Viewing the complaint, therefore, as stating a claim under common law contract principles would require the conclusion that this court has no jurisdiction.
As stated earlier, however, it is possible to construe the complaint, not as one based on common law contract principles, but as claiming a cause of action created by an Executive Order. Under this latter view, applying the principles enunciated in Montana-Dakota Co. v. Pub. Serv. Co., supra, (and see Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946)) plaintiff manages to get over the jurisdictional hurdle, for simply by asserting that he has a cause of action under a 'law' of the United States, he has created jurisdiction in this court to determine whether such a claim is well founded, but by doing so he has created a problem for himself as to whether he can set forth a cause of action.
(b) Failure to state a claim:
For the purpose of this aspect of defendant's motion, I will assume that the Executive Order in question has the force of law and the discussion hereinafter will be predicated on that assumption.
Plaintiff's burden then is to show that a private cause of action was created for the redress of the discrimination practiced against him. No such private right or cause of action is expressly granted or referred to by the words of the Executive Order in question.
A review of anti-discrimination executive orders from 1941 to 1963,
and finally the enabling legislation on which they were based
reveals, likewise, no reference to private rights or private causes of action for or on behalf of persons subjected to discrimination in employment. By way of contrast, when Congress has created private rights and private causes of action it has done so clearly, in express language, defining the measures of recovery, as in the Civil Rights Act
and other legislation.
There is no such express grant of private rights here.
The remaining question is whether a private right of action may be implied from the executive orders. Plaintiff has cited several cases ( Fitzgerald v. Pan American World Airways, Inc., 229 F.2d 499 (2nd Cir., 1956); Reitmeister v. Reitmeister, 162 F.2d 691 (2nd Cir., 1947); Wills v. Trans World Airlines, Inc., 200 F.Supp. 360 (D.C.S.D.Calif.1961)) in support of his contention that a private right was created by implication. Those cases are of very little assistance to him since they are based upon the recognized principle that when conduct is declared criminal for the protection of a specified class of persons, there is created, by implication, a civil right of action for an offended member of the class. The conduct complained of by defendant has not been made criminal, although other conduct violative of civil rights has been.
Absent legislation declaring such conduct criminal, therefore, plaintiff cannot rely on the above enunciated principle to support a private civil right of action.
As additional support for his claim that a private right of action was impliedly created, plaintiff argues that to deny such private right would render 'the anti-discrimination clause in government contracts * * * meaningless * * *' This is not so. The administrative procedures established by the series of executive orders to combat discrimination evidence an intent to forego private vindication of rights by the injured party
for administrative procedures designed to accomplish the desired objective by economic pressure and by conciliation.
As early as 1941 (Executive Order 8802, 6 F.R. 3109 (1941)) there was established in the Office of Production Management a Committee on Fair Employment Practice whose duties included receiving and investigating complaints of discrimination, taking steps to redress grievances, and recommending to government departments and agencies appropriate measures to assure nondiscrimination. Such administrative powers, implemented by a succession of executive orders, culminated in Executive Order 10925, March 7, 1961, 3 C.F.R. 86 (1961 Supp.). In this latter Order the policy of requiring non-discrimination clauses in government contracts was reiterated and a Committee on Equal Employment Opportunities was created. In addition to its duty to investigate complaints of discrimination, the Committee was empowered powered to employ economic sanctions
and conciliation procedures in an effort to effectuate the aim of the executive orders.
The constant revision, extension and implementation of administrative procedures to eliminate discrimination by government contractors leads me to conclude that the executive intention was only to create administrative remedies for non-compliance, not private causes of action.
The situation in which plaintiff finds himself is not unlike that of the plaintiff in Montana-Dakota Co. v. Public Service Co., supra, whose problem, as stated by Mr. Justice Jackson, was 'to avoid Scylla without being drawn into Charybdis.' If he relies on a 'good' cause of action (common law cause of action based on contract) he founders on the jurisdictional rocks. In avoiding the jurisdictional rocks he must rely on a theory (federal question based on Executive Order) which draws him into the whirlpool of failure to state a cause of action. The plaintiff did not survive the perilous voyage in the Montana-Dakota case, nor has plaintiff in this one.
Defendant's motion to dismiss the complaint will be granted.