Legal Aid Society of Alameda County v. Brennan, C-73-0282 AJZ.

• Decision Date: 20 June 1974
• Docket Number: No. C-73-0282 AJZ.,C-73-0282 AJZ.
• Citation: 381 F. Supp. 125
• Parties: LEGAL AID SOCIETY OF ALAMEDA COUNTY et al., Plaintiffs, v. Peter J. BRENNAN, Secretary of the United States Department of Labor, et al., Defendants.
• Court: U.S. District Court — Northern District of California

381 F. Supp. 125

LEGAL AID SOCIETY OF ALAMEDA COUNTY et al., Plaintiffs, v. Peter J. BRENNAN, Secretary of the United States Department of Labor, et al., Defendants.

No. C-73-0282 AJZ.

United States District Court, N. D. California.

June 20, 1974.

Stephen E. Ronfeldt, Russell W. Galloway, Jr., Henry Hewitt, Legal Aid Society of Alameda County, Oakland, Cal., for plaintiffs.

James L. Browning, Jr., U. S. Atty., Richard F. Locke, Asst. U. S. Atty., San Francisco, Cal., for defendants.

MEMORANDUM OPINION

ZIRPOLI, District Judge.

Executive Order 11246, issued September 24, 1965,¹ requires companies that hold federal contracts to:

take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin.

This case involves important questions concerning the enforcement of this executive order and the scope of judicial review of individual governmental agencies' actions taken in its enforcement. Plaintiffs move for partial summary judgment and an order requiring the United States Department of Agriculture USDA and the persons within the USDA responsible for enforcing the executive order to refrain from approving affirmative action programs of contractors assigned to the USDA in Alameda County, California, which do not comply with the regulations that set out the requirements of an adequate affirmative action program. Before considering the narrow questions presented by this motion, it is necessary to review the history of this litigation, the executive order and regulations at issue, and consider defendants' objections to the court's jurrisdiction.

I

Plaintiffs' original complaint filed in this action in February, 1973, contained four claims for relief, seeking: (1) to compel defendants to release information on the ethnic composition of the work forces of the Alameda County contractors subject to Executive Order 11246; (2) to require the USDA to disclose the affirmative action programs and compliance review reports of Alameda County contractors assigned to the USDA for enforcement purposes; (3) to require defendants responsible for these programs within the USDA to enforce the requirements of Executive Order 11246 and the regulations and orders issued pursuant to the executive order; and (4) to direct the Secretary of Labor and the Director of the Office of Federal Contract Compliance OFCC, who delegated enforcement responsibility to the USDA, to require the USDA to comply with the executive order and corresponding regulations.

Named as defendants were Peter J. Brennan, Secretary of the Department of Labor, who is responsible for the overall administration of Executive Order 11246, and who is required to "adopt such rules and regulations and issue such orders as he deems necessary and appropriate to achieve the purposes" of the executive order;² Philip J. Davis, Director of the OFCC, to whom the responsibility for enforcing the executive order has been delegated;³ Earl L. Butz, Secretary of the USDA, to which primary enforcement responsibility for federal contractors engaged in farming, the provision of agricultural services, suppliers of food and kindred products, tobacco manufacturers, and certain businesses in the wholesale food trade have been assigned;⁴ and, finally, William Gladden, Chief of the Contract Compliance Division of the USDA's Office of Equal Opportunity, who is ultimately responsible for enforcement within the USDA.

Plaintiffs originally included the Alameda Legal Aid Society, a federally funded law project which represents low income minority persons in Alameda County, California, and which has a compliance project designed specifically to secure the enforcement of laws relating to equal employment opportunity; the director of the project; four unemployed minority persons who have sought employment at businesses which come within the compliance requirements of the executive order and regulations issued thereunder; and the Western Regional Job Council, an unincorporated association in Oakland, California, whose primary concern is the employment of minority persons.⁵

With respect to the third and fourth claims for relief, plaintiffs contend that defendants have failed to enforce Executive Order 11246 and the regulations issued pursuant to it in two respects: (1) they have failed to undertake any review whatsoever of the affirmative action programs of the majority of federal contractors, and (2) that where they have reviewed programs, they have approved ones which fail to comply with the executive order and regulations. Their motion for partial summary judgment deals only with the second contention.

These claims were previously the subject of defendants' motions to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted on the grounds of sovereign immunity, nonreviewability of discretionary agency action, and failure of plaintiffs to exhaust their administrative remedies. These motions were denied by the court May 31, 1973, but they have since been renewed by defendants, and their arguments are discussed more fully below.

Following the denial of defendants' motions to dismiss, plaintiffs obtained the affirmative action programs of some 27 USDA assigned contractors in Alameda County which were reviewed and approved during the period from August, 1972, through January, 1973. Following receipt of these programs, plaintiffs reviewed them and sent the USDA a lengthy and detailed memorandum specifying their claims that the programs as approved were in violation of the applicable regulations, specifically Revised Order Number 4, 41 C.F.R. Part 60-2 (1973), entitled, "Affirmative Action Programs." When no response was made, plaintiffs discussed the issues raised with an attorney from the Department of Labor. Finally, after waiting over two months, plaintiffs brought the motion for partial summary judgment now pending before the court. As initially presented, the motion sought to restrain the USDA from approving affirmative action programs that are not in compliance with Executive Order 11246 and the regulations issued thereunder. A nationwide scope of relief was requested.

Since the motion was presented, the court has held two hearings and granted additional time for the USDA to present materials showing its compliance efforts. The USDA has since conducted or is conducting followup onsite reviews of all the contractors directly involved and issued a number of show cause orders.⁶ Plaintiffs have narrowed the relief sought to include directions to disapprove the affirmative action programs of Alameda County contractors whose programs are shown to be in noncompliance with Revised Order Number 4, and to require of the USDA that any future approvals in Alameda County, comply with the Order. The relief sought includes a means of monitoring the USDA's operations by plaintiffs and the court. It is anticipated that if they succeed on this motion, plaintiffs will submit materials showing that the USDA's failings locally are duplicated elsewhere justifying nationwide relief. For the moment, however, the USDA's activities in Alameda County are directly under consideration. Before turning to the merits of plaintiffs' motion, the court will consider the procedural and other objections to the court's jurisdiction postulated by defendants.

II

It is important to distinguish at the outset that the basis of this action is not the claims of individuals against specific contractors for failure to employ them in a certain job; rather it is an action seeking relief in the nature of mandamus to require federal officers to perform specific and clearly defined duties mandated by Executive Order 11246 and the regulations promulgated pursuant to the executive order.

Defendants argue that a mandamus action is inappropriate here under either the mandamus statute, 28 U.S.C. § 1361, or the Administrative Procedure Act, 5 U.S.C. §§ 701-706, because the acts which plaintiffs seek to compel are committed to the discretion of the agencies involved, because this action is barred by the doctrine of sovereign immunity, and because Executive Order 11246 does not create a private cause of action.

Defendants' principal contention is that Executive Order 11246 is not mandated by any Act of Congress or the Constitution, which therefore makes all federal agency actions taken pursuant to it discretionary and nonreviewable. On the other hand, executive orders clearly carry the force and effect of law if they are issued pursuant to constitutional or statutory authority. This particular executive order and its direct antecedents have consistently been held to be based on statutory authority resting with the President to provide for procurement, utilization, and management of government property. Contractors Ass'n of Eastern Pennsylvania v. Secretary of Labor, 442 F.2d 159, 166-171 (3d Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971); Farkas v. Texas Instrument, Inc., 375 F.2d 629, 632 n.1 (5th Cir.), cert. denied, 389 U.S. 977, 88 S.Ct. 480, 19 L.Ed.2d 471 (1967).⁷ There is no question that Executive Order 11246 also has firm foundations in the fifth and fourteenth amendments to the Constitution and the several congressional enactments, including the comprehensive provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., intended to provide equal employment opportunities. This basis for Executive Order 11246 is implicitly recognized by defendants when they urge that plaintiffs be restricted to the procedures provided by the Civil Rights Act of 1964.

In contrast, the authorities relied upon by defendants, for example, Manhattan-Bronx Postal Union v. Gronouski, 121 U.S.App.D.C. 321, 350 F.2d 451 (D. C.Cir.1965), involve executive orders which essentially deal with "housekeeping" functions strictly within the purview of the...