Baca v. Butz

• Decision Date: 08 May 1975
• Docket Number: Civ. No. 10470.
• Citation: 394 F. Supp. 888
• Parties: Antonio J. BACA, Individually and on behalf of all others similarly situated, Plaintiff, v. Earl BUTZ, Secretary of the United States Department of Agriculture, et al., Defendants.
• Court: U.S. District Court — District of New Mexico

394 F. Supp. 888

Antonio J. BACA, Individually and on behalf of all others similarly situated, Plaintiff, v. Earl BUTZ, Secretary of the United States Department of Agriculture, et al., Defendants.

Civ. No. 10470.

United States District Court, D. New Mexico.

May 8, 1975.

Ray M. Vargas, Albuquerque, N. M., for plaintiff.

Victor R. Ortega, U. S. Atty., W. R. Hughes, Asst. U. S. Atty., Albuquerque, N. M., for defendants.

MEMORANDUM OPINION

BRATTON, District Judge.

This is an action by an employee of the Soil Conservation Service against the government brought on behalf of himself and all others similarly situated alleging discriminatory employment practices. The plaintiff seeks declaratory, monetary, and equitable relief. Jurisdiction of the court is invoked pursuant to 42 U.S.C.A. §§ 1981, 2000e et seq., and 28 U.S.C.A. §§ 1343(4), 1361, 2201 and 2202.

In his complaint the plaintiff described his proposed class as Spanish Surnamed Americans who have been or will be discriminated against in employment by the Soil Conservation Service due to their national origin, Mexican-American. He now maintains that he is a representative of the class known as Mexican-Americans who as such constitute a race on which basis they are discriminated against.

Defendant Earl Butz is presently Secretary of the United States Department of Agriculture; defendant Kenneth Grant is the Administrative Director and Chief of the Soil Conservation Service; defendant Marion Strong is the New Mexico State Conservationist; and defendant Robert D. Bishop is the New Mexico Area Conservationist for Las Cruces.

I.

This matter comes on for consideration of plaintiff's motion to reconsider the court's opinion order of May 21, 1974. By previous memorandum opinion, Baca v. Butz, 376 F.Supp. 1005 (D. N.M.1974), this court determined that a trial de novo is not automatically available in all claims by federal employees under the Equal Employment Opportunity Act of 1972, 42 U.S.C.A. § 2000e-16, but that such a hearing should be afforded a plaintiff only when review of the administrative record demonstrates deficiencies in the administrative process such that a de novo hearing would be appropriate. This conclusion is in accord with a more recent opinion of this circuit, Salone v. United States, 511 F.2d 902 (10th Cir. 1975). The plaintiff now seeks to obtain the trial de novo he has been denied under 42 U.S.C.A. § 2000e-16 by reasserting his claim under the Civil Rights Act of 1866, 42 U.S.C.A. § 1981.

Section 1981, which is directed at only racially motivated discrimination,¹ provides in relevant part as follows:

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 proceedings for the security of persons and property as is enjoyed by white citizens . . ..

The phrase "all persons within the jurisdiction of the United States" as used in this section is designed to define that large class of persons who come within the protection of the statute.² The clause "as is enjoyed by white citizens" not only evidences the racial character of the section but provides the standard against which the rights of the protected individuals must be measured.³ Accordingly, a person of any race can sue an individual of any other race or the same race, a business entity, or a governmental entity under § 1981, so long as he states a claim based on racial discrimination.⁴

Seeking to utilize § 1981 to obtain a de novo hearing on his claim herein, the plaintiff maintains that he and the proposed class he represents are of the race of Mexican-Americans and as such are racially discriminated against. Thus, as a threshold matter it must be determined if the designation "Mexican-American" is indeed a race within the meaning of § 1981, and, if so, how that race is defined so that a finding can be made as to whether he was discriminated against on the basis of being a member of that racial group.

The respective parties have urged upon the court a number of varying and conflicting views of both historical and recent origin as to what constitutes a race. In the court's view of the question, however, it need not attempt to resolve what continues to be sharply debated in the academic community, for the plaintiff's claim against the federal government under § 1981 alleging employment discrimination is barred by the doctrine of sovereign immunity.

II.

Turning first to the legislative history of the Equal Employment Opportunity Act of 1972, it is helpful to examine why Congress believed it was necessary to amend the Civil Rights Act of 1964 to add a new § 717, 42 U.S.C.A. § 2000e-16, subjecting the federal government for the first time to suit for discriminatory personnel actions based on race, color, religion, sex, or national origin. In the Civil Rights Act of 1964 Congress expressly denied to federal employees the right to utilize that Act to vindicate claims of employment discrimination. 42 U.S.C.A. § 2000e(b). In lieu of a private right of action, Executive Order 11246, 3 C.F.R. 169 (Supp. 1974), 42 U.S.C.A. § 2000e note; Executive Order 11478, 3 C.F.R. 207 (Supp. 1974), 42 U.S.C.A. § 2000e note; and 5 U.S.C.A. § 7151 provided a means whereby an aggrieved federal employee had an administrative recourse to his employing agency and eventually to the Civil Service Commission (CSC). Dissatisfaction with the adequacy of this administrative remedy, marked uncertainty in pursuing any course of appeal to the courts, and the seemingly unaggressive efforts by the CSC to eradicate discrimination were all foremost in the minds of reformers pushing for the enactment of § 2000e-16. With the matter in this posture the Senate Committee on Labor and Public Welfare, which reported favorably on the section, said:

An important adjunct to the strengthened Civil Service Commission responsibilities is the statutory provision of a private right of action in the courts by Federal employees who are not satisfied with the agency or Commission decision.

The testimony of the Civil Service Commission notwithstanding,⁵ the committee found that an aggrieved Federal employee does not have access to the courts. In 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 has also been in doubt. The provisions adopted by the committee will enable the Commission to grant full relief to aggrieved employees, or applicants, including back pay and immediate advancement as appropriate. Aggrieved employees or applicants will also have the full rights available in the courts as are granted to individuals in the private sector under title VII.⁶

Sec. 2000e-16 in its present form originated in the Senate as the result of an amendment offered by Senator Cranston and adopted by the Committee. In the floor debate on the Act Senator Cranston said in regard to his proposal:

My Federal Government EEO amendment included in the committee bill would:

. . . . . .

Fifth. For the first time, permit Federal employees to sue the Federal Government in discrimination cases — under the theory of Federal sovereign immunity, courts have not generally allowed such suits — and to bring suit either prior to or after CSC review of the agency EEO decision in the case.⁷

Senator Williams was one of two floor leaders for the Equal Employment Opportunity Act of 1972. In remarks in regard to § 2000e-16, he viewed the section as having the following effect:

Another significant part of the bill and one that has not had very much debate because it was so clearly accepted at the committee level, concerns our Federal Government employees. The requirement of equal employment opportunity is extended by statute to these employees, and for the first time a clear remedy is provided enabling them to pursue their claims in the district courts following a Civil Service Commission or agency hearing.⁸

All of these remarks went unchallenged. Accordingly, it is apparent that Congress believed that the enactment of § 2000e-16 was necessary to waive the defense of sovereign immunity which was otherwise available to the federal government in suits pursuant to § 1981.⁹

III.

The case law involving attempts by federal employees to sue the government for alleged employment discrimination other than under § 2000e-16 evidence a consistent rigid application of the sovereign immunity doctrine to most of the requested forms of relief. The plaintiff herein seeks the following individual relief: a declaratory judgment that the defendants have acted contrary to their equal employment responsibilities imposed by statute and executive order, 28 U.S.C.A. §§ 2201 & 2202; damages including but not limited to back pay, 28 U.S.C.A. § 1343(4); an injunction enjoining the defendants from continuing to discriminate against the plaintiff by denying him a promotion, 28 U.S.C.A. § 1343(4); and, relief in the nature of mandamus to compel defendants to carry out their duties under the Civil Rights Act of 1964 and Executive Order 11478, 28 U.S.C.A. § 1361.¹⁰ On behalf of the proposed class, the plaintiff seeks the additional relief of an injunction barring the defendants from further hiring or promoting persons not members of the proposed class until such time as defendants effectuate a population parity equal employment program that would within two years ensure representation of plaintiff's class at all wage levels in the Soil Conservation Service.

All of the forms of relief requested by the plaintiff are of such a nature that it would impinge upon the United States rather than upon the named defendants and thereby is an unconsented suit against the sovereign if brought pursuant to § 1981. The mere fact...