Revis v. Laird

• Decision Date: 31 March 1975
• Docket Number: Civ. No. S-2534 TJM.
• Parties: Raul Edward REVIS, Plaintiff, v. Melvin LAIRD, Secretary of Defense, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

391 F. Supp. 1133

Raul Edward REVIS, Plaintiff, v. Melvin LAIRD, Secretary of Defense, et al., Defendants.

Civ. No. S-2534 TJM.

United States District Court, E. D. California.

March 31, 1975.

COPYRIGHT MATERIAL OMITTED

Richard Keith Corbin, Sacramento, Cal., for plaintiff.

Brewster Q. Morgan, Asst. U. S. Atty., Sacramento, Cal., for defendants.

OPINION

MacBRIDE, Chief Judge.

Plaintiff Raul Edward Revis alleges racial discrimination in his employment with the United States Air Force at McClellan Air Force Base, California. The complaint arises from plaintiff's employment on February 11, 1966, as a Mobile Equipment Repairer, W-9, at the Air Force Base. Defendants are the Secretary of Defense, the Secretary of the Air Force, the Commander, Vice-Commander and Deputy Commander of McClellan Air Force Base, the Chief of the Equal Employment Opportunity Office and the Chief of Civilian Personnel at McClellan Air Force Base, and four supervisors of the Vehicle Transportation Division at the Air Force Base, all in their official and individual capacities. The United States is also a party defendant.

Plaintiff submitted a claim to the Civil Service Commission on August 28, 1970, which claim was denied on November 29, 1971. In this regard, plaintiff sues the chairman and two vice-chairmen of the Civil Service Commission and the Chairman of the Board of Appeals and Review, and alleges abuse of discretion in ratifying the denial of plaintiff's claim of racial discrimination. These defendants are also sued in their official and individual capacities.

The prayer is for injunctive relief, award of back pay, declaratory judgment, costs of suit and reasonable attorney's fees, compensatory damages of $25,000 as to each defendant, compensatory damages against the United States of $9,999.99, and punitive damages against all the defendants except the United States in the sum of $100,000.

In his second amended complaint, plaintiff invokes jurisdiction of this court pursuant to Title 28 U.S.C. § 1331 (federal question jurisdiction); 28 U.S.C. § 1343 (jurisdiction to redress deprivations of various civil rights); and 28 U.S.C. § 2201 (declaratory relief). Plaintiff alleges causes of action grounded under Title 42 U.S.C. § 2000e et seq.; § 1981; § 1983; § 1985; the First Amendment; the Fifth Amendment; Federal "common law"; and Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Plaintiff also invokes the court's review powers under the Administrative Procedure Act, Title 5 U.S.C. § 701 et seq.

Suit was filed in this court on July 28, 1972. On August 7, 1973, the defendants moved to dismiss on various grounds. On June 20, 1974, defendants incorporated their motion to dismiss in a motion for summary judgment. On August 15, 1974, plaintiff filed a cross-motion for summary judgment. The case is here now on these cross-motions for summary judgment and this court will proceed to deal with the numerous legal questions raised by this case.

RETROACTIVE EFFECT OF 42 U.S.C. § 2000e-16

Title 42 U.S.C. § 2000e-16, enacted on March 24, 1972, provides that a federal employee or an applicant for employment "aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 . . .." In the instant case the claim of racial discrimination was filed with the Civil Service Commission on August 28, 1970, and the Civil Service Commission rendered its decision denying the claim on November 29, 1971. As these events all occurred prior to the March 24, 1972, enactment of § 2000e-16, the question arises as to the retroactive effect of that section.

As an initial matter, it should be noted that for many years prior to March 24, 1972, a series of Executive Orders provided safeguards to federal employees against racial discrimination. The earliest such Executive Order relevant here is E.O. 9980, July 26, 1948, 3 CFR 720 (1943-48 Comp). There followed E.O. 10590, January 18, 1955, 3 CFR 237 (1954-58 Comp); E.O. 10925, March 6, 1961, 3 CFR 448 (1959-63 Comp); E.O. 11246, September 24, 1965, 3 CFR 339 (1964-65 Comp); and E.O. 11478, August 8, 1969, 3 CFR 803 (1966-70 Comp). All of these orders established a policy against racial discrimination in Federal employment and all prescribed procedures for the processing of discrimination complaints.

Nevertheless, the drafters of the 1972 Act which created § 2000e-16 were aware that even though federal employees had the substantive right to be free of discrimination on the basis of race, there was much disenchantment with the means available for the enforcement of that right. Thus, the Senate Report on the 1972 Act stated that "testimony before the Senate Labor Subcommittee reflected a general lack of confidence in the effectiveness of the complaint procedure on the part of Federal employees." 92nd Cong.2d Sess. 423 (1972). It was further found that "an aggrieved Federal employee did not have access to the courts. In many cases, the employee had to overcome . . . a Government defense of sovereign immunity." 92nd Cong. 2d Sess. 425 (1972). It was to overcome such shortcomings that § 2000e-16 was enacted to provide that "aggrieved federal employees or applicants would also have the full rights available in the courts as were granted to individuals in the private sector . . ." 92nd Cong. 2d Sess. 425 (1972).

Only four circuit courts have spoken to the issue of retroactive application of § 2000e-16, and the result has been a split of authority. The District of Columbia, the Second and the Fourth Circuits have all held that § 2000e-16 has retroactive effect. Womack v. Lynn, 504 F.2d 267 (D.C.Cir. 1974); Brown v. General Services Administration, 507 F.2d 1300 (2d Cir. 1974); Koger v. Ball, 497 F.2d 702 (4th Cir. 1974); Clark v. Goode, 499 F.2d 130 (4th Cir. 1974). The Sixth Circuit has held that § 2000e-16 does not have retroactive application. Place v. Weinberger, 497 F.2d 412 (6th Cir. 1974). The district courts which have considered the question have gone both ways: Hackley v. Johnson, 360 F. Supp. 1247 (D.C.D.C.1973) (retroactive); Hall-Vincent v. Richardson, 359 F.Supp. 308 (D.C.Ill.1973) (non-retroactive); Walker v. Kleindienst, 357 F. Supp. 749 (D.C.D.C.1973) (retroactive); Mosely v. United States, 6 FEP Cases 462 (Cal. Jan. 23, 1973); (non-retroactive); Johnson v. University of Pittsburgh, 359 F.Supp. 1002 (D.C.Pa.1973) (retroactive); Henderson v. Defense Contract Administration, 370 F.Supp. 180 (D.C.N.Y.1973) (retroactive); Fears v. Catlin, 377 F.Supp. 291 (D.C.Colo. 1974) (retroactive); Jones v. United States, 376 F.Supp. 13 (D.C.D.C.1974) (non-retroactive); Ficklin v. Sabatini, 378 F.Supp. 19 (D.C.Pa.1974) (retroactive).

It appears that the courts, in construing the statute, have split on the question of its retroactivity primarily as a result of the rule of construction employed. Thus, courts which refuse to apply § 2000e-16 retroactively seem to do so on the theory that "waivers of sovereign immunity must be strictly construed." Place v. Weinberger, 497 F.2d 412, 414 (6th Cir. 1974). On the other hand, those courts applying § 2000e-16 retroactively have done so on the theory that the section is a remedial statute, and "a remedial statute shall be so construed as to make it effect its evident purpose and if the reason of the statute extends to past transactions, as well as to those in the future, then it will be so applied." Henderson v. Defense Contract Administration, 370 F.Supp. 180, 183 (D.C.N.Y.1973).

Because of the posture of the instant case, however, this court need not choose whether to follow the lead of the District of Columbia, the Second and the Fourth Circuits and apply § 2000e-16 retroactively, or whether to follow the lead of the Sixth Circuit and refuse to give § 2000e-16 retroactive application. Even the Circuits which have applied § 2000e-16 retroactively have done so on a limited basis. Thus, these Circuits have determined that § 2000e-16 should not be retroactive to all claims arising prior to its enactment, but only as to claims pending before the governmental agency or the Civil Service Commission on March 24, 1972. Womack v. Lynn, 504 F.2d 277 (D.C.Cir. 1974); Brown v. General Services Administration, 507 F. 2d 1300 (2d Cir. 1974); Koger v. Ball, 497 F.2d 702 (4th Cir. 1974); Clark v. Goode, 499 F.2d 130 (4th Cir. 1974). See also Fears v. Catlin, 377 F.Supp. 291 (Colo.1974); Ficklin v. Sabatini, 378 F. Supp. 19 (Pa.1974).

In the instant case, plaintiff filed his claim of racial discrimination with the Civil Service Commission on August 28, 1970, and the Civil Service Commission rendered its decision denying the claim on November 29, 1971. It is clear that plaintiff's claim was no longer pending before the Civil Service Commission at the time § 2000e-16 was enacted, and thus, even under the most liberal view, plaintiff cannot now state a cause of action under § 2000e-16.

PRE-EMPTION

Defendants have argued that the enactment of § 2000e-16 was a manifestation of Congressional intent to create new substantive remedies and procedures for federal employees as against the federal government. In this regard, defendants assert that § 2000e-16 preempts the field of causes of action which might have existed for federal employees seeking to redress deprivations of civil rights by their federal employer. On this basis, defendants contend that plaintiff can have no cause of action under 42 U.S.C. §§ 1981, 1983, and 1985.

Whether § 2000e-16 was in fact intended to pre-empt the field is a most difficult question but one which this court need not reach in this case. Since it is clear, as noted in the prior section of this opinion, that plaintiff's claim arose prior to the enactment of § 2000e-16, the court need not reach the question whether § 2000e-16 pre-empts all other causes of action, but rather, the court need only determine whether federal...