Ogletree v. McNamara
| Decision Date | 23 September 1971 |
| Docket Number | No. 20927.,20927. |
| Citation | 449 F.2d 93 |
| Parties | Edward J. OGLETREE et al., Plaintiffs-Appellants, v. Robert S. McNAMARA et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
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Nathaniel R. Jones, and William D. Wells, New York City, for plaintiffs-appellants; William Davis, Columbus, Ohio, on brief; Anne Gross Feldman, Joan Franklin, New York City, of counsel.
Robert M. Feinson, Atty., Dept. of Justice, Washington, D. C., for defendants-appellees; L. Patrick Gray, III, Asst. Atty. Gen., Walter H. Fleischer, Atty., Dept. of Justice, Washington, D. C., William W. Milligan, U. S. Atty., Dayton, Ohio, on brief.
Before PHILLIPS, Chief Judge, and EDWARDS and BROOKS, Circuit Judges.
This is not a simple case either to describe or decide. It is a wholesale attack upon the employment practices and the system for reviewing same at the United States Air Force's Wright Patterson Air Force Base. It alleges systematic racial discrimination and the unconstitutionality of the very orders and regulations which purport to ban such discrimination.
Since the complaint was dismissed on appellees' motion for summary judgment, the controversy on appeal concerns the content and meaning of the complaint. The charges contained in the 12 printed pages of the complaint are both comprehensive and vehement, but they are notably lacking in specificity.
Plaintiffs are 14 named employees of the Wright Patterson Air Force Base and the class of all present and former Negro employees at that base purported to be represented by them.
The District Judge who heard the motion to dismiss and ultimately granted it, summarized the amended complaint filed by plaintiffs as follows:
The government's motion for summary judgment was based on three grounds: 1) sovereign immunity, 2) failure to state a cause of action due to the conclusory character of pleadings, and 3) failure to exhaust remedies.
The District Judge's rationale for entering summary judgment was that basically the action was against the United States in its sovereign capacity and that the United States had not consented to be sued and was immune to the suit. He relied primarily upon Gnotta v. United States, 415 F.2d 1271 (8th Cir. 1969), cert. denied, 397 U.S. 934, 90 S.Ct. 941, 25 L.Ed.2d 115 (1970), and Congress of Racial Equality v. Commissioner, Social Security Administration, 270 F.Supp. 537 (D.C.Md.1967).
Appellants complain that the District Judge gave their complaint a narrow reading. Their brief states:
The equal opportunity system for federal employees which plaintiffs seek to enjoin has a substantial foundation.
The Thirteenth Amendment, which prohibits both "slavery" and "involuntary servitude" itself states:
"(b) Congress shall have power to enforce this article by appropriate legislation." U.S.Const., Amend. XIII, § 2.
Employing this power, Congress has adopted equal opportunity legislation assigning responsibility as to federal employment to the President. Title 5, United States Code, provides in pertinent part:
Congress has also specifically exempted the United States as an "employer" from the Equal Opportunities Subchapter of the Civil Rights Act:
In turn the President has undertaken implementation of the Constitutional and statutory policy. Executive Order No. 11246, 30 FR 12319, provides in part:
In turn the Civil Service Commission has adopted a full set of Equal Opportunity Regulations (Civil Service Commission's Equal Opportunity Regulations, 5 C.F.R. § 713 (1971)) and the Air Force has done likewise (Air Force Regulations #40-713). While these regulations are too lengthy to quote in full, we have reviewed them in detail and find them completely consistent in stated purpose with the Presidential order, the statutory policy and the Thirteenth Amendment set forth above.
While we note appellants' due process contentions, like the District Judge, we find no constitutional invalidity in an administrative regulation which provides for complaints, for hearings, for confrontation and cross-examination of witnesses, and for appeal to the Air Force Equal Opportunity Officer appointed by the Secretary of the Air Force and then for appeal to the Civil...
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