United States v. Frazer

• Decision Date: 28 July 1970
• Docket Number: Civ. A. No. 2709-N.
• Citation: 317 F. Supp. 1079
• Parties: UNITED STATES of America by John N. MITCHELL, Attorney General, Plaintiff, v. John S. FRAZER, as Director, Alabama Personnel Department, Tom J. Ventress, as Chairman, State Personnel Board, James A. Simpson, as a Member, State Personnel Board, Ralph W. Adams, as a Member, State Personnel Board, Frank House, as Commissioner and Director, Alabama Department of Pensions and Security, Robert G. Kendall, Jr., as Director, Alabama Department of Industrial Relations, Ira L. Myers, as State Health Officer and Director, Alabama Department of Public Health, Ernest Stone, as Superintendent and Director, Alabama Department of Education, Stonewall B. Stickney, as State Mental Health Officer and Director, Alabama Department of Mental Health, and J. Frank Manderson, as Director, Alabama Department of Civil Defense, Defendants.
• Court: U.S. District Court — Middle District of Alabama

317 F. Supp. 1079

UNITED STATES of America by John N. MITCHELL, Attorney General, Plaintiff, v. John S. FRAZER, as Director, Alabama Personnel Department, Tom J. Ventress, as Chairman, State Personnel Board, James A. Simpson, as a Member, State Personnel Board, Ralph W. Adams, as a Member, State Personnel Board, Frank House, as Commissioner and Director, Alabama Department of Pensions and Security, Robert G. Kendall, Jr., as Director, Alabama Department of Industrial Relations, Ira L. Myers, as State Health Officer and Director, Alabama Department of Public Health, Ernest Stone, as Superintendent and Director, Alabama Department of Education, Stonewall B. Stickney, as State Mental Health Officer and Director, Alabama Department of Mental Health, and J. Frank Manderson, as Director, Alabama Department of Civil Defense, Defendants.

Civ. A. No. 2709-N.

United States District Court, M. D. Alabama, N. D.

July 28, 1970.

COPYRIGHT MATERIAL OMITTED

Jerris Leonard, Asst. Atty. Gen., U. S. Dept. of Justice, David L. Rose, Harold Himmelman and Andrew J. Ruzicho, Attys., U. S. Dept. of Justice, Washington, D. C., and Ira DeMent, U. S. Atty., Montgomery, Ala., for plaintiff.

MacDonald Gallion, Atty. Gen. of Alabama, Gordon Madison, Mary Lee Stapp, William N. McQueen, Bernard F. Sykes and Jamie L. Pettigrew, Asst. Attys. Gen., J. Eugene Foster, Gen. Counsel, Dept. of Industrial Relations, Thomas W. Thagard, Jr., Sp. Asst. Atty. Gen., of Smith, Bowman, Thagard, Crook and Culpepper, Montgomery, Ala., James A. Simpson, of Lange, Simpson, Robinson & Somerville, Birmingham, Ala., pro se, for defendants.

MEMORANDUM OPINION

FRANK M. JOHNSON, Jr., Chief Judge.

The United States of America, acting through its Attorney General, brings this action to enforce the requirement of federal statutes and regulations that State personnel who are engaged in the administration of federally financed grant-in-aid programs be recruited, hired and promoted or demoted on a merit basis, without discrimination on the ground of race or color.¹

The defendants Ventress, Simpson and Adams are members of the Alabama State Personnel Board. The defendant John S. Frazer is the Personnel Director and the head of the Personnel Department of the State of Alabama. As Director, Frazer, together with the State Personnel Board, is responsible for the administration of the Alabama Merit system. The Board has the authority and responsibility of adopting and amending rules and regulations for the administration of the Alabama Merit System. Defendants House, Kendall, Myers, Stone, Stickney and Manderson are the heads of the State Departments of Pensions and Security, Industrial Relations, Public Health, Education, Mental Health, and Civil Defense, respectively. These departments administer the federal grant-in-aid programs which are subject to the federal merit standards statutes set out above in footnote 1. Each of the defendants has the responsibility—acting within the rules and regulations for the administration of the Alabama Merit System as promulgated by the Alabama State Personnel Board and as administered by the Alabama State Personnel Director—for the selection, appointment, promotion, demotion and transfer of personnel and for the recruitment of personnel in his department or agency.

The case is now submitted upon the several issues formulated by the pleadings, the evidence, and the briefs and arguments. The evidence consisted of extensive depositions and exhibits thereto and the oral testimony and exhibits thereto offered in support of and in opposition to the respective positions of the parties. This Court, as authorized by Rule 52, Federal Rules of Civil Procedure, now incorporates in this memorandum opinion the appropriate findings of fact and conclusions of law.²

I

The main thrust of the defense in this case is a challenge to the right of the United States to bring this action. The defendants made their challenge by motions contending that the United States does not have the authority to enforce by judicial proceedings the terms and conditions which Congress, by statute, and federal officials, by regulation (acting pursuant to congressional authority), have attached to the expenditure of federal funds. The defendants also challenge the validity of the federal regulation, 45 C.F.R. 70.4, promulgated by the United States Secretaries of Health, Education and Welfare, Labor and Defense, which requires that states administering programs that receive federal assistance pursuant to the federal merit standards statutes adopt laws, rules and regulations expressly prohibiting discrimination on the ground of race, color, national origin, religious or political affiliation. This regulation also requires that the states provide appropriate procedures for appealing cases of alleged discrimination on any of those grounds.

When reviewing the sufficiency of a complaint against a motion to dismiss, the allegations of the complaint are to be taken as true. No citation of authorities is necessary to sustain this basic proposition. Thus, from the allegations of the complaint, defendants have followed and continue to follow a policy of racial discrimination against Negroes in the selection and appointment of employees in the Alabama agencies here involved. Furthermore, this Court is informed by brief of the United States —and this is not denied by the defendants—that the six State agencies involved in this case receive and administer annually approximately $110,000,000 in federal funds under the merit standards statutes. There is no question that these discriminatory practices engaged in by the defendants, as the United States alleges, constitute violations of the merit system requirements of federal law. 45 C.F.R. 70.4.

The defendants' argument that the enactment of Titles VI and VII of the Civil Rights Act of 1964 "may have nullified" the authority of the Secretaries of Defense, Health, Education and Welfare, and Labor to adopt 45 C.F.R. 70.4 is without merit. Title VII, "For the purposes of this title", defines the term "employer" in such a manner as to exclude states or political subdivisions. Section 701(b), 42 U.S.C. § 2000e(b). This exclusion from the coverage of Title VII was not intended to repeal the authority conferred by other statutes. The limited definition of "employer" was consistent with the congressional concern, under Title VII, to prohibit discrimination by commercial enterprises. Local Union No. 12, United Rubber Cork, Linoleum, and Plastic Workers of America, A.F.L.-C.I.O. v. NLRB, 368 F.2d 12 (5th Cir. 1966), cert. denied 389 U.S. 837; 88 S.Ct. 53, 19 L.Ed.2d 99; United States v. Jefferson County Board of Education, 372 F.2d 836, 883 (5th Cir. 1966), where the United States Court of Appeals for the Fifth Circuit has held that Title VII was not intended to preempt or repeal other provisions of law prohibiting racial discrimination.

It is true that Section 604 of Title VI makes it clear that Title VI was not intended to be applicable to the employment practices of recipients of federal assistance "except where a primary objective of the Federal assistance is to provide employment" or where discrimination in employment causes discrimination to the beneficiaries. United States v. Jefferson County Board of Education, supra. However, the language of Section 604 of Title VI also clearly reflects that that section was not intended to detract from any authority that federal officials might have under other provisions of the law. Thus, neither Title VI nor Title VII preempts or limits the authority that federal officials have to take affirmative action, including the filing of civil actions, designed to reduce or eliminate racial discrimination.

Another substantial challenge—and one the defendants strenuously urge— concerns whether the United States has the authority to enforce by a judicial proceeding the terms and conditions set forth in federal statutes and regulations requiring states to follow merit personnel standards. This Court is clear to the conclusion that the United States does have standing to seek judicial enforcement of the terms and conditions of grants of federal property and that the administrative remedy of termination of assistance was not intended to be and is not exclusive. The argument of the State of Alabama, if it prevailed, would necessitate this Court's telling the United States of America that the only remedy it has in this case is to administratively terminate the federal funds of $110,000,000 a year provided to the State agencies here concerned for assistance to the aged, to families with dependent children, to crippled children's services, for aid to the blind, aid to the permanently and totally disabled, and for other similar programs administered by the defendants for the benefit of United States citizens residing in the State of Alabama.

It is settled law that the United States has the authority to fix the terms and conditions upon which its money allotments to states shall be disbursed. King v. Smith, 392 U.S. 309, 333 N. 34, 88 S.Ct. 2128, 20 L.Ed.2d 1118. Upon this point, the United States Supreme Court stated:

There is of course no question that the Federal Government, unless barred by some controlling constitutional prohibition, may impose the terms and conditions upon which its money allotments to the States shall be disbursed, and that any state law or regulation inconsistent with such federal terms and conditions is to that extent invalid. See Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 295, 78 S.Ct. 1174, 1185, 2 L.Ed.2d 1313 (1958); State of Oklahoma v. United States Civil Service Comm'n, 330 U.S. 127, 143, 67 S.Ct. 544, 553, 91 L.Ed. 794 (1947).

The law is also clear that the grant of federal assistance may be made upon conditions that are attached to the grant and that the acceptance by the recipient of the grant to which the conditions and stipulations are attached creates an...