Beale v. Blount, No. 71-1800.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtWISDOM, COLEMAN and SIMPSON, Circuit
Citation461 F.2d 1133
Decision Date14 June 1972
Docket NumberNo. 71-1800.
PartiesHoward BEALE, Jr., et al., Plaintiffs-Appellants, v. Winston BLOUNT, Postmaster, United States Post Office, et al., Defendants-Appellees.

461 F.2d 1133 (1972)

Howard BEALE, Jr., et al., Plaintiffs-Appellants,
Winston BLOUNT, Postmaster, United States Post Office, et al., Defendants-Appellees.

No. 71-1800.

United States Court of Appeals, Fifth Circuit.

June 14, 1972.

461 F.2d 1134

Jon D. Caminez, Legal Services of Greater Miami, Inc., for plaintiffs-appellants.

Vincent K. Antel, Asst. U. S. Atty., Miami, Fla., John N. Mitchell, U. S. Atty. Gen., Thomas J. Press, Atty., Dept. of Justice, Washington, D. C., Robert W. Rust, U. S. Atty., Miami, Fla., for defendants-appellees.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

Charging that his November 6, 1970 discharge from his position as a substitute letter carrier at the Buena Vista Station branch of the Miami, Florida, Post Office occurred solely because he was black, Howard Beale, Jr., brought suit1 in the district court for injunctive

461 F.2d 1135
relief, monetary damages2 and reinstatement with back pay. Named as defendants were Winston Blount, the Postmaster-General of the United States; T.J. Coleman, the Regional Director of the Post Office Department; and E. M. Dunlap, the postmaster for Miami, Florida. Citing Waters v. Wisconsin Steel Works of International Harvester Company, 7 Cir. 1970, 427 F.2d 476, and Beverly v. Lone Star Lead Construction Corporation, 5 Cir. 1971, 437 F.2d 1136, the court below dismissed the complaint on the ground that available administrative remedies had not been exhausted. On this appeal Beale contends that the doctrine requiring exhaustion of available administrative remedies is inapplicable to a suit alleging the termination of federal employment solely for racial reasons. For reasons which differ somewhat from the one given by the district court, we affirm the order of dismissal


Beale filed his complaint in the district court while postal authorities3 were administratively reviewing the appropriateness of his termination. In order to put the facts in perspective, we outline separately the chronologies of the administrative and judicial proceedings.

A. The Administrative Proceeding

On November 11, 1968, Beale was hired as a substitute letter carrier at the Buena Vista Station. Beale argued with his immediate supervisor, Braz, on June 22, 1970, over Beale's alleged failure to pay proper attention to his work inside the station. Four days later, on June 26, 1970, Beale and Braz once again exchanged angry words and Beale was alleged to have picked up a stool and made a menacing gesture toward Braz stating "I'll kill the son of a bitch". In addition, Beale allegedly told Braz "just quit f___ing with me". Braz reported both incidents to his superiors and on August 14, 1970, Postal Inspectors Hawkins and Anderson advised Beale in writing that disciplinary action was about to be taken against him for his conduct on June 26, 1970.

Beale replied to the charge of misconduct by a letter to defendant Dunlap, dated September 4, 1970, stating that he had been provoked by Braz into his intemperate behavior on June 26, 1970. He did not deny picking up the stool, or the use of abusive language. On October 23, 1970, defendant Coleman advised Beale in writing that the charge of misconduct had been sustained and that he would be terminated from the postal service as of November 6, 1970. The scheduled termination was automatically postponed by Beale's appeal to F. J. Nunlist, the Assistant Postmaster-General for Operations, and request for a formal hearing. A hearing was held at Miami, Florida, on December 10, 1970, before Hearing Officer Lindler. At the hearing Beale was represented by Tony Montanez, an official of the postal employees union to which he belonged. On December 23, 1970, the hearing officer submitted his report of the December 10

461 F.2d 1136
proceeding. The report related that at the hearing Beale had limited his evidence to matters in extenuation, with primary emphasis upon his claim that Braz had provoked him on June 26, 1970

By letter to Beale dated March 16, 1971, Assistant Postmaster-General Nunlist noted that Beale's representative at the hearing of December 10, 1970, had made several references to alleged racial motivations behind the decision to terminate Beale. Nunlist's letter expressly invited Beale to file a formal claim of racial discrimination with the postal authorities.4 On March 25, 1971, Beale's suit-counsel advised Nunlist in writing that Beale did not "wish to file any administrative charges of racial discrimination since a lawsuit is pending in federal court involving this claim of racial discrimination".

On April 8, 1971, Nunlist advised Beale that he had decided to sustain the decision to terminate him from the postal service. The termination was effective as of April 23, 1971. The Board of Appeals and Review, on August 25, 1971, sustained the decision of the Assistant Postmaster-General to terminate Beale's employment.5 That Board was the final administrative review authority within the postal establishment.

B. The Judicial Proceeding

Beale's complaint was filed in the district court on January 12, 1971. It alleged that Beale was "a member of a class composed of black citizens in or about the Miami area who have been discriminated against by the defendants with respect to employment solely on account of race or color". It continued that the defendants "have pursued and continue to pursue a pattern or practice and custom or usage of racial discrimination which has deprived and tended to deprive the plaintiffs and members of their class of the same right to make and enforce contracts, and the same right to enjoy property as it is enjoyed by white persons". According to the complaint, the defendants had implemented their racially discriminatory policies in numerous ways, among them being: (1) by "subjecting black employees to harsher discipline than white employees"; and (2) by "failing and refusing to take such affirmative steps as may be necessary to correct the effects of their past racially discriminatory practices". Alleging district court jurisdiction pursuant to Title 42, U.S.C., Sections 1981-1988, Title 28, U.S.C., Section 1343, and Title 28, U.S.C., Section 1331, the complaint sought injunctive relief against the named defendants and their subordinates prohibiting continuance of racially discriminatory practices against the class represented by Beale, seeking damages in excess of $10,000.00 to the members of that class, and reinstating Beale with back pay. Trial by jury was demanded under Rule 38, F.R.Civ.P. One additional discharged black postal employee moved for leave to intervene. If the trial judge acted on that motion before the dismissal, we do not find his order in that respect in the record before us.

On April 8, 1971, the defendants moved to dismiss the complaint for lack of subject-matter jurisdiction and failure to state a claim upon which relief could be granted or, in the alternative, for summary judgment. The defendants' motion was granted, with prejudice, on April 28, 1971. Beale filed his notice of appeal April 30, 1971. On September 3, 1971, he advised this Court that the Board of Appeals and Review had on August 25 sustained the decision to terminate his employment.

461 F.2d 1137


Although the district court did deal in terms with the complaint's request for injunctive relief against the defendants' allegedly racially discriminatory practices, we are of the opinion that such relief is barred by the doctrine of sovereign immunity. This holding is compelled under our decision in Blaze v. Moon, 5 Cir. 1971, 440 F.2d 1348.

Blaze, supra, was a suit by a former temporary employee of the United States Army Corps of Engineers. The complaint named the Corps and its Houston, Texas, District Engineer as defendants and charged that the Corps engaged in the practice of hiring blacks for temporary jobs only, reserving its permanent positions for white applicants. The district court granted the defendants' motion to dismiss for lack of jurisdiction by reason of sovereign immunity, 1970, 315 F.Supp. 495. We affirmed the dismissal of the complaint, citing Judge (now Mr. Justice) Blackmun's opinion for the Eighth Circuit in Gnotta v. United States, 1969, 415 F.2d 1271, cert. denied 1970, 397 U.S. 934, 90 S.Ct. 941, 25 L.Ed.2d 115.

Conceding the undetermined possibility that various branches of the former United States Post Office did indeed practice racial discrimination with respect to department employees, the...

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