Congress of Racial Equal. v. Commissioner, Social Sec. Admin.

• Decision Date: 20 June 1967
• Docket Number: Civ. No. 17866.
• Citation: 270 F. Supp. 537
• Parties: CONGRESS OF RACIAL EQUALITY (TARGET CITY PROJECT), A Maryland corporation (non-profit), on behalf of James E. Eastmond and many others similarly situated, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Secretary, Health, Education and Welfare, Chairman, U. S. Civil Service Commission.
• Court: U.S. District Court — District of Maryland

270 F. Supp. 537

CONGRESS OF RACIAL EQUALITY (TARGET CITY PROJECT), A Maryland corporation (non-profit), on behalf of James E. Eastmond and many others similarly situated, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Secretary, Health, Education and Welfare, Chairman, U. S. Civil Service Commission.

Civ. No. 17866.

United States District Court D. Maryland.

June 20, 1967.

COPYRIGHT MATERIAL OMITTED

Leonard A. Briscoe, Baltimore, Md., for plaintiff.

Stephen H. Sachs, U. S. Atty., and Arthur G. Murphy, First Asst. U. S. Atty., Baltimore, Md., for defendants.

THOMSEN, Chief Judge.

The United States has moved to dismiss the complaint in this action on a number of grounds, including sovereign immunity, lack of jurisdiction, failure to state a claim upon which relief can be granted, lack of standing of plaintiff to file a class suit, failure to exhaust available adminstrative remedies, and failure to show adequate grounds for the injunctive relief requested.

This action is brought by "The Congress of Racial Equality, Target City Project," referred to in the complaint and herein as CORE, "on behalf of James E. Eastmond and others similarly situated" against three defendants, who are designated only by their official titles, viz., "Commissioner, Social Security Administration;" "Secretary, Health, Education and Welfare;" and "Chairman, U. S. Civil Service Commission."

The first prayer for relief, aside from a request that the case be advanced on the docket, is that "an immediate order issue from this Court temporarily restraining defendants from making any further promotions under any established promotion plan or otherwise during the pendency of this action." Then, after a prayer that "the defendants be restrained from any acts of interference, coercion, discrimination or reprisal against any of the plaintiffs or any member of the class of plaintiffs," and before a prayer for other and further relief, there is a prayer for what this Court takes to be the principal relief requested: that "the defendants be required to establish and enforce an administrative procedure in accordance with Executive Order 11246 to the end that plaintiffs may be assured the right to equal employment and promotional opportunity as provided in said order."

To support those prayers the complaint alleges:

"* * * CORE, is a non-profit organization dedicated to seeking equality of treatment under the law for all citizens. As a result of its activities, it has become widely known as a champion of the causes of the oppressed, and in the pursuit of its legally established objectives, CORE has received numerous complaints of racial discrimination and deprivation of rights against the defendants in this case, and has from time to time sought to bring about an equitable resolution of these complaints by attempting to negotiate in good faith with certain of the defendants, but to no avail. Wherefore, it is necessary that this action be brought.

"2. The named plaintiff and the many others described as being similarly situated are all employees of the Social Security Adminstration.

"3. The defendants Department of Health, Education and Welfare and the Civil Service Commission are by virtue of the organizational structure of the Executive Branch of the Government, superior in rank to the Social Security Administration and are in many respects responsible for the action or lack of action of this Administration.

"4. The defendants are charged by the declared public policy of the Congress of the United States, as stated in the Civil Rights Act of 1964, and the President's Executive Order 11246, with assuring equal employment and promotional opportunity to all Government employees, and are directed to take affirmative action to the end that this policy be carried out.

"5. Notwithstanding said lawful responsibility, the defendants knowingly and wilfully acting in concert have unlawfully refused to discharge their assigned obligations, all to the detriment of the plaintiffs of this action, and all in violation of the aforementioned Act of Congress, Executive Order, and in violation of Title 42, Section 1983, U. S. Code, Annotated which provides:

`Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. R. S. Section 1979'

"6. As a result of defendants failure to act as required by law, plaintiffs are denied the right to equal employment and promotional opportunity by virtue of their race and otherwise.

"7. The defendants have failed and refused to establish an effective administrative procedure through which plaintiff grievances and complaints can be heard and appropriate relief granted.

"8. The purported administrative procedure as presently established is burdensome, oppressive, powerless, and designed only to further defendants policy of concerted inactivity.

"9. Even where findings favorable to the complainant, under the present procedure, are made and instructions given as to the action to be taken, the defendants knowingly and wilfully and in utter disregard of the complainant's rights, refuse to take such action, and complainant has no ready means of enforcement at his disposal."

The difficulty of determining exactly what CORE complains of is evident. The complaint does not allege any specific acts or omissions by any of the defendants, or anyone else, with respect to the use-plaintiff Eastmond or any other employee of the Social Security Administration. Construing the complaint most favorably to plaintiff, it does not state a claim upon which this Court can grant the relief requested, or any other relief, for a number of reasons.

I. Sovereign Immunity. The leading case in this field is Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). The facts in that case were very different from the facts here, but the Court laid down certain general principles which must be applied in this case. The fact that the United States is not named as a party defendant is not controlling. "* * * the crucial question is whether the relief sought in a suit nominally addressed to the officer is relief against the sovereign." 337 U.S. at 687, 69 S.Ct. at 1460. This is not a suit for damages against the individual officers; it is not alleged that they acted beyond any statutory limitations on their powers, nor that they acted under an unconstitutional statute. The complaint seeks an injunction directing defendants, in their official capacities, "to establish and enforce an administrative procedure in accordance with Executive Order 11246 to the end that plaintiffs may be assured the right to equal employment and promotional opportunity as provided in said order."

The Court must take judicial notice that the Civil Service Commission, on February 24, 1966, issued a series of regulations, sec. 713.201 et seq., 31 F.R. 3069 et seq., 5 C.F.R. sec. 713.201 et seq. (Cum.Supp.,1967), designed to carry out the responsibility of the Civil Service Commission under Executive Order 11246. On September 29, 1966, the Department of Health, Education and Welfare issued regulations which incorporated and supplemented the regulations of the Civil Service Commission on "Equal Opportunity without Regard to Race, Color, Creed or National Origin." Both series of regulations contain provisions for complaints, hearings, decisions and appeals. It is not clear whether plaintiff seeks an injunction requiring the individual defendants to adopt different regulations and procedures or an injunction requiring them to enforce the current regulations. Insofar as plaintiff may seek to require defendants to adopt different regulations, it is asking the Court to enter an injunction requiring official affirmative action which would affect the public administration of government agencies, see State of Hawaii v. Gordon, 373 U.S. 57, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963), and is, in effect, seeking relief against the United States with respect to which the United States has not consented to be sued. The principles of sovereign immunity preclude this Court from granting such relief. Larson v. Domestic & Foreign Commerce Corp., supra; Malone v. Bowdoin et al., 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962); Manhattan-Bronx Postal Union et al. v. Gronouski, 121 U.S.App.D.C. 321, 350 F.2d 451 (1965); Insular Police Commission v. Lopez, 160 F.2d 673 (1 Cir., 1947), cert. den. 331 U.S. 855, 67 S.Ct. 1743, 91 L.Ed. 1863 (1947); Mitchell v. MacNamara, 122 U.S.App.D.C. 224, 352 F.2d 700 (1965); Kennedy v. Rabinowitz, 115 U.S.App.D.C. 210, 318 F.2d 181 (1963). See also Mine Safety Appliances Co. v. Forrestal, 326 U.S. 371, 66 S.Ct. 219, 90 L.Ed. 140 (1945); New Haven Public Schools v. General Services Administration, (7 Cir., 1954), 214 F.2d 592.

Insofar as plaintiff may seek an injunction requiring defendants to enforce the existing regulations, plaintiff must not only show that this Court has jurisdiction to grant such relief, but must also show that plaintiff has standing to bring the action, must allege with some specificity the manner in which the individual defendants have failed to enforce the existing regulations, and must allege the irreparable injury to plaintiff which would justify the requested injunction. Those requirements will be discussed below.

II. Jurisdiction. (A) Plaintiff has asserted 28 U.S.C. § 1343 as the statutory authority for this Court to assume jurisdiction. That section gives the district courts original jurisdiction of any civil action authorized by law (emphasis added):

"(1) To recover damages for injury to his person or property, or because of the

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