Gissen v. Tackman
| Decision Date | 02 July 1976 |
| Docket Number | Nos. 75--1299,75--1804 and 75--2214,s. 75--1299 |
| Parties | 12 Fair Empl.Prac.Cas. 1749, 12 Empl. Prac. Dec. P 11,061 Ira GISSEN, Appellant, v. Arthur L. TACKMAN et al. |
| Court | U.S. Court of Appeals — Third Circuit |
Before ALDISERT, HUNTER and GARTH, Circuit Judges.
Reargued May 13, 1976.
Before SEITZ, Chief Judge, and VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges.
We granted in banc consideration of this appeal to decide whether the doctrine of immunity for federal officials announced in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), is available to a federal executive afficer sued by a former federal employee on a claim of constitutional deprivation. Because of the intervening decision in Brown v. General Services Administration, --- U.S. ---, 96 S.Ct. 1961, 48 L.Ed.2d 402, 44 U.S.L.W. 4704 (June 1, 1976), we have decided not to reach the question.
Appellant left his position with the United States Department of Housing and Urban Development in October 1972. Fourteen months later he filed a complaint in which he asserted a claim 'aris(ing) out of the Fifth and Fourteenth Amendments.' He alleged that his superiors at HUD discriminated against him by denying him promotions on the basis of his race (caucasian) and religion (Jewish faith). The named defendants, sued both in their official and individual capacities, filed no responsive pleading, but moved to dismiss on the ground of official immunity. After receiving affidavits, the district court granted defendants' motion and dismissed the complaint for failure to state a claim. Subsequently, appellant filed another complaint, adding statutory jurisdictional grounds, including the Civil Rights Act, 42 U.S.C. §§ 1981, 1983, 1985 and 1986, and Title VII of the 1964 Civil Rights Act as amended, 42 U.S.C. § 2000e et seq. The district court dismissed this complaint on res judicata grounds. Gissen timely appealed both orders and the cases were consolidated before us.
Brown v. General Services Administration, supra, held that § 717 of the Civil Rights Act of 1964, as added by § 11 of the Equal Employment Opportunity Act of 1972, Pub.L. No. 92--261 (codified at 42 U.S.C. § 2000e--16), is the exclusive remedy available to an individual federal employee complaining of job-related discrimination. The Supreme Court stated:
Section 717(c) permits an aggrieved employee to file a civil action in a federal district court to review his claim of employment discrimination. Attached to that right, however, are certain preconditions. Initially, the complainant must seek relief in the agency that has allegedly discriminated against him. He then may seek further administrative review with the Civil Service Commission or, alternatively, he may, within 30 days of receipt of notice of the agency's final decision, file suit in federal district court without appealing to the Civil Service Commission.
--- U.S. at ---, 96 S.Ct. at 1967, 44 U.S.L.W. at 4707. Inasmuch as Brown failed to file a timely complaint--he filed it 42 days after notice of his right to sue instead of within 30 days--the Court held that the district court properly dismissed the case for lack of subject matter jurisdiction.
The matter before us is a fortiori. Here Gissen failed to seek any administrative relief before filing his complaint in federal court. He did not initially 'seek relief in the agency that ha(d) allegedly discriminated against him.' Ibid. Moreover, Gissen did not file suit until 14 months after he had resigned from fedral service.
Arguably, Gissen might allege a sufficient claim under 42 U.S.C. § 1985 and its jurisdictional counterpart, 28 U.S.C. § 1343. But the Supreme Court noted in Brown:
The legislative history thus leaves little doubt that Congress was persuaded that federal employees who were treated discriminatorily had no effective judicial remedy. And the case law suggests that that conclusion was entirely reasonable. . . . (T)he relevant inquiry is not whether Congress correctly perceived the then state of the law, but rather what its perception of the state of the law was.
This unambiguous congressional perception seems to indicate that the congressional intent in 1972 was to create an exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination.
Ibid. --- U.S. at ---, 96 S.Ct. at 1966, 44 U.S.L.W. at 4706 (footnote omitted and emphasis added).
Appellant has argued that we should not consider the...
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