v. Gallagher, 452 F .2d 315 (8th Cir. 1971) ..... 36,40,61
Cartright v. Rensor, 325 F. Supp. 797 (E.D.N.Y.
1971) 60
Castro v. Beecher, 452 F.2d 315 (8th Cir. 1971) ....... 61
Chambers v. United States, 451 F.2d 1045 (Ct. Cl.
1971) ............................................... 33
Chicago v. United States, 396 U.S. 162 (1969) 23
Chiriaco v. United States, 339 F.2d 588 (5th Cir.
1964) 26m _ '
Citizens Committee for Hudson Valley v. Volpe, 425
F.2d 97 (2d Cir. 1970), cert, denied, 400 U.S.
949 (1970) 24
Citizens to Preserve Overton Park v. Volpe, 401
U.S. 402 (1971) 22
City of New York v. Ruckelshaus, 358 F. Supp. 669
(D.D.C. 1973) 18
Clackamas County, Oregon v. Mackay, 219 F .2d 479
(D.C. Cir. 1954) 19
Clay v. United States 210 F.2d 696 (D.D.C. 1954) 35
Compagnie General Transatlantique v. United States,
21 F.2d 465 (S.D.N.Y. 1927), aff'd 26 F.2d 195 ...... 29,31
Page
- iii -
Table of Authorities (Continued)
Copeland v. Mead Corp., 51 F.R.D. 266 (n .D. Ga.
1970) .............................................. 3?
Davis v. Washington, 4 EPD f 7926 (D.D.C. 1972) ...... 14
District of Columbia v. Carter, 409 U.S. 418 (1973).. 37,38,39
42,43I "
Dugan v. Rank, 372 U.S. 609 (1963) ................. 25,56,58
Estrada v. Ahiens, 296 F.2d 690 (5th Cir. 1961) .... 24
Ex parte Young, 209 U.S. 123 (1908) ................ 55,57
Faruk v. Rogers, 5 EPD 5 8015 (D.D.C. 1972) ........ 14
Garfield v. United States ex rel. Goldsby, 211 U.S.
249 (1908)........................................ 17
Gibson v. Mississippi, 162 U.S. 595 (1896) ......... 14
Glover v. Daniel, 434 F .2d 617 (5th Cir. 1970) ..... 36
Gnotta v. United States, 415 F.2d 1271 (8th Cir.
1969), cert, denied, 397 U.S. 934 (1970)... 9,10,25,31,32,33
Griffin v. County School Board of Prince Edward
County, 377 U.S. 218 (1964) 59
Guerra v. Manchester Terminal Corp., 350 F. Supp.
529 (S.D. Tex. 1972) ............................ 37
Hackett v. McGuire Brothers, Inc., 445 F.2d 442
(3rd Cir. 1971) 37
Harkless v. Sweeny Independent School District,
427 F. 2d 319 (5th Cir. 1970) ..................... 60
Harris v. Kaine, 352 F. Supp. 769 (S.D.N.Y.
1972) 24
Henderson v. Defense Contract Administration, 72
Civ. 5420 (S.D.N.Y.) ........................... 1,14
Hill v. United States, 40 F.2d 441 (1st. Cir. 1889).. 31
Honda v. Clark, 386 U.S. 484 (1967) 52,53
Page
I V
Hurd v. Hodge, 334 U.S. 74 (1948) 38,39
Indian Trading v. United States, 350 U.S. 61 (1955) .. 51
In re Castellone, 148 F. Supp. 676 (N.D. Ohio 1957)... 26
Jackson v. United States, 129 F. Supp. 537 (D. Utah
1955) 34
James v.Ogilvie, 310 F. Supp. 661 (N.D. 111. 1970).... 37
Jarrett v. Resor, 426 F.2d 213 (9th Cir. 1970) ...... 13
Jenkins v. General Motors Corp., 475 F.2d 764 (5th
Cir. 1973) ........................................ 37
Johanson v. United States, 343 U.S. 427 (1951) ...... 52
Johnson v. Cain, 5 EPD 8509 (D. Del. 1973) ........ 36,61
Johnson v. Goodyear Tire & Rubber Co., 349 F. Supp.
3 (S.D. Tex. 1972) 37
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) .... 41
Jones v. United States, 127 F . Supp. 31 (E.D.N.C.
1954) 31
Keifer & Keifer v. Reconstruction Finance Corp., 306
U.S. 381 (1938) 52,53
Kletschka v. Driver, 411 F .2d 436 (2d Cir. 1969) .... 24
Lanashire Shipping Co. v. United States, 4 F. Supp.
544 (S.D.N.Y. 1933) 30
Larson v. Domestic and Foreign Commerce Corp., 337
U.S. 643 (1949) 56,58,60
Law v. United States, 18 F. Supp. 42 (D. Mass. 1937).. 30
Lazard v. Boeing Co., 322 F. Supp. 343 (D. La. 1971).. 37
Leonard v. Mitchell, 473 F.2d 709 (2d Cir. 1973)..... 13,57
Lloyds' London v. Blair, 262 F .2d 211 (10th Cir.
1958) 28
Table of Authorities (Continued)
Page
- v -
/
Table of Authorities (Continued)
Page
London v. Florida Department of Health, 3 EPD
5 8018 (N.D. Fla. 1970) ......................... 36
Long v. Ford Motor Co., 352 F. Supp. 135 (E.D.
Mich. 1972) ................ •.................... 37
Malone v. Baldwin, 36 9 U.S. 643 (1962) ............ 56,58
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).. 13,19,54,62
McMahon v. United States, 342 U.S. 523 (1951) .... 52
McQuery v. Laird, 449 F.2d 608 (10th Cir. 1971) .... 19
Miguel v. McCarl, 291 U.S. 442 (1934) ............. 17
Mills v. Board of Education of Anne Arundel County,
30 F. Supp. (D. Md. 1938) ....................... 36
Minnesota v. United States, 305 U.S. 382 (1939) .... 47,48
Morrow v. Crisler, 3 EPD 8119 (S.D. Miss. 1971)... 36,61
N.A.A.C.P. v. Allen, 340 F. Supp. 703 (M.D. Ala.
1972) ........................................... 61
National Helium Corporation v. Morton, 326 F. Supp.
151 (D. Kan. 1971), aff'd 455 F .2d 650, Lombard
Corporation v. Resoc, 321 F. Supp. 687 (D.D.C.
1970) 25
Newman v. Piggie Park Enterprises, 390 U.S. 900
(1968) 59
Nixon v. Harris, 325 F. Supp. 28 (D. Colo. 1971).... 25
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1
(1957) 60
Northwest Residents Association v. Department of
Housing and Urban Development, 325 F. Supp. 65
(E.D. Wis. 1971) 24
Norwalk CORE v. Norwalk Redevelopment Agency, 395
F. 2d 920 (2d Cir. 1968) 23,24
Palmer v. Rogers, 5 EPD 5 8822 (D.D.C. 1973) ...... 33,60
vi
Penn v. Schlesinger (No. 72-3684, 5th Cir.) ........ 17,19
43,44,45,53,60
Perry v. United States, 308 F. Supp. 245 (D. Colo. 1970),
aff'd 442 F . 2d (10th Cir. 1971) ................... 30
Pettit v. United States, No. 253-72 (Ct. Cl. 1973) ... 33
Philadelphia Co. v. Stimson, 223 U.S. 605 (1912) .... 55
Rambo v. United States, 145 F.2d 670 (5th Cir. 1944),
cert, denied, 3 24 U.S. 848 ........................ 35
Rayonier v. United States, 352 U.S. 315 (1957) ...... 53
Rice v. Chrysler Corp., 327 F. Supp. 80 (E.D. Mich.
1971) ............................................. 37
Road Review League v. Boyd, 280 F. Supp. 650
(S.D.N.Y. 1972) ................................... 24
Roberts v. United States ex rel. Valentine, 176
U.S. 221 (1900) 17
Ross Packing Co. v. United States, 42 F. Supp. 932
(E.D. Wash. 1942)(National Labor Relations Act).... 30,31
Rural Electrification Administration v. Northern
States Power Co., 373 F .2d 686 (8th Cir. 1967),
cert, denied, 387 U.S. 945 ........................ 13
Rusk v. Cort, 396 U.S. 367 (1962) ................... 23
Sanders v. Dobbs Houses, Inc. 431 F.2d 1097 (5th Cir.
1970), cert, denied, 401 U.S. 948 (1971) .......... 37
Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d
859 (D.C. Cir. 1970) .......................... 24, 25,26
Schwartz v. United States, 191 F.2d 618 (4th
Cir. 1951) 12
Schicker v. United States, 346 F. Supp. 417 (D.
Conn. 1972), modified on other grounds sub nom.
Schicker v. Romney, 474 F.2d 309 (2d Cir. 1973).... 24
Table of Authorities (Continued)
Page
- vii -
Table of Authorities (Continued)
Page
Schroede Nursing Care, Inc. v. Mutual of Omaha,
Inc., Co., 311 F. Supp. 405 (E.D. Wis. 1970)...... 25
Securities and Exchange Commission v. Wall Street
Transcript Corp., 294 F. Supp. 298 (S.D.N.Y.
1968) 26
Settle v. E.E.O.C., 5 EPD 1 8100 (S.D. Tex. 1972)___ 59
Simons v. Vinson, 394 F.2d 732 (5th Cir. 1968)...... 62
Sinclair Nav. Co. v. United States, 32 F.2d 90
(5th Cir. 1929) 30
Smiley v. City of Montgomery, 350 F. Supp. 451
(M.D. Ala. 1972) 36
Smith v. United States, 458 F .2d 1231 (9th Cir.
1972) 29
Spanish Royal Mail Line Agency, Inc. v. United
States, 45 F.2d 404 (S.D.N.Y. 1930) 29
Spencer v. Richardson, 6 EPD f 8906 (D.D.C. 1973).... 53
Spillway Marina, Inc. v. United States, 445
F . 2d 876 (10th Cir. 1971) 28
Strain v. Philpott, 4 EPD 7885 (M.D. Ala.
1971) 36,60
Suel v. Addington, 5 EPD f 8043 (9th Cir. 1972)..... 61
Sultzbach Clothing Co. v. United States, 10 F.2d
263 (W.D.N.Y. 1925) ........................... 30
Sutcliffe Storage & Warehouse Co. v. United States,
162 F . 2d 849 (1st. Cir. 1947) .................... 31
Thorn v. Richardson, 4 EPD f 7630 (W.D. Wash. 1971).. 17
Tillman v. Wheaton Haven Recreation Asso., 35 L.Ed.
2d 403 (1973) 39
Toilet Goods Association v. Gardner, 360 F.2d 677
(2d Cir. 1966), aff'd 387 U.S. 158
- viii -
57
Table of Authorities (Continued)
Page
Union Trust Co. v. United States, 113 F. Supp.
80 (D.D.C. 1953), aff'd in part 221 F.2d 62,
cert, denied, 350 U.S. 911 ....................... 28
United States v. City of Kodiak, 132 F. Supp.
574 (D. Ct. Alaska 1955) ......................... 42
United States v. District Court, 401 U.S. 527
(1971) ........................................... 52
United States v. Emery, Bird, Thayer R.R. Co.,
237 U.S. 28 (1915) 31
United States ex rel. Parish v. Macveagh, 214
U.S. 124 (1909) 17
United States v. Hellard, 322 U.S. 363 (1944) 48
United States v. Hvoslef, 237 U.S. 1 (1915) 29
United States v. Johnson, 153 F.2d 846 (9th Cir.
1946) 31
United States v. Muniz, 374 U.S. 150 (1963) 52
United States v. Shaw, 309 U.S. 495 (1939) 53
United States v. Sherwood, 312 U.S. 584 (1941) 52
United States v. Yellow Cab Co., 340 U.S. 543
(1951) ......................................... 28,52,53
Warren v. United States, 340 U.S. 523 (1951) ....... 52
Wasson v. Trowbridge, 382 F.2d 807 (2d Cir. 1967)___ 56
Waters v. Wisconsin Steel Works, 427 F .2d 476 (7th
Cir. 1970), cert, denied, 400 U.S. 911 (1970)...... 37
Watkins v. Washington, 3 EPD f 8291 (D.D.C.
1973) 60
West v. Board of Education of Prince George's
County, 165 F. Supp. 382 (D. Md. 1958) 36
Williams v. United States, 405 F.2d 951 (9th Cir.
1969) 12
IX
Table of Authorities (Continued)
Page
Work v. United States ex rel. Lynn, 266 U.S.
161 (1924) 17
Young v. International Tel. & Tel. Co., 438 F .2d
737 (3rd. Cir. 1971) 37
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579 (1952) 56
CONSTITUTIONAL PROVISIONS
United States Constitution, Article I, Section 9 ... 29
United States Constitution, Fourth Amendment ...... 29
United States Constitution, Fifth 13,22,23
Amendment ................................... 28,29,49,60
United States Constitution, Thirteenth
Amendment ....................................... 40
United States Constitution, Fourteenth
Amendment ........................................ 40,49
STATUTES AND REGULATIONS
5 U.S.C. § 701 ..................................... 23
5 U.S.C. § 702 ..................................... 21
5 U.S.C. § 703 ..................................... 21
5 U.S.C. § 706 ..................................... 21,22
28 U.S.C. § 1331 ................................... 29,60
28 U.S.C. § 1343 ............................... 46,47,60
28 U.S.C. § 1346 ............................... 12,28-35
28 U.S.C. § 1331 ................................... 60
28 U.S.C. § 1361 ............................. 12,13-20,60
x
Statutes and Regulations (Continued)
28 U.S.C. § 1491
28 U.S.C. § 1653
42 U.S.C. § 1981
42 U.S.C. § 1982
42 U.S.C. § 1983
42 U.S.C. § 7151
14 Stat. 28 § 5 .
14 Stat. 29 § 7
39 Stat. 880 ___
43 Stat. 155 ___
..... 33
...... 12
.. 8,12,14,17,22
23,26,29,36-53,60
..... 39,40
8,20,37
14,22,23,60
..... 42
..... 42
..... 31
..... 31
Page
Civil Rights Act of 1866 ................ 8,12,14,36,40,46
Civil Rights Act of 1870 ......................... 8,37,38
Civil Rights Act of 1871 ......................... 8,38
Civil Rights Act of 1964 .......... 1,5,6,7,11,14,26
Tucker Act ...................................... 30,31,33
Fugitive Slave Act .............................. 41
5 C.F.R. § 713 ................................ 15,16,18,19
22,23,31,32,60
xi
Page
EXECUTIVE ORDERS
E.O.
E.O.
E.O.
E.O.
E.O.
9980, July 26, 1948 ....
10590, January 18, 1955
10925, March 6, 1961 ....
11246, September 24, 1965
11478 .......
--- 15
15
15,33
7,15,22,23
31,32,33,60
--- 15
E.O. 11590 15
legislative materials
Hearings Before a Subcommittee of the Senate
Judiciary Committee, 91st Cong., 2d Sess. (1970)
Hearings Before the Subcommittee on Labor of
the Senate Committee on Labor and Public
Welfare, 92nd Cong., 1st. Sess. (1971)
Hearings Before a Subcommittee of the Senate
Committee on Labor & Public Welfare 92nd Cong 1st. Sess. (1971) .............. y"
H. Rep. 1604, 88th Cong., 2d Sess.
S. Rep. 1390, 88th Cong. , 1st. Sess.
H. Rep.
(1971) No. 92-238, 92nd Cong., 1st. Sess. 24
S. Rep. No. 92-415, 92nd Cong., 1st. Sess......
34
34
27
7,14,25
Cong. 01obe, 581 h Cong., 1ri.
Cong. Globe, 38th Cong., 1st. Sess. 1675
Cong. Globe, 3 9th Cong., 1st. Sess. 1117 ,
108 Cong. Rec. 18784 ..............
110 Cong. Rec. 19766 ...............
- xii -
*•,0
51
49
20
34
OTHER AUTHORITIES
Page
G. Bentley, History of the Freedmen's Bureau
(1955) 42
M. Farrand, Legislation of Congress for the
Government of the Organized Territories of the
United States (1896) .............................. 43
M. King, Lyman Trumbull (1965) 43
E. Pomeroy, The Territories and the United
States (1947) ...................................... 43
Schlesinger and Israel, The State of the Union
Messages of the Presidents, v. 2 1060 (1966) ....... 50
K. Stampp, The Era of Reconstruction (1965) .......... 42
ten Broek, Equal Under Law (1951) 41,42,48
Byse and Fiucca, "Section 1361 of the Mandamus and
Venue Act of 1962,"81 Harv. L. Rev. 308 (1967) ..... 19
Graham, "The Early Anti-Slavery Backgrounds of the
Fourteenth Amendment, 1950 Wis. L. Rev. 47 9 ........ 48
Graham, "The Conspiracy Theory of the Fourteenth
Amendment," 47 Yale L.J. 371 (1938) ................ 49
- xiii -
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
No. 73-2628
CLARENCE BROWN,
Plaintiff-Appellant
-v-
GENERAL SERVICES ADMINISTRATION et al.f
Defendants-Appellees.
Appeal From The United States District Court
For The Southern District of New York
BRIEF FOR APPELLANT
This is an appeal from an unreported decision
of Judge MacMahon dismissing the complaint for
lack of jurisdiction
Statement of Issues Presented For Review
1) Do the United States District Courts have juris-
disction over an action against the United States or an agency
thereof alleging racial discrimination in employment?
2) Do the United States District Courts have juris
diction over an action against federal officials alleging that
l
they practice or practiced racial discrimination in employmentT
1/ This appeal does not involve the question of what consideration,
if any, a district court should give to an administrative finding
that there was no discrimination. Plaintiff maintains that in this
action, as in an action under section 717 of the 1964 Civil Rights
Act, he is entitled to a trial de novo. See Henderson v. Defense
Contract Administration, 72 Civ. 5420 (S.D.N.Y.) (Opinion dated December 31, 1973, slip opinion pp. 8-10.
Statement of The Case
Plaintiff-appellant, Clarence Brown, is an
employee of Regional Office No. 2 of the General
Services Administration (hereinafter "GSA"), an agency
of the Federal Government. On July 15, 1971, appellant,
who is Black, filed with the GSA Equal Employment Oppor
tunity office an administrative complaint alleging that
he had been denied promotion because of his race. On
March 26, 1973, Brown was informed that the GSA Director
of Civil Rights for Region 2 had made a final agency decision
that GSA and its employees had not discriminated against
appellant. Having thus exhausted his administrative remedies,
Appellant on May 7, 1973, brought this action in the United
States District Court for the Southern District of New York
against GSA and several of its officials. The complaint
alleged that GSA and Appellant's superiors had repeatedly
denied him promotion solely because of his race, and sought
relief including an injunction and an award of back pay.
[A. 1-1]
On August 10, 1973, the Defendants moved to dismiss
the complaint on the ground that, because of sovereign immunity,
the District Court lacked subject matter jurisdiction. [A. 3-1]
Plaintiff moved for leave to file an amended complaint for the
purpose, inter alia, of adding certain defendants, including
the United States Civil Service Commission. [A. 9-1] On
September 27, 1973, the District Court, granted Defendants'
motion to dismiss. The District Court's four sentence opinion
concluded that the court lacked jurisdiction and that the action
-2-
was barred by sovereign immunity. [A. 13-1] Judgment was
entered on September 28, 1973 [A. 14-1], and Plaintiff's
notice of appeal was filed on October 22, 1973.
Statement of Facts
The allegations of the complaint, which must be
accepted as true for purposes of a motion to dismiss for
lack of jurisdiction, are as follows:
Appellant, Clarence Brown, has been an employee
of Regional Office No. 2 of the GSA in New York City since
1957. Appellant has not been promoted in eight years. His
job classification is now, as it was in 1966, a Communica
tions Specialist, GS-7, Telecommunications Division, Auto
mated Data Telecommunication Service.
After his last promotion in 1966, Brown undertook
Civil Service and college completion training and achieved
a communications Specialist, GS-9 eligibility rating on the
basis of the examination. GS-9 is a supervisory classifi
cation on a career ladder leading to further advancement,
higher pay and further training.
Brown was not considered for promotion to GS-9
in 1969. In December, 1970 Brown was referred for promo
tion to GS-9 by his supervisors along with two white employees,
Robert Ownbey and William F. Trost. Brown's seniority, super
visory experience, training and education were superior to
that of both white employees. All three were rated "highly
qualified," but Joseph Daly, Regional Director of Transpor
tation and Communications Service chose the white employee,
-3-
Trost, for the position. Thereupon, Brown commenced filing
an administrative complaint of racial discrimination with a
GSA Equal Employment Opportunity Counsellor. The Counsellor
advised Brown that additional GS-9 vacancies which he had an
excellent chance of filling would soon be available. Brown
also asked his superior Albert Gallo, Chief of Communications
Division why he had been denied promotion. Gallo explained
that Brown lacked the requisite "voice" experience.
In reliance upon these representations, Brown dis
continued further processing of his administrative complaint
and acquiesed the recommended experience and further training
as well. In June, 1971 a vacancy for another GS-9 position
became available. Brown and Ownbey were again referred as
was another white employee. Brown's seniority, supervisory
experience, training and education were again superior to that
of both white employees. Supervisory personnel, however, in
cluding Gallo and Frank A. Lapalla, recommended Ownbey over
Brown. Both Brown and Ownbey were rated "highly qualified"
and the third employee "qualified." Daley chose the white
employee Ownbey over Brown for promotion.
On July 15, 1971 Brown filed with the GSA Equal
Employment Opportunity Office a complete administrative com
plaint of racial discrimination in denial of promotion.
Daley, Gallo and Lapolla gave as their reason for denying
Brown promotion a purported attitude of uncooperativeness
reflected in various acts. One such act was Brown's declining
to perform an uncompensated six month survey after working
-4-
hours for Gallo. Brown denies that he evinced an un
cooperative attitude or that the acts so indicate.
Brown was never told of his purported attitude or acts
at the time the acts were said to have occurred nor in
December, 1970 when Brown asked Gallo to explain his
prior denial of promotion. Nor was Brown ever reprimanded
or disciplined for his purported attitude or acts. Brown's
purported attitude and acts were mentioned for the first
time only in July, 1971 after he filed a complaint with
the GSA Equal Employment Opportunity Office.
Brown alleges that GSA and his supervisors have
denied him promotion to a supervisory GS-9 position solely
on the basis of his race and in spite of seniority, ex
perience, training and education greater than that of the
white employees promoted over him. That allegation must
be accepted as true for the purposes of the instant appeal,
since the District Court dismissed for lack of subject
matter jurisdiction.
ARGUMENT
I. INTRODUCTION
The issue in this case is not whether Federal
agencies should enjoy complete immunity from suits alleging
racial discrimination in employment. Congress has resolved,
that question in favor of allowing aggrieved federal employees
to sue in federal court for injunctive relief and back pay.
The 1972 Amendments to Title VII of the 1964 Civil Rights Act
added a new section 717 expressly waiving sovereign immunity
-5-
and authorizing litigation against federal agencies.
Section 717, however, is not applicable to this
particular case. To bring an action under section 717 an
aggrieved employee must file his complaint within 30 days
of receipt of notice of final action taken by the relevant
agency. In the instant case, plaintiff received such notice
on March 23, 1973, but did not commence this action until
_3/May 7, 1973, 42 days later.
The issue raised by the instant case is whether,
apart from section 717, federal employees aggrieved by
racial discrimination have a cause of action cognizable in
2 / Section 717(c) provides:
"(c) Within thirty days of receipt
of notice of final action taken by a department,
agency, or unit referred to in subsection 717(a),
or by the Civil Service Commission upon an appeal
from a decision or order of such department, agency,
or unit on a complaint of discrimination based on
race, color, religion, sex or national origin,
brought pursuant to subsection (a) of this section,
Executive Order 11478 or any succeeding Executive
orders, or after one hundred and eighty days from
the filing of the intitial charge with the depart
ment, agency, or unit or with the Civil Service
Commission on appeal from a decision or order of
such department, agency, or unit until such time
as final action may be taken by a department, agency,
or unit, an employee or applicant for employment,
if aggrieved by the final disposition of his complaint, or by the failure to take final action on
his complaint, may file a civil action as provided in section 706, in which civil action the head of
the department, agency, or unit, as appropriate, shall be the defendant."
3 / The original administrative complaint was filed on July 15, 1971. Since plaintiff still has not been promoted, he could
doubtless file a new administrative complaint now, but that com
plaint would doubtless be resolved against him. Upon receipt of notice of final agency action on such a new complaint, or if final
action was taken on it for 180 days, plaintiff could presumably
file a new civil action in the District Court. In such a new
action, however, plaintiff's right to back pay would be limitedto the period since July 15, 1971.
6-
the district courts.
Congress did not intend Section 717 to be the
exclusive judicial remedy available to federal employees.
Congress was concerned, rather, to supplement such causes
of action as might already exist because of its fears that
_4/those causes might well be inadequate. Section 717(e)
expressly provided that the new provision did not reduce
the pre-existing responsibility of federal officials and
_!/agencies. The Senate expressly rejected a proposed amend
ment that would have made Title VII the excluisve remedy
_4/ The Senate Committee on Labor and Public Welfare concluded that under existing law, ”[i]n many cases, the employee must
overcome a U.S. Government defense of sovereign immunity or
failure to exhaust administrative remedies with no certainty
as to the steps required to exhaust such remedies. Moreover,
the remedial authority of the Commission and the courts have
also been in doubt." S. Rep. No. 92-415, 92nd Cong., 1st Sess.,
reprinted in Legislative History of the Equal Employment Oppor
tunity Act of 1972, (hereinafter "Legislative History"), p.425.
Senator Williams, Chairman of the Committee explained during
the Senate debates that " [p]reviously, there have been un
realistically high barriers which prevented or discouraged a Federal employee from taking a case to court. This will no longer be the case." Id. at 1727.
5_y Nothing contained in this Act shall relieve any Government agency or official of its or his primary responsibility
to assume non-discrimination in employment as required by the
Constitution and statutes or of its or his responsibilities under Executive Order 11478 relating to equal employment
opportunity in the Federal Government." The Senate Report
stated "The Committee would also note that neither the above provisions regarding the individual's right to sue under
Title VII, nor any of the other provisions of this bill, are meant to effect existing rights granted under other laws" Legislative History, p. 433.
-7-
_Jl/against private discrimination, and the House Report,
which recommended extending Title VII to cover state and
local governments, expressly stated that such a remedy
_Z/would not be exclusive.
This is the latest in a series of cases in which
the Justice Department and Civil Service Commission have
maintained in court that, because of sovereign immunity,
the Federal courts do not have jurisdiction over suits
to redress discrimination against Federal employees. The
6/ See Id., pp. 1378-1407. Opposition to the amendment
was led by Senators Javits and Williams, both of whom quoted
the testimony of Assistant Attorney General David Norman."In the Field of civil rights, the Congress has regularly
insured that there would be a variety of enforcement devices
to insure that all available resources are brought to bear
on problems of discrimination . . . At this juncture, when
we are all agreed that some improvement in the enforcement
of Title VII is needed, it would be, in our judgment, unwise
to diminish in any way the variety of enforcement means avail
able to deal with the problem of discrimination. The problem
is widespread and we suggest that all available resources
should be used in the effort to correct it." Id. at 1399-1400,
1404. Senator Williams noted in particular that one of the
rights which would be cut off by the proposed amendment was,
42 U.S.C. § 1981, which created "the right of individuals to
bring suits in Federal courts to redress individual acts of
discrimination, including employment discrimination."
7/ "In establishing the applicability of Title VII to
State and local employees, the Committee wishes to emphasize
that the individual's right to file a civil action in his
own behalf, pursuant to the Civil Rights Act of 1870 and
1871, 42 U.S.C. § 1981 and 1983, is in no way affected . . .
[T]he remedies available to the individual under Title VII
are co-extensive with the individual's right to sue under the provisions of the Civil Rights Act of 1866, 42 U.S.C.
§ 1981 . . . "
8-
position taken by the government in such litigation is
somewhat surprising, since both agencies have at the
same time been repeatedly assuring Congress that legis
lation waiving sovereign immunity is unnecessary pre
cisely because the federal courts dha have jurisdiction
over such cases. These assurances undoubtedly led in part
to the restrictions in the waiver ultimately enacted, such
as the 30 day filing requirement with which plaintiff was
unable to comply.
The unusual dichtomy in the government's position
is well illustrated by the instant case. The United States
maintained in the District Court that it lacked jurisdiction
to review allegations of racial discrimination against a
federal employee. But the United States Civil Service Com
mission, during recent hearings considering additional
express authorization of such suits, testified such legislation
was unnecessary because the right to sue already existed. In
the District Court the United States relied heavily on Gnotta v .
United States, 415 F.2d 1271 (8th Cir. 1969), cert, denied, 397
8 / "There is also little question in our mind that a Federal
employee who believes he has been discriminated against may
take his case to the Federal courts after exhausting all of
the administrative remedies." Remarks of Irving Kator, Executive
Director, United States Civil Service Commission, Hearings Before a Subcommittee of the Senate Committee on Labor & Public Welfare,
92 Cong., 1st Sess. 301 (1971) p. 296. "We believe Federal Employees
now have the opportunity for court review of allegations of discrim
ination, and believe they should have such a right." Id. p. 310,
written statement on behalf of the United States Civil Service
Commission.
-9-
U.S. 934 (1970), and Congress of Racial Equality v.
_9/Commissioner. 270 F.Supp. 537 (D. Md. 1967.) But the
Civil Service Commission urged before Congress that
these decisions did not preclude litigation such as this
since they had failed to consider the applicable provisions
of the Constitution, U.S. Code, and Code of Federal Regula-
10/tions. Although racial discrimination is both unconstitutional
and beyond the authority of any federal officer, the United
States urged below that injunctive relief could not be granted
since it would involve promoting plaintiff and have an effect
9/ Defendants 1 Memorandum in Support of Their Motion to
Dismiss The Complaint; pp. 3-4, 7; Defendants' Reply Memor
andum, p. 6; Defendants' Memorandum in Opposition to Plain
tiff's Motion to Amend his Complaint, pp. 3, 5.
10/ "In the CORE case, suit was brought to redress alleged
discriminatory denials of promotions. The case was dismissed
on several grounds among which was that Executive Order No. 11246 (the predecessor of the present Executive Order relating to
discrimination) gave no actionable right in a district court.
As it appears that the attention of the court in the CORE case
was not directed to the statute (5 U.S.C. § 7151 (Supp. V.
1965-1969) and that case involved no constitutional issue, we do not regard it as dispositive of the matter under considera
tion. To the same effect see Gnotta v. United States, 415
F.2d 1271 (8th Cir. 1969), in which one court found no jurisdiction to review an alleged failure of promotion due to dis
crimination but did not discuss the statutory or constitutional issues that might be involved in such an action. We are of the opinion that an individual who has exhausted the discrimination
complaint procedure provided in Part 713 of the Civil Service
regulations (5 CFR part 713) may obtain judicial review of the
alleged discriminatory action . . . " Hearings Before the Sub
committee on Labor of the House Committee on Education and
Labor, 92 Cong., 1st Sess. 386 (1971).
#-10-
on the Treasury. Assistant Attorney General Ruckelshaus,
however, testifying against any new waiver of sovereign
immunity, reassured Congress that all constitutional claims
11/
and allegations of unauthorized actions were cognizable in
federal court. The United States now maintains that no cause
of action existed prior to the enactment of the 1972 Amendments
to Title VII? when those Amendments were being considered by
Congress, however, the Civil Service Commission urged that they
"W°13/ add n°thing" to the ri9hts which federal employees already
had.
In passing on a motion to dismiss for failure to state
a claim on which relief can be granted, the court must search
the pleadings to ascertain whether any facts which might be proved
under the complaint would constitute a cause of action. 2A Moore's Federal Practice f 12.08
11/ Defendants' Reply Memorandum, p. 6.
JL2/ " [T]o some extent injunctive remedies are already available.
The constitutionality of any program can be challenged. The
authority within the program of an official to act can be challenged."
"[T]here is no doubt that a court today may look into unauthor
ized or unconstitutional agency action . . . " Hearings Before a
Subcommittee of the Senate Judiciary Committee, 91st Cong., 2d Sess (1970), pp. 69, 74, 256-257.
13_/ Hearings Before the Subcommittee on Labor of the Senate
Committee on Labor and Public Welfare, 92 Cong., 1st Sess 301 (1971).
-11-
a :,. . C4St. .y±* ■
..> w * V ^ ♦ **- • * " 'v
.-, V-W.>**►*'*•
That requirement is particularly applicable to a motion
which alleges lack of jurisdiction, since a plaintiff is
entitled as of right to correct defective allegations of
jurisdiction at any time. 28 U.S.C. § 1653. if facts
giving the court jurisdiction are set forth in the com
plaint, the provision conferring jurisdiction need not be
specifically pleaded. Williams v. United States. 405 F.2d
951, 954 (9th Cir. 1969); Schwarz v. United States. 191 f .
-2d 618 (4th Cir. 1951).*; - _ ___
Plaintiff urges that the District Court had
jurisdiction over this action (1) to issue a writ of
mandamus against the defendants, under 28 U.S.C. § 1361,
PP- 5 - 20 » (2) to compel promotion and an award of back
pay under the Administrative Procedure Act, pp. 21 - 27
(3) to award back pay and damages under the Tucker Act,
28 U.S.C. § 1346, pp. 29- 35 (4) to afford any appropriate
relief for a violation of the 1866 Civil Rights Act, 42 U.S.C.
§ 1981, pp. 36 - 83, and (5) to grant relief against the
individual defendants since they acted without lawful authority,
PP- 59 ~ 60.
-12-
II. JURISDICTION OVER THIS ACTION IN CONFERRED BY
28 U.S.C. S 1361
Section 1361, 28 U.S.C., provides:
The district courts shall have
original jurisdiction of any action
in the nature of mandamus to compel
an officer or employee of the United
States or any agency thereof to per
form a duty owed to the plaintiff.
This provision, enacted in 1962, was intended to confer upon
upon the district courts the mandamus power until then limited
to the District Court for the District of Columbia. Jarrett v.
Resor. 426 F.2d 213 (9th Cir. 1970); Rural Electrification
Administration v. Northern States Power c_ô , 373 F.2d 686
(8th Cir. 1967) cert, denied 387 U.S. 945.
A writ of mandamus is available to compel a federal
officer to perform a ministerial act. Marburv v.' Madison.5 U.S.
(1 Cranch) 137 (1803). An act is ministerial when the official
is under an absolute obligation to perform it, and is afforded
no discretion as to whether to take the action commanded.
Leonhard v. Mitchell, 473 F.2d 709, 712-713 (2d Cir. 1973).
Mandamus is authorized to compel compliance with the commands
of the Constitution, Federal statutes, or regulations. Id. at
713.
Plaintiff herein seeks to compel the defendants to
pass on his application for promotion without discriminating
against him because of his race. Defendants have an undeniable
ministerial duty to make promotions within the General Services
Administration without discriminating on the basis of race.
First, the Fifth Amendment guarantee of due process
of law, absolutely prohibits the federal government from discriminating
-13-
blscks in employment, education, or any other regard.
Bolling v, Sharpe, 347 U.S. 497 (1954). ” [T]he Constitution
of the United Spates, in its present form, forbids, so far as
civil and political rights are concerned, discrimination by
the General Government, or by the States, against any citizen
because of his race." 347 U.S. at 499, quotinq Gibson v.
^ . 11/Mississippi, 162 U.S. 595, 591 (1896). The Fifth Amendment
has been expressly held to bar federal discrimination in employ
ment, Davis v. Washington, 4 EPD 1(7926 (D.D.C. 1972); Faruk v.
\ '
Rogers. 5 EPD K8015 (D.D.C. 1972).
Second, the authority of the defendants in personnel
matters is strictly circumscribed by section 7151 of Title 5
of the United States Code, which declares it to be the-official
policy of the United States "to insure equal employment oppor
tunities for employees without discrimination because of race,
color, religion, sex or national origin", and directs that the
President "shall" carry out this policy. Section 7151 is no
mere assertion of social goals, it is a direct and unequivocal
command to the executive branch not to discriminate against
plaintiff because of his race. See Henderson v. Defense Contract
Administration, 72 Civ. 5420 (S.D.N.Y.) (Opinion dated December 31,
1973, pp. 4-5.
Third, racial discrimination by defendants is forbidden
by the Civil Rights Act of 1866, 42 U.S.C. § 1981, which provides
in part that "All persons within the jurisdiction of the United
States shall have the same right in every state and territory to
make and enforce contracts . . . as is enjoyed by white citizens
JL4/ The Senate Report on the 1972 amendments to Title VII concluded
on the basis of Bolling that "ftjhe prohibition against discrimination by the Federal government, based upon the Due Process clause
of the Fifth Amendment, was judicially recognized long before the enactment of the civil Rights Act of 1964." S.Rep. No. 92-415, 92nd
Cong., 1st Sees. (1971), Legislative History, pp. 42-422.
,-14
Fourth, discrimination is barred by federal regulations
and Executive Order. Section 713, 5 Code of Federal Regulations
which codifies a series of Executive Orders datinq back to
15/1948 and Executive Order 11478, both establish that 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", E.O.
11478, §1; 5 C.F.R. § 713.202, and require that each executive
department and agency "shall" establish a program to assure
"equal opportunity in employment and personnel operations
±&/without regard to race." E.O. 11478, § 2; C.F.R. § 713.201(a).
15/ See E.O. 9980, July 26, 1948; E.O. 10590, January 18, 1955;
E.O. 10925, March 6, 1961; E.O. 11246, September 24, 1965;
E.O. 11478, August 8, 1969; E.O. 11590.
16/ E.O. 11478, as amended by E.O. 11590, provides in pertinent
part,
"Section 1. It is the policy of the
government of the United States to provide equal opportunity in federal
employment for all persons, to pro
hibit discrimination in employment
because of race, color, religion,
sex, or national origin, and to
promote the full realization of equal employment opportunity through
a continuing affirmative program in
each executive department and agency ...
"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 depart
ment and agency head, to the maximum
extent possible, to provide sufficient
resources to administer such a program in
a positive and affective manner ..."
5 C.F.R. § 713.201 provides
"Purpose and applicability.- (a) Purpose.
This subpart sets forth the regulations
under which an agency shall establish a
continuing affirmative program for equal
-15-
arisen, the Fifth Circuit Court of Appeals has twice held
that mandamus is available to compel federal defendants to
hire and promote without regard to race. In Beale v. Blount.
461 F.2d 1133 (5th Cir. 1972), the plaintiff claimed he had
been dismissed because he was black. The court held,
Traditionally, the procedural avenue
to reinstatement for an ex-employee
of the federal government claiming
to be the victim of improper discharge
has been a petition for mandatory in
junction or writ of mandamus directed
to the head of the agency concerned commanding the re-employment of petitioner.
. . . In 1962, Congress broadened the
In the only other cases in which this question has
Cont'd ./ opportunity in employment and personnel
operations without regard to race, color,
religion, sex, or national origin and
under which the Commission will review
an agency1s program and entertain an appeal from a person dissatisfied with an agency's
, decision or other final action on his complaint of discrimination on grounds of race,
color, religion, sex, or national origin,.
5 C.F.R. § 713.202 provides,
"General policy. - It is the policy of the Government of the United States and of the
government of the District of Columbia to
provide equal opportunity in employment for all persons, to prohibit discrimination in em
ployment because of race, color, religion,
sex, or national origin, and to promote the
full realization of equal employment oppor
tunity through a continuing affirmative
program in each agency."
-16-
availability of the mandamus remedy
by investing the district courts
generally with jurisdiction to issue
the writ which eliminated the previous
requirement that reinstatement suits
be maintained only in the United States
District Court for the District of
Columbia . . . Title 28 U.S.C., Section
1361. 461 F.2d at 1137.12/
In Penn v. Schlesinger (No. 72-3684, 5th Cir.) the plaintiffs
claimed, as here, that they had been denied promotion or ad
vancement because of their race. The Fifth Circuit held that
mandamus was available to enforce 42 U.S.C. § 1981, and to
order promotion to the plaintiffs and such other affirmative
remedies as might be appropriate. (Opinion dated December 18,
1973) 6 FEP Cases 1109. Mandamus was also awarded in Thorn v.
Richardson, 4 EPD 1(7630, p. 5490 (W.D. Wash. 1971) .
Mandamus is also available to enforce a ministerial
duty to pay a particular sum of money to the plaintiff. In
United States ex rel. Parish v. Macveagh, 214 U.S. 124 (1909),
the Secretary of the Treasury had refused to pay the plaintiff
$181,358.95, which payment was required by a special Act of
Congress. The Supreme Court held that mandamus was available
to compel the Secretary to issue a draft in that amount. 214
U.S. at 138. In Miguel v. McCarl, 291 U.S. 442 (1934), the
Supreme Court held that mandamus was available to compel the
payment of a pension unlawfully withheld by the Comptroller
General and the Army Chief of Finance. In Roberts v. United
States ex rel. valentine, 176 U.S. 221 (1900), the Supreme
Court upheld a writ of mandamus directing the Treasurer of
the United States to pay interest on certain bonds issued by
the District of Columbia. See also Garfield v. United States
ex rel. Goldsby, 211 U.S. 249 (1908; Work v. United States
17/ Mandamus was denied in Beale because the plaintiff had failed to "exhaust his administrative remedies., 461 F.2d at 1138-1141. In theinstant case, of course, those remedies were exhausted.
ex rel. Lynn, 266 U.S. 161 (1924); City of New York v. Ruckelshaus,
358 F.Supp. 669 (D.D.C. 1973) . Mandamus is not, of course, avail
able to compel payment of an ordinary disputed tort or contract
action.
In the instant action plaintiff seeks, inter alia,
an award of back pay. Were this a mere claim for consequential
damages mandamus would be inappropriate. But the applicable
regulations place upon defendants an unusual express obligation
to compute and award back pay in cases of racial discrimination,
rendering the award of such back pay a ministerial act.
Section 713.271(b) 5 C.F.R., provides,
Remedial action involving an employee
when an agency or the Commission, finds
that an employee of the agency was discriminated against and as a result of that discrimination was denied an employment benefit,
or an administrative decision adverse to him
was made, the agency shall take remedial
actions which shall include one or more of the
following, but need not be limited to these
actions:
Retroactive promotion, with backpay
computed in the same manner prescribed
by § 550804 of this chapter, when the record clearly shows that but for the discrimination
the employee would have been promoted or
would have been employed at a higher grade,
except that the backpay laiability may not
accrue from a date earlier than 2 years prior to the date the discrimination complaint
was filed, but in any event, not to exceed the
date he would have been promoted. If a finding
of discrimination was not based on a complaint,
the backpay liability may not accrue from a
date earlier than 2 years prior to the date the finding of discrimination was recorded,
but, in any event, not to exceed the date he
would have been promoted. (Emphasis added.)
Whether in fact plaintiff was denied promotion because of his
race is a disputed fact to be resolved by the District Court.
-18-
If however, the District Court determines that discrimination
was involved, thepayment of backpay by defendants will be a
ministerial act which the Court can compel by a writ of mandamus.
Sovereign immunity affords no obstacle to the award of
relief by writ of mandamus. Mandamus is in general available
only when the defendants are acting in clear violation of federal
law; in such a case, however, the unlawful acts are no longer
those of the sovereign, and may be corrected by the courts. The
defense of sovereign immunity in a mandamus action was raised
and rejected long ago in Marbury v. Madison, 5 U.S. (1 Cranch),
137, 166, 170-171 (1803). Any action in which a federal official
has refused to perform a ministerial act is, by definition, one
in which the official has lost the mantle of the sovereign and
is a mere private wrongdoer. See Clackamas County, Oregon v.
Mackay, 219 F.2d 479, 488-496 (D.C.Cir. 1954), vacated as moot
349 U.S. 909 (1955); McQueary v, Laird, 449 F.2d 608, 611 (10th
Cir. 1971); Byse and Fiucca, "Section 1361 of the Mandamus and
Venue Act of 1962" 81 Harv. L.Rev., 308, 340-42 (1967). In
addition to sanctioning mandamus actions against federal officials,
Section 1361 also authorizes mandamus against "any agency" of the
United States, including in this case the defendant General Services
19/Administration. This express language modifies the usual rule
18/
1&/ The decisions of the Fifth Circuit in this regard were divided.
The panel in Beale held that backpay was awardable along with re
instatement in an appropriate case. 461 F.2d 1133, 1138. The
panel in Penn concluded that backpay was unavailable because it would "impinge upon the Treasury." Slip opinion p.10. Neither
decision considered the unusual provisions of 5 C.F.R. § 713.271(b)
11/ That section 1361 authorized mandamus against an agency was well understood. Senator Mansfield, explaining the bill on behalf
of the Judiciary Committee, stated that under it the court can only compel "the official or agency to act where there is a duty
-19-
that, because of sovereign immunity and the nature of mandamus
itself, a government agency cannot be subject to mandamus. The
change, however, is one largely of form permitting an agency to be sued
its own name; the relief available is the same as would be afforded
if the individual in charge of the agency were sued instead. Certainly
section 1361 constitutes a waiver of immunity in any action "in
the nature of mandamus"; if it did not that provision would be a
dead letter.
Cont'd.
19/ which the committee construes as an obligation, to act ... As
stated in the House report, the bill does not define the term 'agency',
but the committee agrees that it should be taken to mean any depart
ment, independent establishment, commission, administration, authority, board, or bureau of the United States, or any corporation in which the
United States has a proprietary interest." 108 Cong. Rec. 18784. (Emphasis added)
-20-
III. Jurisdiction Over This Action Is Conferred
by the Administrative Procedure Act
Section 10(a) of the Administrative Procedure Act,
5 U.S.C. §702, provides in broad language that "[A] person
suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of
a relevant statute, is entitled to judicial review thereof."
The remedy which a reviewing court can afford is broadly
cast; the aggrieved plaintiff may maintain "any applicable
form of legal action, including actions for declaratory
judements or writs of prohibitory or mandatory injunction
. . 5 U.S.C. §703. The reviewing court is commanded to
(1) compel agency action unlawfully withheld
or unreasonably delayed; and
(2) hold unlawful and set aside agency action,
findings, and conclusions found to be -
(A) arbitrary, capricious, an abuse
of discretion, or otherwise not
in accordance with law;
(b) contrary to constitutional right,
power, privilege, or immunity . . .
5 U.S.C. § 706.
The instant action is within the literal language of
the Administrative Procedure Act. Plaintiff is undeniably
aggrieved by the refusal of the defendant General Services .
-21-
Administration to promote him. A refusal to promote plaintiff
because of his race would be in violation of his rights under
the Fifth Amendment to the Constitution. See §706 ( 2)(B).
Any such decision based on racial discrimination is by definition
"arbitrary and capricious." §706 (2)(B). And such discrimination
violates two federal states, 42 U.S.C. §1981 and 5 U.S.C. §7151,
a series of Executive Orders culminating in Executive Order 11482,
and the applicable Federal regulations, 5 C.F.R. §713, and is
^ V /
undeniably "not in accordance with law." §706(1) and (2)(A).
The coverage of the Administrative Procedure Act is to be
liberally interpreted. As the Supreme Court detailed in Abbott
Laboratories v. Gardner, 387 U.S. 136, 140-141 (1967):
The legislative material eluciadating that seminal act manifests
a congressional intention that it cover
a broad spectrum of administrative
actions, and this Court has echoed that
theme by noting that the Administrative Procedure Act's "generous review provisions"
must be given a "hospitable" interpretation.
Shauqhnessy v. Pedreiro, 349 U.S. 48, 51, 99 L ed 868, 873, 75 S.Ct 591; see United States
v. Interstate Commerce Comm'n, 337 US 426 433-435,'93 L ed 1451, 1460, 69 S.Ct.1410;
Brownell v. Tom We Shunq, supra; Heikkila v
Barber, supra. Again in Rusk v. Cort, supra
369 US at 379-380, 7 L ed 2d at 816,817,
the Court held that only upon a showing of
"clear" and convincing evidence" of a contrary legislative intent should the courts
restrict access to judicial review. See also
Jaffe, Judicial Control of Administrative
Action 336-359 (1965)
20/ "Law" clearly includes regulations. See e.g. Citizens to
Preserve Overton Park v. Volpe, 401 U.S. 402, 417 ff. (1971).
-22-
See also Chicago v. United States, 396 U.S. 162, 165 (1969);
Norwalk CORE v. Norwalk Redevelopment Agency,395 F.2d 920,
932-933 (2d Cir. 1968). There is nothing to indicate any
intent to preclude judicial review in the language, or
legislative history, of the Fifth Amendment, 42 U.S.C. §1981,
5 U.S.C. §7151, Executive Order 11482, or 5 C.F.R. §713.
While there are certain express exceptions to the provisions
for judicial review, see 5 U.S.C. 701(b), none of them are
applicable here.
It is well established that the Administrative Procedure
Act confers jurisdiction on the district courts to review
agency action. The question was resolved by the Supreme Court
in Rusk v. Cort, 396 U.S. 367 (1962), where the plaintiff sued
under the Administrative Procedure Act and the Declaratory
Judgment Act to overturn a decision of the Secretary of State.
The Court, reasoning that "on their face the provisions of these
statutes appear clearly to permit an action such as was brought
here to review the final administrative determination of the
Secretary of State," concluded that "the District Court was
correct in holding that it had jurisdiction to entertain this
action for declaratory and injunctive relief." 369 U.S.
21/at 370, 372.
21/ Justice Brennan, concurring, held that the Administrative
Procedure Act was a general grant of jurisdiction 369 U.S. at
380, n.l. Justice Harlan dissented on the ground that juris
diction had been withdrawn by the Immigrational Nationality
Act of 1952, but agreed that otherwise it would have been con
ferred by the Administrative Procedure Act. See 369 U.S. at 383-399
-23-
That the Administrative Procedure Act confers jurisdiction on the
district court has been repeatedly affirmed by the courts of
this circuit. See Citizens Committee for Hudson Valley v. Volpe,
425 F.2d 97, 102-103 (2d Cir. 1970) cert, denied 400 U.S. 949
(1970); Cappadora v. Celebrezze, 356 F.2d 1, 5-6 (2d Cir.1966);
Schicker v. United States, 346 F.Supp. 417, 419 (D. Conn. 1972)
modified on other grounds sub nom. Schicker v. Romney, 474 F.2d
309 (2d Cir. 1973); Road Review League v. Boyd, 270 F.Supp. 650
651 (S.D. N.Y. 1967); Harris v. Kaine, 352 F.Supp. 769, 772
(S.D.N.Y. 1972). See also Davis v. Romney, 355 F.Supp. 29,40-42
(E.D. Pa. 1973); Northwest Residents Association v. Department of
Housing and Urban Development, 325 F.Supp. 65, 67 (E.D. Wis. 1971)
Arrow Meat Company v. Freeman, 261 F.Supp. 622, 623 (D. Ore. 1966)
The "legal right" which plaintiff seeks to enforce need not be
contained in a statute which establishes an independent basis of
jurisdiction; it is sufficient that the statute was enacted to
protect plaintiff's interests. Norwalk Core v. Norwalk Re
development Agency, 395 F.2d 920, 933 (2d Cir. 1968).
The Administrative Procedure Act, by virtue of conferring
jurisdiction to review the actions of federal agencies, ipso facto
waived any immunity those agencies might have from suit.
Manifestly if the Act contained no such waiver, it would be a dead
letter. Four circuits,including the Second, have expressly held
that the Administrative Procedure Act constitutes a waiver of
sovereign immunity. Kletschka v. Driver, 411 F.2d 436, 445
(2nd Cir. 1969); Scanwell Laboratories Inc., v. Shaffer, 424
F.2d 859,873-4 (D.C. Cir. 1970); Estrada v. Ahiens, 296 F.2d
-24-
690, 698 (5th Cir. 1961); Adams v. Witmer. 271 F.2d 29, 34 (9th Cir.
1959). The same conclusion has been reached by several district
courts. See National Helium Corporation v. Morton,326 F.Supp.151,
154 (D. Kan. 1971) aff*d 455 F.2d 650, Lombard Corporation v.
Resoc, 321 F.Supp. 687, 692-693 (D.D.C. 1970); Schroede Nursing
Care, Inc, v. Mutual of Omaha Inc. Co., 311 F.Supp. 405-409
22/(E.D. Wis. 1970. The court of appeals in Scanwell correctly
reasoned
It seems axiomatic to us that one must
imply, from a statement by Congress that
judicial review of agency action will be
granted, an intention on the part of
Congress to waive the right of sovereign
immunity; any other construction would
make the review provisions illusoryi^
22/ Other courts have reached the same result by arguing that,
Tf the defendant individuals have acted unlawfully, the action is not one against the sovereign. See e.g. National Helium Corporation
V. Morton. 455 F.2d 650, 654-655 (10th Cir. 19?!). citing Dugan v.
Rank, 3T? U.S. 609 (1963)
23/ That the contrary rule would nullify the Administrative
Procedure Act, is well illustrated by Gnotta v. United States.
415 F.2d 1271 (8th Cir. 1969), cert. defied 397 U.S. 934
where the court held that judicial review was technically avail
able, but that sovereign immunity barred a suit for review against
any conceivable defendant, including the United States, the Civil
Service Commission, and the individual government employees accused
of unconstitutional and illegal conduct, and dismissed the action,
415 F.2d at 1277. That decision has been widely criticized inter
alia, by Professor Davis. Davis, Administrative Law Treatise,
1970 Supplement, p. 904. The Civil Service Commission suggested to Congress that Gnotta was wrongly decided, see p. 10, supra, and cited as proof that federal employees could sue to redress
discrimination in employment Nixon v. Harris, 325 F.Supp. 28 (D.Colo.
an action brought under the Administrative Procedure Act. See Hearings Before a Subcommittee of the Senate Committee on Labor
and Public Welfare, 92nd Cong., 1st Sess., pp. 296, 301, 308, 318
(1971).
-25-
Scanwell Laboratories, Inc, v. Shaffer,424 F.2d at 874.
This is not like an ordinary federal personnel matter
in which the government agency has broad discretion. Compare
Chiriaco v. United States, 339 F.2d 588 (5th Cir. 1964). The
constitution, Acts of Congress, an Executive Order and Federal
regulations all strip the defendants of any discretion to refuse
to promote the plaintiff because of his race. An allegation
of racial discrimination calls into question the motives of those
who denied plaintiff a promotion; in such a case the substantiality
of the evidence supporting a denial is inconclusive, since the
fairness of those who passed on the evidence is in doubt.
Compare In re Castellone,148 F.Supp 676, 681 (N.D. Ohio 1957).
The problems of racial discrimination in employment is not one
on which the named defendants can claim unique expertise; the
problem is far removed from ordinary personnel matters, and is
one in which the Federal courts have acquired experience and
expertise in litigation under Title VII of the 1964 Civil Rights
Act and 42 U.S.C. §§ 1981 and 1983. Compare Securities and
Exchange Commission v. Wall Street Transcript Corp., 294 F.Supp.
298, 307 (S.D. N.Y. 1968). Indeed it was the judgment of Congress
that Federal agencies and administrative review have proved
inadequate to discover and remedy instances of racial discrimination
-26-
against federal employees.
24/
Jurisdiction over the instant action to review the actions
of the General Services Administration is thus clearly
provided by the Administrative Procedure Act.
24/ "The system, which permits the Civil Service
Commission to sit in judgment over its own
practices and procedures which themselves
may raise questions of systemic discrimination,
creates a built-in conflict-of-interest.
Testimony reflected a general lack of
confidence in the effectiveness of the com
plaint procedure on the part of Federal
employees. Complaints were skeptical of
the Civil Service Commission's record in
obtaining just resolutions of complaints and adequate remedies. This has discouraged
persons from filing complaints with the
Commission for fear that it will only result
in antagonizing their supervisors and impair
ing any hope of future advancement.
Aside from the inherent structural
defects the Civil Service Commission has
been plagued by a general lack of expertise in recognizing and isolating the various forms of discrimination which exist in the
system. The revised directives to Federal
agencies which the Civil Service Commission
has issued are inadequate to meet the challenge
of eliminating systematic discrimination. The
Civil Service Commission seems to assume that
employment discrimination is primarily a problem
of malicious intent on the part of individuals.
It apparently has not recognized that the
general rules and procedures it has promul
gated may actually operate to the disadvantage
of minorities and women in systemic fashion."
H. Rep. No. 92-238, 92nd Cong., 1st Sess. 24 (1971). See also
Legislative History of the Equal Employment Opportunity Act of
1972, 270, 271, 423, 1726 (1972).
27-
IV* JURISDICTION over p l a i n t i f f's claims for back pay and damages is CONFERRED BY THE TUCKER ACT, 28 U.S.C. S 1 3 4 6 ----------------
Section 1346, Title 28 United States Code, provides in
pertinent part:
(a) The district courts shall have original juris
diction, concurrent with the Court of Claims, of:
* * *
(2) Any other civil action or claim against
the united States, not exceeding $10,000.12/ ±n
amount, founded either upon the Constitution or any Act of Congress, or any regulation of an
executive department, or upon any express or
implied contract with the United States, or for
liquidated or unliquidated damages in cases not sounding in tort.
This statute, known as the Tucker Act, is understood to be an express
waiver of sovereign immunity as to claims falling within its scope.
United States v. Yellow Cab Co.. 340 U.S. 543 (1951); Spillway
Marina,_Inc. v. U, S., 445 F.2d 876 (10th Cir. 1971) ; Lloyds 1 London
v. Blair, 262 F.2d 211 (10th Cir. 1958); Union Trust Co. v. United
States, 113 F. Supp. 80 (D.D.C. 1953), aff'd in part 221 F.2d 62,
cert, denied 350 U. S. 911.
Plaintiff's claims clearly fall within the literal language
of Section 1346. Racial discrimination in federal employment is pro
hibited by the Fifth Amendment to the Constitution. See Bolling v.
Sharpe, 347 U.S. 497 (1954). An action is "founded upon" the
Constitution whenever the damages are alleged to result from a
violation of the Constitution; the plaintiff need not prove the
Constitution expressly authorizes a lawsuit for that particular type
of violation, since the Constitution contains no express authorization
25/ The Original Complaint contained no allegation as to the size of plaintiff's claim. The proposed Amended Complaint
alleges that the amount "in controversy" exceeds $10,000, [A.93]
-28-
of litigation for violation of any of its provisions. in Smith
v. United States. 458 F.2d 1231 (9th Cir. 1972) the plaintiffs
sued under § 1346(a)(2), alleging a violation of the Fifth Amendment's
prohibition against taking private property without just compensation;
the Ninth circuit unanimously upheld a judgment in favor of plaintiffs.
And, in United States v. Hvoslef, 237 U.S. 1 (1915), an action was
upheld under this section as "founded upon" Article I, Section 9
of the Constitution, which forbids taxes on exports from any state.
Similarly, in Bivens v. Six Unknown Federal Narcotics Agents. 403
U.S. 388 (1971), the Supreme Court upheld that a suit against federal
employees arising out of a violation of the Fourth Amendment was an
action which "Arises under the Constitution." See, 28 U.S.C. §1331(a).
None of the constitutional provisions in Smith, Hvoslef or Bivens
contained any authorization of a civil action.
Similarly, the discrimination of which plaintiff complains
is a violation of two federal statutes, 5 U.S.C. § 7151 and 42 U.S.C.
§ 1981. See pp. 22-23, supra and pp. 36-53 infra. An action is
"founded upon" a federal statute if the government action complained
of is a violation of that statute, regardless of whether the statute
itself creates or contemplates a cause of action. Section 1346(a)(2)
has long been construed to authorize actions to compel refund of fines
or penalties, on the ground that the propriety of the fine or penalty
was governed by a federal statute. See Carriso v. United States, 106
F.2d 707 (9th Cir. 1939); Compagnie General Ttansatlantique v. United
States, 21 F.2d 465, (S.D.N.Y. 1927), aff'd 26 F.2d 195. Spanish Royal
Mail Line Agency, Inc, v. United States, 45 F.2d 404 (S.D.N.Y. 1930);
Coryt1d.
2h/ but the United States denied that such an amount was at stake.Defendants" Memorandum In Opposition to Plaintiff's Motion to Amend,p. 4. If this Court were to determine that jurisdiction to award backpay
-29-
Sinclair Nav. Co. v. United States. 32 F.2d 90 (5th Cir. 1929);
Sultzbach Clothing Co. v. United States. 10 F.2d 363 (W.D.N.Y.
1925); Law v. United States, 18 F. Supp. 42 ( D.Mass. 1937);
Lanashire Shipping Co. v. United States. 4 F.Supp. 544 (S.D.N.Y.
1933). The statutes involved in thse cases were laws authorizing
fines and penalties; none of them authorized or expressly contem
plated an action to recover fines or penalties unlawfully assessed.
Litigation under § 1346 has been expressly sanctioned as "founded
upon" a wide variety of statutes which set the standard for govern
ment conduct, but contained no mention of any remedy. See, Beers v.
Federal Security Administrator. 172 F.2d 34 (2nd Cir. 1949) (Social
Security Act); Ross Packing Co. v. United States. 42 F.Supp. 932
(E.D. Wash. 1942) (National Labor Relations Act); Alcoa S.S.Co. v.
United States, 80 F.Supp. 158 (S.D.N.Y. 1948) (Transportation Act).
The federal courts have unanimously rejected the argument
that an action under the Tucker Act can only be "founded upon" a
federal statute which itself creates a remedy or right of action.
In Aycock-Lindsey Corporation v. United States. 171 F.2d 518 (5th
Cir. 1948), the United States urged that an action under § 1346
could not be "founded upon" the Soil Conservation and Docmestic
Allotment Act because that statute "created no enforceable claim
or right of action against the Government." 171 F.2d at 520. The
Fifth Circuit expressly rejected that argument:
The Tucker Act does not provide that a statute of Congress upon which a statute is founded
shall also provide that suit may be maintained
against the United States for claims arising
Cont'd.
25/ and damages existed only under section 1346, plaintiffs would be entitled to waive recovery in excess of $10,000 and thus confer juris
diction on the District Court, and would do so. See Perry v. United
States, 308 F.Supp. 245 (D.Colo. 1970), aff'd. 442 F.2d (10th Cir. 1971)
-30-
under such statute. The authority for a suit
is found in the general terms of the Tucker Act and need not be reiterated in every
enactment of Congress upon which a claim
against the United States could be "founded "171 F.2d 518.
Similarly, in Compagnie General Transatlantique v. United States, 21
F.2d 465 (S.D. N.Y. 1927) the court held that an action for the refund
of a penalty could be founded upon the provisions of the Immigration
26/
L5WS under which the penalty had purportedly been collected. Judge
Augustus Hand explained:
To limit recovery in cases "founded" upon a
law of Congress to cases where the law provides
in terms for a recovery would make that pro
vision of the Tucker Act almost entirely
unavailable, because it would allow recovery
only in cases where laws other than the Tucker
Act already created a right of recovery. "Founded" must therefore mean reasonably involving the
application of a law of Congress. 21 F.2d at 466.
See, also Ross Packing Co. v. United States. 42 F.Supp. 932, 937
(E.D. Wash. 1942). In United States v. Emery. Bird. Thaver r .r . c.n. .
237 U.S. 28 (1915), the Supreme Court held, for similar reasons,
that an action to recover a tax was "founded upon" the Corporation
Tax Law under which the tax was collected, although that tax provision
contained no remedial provision. 237 U.S. at 31-32.
Similarly, this action arises under the federal regulation
forbidding discrimination in federal employment. 5 C.F.R. § 713, and
Executive Order 11478. In Gnotta v. United States. 415 F.2d 1271
(8th Cir. 1969), cert, denied 397 U.S. 984 the court concluded that no
action under the Tucker Act could be had to enforce the order and regulation
on the ground that neither mentioned money claims, and "none of the executivi
Cont1d.
25/ Sutcliffe Storage & Warehouse Co. v. United States. 162 F.2d 849 (1st
Cir. 1947); United States v. Johnson, 153 F.2d 846 (9th Cir. 1946); Hill v.
United States, 40 F.2d 441 (1st Cir. 1889); Jones v. United States, 127
F.Supp. 31 (E.D.N.C. 1954).
26/ 39 Stat. 880 and 43 Stat. 155
-31-
orders or regulations . . . purports to confer any right on an employee
of the United States to institute a civil action for damages against
the United States." 415 F.2d at 1278. This reasoning is plainly
erroneous. First, since the decision in Gnotta the regulations have
been amended to authorize the award of back pay. See pp. 18-19, supra.
Second, no mere regulation of Executive Order could, by itself,
create a federal cause of action; only Congress has that power. Third,
the reasoning in Gnotta — that an action can only be "founded upon"
a regulation which itself creates a cause of action — is precisely
the construction of the Tucker Act consistently rejected by all other
federal courts.
The literal language of § 1346 is manifestly broad enough
to cover claims for damages and back pay arising out of racial
discrimination in employment. The statute covers "any claim" arising
under the Constitution, statutes or regulations, and while there are27/
express exceptions they are not applicable to this case. As the
Supreme Court held in reasoning a similar provision, "The statute's
terms are clear . . . they provide for district court jurisdiction
over any claim . . . . Without resort to an automatic maxim
of construction, such exceptions make it clear to us that Congress
27/ Section (d) provides; "The district courts shall not have juris
diction under this section of any civil action or claim for a pension."
-32-
knew what it was about when it used the term 'any claim'"
United States, 337 U.S. 49, 51 (1949).
Brooks v.
This construction of § 1346 is supported by the interpre-
tation given by the Court of claims to the similarly avoided provisions
of 28 U.S.C. § 1491. The latter statute provides, inter alia.
The Court of Claims shall have jurisdiction
to render judgment upon any claim against the
United States Founded either upon the Consti
tution, or any Act of Congress, or any regulation of an executive department. . .
In Chambers v. United States. 451 F.2d 1045 (Ct. Cl. 1971), the
court held that a claim of racial discrimination in federal employ
ment stated a cause of action under § 1491, since such discrimination
violated Executive Orders 11246 and 11478. The court of claims expressly
considered, and held erroneous, the reasoning in Gnotta v. United
Stateŝ , 415 F.2d 1271, (8th Cir. 1969), cert, denied, 397 U.S. 934.
See also Allison v. United States. 451 F.2d 1035 (Ct. Cl. 1971);
Pettit v. United States. No. 253-72 (ct. Cl. 1973) (Opinion dated
December 19, 1973). The decisions of the Court of Claims construing
its own jurisdiction, which is by definition concurrent with and
identical to that of the district courts, must be afforded substantial
weight.--gee Beale y. Blount, 461 F.2d 1133, 1135 n. 2 (5th Cir. 1972).
District court jurisdiction under the Tucker Act to award back pay
for discrimination in employment was expressly upheld in Palmer v.
Roaars. 5 EPD 18822, p. 5493 n.l (D.D.C. 1973).
That back pay is available under the Tucker Act is made
abundantly clear by its legislative history. Prior to 1964. § 1346
expressly excluded from its coverage "[ajny civil action or claim to
recover fees, salary or compensation for official services of officers
or employees of the United states." See, 28 U.S.C.A. § 1346(d)(2)
(1962). This exception to the broad language of § 1346(a)(2)
-33-
was
understood to preclude the award of backpay. Jackson v. United
Sjtates, 129 F.Supp. 537 (D.Utah 1955) . In 1964 this restrictive
provision of Section 1346 was repealed. Pub. L. 88-519, 78 Stat.
28/ 29/
The^House Report, the Senate Report, and the congressional
debates all agreed that the first purpose of the change was to
allow actions for backpay in the district courts.
28/ H.Rep. 1604, 88th Cong., 2d Sess., p.2, "The committee notes that by virtue of the act of October 5, 1962 (76 Stat. 744, 28
U.S. § 1391), it is now possible for Government Employees who
claim to have been improperly discharged to sue in their home
districts for reinstatement. However, the present prohibition
of subsection (d)(2) of section 1346, 28 United States Code makes
it necessary for any claim for backpay to be brought in the Court
of Claims. The committee believes that when the amount claimed
as backpay is not more than $10,000, and is therefore within the
monetary limit of the district courts' general jurisdiction of
contract claims against theUnited States the issue of reinstate
ment and the issue of compensation should be susceptible of being disposed of in a single action."
22/ S.Rep. 1390, 88th Cong., 1st Sess., 2 U.S. Code Cong, and Admin. News (1964), p.3255,
"Under the existing statutes, any officer or
employee of the United States is required to file
only in the Court of Claims here in Washington
a civil suit to recover fees, salary, or compen
sation for services rendered as an officer or
employee of the United States. By virtue of the
act of October 5, 1962 (76 Stat. 744, 28 U.S.C.1361), it is now possible for Government employees
who allege they have been improperly discharged to
sue in their home districts for reinstatement, but
under the prohibition of subsection (d) of 28 U.S.C.,
Section 1346, the employee's claim for back pay,
which very frequently accompanies his claim for reinstatement, must be brought in the Court of
Claims. Under the circumstances it is clear, that
in order to do complete justice as efficiently and inexpensively as possible, the district courts
should be given jurisdiction of the compensation
claimed as well as the improper discharge, in order
that they may be disposed of in a single action."
30/ H O Cong. Rec. 19766 (Remarks of Sen. Keating):
"This bill will have its most salutary effect in
employee discharge cases. Today, under a 1962
statute, a Government employee who claims to have been improperly removed from his position may sue
-34-
Section 1346 therefore confers jurisdiction on the
district court to award plaintiff backpay and damages up to
$10,000 upon showing that he was denied a promotion or other-
22/wise discriminated against because of his race.
Cont'd.
30/ to get his job back in his local federal court. BUt
the subsection of the Judicial Code which the present bill
would repeal today prevents the employee, if he succeeds
in establishing his right to reinstatement from getting a
judgment in the same action for the backpay to which he is
also entitled. To get the backpay, he must either bring
another suit in the Court of Claims or, in some instances, seek the additional relief administratively. Now, if this
bill is finally approved, it will be possible for him to
secure both reinstatement and complete monetary relief in
single proceeding."
22/ Injunctive relief is not available under the Tucker
Act. See Clay v. United States, 210 F.2d 686 (D.C.Cir. 1954) ;
Rambo v. United States, 145 F.2d 670 (5th Cir. 1944), cert, denied 324 U.S. 848; Blanc v. United States, 244 F.2d 708
(2d Cir. 1957).
-35-
V. JURISDICTION OVER _TH1S ACTION IS CONFERRED BY THE 1866 CIVIL RIGHTS ACT, 42 U.S.C. § 1981 AND 28 U.S.C. S 1343 (4)
(a) The 1866 Civil Rights Act, 42 U.S.C. S 1981, Forbids
Discrimination in Employment by the United States
Section 1981, 42 U.S.C., which derives from Section 1
of the 1866 Civil Rights Act, provides:
All persons within the jurisdiction
of the United States shall have the same
right in every State and Territory to
make and enforce contracts, to sue, be
parties, give evidence, and to the full
and equal benefit of all laws and pro
ceedings for the security of persons
and property as is enjoyed 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)
The right to make and enforce contracts clearly includes employ
ment contracts, and entails a ban on racial discrimination in
hiring and promotion. Section 1981 has been uniformly held to32/ 33/
bar discrimination in employment by state and local governments
32/ See e.g. Johnson v. Cain. 5 EPD 58509 (D.Del. 1973); Suel v. Addington. 5 EPD 58042 (D.Alaska 1972); Strain v. Philpott. 4 EPD
557885, 7562, 7521 (M.D.Ala. 1971); Morrow v. Crisler. 3 EPD 8119
(S.D.Miss. 1971); London v. Florida Department of Health. 3 EPD
58018 (N.D.Fla. 1970).
33/ Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971); Arrington v.
Massachusetts Bay Transportation Authority, 306 F. Supp. 1355 (D.
Mass. 1969); Glover v. Daniel, 434 F.2d 617 (5th Cir. 1970); Smiley v.
City of Montgomery, 350 F.Supp. 451 ( M.D.Ala. 1972); West v. Board
of Education of Prince George's County, 165 F.Supp. 382 (D.Md. 1958);
Mills v. Board of Education of Anne Arundel County, 30 F.Supp. (D.Md. 1938)
-36-
34/ 35 /
by private employers, and by labor unions. Plaintiff maintains
that Section 1981 bars discrimination in employment by the federal
government as well.
The broad language of Section 1981 manifestly includes
within its scope all discrimination in employment by any employer,
public or private. The class of persons protected is described in
the all encompassing language to be "[a]11 persons within the juris
diction of the United States". Any attempt to restrict the literal
scope of Section 1981 would fly in the face of this express language.
Had Congress wished to limit the statute so as to preclude federal
discrimination, it knew how to do so. Section 1983, 42 U.S.C.,
expressly limits its coverage to persons acting under color of state
34/ Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970),
cert, denied 401 U.S. 948 (1971); Rice v. Chrysler Corp,. 327 F.Supp.
80 ( E.D.Mich. 1971); Hackett v. McGuire Brothers Inc.. 445 F.2d 442
(3d Cir. 1971); Young v. International Tel. & Tel. Co.. 438 F.2d 737
(3d Cir. 1971); Brown v. Gaston County Dyeing Machine Co.. 457 F.2d
1377 (4th Cir. 1972), cert, denied, 93 S.Ct 319 (1972); Boudreau v.
Baton Rouge Marine Contracting. 437 F.2d 1011 (5th Cir. 1971); Caldwell v
National Brewing Co.. 443 F .2d 1044 (5th Cir. 1971), cert, denied 404
U.S. 998 (1970) Brady v. Bristol Myers. 452 F.2d 621 (8th Cir. 1972) ; Bennette v. Gravelle, 323 F.Supp. 203 (D.Md. 1971); Copeland v. Mead
Corp., 51 F.R.D. 266 ( N.D.Ga. 1970); Lazard v. Boeing Co.. 322 F.Supp. 343 ( D .La. 1971); Long v. Ford Motor Co.. 352 F.Supp. 135 ( e .D.Mich. 1972); Guerra v. Manchester Terminal Corp.. 350 F.Supp. 529
( S.D.Tex. 1972); Jenkins v. General Motors Corp.. 475 F.2d 764 (5th Cir. 1973) .
35/ Waters v. Wisconsin Steel Works. 427 F.2d 476 (7th Cir. 1970)
cert, denied 400 U.S. 911 (1970); James v. Qgilvie. 310 F.Supp. 661 T~nTd . H 1. 1970); Guerra v. Manchester Terminal Corp.. 350 F.Supp.
529 ( S.D.Tex. 1972). Johnson v. Goodyear Tire & Rubber Co.. 349
F.Supp. 3 ( S.D.Tex. 1972); Jenkins v. General Motors Corp., 475 F.2d 764 (5th Cir. 1973).
-37-
law, as did a number of other post Civil War civil rights provisions
36/
See e.g. 16 Stai. 140, §§ 1, 2, 3. No such limitation was placed in
Section 1981, and no such limitation should be added to it by the
courts.
That Section 1981 prohibits federal discrimination is placed
beyond doubt by the decision of the United States Supreme Court in
Hurd v • Hodge > 334 U -S. 74 (1948) and District of Columbia v. Carter.
409 U.S. 418 (1973). Section 1981 was originally enacted as part
of Section 1 of the 1866 Civil Rights Act, 14 Stat. 27, which pro
vided :
[A]11 persons born in the United
States and not subject to any foreign
power, excluding Indians not taxed,
are hereby declared to be citizens of
the United States; and such citizens,
of every race and color, without regard
to any previous condition of slavery or
involuntary servitude, except as a punish
ment for crime whereof the party shall have
been duly convicted, shall have the same
right, in every State and Territory in
the United States to make and enforce contracts,
to sue, be parties, and give evidence, to
inherit, purchase, lease, sell, hold,
and convey real and personal property,
and to full and equal benefit of all laws
and proceedings for the secutiry of person
and property, as is enjoyed by white citi
zens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regu
lation, or custom, to the contrary notwithstanding .
Section 1 protected, not only the rights now covered in § 1981,
including the right to contract, but also the right to buy and
own real property. Manifestly if any one of the rights covered
36/ The criminal provisions Section 2 of the 1870 Civil Rights Act,
36 Stat. 140, apply only to conduct under color of state law; the
criminal provisions of the 1866 Act apply to conduct under color
of any law. 14 Stat. 27.
38
by Section 1 was protected against federal discrimination, all of
them must have been, for the enumeration of rights encompassed
draws no distinction among them. Since 1866 Section 1 of the
Civil Rights Act was divided into two sections; the provisions
JJ/regarding real property were placed in 42 U.S.C. § 1982, and the
other provisions in § 1981. This restructuring, however, involved
no change in the substance of the rights first established in 1866.
The Supreme Court has correctly noted that the scope of
§ 1981 and § 1982 is necessarily the same. In Tillman v. Wheaton
Haven Recreation Asso., 35 L.Ed. 2d 403 (1973), the Court held,
The operative language of both § 1981 and § 1982
is traceable to the Act of April 9, 1866, c.31,
1, 14 Stat. 27. Hurd v. Hodge, 334 U.S. 24, 30-31
(1948). In light of the historical interrelation
ship between § 1981 and § 1982, we see no reason
to construe these sections differently . . .
35 L.Ed. 2d at 410-411. Since the Court had concluded that § 1982
covered discrimination by private clubs, it held that § 1981 did
as well.
In Hurd v. Hodge,334 U.S. 24 (1948), the Supreme Court
held that Section 1982 precluded the federal courts in the District
of Columbia from assisting housing discrimination by enforcing re
strictive covenants. See 334 U.S. at 30-34. Manifestly if Section
1982 barred federal discrimination, then, as in Tillman, Section
1981 covers federal discrimination as well. The holding in Hurd
was reaffirmed last year in District of Columbia v. Carter, 409
U.S. 418 (1973).
Section 1982, which first entered
our jurisprudence as § 1 of the Civil
Rights Act of 1866 . . . was enacted as
a means to enforce the Thirteenth Amendment's proclamation that " [n]either slavery
21/ "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal
property." - 39 -
409 U.S.
nor involuntarily servitude . . . shall
exist within the United States, or any
place subject to their jurisdiction."
See Jones v. Alfred H. Mayer Co.,
392 U.S. 409, 437-438 (1968). "As its text reveals, the Thirteenth Amendment
is not a mere prohibition of State laws establishing or upholding slavery, but
an absolute declaration that slavery or
involuntarily servitude shall not exist in any part of the United States."
Civil Rights Cases, 109 U.S. 3, 20 (1883) . . .
Moreover, like the Amendment upon which it is based, § 1982 is not a "mere
prohibition of State laws establishing
or upholding" racial discrimination in
the sale or rental of property but, rather,
an "absolute" bar to all such discrimination,
private as well as public, federal as well
as state. C.F. Jones v. Alfred H. Mayer &
Co., supra, at 413. With this in mind, it
would be anomalous indeed if Congress chose
to carve out the District of Columbia as
the sole exception to an act of otherwiseuniversal application. And this is all the
more true where, as here, the legislative
purposes underlying § 1982 support its
applicability in the District. The dangers
of private discrimination, for example, that
provided a focal point of Congress' concern
in enacting the legislation, were, and are,
as present in the District of Columbia as
in the States, and the same considerations
that led Congress to extend the prohibitions
of § 1982 to the Federal Government apply
with equal force to the District, which is a
mere instrumentality of that Government. (Emphasis added)
at 422. The reasoning of Carter is fully applicable to
§ 1981. Section 1981, like Section 1982, is an absolute bar to
all discrimination not limited to state action. Section 1981,
like Section 1982, was originally based on the broad prohibition
of the Thirteenth Amendment, not the narrower commands of the
Fourteenth Amendment which deal with the States. And, like
Section 1982, employment discrimination in violation of Section
1981 was and is as present in the District of Columbia and at the
hands of federal officials as it is in the States and at the hands
of state officials.
- 40
The legislative background of the 1866 Civil Rights
gives no reason to believe that Congress would have intended
to deny to newly freed slaves protection from discrimination by
federal officials. The abolitionists in control of Congress in
1866 had for a generation been anxious to abolish slavery and all
its trappings in the District of Columbia. See ten Broek, Equal
aa_/Under Law, pp. 41-57 (1951). it is unlikely that Congress, having
forbidden slavery throughout the nation, intended by Section 1 of
the Civil Rights Act to abolish the "badges of slavery" only in
the states and to leave them intact in the nation's capitol. See
.Jones v. Alfred H. Mayer Co.. 392 U.S. 409,439 (1968). Congress
also had ample reason for concern that the Federal officials of
38/ Henry B. Stanton, in an address to the Massachusetts legis
lative urging abolition in the District of Columbia, had argued "Having robbed the slave of himself, and thus made him a thing,
Congress is consistent in denying to him all the protections of
the law as a man. His labor is coerced from him by laws of
Congress: No bargain is made, no wage is given . . . There is
not the shadow of legal protection for the family state among the
slaves of the District . . . No slave can be a party before a judicial tribunal, . . . in any species of action against any
person, no matter how atrocious may have been the injury received.
He is not known to the law as a person: much less, a person with
civil rights . . . Congress should immediately restore to every
slave, the ownership of his own body, mind and soul, transfer
them from things without rights, to men with rights. . . .
the slave should be legally protected in life and limb, in his
earnings, his family and social relations, and his conscience." ten Broek, Equal Under Law, p. 46 (1951).
41
the Freedmen's Bureau, established in 1865, were seriously
mistreating and exploiting the newly black former slaves.
G. Bentley, History of the Freedmen's Bureau, 77, 84, 125-132
(1955). The memory of the mistreatment of blacks by federal
officials under the Fugitive Slave Act was still fresh in the
minds of abolitionists in 1866. See J. ten Broek, Equal Under
Law, 57-65 (1951). Freedmen's Bureau agents were reported to
be more sympathetic to the desires of white Southern planters than
the needs of Freedmen. See e.g. K. Stampp, The Era of Reconstruction
133-34 (1965). By April of 1866 Congress was aware of President
Johnson’s opposition to its reconstruction program, and believed
that he was actively undermining enforcement of new legislation
and dismissing federal officers who supported Congress' policies.
See M. King, Lyman Trumbull 293-95 (1965). That concern about the
conduct of federal officials is manifest in other provisions of
the 1866 Civil Rights Act, which compels federal marshalls, on pain
3 9/of criminal punishment, to enforce the Act, expressly requires that
the district attorneys and other officials be paid for enforcing40/
the Act at the usual rates, and authorized the circuit courts,
rather the President, to appoint commissioners with the power to
arrest and imprison persons violating the Act.
39/ 14 Stat. 28 § 5.
40 / 14 Stat. 29, §7.
- 42
Any possibility that Congress intended to exempt federal
officials from coverage by the 1866 Civil Rights Act is negated by
the express language of the Act extending its coverage to the
territories. Territorial governments, like that of the District
of Columbia, are but instrumentalities of the federal government,
and in the territories it is the United States itself which is the
sovereign. See District of Columbia v. Carter, 409 U.S. 418, 422
(1973); United States v. City of Kodiak, 132 F.Supp. 574, 579
(D.Ct. Alaska, 1955). Many officials in the territories, including
judges and marshalls, were appointed directly by Washington, and all terri
torial officers were technically federal officials. See E.
Pomeroy, The Territories and the United States (1947); M. Farrand,
Legislation of Congress for the Government of the Organized Terri
tories of the United States (1896). In the mid-nineteenth century,
when the role of the federal government was far more limited than
it is today, federal employees were under normal circumstances con
centrated in the District of Columbia and the territories, and it
was in general only there that federal employees were likely
to be in a position to deny blacks the right to make contracts, to
enjoy equally the benefit from the protection of the law and legal
proceedings, or to be subject to only the same pains and punishments
as whites. The inclusion under the 1866 of persons in the territories
represented a deliberate decision by Congress to protect freedmen
in a region where the only officials who could interfere with their
rights were federal officials, and is entirely incompatible with
the notion that the Act was not to apply to federal discrimination.
The conclusion that Section 1981 forbids employment discrimina
tion by the federal government is supported by the recent decision
of the Fifth Circuit Court of Appeals in Penn v. Schlesinger, 6 EPD
_ 43 _
119041 (1973) . in Penn the plaintiff had sued the Secretary of
Defense, alleging that he had been denied promotion because of
his race, in violation of Section 1981. The Fifth Circuit
reasoned:
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 discharged solely because
of race. Thus, this Section creates a cause
of action for employment contract discrimina
tion against private employers. Though no
decision directly in point has been brought to
our attention, we think it clear that the rationale
of the Dobbs House decision applies to employ
ment 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 'absolute' 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 prohibit particular types of discrimination
regardless of their sources. In this respect,
Section 1982 was contrasted with Section 1983.
While the former was enacted to implement the principles enunciated in the Thirteenth Amendment,
the latter legislation, enacted eleven years
later, was based upon the Fourteenth Amendment.
While Section 1982 prohibited discriminatory
activities of the states.
The narrow question in this case is whether
Section 1981 is more closely analogous to Section1982 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.
44
Slip opinion, pp. 5-6, 6 EPD, p.6371 . Plaintiffs submit this
conclusion is correct, and that the discrimination alleged in the
Complaint constitutes a violation of Section 1981.
41/
41 / Penn also concluded that enforcement of Section 1981 was1
barred by sovereign immunity. Slip opinion, pp. 6-11, 6 EPD, PP 9371-72
Plaintiff contends that this conclusion was erroneous. See pp. 46-53 infra.
45
(b) The 1866 Civil Rights Act Waived SovereignImmunity and Created Jurisdiction Over This Action
The 1866 Civil Rights, in addition to forbidding employ
ment discrimination in section, provided in Section 3
That the district courts of the United
States, within their respective dis-
districts, shall have . . . cognizance
. . . concurrently within the circuit
courts of the United States, of all
cases, civil and criminal, affecting
persons who are denied . . . any of
the rights secured to them by the
first section of this act. . .
14 Stat. 27. This provision is now incorporated in 28 U.S.C.
§1343, which provides in part,
The district courts shall have original
jurisdiction of any civil action
authorized by law to be commenced by
any person:
* ★ *
(4) To recover damages or to secure
equitable or other relief under any Act
of Congress providing for the protec
tion of civil rights, including the
right to vote.
The literal language of Section 3 and 28 U.S.C. §1343(4)
clearly encompasses jurisdiction to afford relief against violations
of §1981 by federal officials. Section 3 authorizes jurisdiction
over "all" civil causes involving denials of "any" of the
rights secured by Section 1, and Section 1343(4) confers juris
diction to enforce "any" civil rights act. Nothing in either
statute suggests any limitation on this grant of jurisdiction,
or any desire to make enforceable only some of the rights
46
established by Section 1. If Congress had wanted to limit
jurisdiction to discrimination involving state action, it knew
how to do so. Sections 2 and 3 of the 1870 Civil Rights Act
and Section 1 of the 1871 Civil Rights Act expressly limit their
coverage to action taken under color of State law, as does 28
U.S.C. §1343(3). No such limitation is to be found in Section 2
of the 1866 Act or Section 1343(4), and its absence must be
taken as a Congressional intent to do just what those provisions
said — confer jurisdiction over all violation of §1981, regard
less of whether the violation may be by state officials, federal
officials, or private parties.
When Congress establishes by statute a legal right,
including a right against the federal government, it is generally
presumed to have intended that the right would be enforceable.
In Minnesota v. United States, 305 U.S. 382 (1939), Minnesota
had sued the United States to condemn certain Indian land. The
only applicable federal statute authorized state suits to con
demn Indian land, but did not say against whom such suits could
be brought. The United States argued that it could not be sued
since it had not waived sovereign immunity. Noting that a suit
against the Indians alone would not have been adequate to confer
title to the property since it was held in trust by the United
States, the Court held "that authorization to condemn confers
by implication permission to sue the United States." 305 U.S.
at 388, n.5. See also United States v. Hellard, 322 U.S. 363
_ 47
(1944). Similarly in United States v. Jones. 109 U.S. 513
(1883), the Court was called upon to construe a statute which
directed the Secretary of War and his agents, prior to taking
any land, to first pay such compensation as may have been ascer-
tained in the mode provided by the laws of the state." 109 U.S.
at 515. The United States urged that, although Congress had
directed such payment, it was immune from any suit to force pay
ment. The Supreme Court held otherwise, and ruled that the
statute constituted a valid waiver of sovereign immunity author
izing suits against the United States in state court. 109 U.S.
at 519-521. The grant of jurisdiction in Section 3 of the 1866
Civil Rights Act is more express than that in Minnesota v. United
States and United States v. Jones, and such a waiver of immunity
is equally essential to render meaningful the creation of the
substantive right involved.
It is particularly unlikely that the Congress which
enacted the 1866 Civil Rights Act could have intended that, to
the extent that federal officials violated its provisions,
aggrieved citizens would have no legal remedy. The abolitionists
who finally won control of the Congress and many states in the
1860's and 1870's had long maintained that the rights described
in Reconstruction Amendment and legislation were not new, but
already existed by virtue of the privileges and immunities clause
and the Bill of Rights. See generally ten Broek, Equal Under
Law (1951); Graham, "The Early Anti-Slavery Backgrounds of the
Fourteenth Amendment," 1950 Wis. L. Rev. 479; Graham, "The
48 _
'Conspiracy Theory' of the Fourteenth Amendment," 47 Yale L.J.
371 (1938). The purpose of such Amendments and legislation
was, above all, to make those rights enforceable. The 1866
Civil Rights Act, enacted before the Fourteenth Amendment, was
entitled "An Act to protect all Persons in the United States
in their Civil Rights, and Furnish the Means of their Vindication."
14 Stat, 27 (Emphasis added) Congressman Wilson, speaking in
favor of the 1866 Civil Rights Bill, explained:
Mr. Speaker, I think I may safely affirm that this bill, so far as it declares the equality of all citizens in the enjoyment
of civil rights and immunities, merely
affirms existing law. We are following the
Constitution. We are reducing to statute
form the spirit of the Constitution. We
are establishing no new right, declaring no
new principle. It is not the object of this
bill to establish new rights, but to protect
and enforce those which already belong to
every citizen. Cong. Globe, 39th Cong. 1st
Sess. 1117.
To hold the 1866 Civil Rights Act unenforceable against the federal
government would be to frustrate the manifest intent of Congress.
And, since federal discrimination was already forbidden by the
Fifth Amendment, to render the Act unenforceable against federal
defendants would be to render the Act, in this regard, nugatory.
The Congress which had approved the 1866 Act had no
fondness for sovereign immunity; only three years earlier, led
by many of the prominent abolitionists, it had enacted the first
comprehensive waiver of federal immunity in an attempt to end
the long standing practice of seeking redress from Congress
through private bills. President Lincoln, in his first State of
- 49
the Union message, had urged such abolition:
It is important that some more convenient
means should be provided, if possible, for
the adjustment of claims against the Govern
ment especially in view of their increased
number by reason of the war. It is as much the duty of Government to render prompt
justice against itself in favor of citizens as it is to administer the same between
private individuals. The investigation and
adjudication of claims in their nature
belong to the judicial department. ■ 42/
The debates on this proposal centered on whether or not the federal
government was already providing a prompt and just resolution of
claims against it, the procedure until that time being for Con
gress to enact a special appropriation in the amount it felt
fair. Proponents of immunity urged such justice was already
being done. See Cong. Globe, 38th Cong., 1st Sess. 1672. A
majority of the Congress, however, concluded otherwise. Congress
man Pendleton responded:
My colleague on the committee has told
us today, that, in theory, the Government
is always willing to do justice to the citizen, that it is always willing to do
that which equity and justice requires it
to do. Now, sir, that is very good in
theory, but it is very bad in practice,
and when that gentleman has had experience
in examining the claims brought against this Government year after year . . . he
will find that there are innumerable claims
on the calendar which have been examined and re-examined session after session . . .
If the Government of the United States owes
a debt to a citizen of the United States,
why should that citizen be forced to come
42/ Schlesinger and Israel, The State of the Union Messages
of the Presidents, v. 2, 1060 (1966).
50
to Congress year after year, and spend
his time and his money in besieging individual members, in order to show
to them the justice of his claim, depending, in the end, even in the justest
case, not upon its merits, but upon
their patience to hear him fully, and
their imparitiality to judge fairly.
Cong. Globe, 38th Cong. 1st Sess. 1675.
Congressman Bingham, the author of the 1866 Civil Rights Act,
urged that the abolition of immunity would end the injustice of
denying relief to citizens with legitimate grievances, and the
corruption of the Congress by lobbyists pressing dubious claims.
Id. at 1674. It is difficult to believe that Congress decided,
only three years later, to require citizens aggrieved by viola
tions of their rights under the 1866 Act to resort once again
to petitioning Congress for private appropriation bills.
It is true, but not particularly illuminating, that
the United States can only be sued if there is an express waiver
of sovereign immunity. This rule precludes only unintended
waivers which might otherwise derive from inartful legislative
drafting. In deciding whether Congress intended to waive
immunity, resort must be had to the usual methods of construc
tion. As the Supreme Court explained in Indian Trading v.
United States, 350 U.S. 61 (1955),
Of course, when dealing with a statute
subjecting the Government to liability
for potentially great sums of money,
this Court must not promote profligacy
by careless construction. Neither should it as a self constituted guardian of the
Treasury import immunity back into a statute designed to limit it.
350 U.S. at 69. In construing statutes alleged to constitute
51
waivers of immunity the Supreme Court has consistently con
sidered such traditional factors as "the plain import of the
statutory language," United States v. Muniz. 374 U.S. 150, 158
(1963), "the overall congressional purpose," Honda v. Clark.
386 U.S. 484, 501 (1967), and legislative history, United States
v« Sherwood, 312 U.S. 584, 590 (1941). Even where Congress
"have not expressed its will in words," "[t]he congressional
will must be divined, and by a process of interpretation which,
in effect, is the ascertainment of policy immanent not merely
in the single statute from which flow the rights and responsi
bilities of (the United States], but in a series of statutes.
• • •" Keifer & Keifer v. Reconstruction Finance Corp., 306
U.S. 381, 389 (1938).
While there may at one time have been a certain con
strictive approach to purported waivers of immunity, the Supreme
Court has not sanctioned the use of different standards in
ascertaining the presence of an express waiver of immunity dif
ferent from those used in other waiver cases. Recent decisions
considered "the general trend toward increasing the scope of
waiver by the United States of its immunity from suit," United
States v. Yellow Cab Co.. 340 U.S. 543, 550 (1950), have asserted
43/ Other decisions considering such factors include American
Stevedore, Inc, v. Porrello. 330 U.S. 446 (1947); Warren v.
United States, 340 U.S. 523 (1951) ; McMahon v. United States,342 U.S. 523 (1951); Johanson v. United States. 343 U.S. 427
(1951); United States v. District Court. 401 U.S. 520 (1971);
United States v. District Court, 401 U.S. 527 (1971).
- 52
that when authority to sue is given "it is to be liberally
construed".United States v. Shaw. 309 U.S. 495, 502 (1939),
and concluded that, "because the doctrine gives the government
a privileged position, it has been appropriate confined." Keifer
& Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 388 (1938)
See also Honda v. Clark, 386 U.S. 484, 501 (1967). The Supreme
Court in sovereign immunity cases has cautioned against "an
unduly restrictive interpretation," 324 U.S. 214, 222 (1945),
declined to "whittle down" a statute "by refinements," United
States v. Yellow Cab Co., 340 U.S. 543, 550 (1950), and refused
"to read exemption into [an] Act beyond those provided by Congress
Rayonier v. United States, 352 U.S. 315, 320 (1957).
Plaintiff submits that the manifest intent of Congress
that the 1866 Civil Rights Act be enforceable in the courts,
and the broad all inclusive language of Section 3 of the Act
and of 28 U.S.C. § 1343(4), compel the conclusion that Congress
intended to waive sovereign immunity so that aggrieved citizens
could sue the United States when it engaged in racial discrimina-44/tion.
44 / The lower federal courts are divided as to whether sections
1981 and 1343(4) create such an enforceable right, and the
opinions on this question are not particularly illuminating.
Compare Penny. Schlesinger, 6 EPD f 9041 (5th Cir. 1973) with
Spencer v. Richardson, 6 EPD f8906 (D.D.C. 1973).
-53-
VI. THIS ACTION AGAINST THE INDIVIDUAL DEFENDANTS
DOES NOT CONSTITUTE A SUIT AGAINST THE UNITED
STATES
Whatever immunity may be enjoyed by the United States
and its Departments, eo nomine, that immunity has never extended
to federal employees who act in excess of their authority or in
violation of the Constitution. This long established maxim of
federal jurisprudence derives from Marbury v. Madison, 5 U.S.
(1 Cranch) 137 (1803) where a writ of mandamus was sought to
compel the Secretary of State to deliver to plaintiff his com
mission as justice of the peace. The Court expressly rejected
the suggestion that the Secretary of State could not be sued
because he was an important federal official.
It is not by the office of the
person to whom the writ is directed,
but the nature of the thing to be
done, that the propriety or impro
priety of issuing a mandamus is to be
determined. Where the head of a depart
ment acts in a case, in which executive
discretion is to be exercised; in which
he is the mere organ of executive will; it is again repeated, that any applica
tion to a court to control, in any res
pect, his conduct would be rejected
without hesitation.
But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which
he is not placed under the particular direc
tion of the President, and the performance
of which the President cannot lawfully forbid,
and therefore is never presumed to have for
bidden; as for example, to record a commission,
or a patent for land, which has received all
the legal solemnities; or to give a copy of
such record; in such cases, it is not per
ceived on what ground the courts of the
country are further excused from the duty
of giving judgment that right be done to an injured individual, than if the same
services were to be performed by a person
not the head of a department. 5 U.S. 166,
170-171.
54
A similar question arises in view of the immunity
from suit conferred upon the states by the Eleventh Amend
ment, and it has been similarly answered. In Ex parte Young,
209 U.S. 123 (1908), the stockholders of a railroad company
sued the Attorney General of Minnesota, seeking an order re
straining him from enforcing state regulations claimed to violate
the Fourteenth Amendment. The Attorney General urged the action
was in effect one against the state, and thus barred by the
Eleventh Amendment. The Supreme Court rejected this contention,
and held that state officials could be enjoined from taking actions
which would violate the Constitution,
The act to be enforced is alleged
to be unconstitutional; and if it be so,
the use of the name of the state to en
force an unconstitutional act to the
injury of complainants is a proceeding without the authority of, and one which does not affect, the state in its sov
ereign or governmental capacity. It is
simply an illegal act upon the part of a state official in attempting, by the
use of the name of the state, to enforce
a legislative enactment which is void because unconstitutional. If the act
which the state attorney general seeks to enforce be a violation of the Federal Constitution, the officer, in proceed
ing under such enactment, comes into
conflict with the superior authority
of that Constitution, and he is in that
case stripped of his official or repre
sentative character and is subjected in his
person to the consequences of his indivi
dual conduct.
209 U.S. at 159-160. The limitation on the immunity of state
officers, delimited in Ex Parte Young, is the same limitation
applicable to federal officials. See Philadelphia Co. v. Stimson,
223 U.S. 605, 621 (1912).
The established standard which derives from these cases
is that federal officers may be sued if either (1) their actions
- 55
are beyond the authority conferred upon them by state, regulation,
or other order, or (2) although the actions are within the scope
of the authority of the officials, the authority itself or the
manner in which it was exercised is unconstitutional. See Dugan v.
Rank, 372 U.S. 609, 621-624 (1963); Malone v. Baldwin. 369 U.S.
643 (1962); Larson v. Domestic and Foreign Commerce Corp., 337
U.S. 643 (1949). If the action at issue is unlawful, it may be
enjoined even though the activity may involve large numbers of
federal employees, substantial sums of money, or policies sup
ported by high public officials. The operation of a segregated
school system in the District of Columbia involved thousands of
federal employees and millions of tax dollars, and the seizure
of the steel mills in 1952 was directly ordered by the President him
self, yet both these activities were enjoined by the federal
courts. Bolling v. Sharpe. 347 U.S. 497 (1954); Youngstown
Sheet & Tube Co. v. Sawyer. 343 U.S. 579 (1952). These cases
were properly deemed suits against individuals rather than
against the United States,not because the issues were unimportant,
or the relief in some metaphysical sense "negative" rather than
"affirmative", but because, since the activity involved was un
constitutional, that activity was ipso facto not the activity
of the sovereign. An order enjoining racial discrimination on any
scale cannot "operate against the Government", for when such dis
crimination occurs it is an act of individuals but not the govern
ment .
This Circuit has consistently rejected out of hand
contentions by the United States that its officers were protected
by sovereign immunity when they act in violation of the Constitution
or in excess of their statutory authority . In Wasson v, Trowbridge,
56
382 F.2d 807 (2d Cir. 1967), the plaintiff sued the Secretary
of Commerce to challenge certain disciplinary actions taken
by the Merchant Marine Academy alleging that the defendants
had failed to afford him certain procedural protections required
by the Due Process clause of the Fifth Amendment. This Court
held, "Indisputedly the District Court had jurisdiction to
determine whether the procedure applied to Wasson was consti
tutionally sufficient. Ex Parte Young, 209 U.S. 123" 382
F.2d at 811 (Moore, J.). In Leonhard v. Mitchell, 473 F.2d
709 (2d Cir. 1973), the plaintiff claimed the Attorney General
and other federal officials had violated his right to raise
his children as he saw fit, in violation of the Due Process
clause. The United States urged without success that the action
be dismissed on the ground that it was in reality a suit "against
the government,"
"Sovereign immunity is no bar . . .
[where] the complaint alleges that agents
of the Government have exceeded their constitutional authority while purporting to
act in the name of the sovereign." . . .
See Dugan v. Rank, 372 U.S. 609, 621-622
. . . Larson v. Domestic and Foreign Commerce
Corp., 337 U.S. 682, 689-691. . . . Since
Leonhard's complaint alleged that the defendants
participation in the secretion of his children
abridged rights secured to him by the Fifth
Amendment, the action did not, improperly name
these defendants.
473 F.2d at 712, n.2 (Kaufman, J.). In Toilet Goods Association
v, Gardner, 360 F.2d 677 (2d Cir. 1966) aff'd 387 U.S. 158, 167,
the plaintiffs sued the Secretary of Health, Education and Welfare
to invalidate certain regulations which they claimed he lacked
authority to issue. The United States urged that the suit was
barred by sovereign immunity. Judge Friendly commented,
57
We need not discuss the text the surprising
contention that an action for a declaration
that federal regulatory officials have acted
in excess of their authority constitutesjan
unconsented suit against the United States.The contrary is clearly established by Philadelphia Co. v. Stimson. 233 U.S. 605,
619-620, . . . and indeed follows inevitably
from Ex Parte Young, 209 U.S. 123 . . .;
law officers of the Government ought not to
take the time of bush judges or of opposing
parties by advancing an argument so plainly
foreclosed by Supreme Court decisions.
360 F.2d at 683, n.6. See also Berk v. Laird. 429 F.2d 302, 306
(2d Cir. 1970).
Not every wrongful act by a federal official is either
unauthorized or unconstitutional and thus without immunity. A
federal officer who breaks or violates a contract with a private
party may have express and constitutional authority to do so,
and thus be immune from suit. Larson v. Domestic and Foreign
Commerce Corp., 337 U.S. 682 (1949). A federal officer may not
ordinarily be enjoined from action constituting ordinary trespass;
the taking of private property for public use is widely authorized,
and the only constitutionally required redress is just compensation.
See Dugan v. Rank, 372 U.S. 609 (1963); Malone v. Baldwin. 369
U.S. 643 (1962) .
In the instant case, however, the complaint alleges
that the individual defendants took actions in excess of their
authority and in violation of the Constitution. The federal
officials sued by plaintiff had no authority to consider plain
tiff's race in passing on his applications for promotion, for
they are forbidden to do so by statute, regulation, and Executive
Order, and any attempt to authorize consideration of race or color
would be void under the Fifth Amendment. If, as alleged, the
individual defendants did deny plaintiff promotions because
- 58
of his race, they did so not as agents of the United States
cloaked with its immunity — but as private individuals on an
invidious frolic and detour of their own, and it is those individual
not the plaintiff, who are interfering with the administration of
official government policy. Settle v. E.E.O.C., 5 EPD, 5 8100, p.
6989 (S.D. Tex. 1972). Whether such determination has occurred is
a question of fact to be determined by the District Court. But
when discrimination exists within the federal government and
individuals bring actions such as these to prevent it, such actions
far from being "against the United States" -- are in reality suits
by private attorneys general on behalf of the United States to bring
those guilty of discrimination back into conformity with federal law
Compare Newman v. Piggie Park Enterprises, 390 U.S. 900 (1968).
If this were an action alleging racial discrimination in
employment by a state, a defense of sovereign immunity would
necessarily fail. The immunity conferred upon the states by the
Eleventh Amendment does not, of course, protect a state official
guilty of unconstitutional racial discrimination. Griffin v. County
School Board of Prince Edward County, 377 U.S. 218, 228 (1964).
State officials practicing discrimination in employment have been
repeatedly held to lack sovereign immunity. Board of Trustees of
Arkansas A & M College v. Davis, 396 F .2d 730, 737-734 (8th Cir.
1968; Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971); Federal
courts have consistently taken jurisdiction over litigation against
state agencies and officials to resolve allegations of racial
discrimination in hiring on promotion. See, e^g., Castro v. Beecher,
452 F.2d 315 (8th Cir. 1971); N.A.A.C.P. v. Allen, 340 F. Supp.
703 (M.D. Ala. 1972); Johnson v. Cain, 5 EPD f 8509 (D. Del. 1973);
Suel v. Addington, 5 EPD 1 8043 (9th Cir. 1972); Bennett v. Gravelle,
4 EPD 5 7566 (4th Cir. 1971); Strain v. Philpott, 4 EPD
7885, 7562, 7521 (M.D. Ala. 1971); Morrow v. Crisler, 3 EPD
f8119 (S.D.Miss. 1971); London v. Florida Department of Health,
3 EPD 1(8018 (N.D.Fla. 1970). The Constitution places upon the
states a legally enforceable obligation to hire and promote
employees without discriminating on the basis of race; "it would
be unthinkable that the same constitution would impose a lesser
duty on the federal Government." Bolling v . Sharpe, 347 U.S.
497, 500 (1954); see Watkins v. Washington, 3 EPD § 8291, p. 6988
(D.D.C. 1971).
Jurisdiction over an action against such individuals is
conferred on the district court by 28 U.S.C. § 1361, 28 U.S.C. § 1343,
45/
and 28 U.S.C. § 1331 to enforce 42 U.S.C. § 7151, 42 U.S.C. § 1981,
the Fifth Amendment, 5 C.F.R. § 713, and Executive Order 14478.
Relief in litigation under Dugan and Larson is traditionally limited
45/ Regarding the allegation of jurisdictional amount, see n.25,
supra. Jurisdiction under 1331 over federal employment discrimination
_was upheld in Palmer v. Rogers, 6 EPD, 5 8822, p. 5493 (D.D.C. 1973),
see also Cartright v. Rensor, 325 F. Supp. 797, 808 (E.D.N.Y. 1971).
-60-
to equitable relief rather than damages; back pay, however, is an
inextricable part of the equitable remedy of reinstatement. NLRB v.
Jones & Laughlin Steel Corp., 301 U.S. 1, 98 (1937); Harkless v. Sweeny
Independent School District. 427 F.2d 319, 324 (5th Cir. 1970). The
district court in Penn v. Schlesinger expressly upheld an award of
46/back pay under Larson, 5 EPD, 5 8404, p. 7021-22 (M.D. Ala. 1972).
See also Watkins v. Washington. 3 EPD f 8291, 5 EPD, ff 6981, 8479
(D.D.C. 1973).
CONCLUSION
The complaint in this action alleges that the defendants have
discriminated against plaintiff because of his race. The allegations,
if true, constitute a violation of the Constitution, of federal law,
and of the regulations of the Civil Service Commission. An injustice
of the sort complained of is of the utmost gravity in our constitutional
system. Had this case involved employment discrimination by a
private employer or a state agency, no federal court would have
hesitated to assume jurisdiction.
This case does not involve any of the factors which might militate
against assumption of federal jurisdiction. Plaintiff does not seek
to circumvent non-judicial procedures; he has exhausted his
administrative remedies. There are no relevant state court proceedings
in favor of which this Court might abstain. No question of federal-
w m ............... ■ ■ i " i ....
46/ This aspect of the decision was reversed on appeal, 6 EPD, p.
9041.