Penn v. Schlesinger

• Decision Date: 15 March 1974
• Docket Number: No. 72-3684.,72-3684.
• Citation: 490 F.2d 700
• 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: U.S. Court of Appeals — Fifth Circuit

490 F.2d 700 (1973)

Willie PENN, Individually, Etc., et al., Plaintiffs-Appellees, v. James R. SCHLESINGER, Individually and as Secretary of Defense, Etc., et al., Defendants-Appellants.

No. 72-3684.

United States Court of Appeals, Fifth Circuit.

December 18, 1973.

Rehearing Granted March 15, 1974.

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., Civ. Div., Dept. of Justice, Washington, D. C., for defendants-appellants.

Morris S. Dees, Jr., Southern Poverty Law Center, Joseph J. Levin, Jr., Montgomery, Ala., Orzell Billingsley, Jr., Birmingham, Ala., J. L. Chestnut, Jr., Selma, Ala., for plaintiffs-appellees.

Before TUTTLE, GODBOLD and MORGAN, Circuit Judges.

Rehearing En Banc Granted March 15, 1974.

TUTTLE, Circuit Judge:

This interlocutory appeal pursuant to 28 U.S.C.A. § 1292(b)¹ raises three questions: (1) Whether racial discrimination in hiring and promotion by federal agencies is actionable by discriminatees; (2) Whether such claims of discrimination are barred by sovereign immunity; and (3) Whether these plaintiffs exhausted available administrative remedies before filing suit in federal court.

Plaintiffs-appellees Willie Penn, Charles Foster, and the Alabama State Conference of the NAACP, on behalf of themselves, the organization's membership, and "all blacks in Alabama similarly situated" brought this action against the United States and the individuals heading seventeen federal agencies employing persons in Alabama.² Plaintiffs Penn and Foster, both civilian employees of the Department of Defense at Maxwell Air Force Base in Alabama allege they have been denied promotions or advancement solely because of their race. The district court held that the plaintiffs had stated a claim upon which relief could be granted, that sovereign immunity barred relief against the United States but not against the individual government officials, and that the plaintiffs had sufficiently exhausted their administrative remedies before filing this suit. The court, while permitting discovery to proceed, allowed the defendants to make an interlocutory appeal on the controlling questions of law involved in the suit. We affirm.

I. CAUSE OF ACTION.

Assuming for purposes of this interlocutory appeal that the plaintiffs have defined a proper class under Rule 23 and that they were discriminated against by some seventeen federal agencies having offices in Alabama,³ the question remains whether the plaintiffs have stated a claim upon which relief can be granted.

The parties are agreed that Title VII of the Civil Rights Act of 1964 is inapposite.⁴ First, the plaintiffs claim that Executive Order No. 11478, as amended by Executive Order No. 11590,⁵ creates a cause of action by discriminatees against the federal government. Second, plaintiffs allege that 42 U.S.C. § 1981⁶ enables them to sue the federal government for infringement of their right to make and enforce employment contracts on equal grounds with white citizens. Third, they contend that the Fifth Amendment of the United States Constitution creates a direct cause of action by discriminatees against the federal government.⁷

Since, as will subsequently appear, we hold the opinion that the complaint states a claim upon which relief can be granted under Section 1981, we pretermit the questions whether this claim might also be cognizable under either the Executive Order or the Fifth Amendment.⁸

Our decision in Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (1970), held that Section 1981 provided a cause of action to a black employee allegedly discharged solely because of her race. Thus, this Section creates a cause of action for employment contract discrimination against private employers. Though no decision directly in point has been brought to our attention, we think it clear that the rationale of the Dobbs House decision applies to employment discrimination by federal officials as well as by private employers.

In District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 605, 34 L.Ed.2d 613 (1973), the Supreme Court said that Section 1982⁹ is "an `absolute' bar to all such discrimination, private as well as public, federal as well as state." 409 U. S. at 422, 93 S.Ct. at 605. The Court held that Section 1982 was intended to prohibit particular types of discrimination regardless of their sources. In this respect, Section 1982 was contrasted with Section 1983. While the former was enacted to implement the principles enunciated in the Thirteenth Amendment, the latter legislation, enacted eleven years later, was based upon the Fourteenth Amendment. While Section 1982 prohibited discriminatory activity from whatever source, Section 1983 was directed only at discriminatory activities of the states.

The narrow question in this case is whether Section 1981 is more closely analogous to Section 1982 or to Section 1983. In our view, there is no doubt but that Section 1981, like its sister Section 1982, provides a cause of action against all discrimination against blacks, because of race or color, in the making and enforcement of contracts. Therefore, the allegation that the federal government has violated the plaintiffs' contract rights on account of their race does state a cause of action under Section 1981 of the Civil Rights Act of 1866. Hence, we turn to the question whether sovereign immunity bars recovery against the federal government and its employees when an action is brought under Section 1981.

II. SOVEREIGN IMMUNITY.

In the first place, we agree with the district court's analysis that Section 1981 does not constitute a waiver of sovereign immunity by the federal government. It is well settled that a waiver of sovereign immunity must be specific and explicit; such a waiver cannot be implied by construction of an ambiguous statute. See United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L. Ed. 888 (1940); Barefield v. Byrd, 320 F.2d 455 (5th Cir. 1963), cert. denied, 376 U.S. 928, 84 S.Ct. 675, 11 L.Ed.2d 624 (1964). Since Section 1981 contains no explicit waiver of sovereign immunity by the federal government but merely a general prohibition of discrimination on racial grounds, it does not constitute a waiver of this immunity. Any doubt concerning disposition of this issue was put to rest in our decision of Beale v. Blount, 461 F.2d 1133 (5th Cir. 1972), which held a Section 1981 suit for injunctive relief against the federal government to be barred by the doctrine of sovereign immunity.

While the plaintiffs concede and the district court held that Beale v. Blount bars this suit as against the government itself, the plaintiffs present two arguments which they contend circumvent the sovereign immunity bar with respect to the individual federal officials. First, they argue that the Fifth Circuit cases of Beale v. Blount and Blaze v. Moon, 440 F.2d 1348 (5th Cir. 1971) constituted improper extensions of the Eighth Circuit case of Gnotta v. United States, 315 F.2d 1271 (8th Cir. 1969), cert. denied, 397 U.S. 934, 90 S.Ct. 941, 25 L.Ed.2d 115 (1970). While it is true that Gnotta involved review of an administrative finding that no discrimination had been proven while Blaze and Beale were cases in which discrimination had been admitted, we are bound by precedent in this circuit to accept the extension of Gnotta to cases of admitted discrimination. Second, the plaintiffs contend that Blaze and Beale must be read in light of two Supreme Court decisions which recognize certain exceptions to the doctrine of sovereign immunity in suits against federal officials. Larson v. Domestic and Foreign Commerce Corporation, 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949) and Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963). Chief Justice Vinson stated these exceptions to sovereign immunity as follows:

"There may be, of course, suits for specific relief against officers of the sovereign which are not suits against the sovereign . . . First, where the officer\'s powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing the business which the sovereign has empowered him to do or he is doing it in a way which the sovereign has forbidden. His actions are ultra vires his authority and therefore may be made the object of specific relief . . . a second type of case is that in which the statute or order conferring power upon the officer to take action in the sovereign\'s name is claimed to be unconstitutional . . . . here, too, the conduct against which specific relief is sought is beyond the officer\'s powers and is, therefore, not the conduct of the sovereign." 337 U.S. 689-690, 69 S.Ct. 1461, 1462.

In our opinion, a violation of Section 1981 by a federal official must be deemed an ultra vires action on the official's part. Since this federal statute specifically prohibits racial discrimination in the making and enforcement of employment contracts, we cannot infer that federal officials responsible for making employment contract decisions are acting within the scope of their duties on behalf of the sovereign when they act in a racially discriminatory manner.

However, since Beale v. Blount held further that injunctive relief against allegedly racially discriminatory practices by individual federal officials in the Post Office Department was barred by the doctrine of sovereign immunity, we must examine in greater detail the relief requested by the plaintiffs in order to ascertain what relief would, if granted, run against the sovereign rather than merely against an officer of the sovereign acting ultra vires.

The plaintiffs did not seek to enjoin these officials from violating Section 1981. However they did seek "a declaration that the defendants have engaged in a practice of denial of equal right to contract with blacks in Alabama in employment and that such practice is...