Penn v. Schlesinger
Citation | 497 F.2d 970 |
Decision Date | 26 July 1974 |
Docket Number | No. 72-3684.,72-3684. |
Parties | Willie PENN, Individually, etc., et al., Plaintiffs-Appellees, v. James R. SCHLESINGER, Individually and as Secretary of Defense, etc., et al., Defendants-Appellants. |
Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Ira DeMent, U. S. Atty., Kenneth E. Vines, Asst. U. S. Atty., Montgomery, Ala., Morton Hollander, David Anderson, Walter H. Fleischer, James C. Hair, Jr., Civil Div., Dept. of Justice, Washington, D. C., for defendants-appellants.
Morris S. Dees, Jr., Southern Poverty Law Center, Joseph J. Levin, Jr., Charles F. Abernathy, Montgomery, Ala., Orzell Billingsley, Jr., Birmingham, Ala., J. L. Chestnut, Jr., Selma, Ala., for plaintiffs-appellees.
Before BROWN, Chief Judge, TUTTLE, Senior Circuit Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.
For the reasons set out in the dissenting opinion of Judge Godbold, Penn v. Schlesinger, 490 F.2d 700, 707-714 (CA5, 1973), the court en banc concludes that the claims of the individual plaintiffs should have been dismissed for failure to exhaust administrative remedies.1
The opinion of the panel is reversed. The order of the District Court is reversed and the cause is remanded to the District Court with instructions to dismiss the case.
With deference, I feel that I must dissent from the decision and the opinion of the Court, sitting en banc, in reversing the denial by the trial court of a motion to dismiss this section 1981 suit against the heads of the United States Government departments for racial discrimination in hiring policies, because the named plaintiffs in the class action had failed to exhaust certain Civil Service administrative remedies available to them.
There are two important issues presented to the Court, only one of which could be considered by the original panel because of the rule of stare decisis within the Circuit. The original decision is now reversed by the per curiam opinion of this Court, which adopts the dissenting opinion. For the prevailing and dissenting opinions previously entered see 490 F.2d 700 (5th Cir. 1973).
The two issues which are here presented are: (1) is a black plaintiff and an association seeking to represent black employees and prospective employees of some of the departments of the United States Government, who allege, in a section 1981 complaint, egregious acts of discrimination against blacks as a class in employment and promotion in the various government departments, required to exhaust administrative remedies promulgated as regulations by the Civil Service Commission to implement Executive Order No. 11478, Executive Order No. 115901 as a condition precedent to their filing either an individual or class action in the United States Courts against United States Government officials who are charged with having been responsible for the acts of discrimination ; (2) then, assuming such exhaustion is a prerequisite to the filing of a section 1981 suit, did the conduct of the subordinate officials, acting as Equal Employment counselors, which the plaintiffs claim aborted their efforts to obtain redress through administrative means, satisfy the normal requirements of exhaustion.
When this case was before the original panel the first question was not open for our consideration. This Court had already in the case of Beale v. Blount, 461 F.2d 1133 (5th Cir. 1972) explicitly held that a section 1981 suit could not be brought against the Postmaster General of the United States in a racial discrimination case in federal employment until the plaintiff had exhausted the administrative remedies which we have heretofore referred to. Being bound by that prior decision, as we were, the panel considered merely the second question which is still in issue here. We concluded that what may be considered to be substantial rebuffs of the plaintiffs in their efforts to have their racial discrimination charges considered by their supervisors, who were also EEO counselors, distinguished this case from Beale v. Blount, supra, in that in the latter case the plaintiff was expressly invited to file a complaint with the agency for administrative handling, but he declined to do so, filing the suit in court instead.
Now, however, this Court en banc writes on a clean sheet, it of course being within the competence of the Court sitting en banc to overrule Beale v. Blount, supra, if we conclude that it incorrectly states the law in this important area dealing with efforts to put an end to racially discriminatory hiring practices, whether by private employers, state or local governments, or the United States Government itself.
I conclude that the most striking argument for overruling the Beale decision is the fact, which none denies, that both the Supreme Court and this Court have repeatedly held that where a case of alleged discrimination on account of race is alleged under section 1983 against a state or under section 1981 against a private employer, or against an individual under section 1982 even though there are administrative means which are intended to give the discriminatee an opportunity to achieve his desired results, the early Civil Rights statutes are available to a plaintiff as an alternative remedy to any others that may exist, and he is not denied access to the courts because of his failure to choose the other way round. Damico et al. v. California et al., 389 U.S. 416, 88 S.Ct. 526, 19 L. Ed.2d 647 (1967) is a case brought under 42 U.S.C.A. § 1983 and it is described in the following manner in the per curiam opinion:
So far as relates to suits against private employers this Court, in Sanders v. Dobbs House, 431 F.2d 1097 (5th Cir. 1970) made short shrift of the contention that when Congress passed Title VII of the Civil Rights Act of 1964 this preempted the general remedial language of section 1981, insofar as the right to contract for employment is concerned. In Sanders we said:
citing cases.
We further stated:
The case of Caldwell v. National Brewing Co., 443 F.2d 1044 (5th Cir. 1971) even more clearly demonstrates the fact that this Court has made it clear that a plaintiff may file suit on a charge of racial discrimination in employment under section 1981 even where he has deliberately bypassed the EEOC administrative remedies under Title VII. This Court said:
443 F.2d 1044, 1046....
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...has preserved the necessity for exhaustion of administrative remedies in certain circumstances in civil rights cases. Penn v. Schlesinger, 497 F.2d 970 (5th Cir. 1974) (en banc decision on § 1981 suit against federal defendants) (adopting dissent by Godbold, J. at 490 F.2d 700, 707-14 (5th ......
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...than the officer's personal funds. See Penn v. Schlesinger, 490 F.2d 700, 704-05 (5th Cir. 1973), rev'd on other grounds, 497 F.2d 970 (5th Cir. 1974) (en banc), cert. denied, 426 U.S. 934, 96 S.Ct. 2646, 49 L.Ed.2d 385 (1976). Cf. Marcus Garvey Square v. Winston Burnett Construction Co., 5......
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...See Bowers v. Campbell, 505 F.2d 1155, 1158 (9th Cir. 1974); Penn v. Schlesinger, 490 F.2d 700, 704, rev'd on other grounds, 497 F.2d 970 (5th Cir. 1974) (en banc), cert. denied, 426 U.S. 934, 96 S.Ct. 2646, 49 L.Ed.2d 385 (1976). Furthermore, the record makes it clear that the specific rel......
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