Mandel v. US Dept. of Health, Ed. and Welfare

• Decision Date: 25 March 1976
• Docket Number: Civ. A. No. N-76-1,N-76-23.
• Citation: 411 F. Supp. 542
• Parties: Marvin MANDEL, Governor of the State of Maryland, et al. v. UNITED STATES DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, an Agency of the United States of America, et al. MAYOR AND CITY COUNCIL OF BALTIMORE, a Municipal Corporation, and Board of School Commissioners of Baltimore City v. F. David MATHEWS, Individually and as Secretary of the United States Department of Health, Education, and Welfare, et al.
• Court: U.S. District Court — District of Maryland

411 F. Supp. 542

Marvin MANDEL, Governor of the State of Maryland, et al. v. UNITED STATES DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, an Agency of the United States of America, et al.

MAYOR AND CITY COUNCIL OF BALTIMORE, a Municipal Corporation, and Board of School Commissioners of Baltimore City v. F. David MATHEWS, Individually and as Secretary of the United States Department of Health, Education, and Welfare, et al.

Civ. A. Nos. N-76-1, N-76-23.

United States District Court, D. Maryland.

March 8, 1976.

As Amended March 25, 1976.

Francis B. Burch, Atty. Gen. of Md., Henry R. Lord, Deputy Atty. Gen., David H. Feldman, Walter G. Lohr, Jr., and George A. Nilson, Asst. Attys. Gen., Baltimore, Md., for plaintiffs, with the exception of Bd. of Trustees of the Community College of Baltimore in Civ.A. No. N-76-1.

Benjamin L. Brown, City Sol. of Baltimore City, Ambrose T. Hartman, Deputy City Sol., Blanche G. Wahl, Sp. Asst. City Sol., and William Hughes, Chief Sol., Baltimore, Md., for plaintiff Bd. of Trustees of the Community College of Baltimore.

Benjamin L. Brown, City Sol. of Baltimore City, William Hughes, Chief Sol., Elise J. Mason, Asst. City Sol., and E. Stephen Derby and Edward M. Norton, Jr., Baltimore, Md. (William L. Marbury, Baltimore, Md. of counsel), for Mayor and City of Baltimore and Bd. of Com'rs in Civ.A. No. N-76-23.

J. Stanley Pottinger, Asst. Atty. Gen., Civ. Rights Div., U. S. Dept. of Justice, Alexander C. Ross, Leigh M. Manasevit and Teresa T. Milton, Attys., Civ. Rights Div., Washington, D. C. (Frank K. Krueger, Jr., Atty., Dept. of HEW, Washington, D. C., of counsel), for defendants, in both cases.

NORTHROP, Chief Judge.

INTRODUCTION

These two separate actions were instituted by the plaintiffs, Marvin Mandel, Governor of Maryland, various State agencies, and educational institutions (in Civil Action No. N-76-1) and the Mayor and City Council of Baltimore and the Board of School Commissioners of Baltimore City (in Civil Action No. N-76-23) against the defendants, the Department of Health, Education and Welfare hereinafter, HEW and certain of its principal officers.¹ Plaintiffs seek issuance of preliminary injunctions to enjoin the defendants from pursuing further agency enforcement proceedings against plaintiffs pursuant to Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. (1970), until defendants have fully complied with the mandates of the Act. Defendants counter that they have thoroughly complied with Title VI and also that issuance of injunction by this Court is barred at this time by two judicial doctrines: (1) exhaustion of administrative remedies, and (2) sovereign immunity.

Title VI, 42 U.S.C. § 2000d (1970) provides, as a broad policy, that no program or activity receiving federal funds shall be operated discriminatively:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

The State of Maryland receives approximately $65,000,000 presently from the Federal Government for operation of its institutions of higher education and many of the programs offered therein; the City of Baltimore receives approximately $23,000,000 from the Federal Government earmarked for its elementary and secondary schools. Defendants, after reviewing Maryland's institutions of higher education and the Baltimore City School System, concluded that each operated in violation of § 2000d in that vestiges of racial duality remained in the systems. Consequently, defendants initiated agency enforcement proceedings² against the City and further ordered a deferral³ of all new federal financial assistance to the City. In Maryland's case, only issuance of a Temporary Restraining Order by this Court prevented defendants' initiation of similar enforcement proceedings and deferral against the State.

However, when Congress enacted the Civil Rights Act of 1964, it set forth in 42 U.S.C. § 2000d-1 (1970) elaborate guidelines governing the entire administrative process from initial agency contact with a recipient of federal funds to eventual fund cut-off:

Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. No such rule, regulation, or order shall become effective unless and until approved by the President. Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made and, shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found, or (2) by any other means authorized by law: Provided, however, that no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action. No such action shall become effective until thirty days have elapsed after the filing of such report.

Herein lies the issue in controversy — did HEW comply with the statutory prerequisites of § 2000d-1, and if not, do the defenses asserted by defendants, infra, bar injunctive relief to compel compliance?⁴

EXHAUSTION OF ADMINISTRATIVE REMEDIES

Before a plaintiff may successfully invoke the court's injunctive powers, the case must have reached a posture in which judicial intervention would be appropriate and effective. It is well-established that where an administrative procedure is statutorily prescribed, a plaintiff must exhaust all available administrative remedies before the court can properly review the matter. See generally, 3 K. Davis, Administrative Law Treatise § 20.01 et seq. (1958 ed., 1965 Supp.); L. Jaffe, Judicial Control of Administrative Action 424-58 (1965). In Myers v. Bethlehem Shipbuilding Corporation, 303 U.S. 41, 50-51, 58 S.Ct. 459, 463, 82 L.Ed. 638, 644 (1938) the Supreme Court recognized and reaffirmed "the long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted."

Of course, like most judicial doctrine, exhaustion of administrative remedy is not absolute, but is subject to numerous exceptions.⁵ Plaintiffs assert that two such exceptions to the exhaustion requirement obtain herein, thereby allowing this Court to order the relief applicable. The first, and foremost exhaustion exception, was fashioned by the Supreme Court, in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958). There, the Supreme Court permitted review of the NLRB's certification of a "bargaining unit" which included both professional and non-professional employees where the professional employees had not consented to the non-professional inclusion as expressly mandated by 29 U.S.C. § 159(b)(1) (1970). In fact, in direct contravention of Congressional provision, the NLRB arbitrarily refused to permit the professionals to vote for or against the inclusion. Upon this factual context, the Supreme Court rejected the agency's contention that the district court lacked jurisdiction and concluded that the district court in that instance had original jurisdiction:

This suit is not one to "review," in the sense of that term as used in the Act, a decision of the Board made within its jurisdiction. Rather it is one to strike down an order of the Board made in excess of its delegated powers and contrary to a specific prohibition in the Act. * * * Plainly, this was an attempted exercise of power that had been specifically withheld. It deprived the professional employees of a "right" assured to them by Congress. Surely, in these circumstances, a Federal District Court has jurisdiction of an original suit to prevent deprivation of a right so given.

Id. at 188-89, 79 S.Ct. at 184, 3 L.Ed.2d at 214. The Court stated further:

Here, differently from the Switchmen's case, "absence of jurisdiction of the federal courts" would mean "a sacrifice or obliteration of a right which Congress" has given professional employees, for there is no other means, within their control to protect and enforce that right. And "the inference is strong that Congress intended the statutory provisions governing the general jurisdiction of those courts to control." This Court cannot lightly infer that Congress does not intend judicial protection of rights it confers against agency action taken in excess of delegated powers.

Where, as here, Congress has given a "right" to the professional employees it must be held that it intended that right to be enforced, and "the courts * * * encounter no

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