League of United Latin Am. Citizens v. Hampton, 72-1961

• Decision Date: 10 July 1974
• Docket Number: No. 72-1961,72-1961
• Citation: 163 U.S.App.D.C. 283,501 F.2d 843
• Parties: 8 Fair Empl.Prac.Cas. 470, 8 Empl. Prac. Dec. P 9540, 163 U.S.App.D.C. 283 LEAGUE OF UNITED LATIN AMERICAN CITIZENS et al., Appellants, v. Robert E. HAMPTON, Chairman of the United States Civil Service Commissioner, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 843

501 F.2d 843

8 Fair Empl.Prac.Cas. 470, 8 Empl. Prac. Dec.

P 9540,

163 U.S.App.D.C. 283

LEAGUE OF UNITED LATIN AMERICAN CITIZENS et al., Appellants, v. Robert E. HAMPTON, Chairman of the United States Civil Service Commissioner, et al.

No. 72-1961.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 29, 1973.

Decided July 10, 1974.

Juan Rocha, Jr., San Antonio, Tex., for appellants. John R. Kramer, Washington, D.C., was on the brief for appellants.

Richard S. Vermeire, Asst. U.S. Atty., with whom Harold H. Titus, Jr., U.S. Atty., John A. Terry and William H. Schweitzer, Asst. U.S. Attys., were on the brief for appellee.

Before BAZELON, Chief Judge, WILKEY, Circuit Judge, and VAN PELT, ^* Senior District Judge for the District of Nebraska.

VAN PELT, Senior District Judge:

This is an appeal from the dismissal of a class action instituted by the appellants on October 22, 1971, challenging the hiring practices of the United States Civil Service Commission and federal agencies with respect to Spanish-surnamed individuals. The appellants are: the League of United Latin American Citizens (LULAC), an incorporated association composed of Latin-American citizens concerned with economic and social problems that affect Spanish-surnamed individuals; the American G. I. Forum of the United States, Department of California, an incorporated association composed of Mexican-American veterans of the United States Armed Forces; and Edward R. Roybal, a Mexican-American member of the United States House of Representatives from California. The appellees are: the three Commissioners and the Executive Director of the Civil Service Commission, the Secretary of Health, Education and Welfare, the Postmaster General and the Administrator of Veterans Affairs.

Appellants alleged in their complaint that while Spanish-surnamed individuals comprise almost 7% Of the Nation's population that only approximately 2.9% Of the federal civilian employees are Spanish-surnamed and that this creates a prima facie case of discrimination. While the complaint purports to challenge all federal hiring policies, the only specific instances of claimed cultural and raical bias are the Federal Service Entrance Examination (FSEE) and the Clerk/Carrier Postal Examination. The complaint does not allege that any of the appellants, or any members of the appellant organizations, or any of the individuals whom the appellants claim to represent have taken the examinations in question or have been denied employment opportunities as a result of low scores received on those examinations. After hearing argument the district court granted the appellees' motion and dismissed the complaint.

The issues on appeal are: 1. Do the appellants have standing to bring this action, and 2. Did the appellants fail to exhaust their administrative remedies. We affirm.

The standing question is governed by Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), in which the Supreme Court held that the Sierra Club did not have standing to challenge federal officials from approving an extensive skiing development in the Mineral King Valley in the Sequoia National Forest. The Sierra Club is a membership cooperation with a special interest in the conservation and sound maintenance of the national parks, game refuges, and forests. In its complaint the Sierra Club did not allege that the challenged development would affect the club or its members in their activities or that they used the Mineral King area. The Court noted that the Sierra Club was well known for its historic commitment to protecting the environment from man's depredations, but held that, '(A) mere 'interest in a problem,' no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization 'adversely affected' or 'aggrieved' within the meaning of the APA.' Id. at 739, 92 S.Ct. at 1368.

The Court noted that broadening the types of injury that may be alleged in support of standing was a different matter from abandoning the requirement that the party seeking the review must himself have suffered an injury. In the complaint in this case the appellants did not allege that they or any of members had taken the examinations challenged or that as a result of such examinations that they had been denied employment. The appellants having failed to meet this basic requirement, the district court was correct in dismissing the action.

Our decision on the standing point is, of course, a sufficient ground upon which to affirm the judgment of the district court dismissing the complaint. Plaintiffs have, however, represented to this court that they are fully prepared to allege the requisite direct injury to one or more of their members. In these circumstances, it would be contrary to the interests of justice and a waste of judicial resources for this court now to fail to consider the exhaustion question, especially since plaintiffs' failure to exhaust was apparently the ground upon which the district court dismissed the complaint.

It is a basic principle of administrative law that, 'no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.' Myers v. Bethelem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638 (1938). The appellants contend, however, that this case fits within the recognized exception that exhaustion is not required when it is certain that the established administrative procedures would prove unavailing. They contend that adequate effective administrative procedures are not available to them and any attempt to resort to administrative procedures would be futile as those who would decide the case on the administrative level are precisely those against whom the claim of discrimination is made.

If an applicant feels that he was denied federal employment because of racial discrimination, he has the right to appeal to the Civil Service Commission and is entitled to a hearing before an examiner. The examiner then makes a recommendation to the Board of Appeals and Review, which issues the final decision. 36 Fed.Reg. 15446-48; see Executive Order No. 11478, 3 C.F.R. 457 (1972).

In support of their contention that resort to administrative remedies would be futile the appellants rely on Glover v. St. Louis-San Francisco Railway Co., 393 U.S. 324, 89 S.Ct. 548, 21 L.Ed.2d 519 (1969), in which thirteen employees, including both Negroes and whites, brought suit against their railroad employer and their bargaining agent union alleging that they were acting in concert to deny all the plaintiffs promotions from carmen helpers to carmen solely to deny Negroes promotions because of race. The district court dismissed the suit, holding that the plaintiffs had failed to exhaust their contractual and administrative remedies, notwithstanding the claim that such attempts would be futile. The Supreme Court reversed and remanded the case for trial saying 'employees alleging racial discrimination should (not) be required to submit their controversy to 'a group which is in large part chosen by the (defendants) against whom their real complaint is made." Id. at 330, 89 S.Ct. at 551. In Glover the suit was brought against a...