Hardy v. Leonard

• Citation: 377 F. Supp. 831
• Decision Date: 26 April 1974
• Docket Number: No. C-73 732 ACW.,C-73 732 ACW.
• Parties: Veragene HARDY, etc., et al., Plaintiffs, v. Jerris LEONARD, etc., et al., Defendants.
• Court: U.S. District Court — Northern District of California

377 F. Supp. 831

Veragene HARDY, etc., et al., Plaintiffs, v. Jerris LEONARD, etc., et al., Defendants.

No. C-73 732 ACW.

United States District Court, N. D. California.

April 26, 1974.

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Clifford C. Sweet, Legal Aid Society of Alameda County, Oakland, Cal., Meade & Duane, Berkeley, Cal., for plaintiff.

James L. Browning, Jr., U. S. Atty. by Brian B. Denton, Asst. U. S. Atty., San Francisco, Cal., for defendant.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

WOLLENBERG, District Judge.

Plaintiffs in this class action are Veragene Hardy, a woman who was denied employment with the Oakland Police Department (hereinafter "OPD"), and the National Organization of Women (hereinafter "NOW"), a national non-profit organization which seeks enforcement of laws relating to equal employment opportunity for women. These plaintiffs seek to represent all applicants for employment with the OPD who might be, or might have been, denied equal access to employment. Defendants are various administrators of the Law Enforcement Assistance Administration (hereinafter "LEAA") and other persons whose duty is to ensure compliance with equal employment opportunity requirements on the part of entities receiving financial support from LEAA. Plaintiffs ask the Court to order defendants to determine promptly whether the OPD is complying with federal equal opportunity requirements and, further, to order defendants to suspend LEAA's financial support of OPD if OPD is not so complying. This motion to dismiss is based on five separate grounds:

1) failure to state a claim upon which relief may be granted,

2) lack of standing,

3) failure to exhaust administrative remedies,

4) sovereign immunity,

5) mootness

Failure to State a Claim Upon Which Relief May Be Granted and Standing

Plaintiffs want LEAA to fulfill its duty to enforce Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., which prohibits employment discrimination in any program or activity receiving federal financial assistance. Defendants contend only government agencies charged with such compliance responsibility under Title VI have standing to seek judicial termination of federal assistance under Title VI. Green Street Ass'n v. Daley, 373 F.2d 1 (7th Cir. 1967); Taylor v. Cohen, 405 F.2d 277 (4th Cir. 1968). This raises the questions whether anyone except agencies may bring such an action, and, if so, whether these named plaintiffs have the requisite standing.¹

Title VI has only a few provisions, and the scheme is relatively simple. Section 601 prohibits programs and activities receiving federal assistance from discriminating in employment. Section 602 directs the department or agency which extended the financial assistance to enforce the prohibition on discrimination by terminating the federal assistance of a program or activity which is discriminating if efforts to secure voluntary compliance are unsuccessful. Section 603 authorizes judicial review of any department or agency action taken pursuant to § 602. The nature and extent of the judicial review Congress provided in § 603 of Title VI will determine whether this Court may consider the issue plaintiffs raise.

Section 603 of Title VI, 42 U.S.C. § 2000d-2, provides in part:

Any department or agency action taken pursuant to section 2000d-1 § 602 of Title VI shall be subject to such judicial review as may otherwise be provided by law for similar action taken by such department or agency on other grounds.

In Gardner v. Alabama Dept. of Pensions & Security, 385 F.2d 804 (5th Cir. 1967), Alabama challenged the Secretary of Health, Education & Welfare's decision to terminate federal assistance to Alabama welfare programs due to violations of Title VI. The threshold question raised by Gardner was whether § 603 vested jurisdiction in the district court to review the Secretary's decision to terminate funds pursuant to § 602. The Fifth Circuit concluded that the district court was without jurisdiction to review the Secretary's decision to terminate funds pursuant to § 602. The Fifth Circuit concluded that the district court was without jurisdiction to review the Secretary's decision because "similar action taken by such department or agency on other grounds" was reviewable under 42 U.S.C. § 1316(a)(3), which designated the United States Court of Appeals as the forum in which such decisions would receive judicial review. 385 F.2d at 810.

Defendants do not allege that the present case is similar to Gardner. They do not claim that judicial review of LEAA's implementation of Title VI is available through any means other than that plaintiffs are pursuing.² To the contrary. By proposing that only LEAA may seek judicial termination of its federal assistance to programs, LEAA asks this Court to foreclose all judicial review of its alleged inaction under the Congressional mandate of Title VI. This would be contrary to the plain expression of Congress in Section 603, that agency action pursuant to Title VI be reviewable either under an already existing scheme of review or under that proposed in Section 603.

Gardner does not reject district court review under the circumstances of this case. Neither party in Gardner argued there should be no judicial review of the Secretary's decision. The dispute was whether that review was to be in the district court or the court of appeals. Here the question is whether there is to be any judicial review of LEAA's action.

Defendants assert that judicial review of agency action under Title VI is available only at the behest of the agency. In Green Street Ass'n v. Daley, supra, however, the Seventh Circuit expressly approved judicial review of agency action under Title VI once federal officials have taken measures to secure voluntary compliance under Section 602. Green Street Ass'n, supra, at 8-9.

Defendants rely, finally, on Taylor v. Cohen, 405 F.2d 277 (4th Cir. 1968), to preclude the type of judicial review plaintiffs seek. In that case the Richland County School District of Columbia, South Carolina, had been implementing a freedom of choice plan of school desegregation for four years, and the impact of this plan on the District's racial balance was minimal. The Department of Health, Education and Welfare, through informal discussions with local officials, succeeded in getting the school board to adopt a stronger desegregation plan. Adverse public reaction was greater than expected, and the school board responded by modifying some of the provisions of the new plan. H.E.W. had already instituted administrative proceedings to terminate the School District's funds, and action on requests for new funds by the District was deferred. The Fourth Circuit reversed the District Court's injunction against H.E.W.'s administrative action to terminate the District's funds. Two reasons were given by the Fourth Circuit:

1) Citing Gardner v. Alabama Dept. of Pensions & Security, supra, as authority, the court held that by its own terms Section 603 of Title VI precluded any action under the Administrative Procedure Act because judicial review was already provided by other statutes —specifically, 20 U.S.C. §§ 241K, 585 and 869. 405 F.2d at 279-280.

2) Any judicial review was premature in this case because H.E.W. had not yet completed the administrative process which might or might not result in termination of funds, and the courts could review only final agency action. 405 F. 2d at 279-280.

The court thus held not that all judicial review is precluded, but that such review must not precede final agency action.

Having decided that review was premature and that the District Court had improperly issued its injunction, the court in Taylor v. Cohen proceeded gratuitously to consider whether parents of school children would have standing to challenge a decision by H.E.W. to terminate its financial assistance to the school district. The court found that although parents are, of course, vitally interested in the financing and school assignments of their children, they have no standing to seek judicial review of decisions committed entirely to the discretion of the School Board. 405 F.2d at 282. Since the suit against H.E.W. was indirectly an attack on the School Board's exercise of its discretionary power, the court concluded that the parents lacked standing to maintain the action. 405 F.2d at 282. The court expressly conceded, though, that the

parents do have standing to enjoin a board's unconstitutional action, whether it originates in the school board itself or is the product of pressure brought against it by a government agency. Griffin v. School Bd. of Prince Edward County, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964).

405 F.2d at 282.

In the present case plaintiffs are not indirectly attacking an exercise of discretionary power by the Oakland Police Department. Plaintiffs are seeking review of a final determination by LEAA that it will not terminate funds of the OPD. The cases relied upon by defendants plus Gardner all concede that ultimately there is judicial review of an agency's decision to terminate funds pursuant to Title VI. Such review must await final agency action however. Neither these cases nor any other authority cited by defendants or otherwise known to this Court suggests why judicial review of a final agency decision not to terminate funds is not equally proper and necessary if the integrity of the scheme erected by Congress under Title VI is to be protected.

Plaintiff NOW alleges it is a national organization whose purpose is to secure enforcement of laws prohibiting employment discrimination against women. It further alleges it filed an Administrative complaint with LEAA on September 13, 1972, protesting alleged employment discrimination by the OPD. NOW has only an ideological interest in the outcome of this action and, accordingly, lacks the personal stake necessary to establish standing under Sierra Club v. Morton, 405...