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ALLEN v. BUTZ

February 27, 1975

ROBERT L. ALLEN, Individually and on behalf of all others similarly situated,
v.
EARL BUTZ, Individually and as Secretary of the Department of Agriculture; his agents, assigns, and successors in office, and I.A. WOLF, Individually and as Director of the U.S. Dept. of Agriculture and American Federation of Government Employees



The opinion of the court was delivered by: GREEN

 GREEN, J.

 I

 This is an action commenced by a former federal employee, who alleges that he has been subjected to racial discrimination in employment, seeking an injunction against future discrimination, promotion, back pay, and attorneys fees.

 This action is based on rights under (1) the Fifth Amendment, (2) the Executive Orders promulgated thereunder; (3) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended March 24, 1972 by the Equal Employment Opportunity Act of 1972; and (4) section 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981. Jurisdiction is asserted under 28 U.S.C. § 1343 (4); 42 U.S.C. §§ 2000e-16(c) and 2000e-5(f)(3); 28 U.S.C. § 2201 and 2202; 28 U.S.C. § 1346(a)(2) and 28 U.S.C. § 1361.

 The complaint was filed as a class action under F.R. Civ. P. 23(b)(2) but determination of the action as a class action has been postponed, by agreement of the parties, until after disposition of the present motions.

 The complaint is in two counts. The first count is directed against the named government officials of the Department of Agriculture. The second count is directed against the American Federation of Government Employees, which is a federal union of government employees.

 Presently before the Court are motions, by both the union and government defendants, to dismiss the complaint and/or for summary judgment. We deny the union's motion to dismiss but grant its motion for summary judgment; we grant the motion of the government defendants to dismiss. In addition, we dismiss the complaint as a class action.

  II

 The count against the government officials contains an allegation that plaintiff did not receive appropriate pay from 1961 to the time of the filing of the complaint. It is alleged that from 1968 through 1970, plaintiff was subjected to various discriminatory practices including inadequate supervision of his work. It is further alleged that there was a failure to promote plaintiff from May of 1971 through January of 1972. All of these actions are alleged to have been taken on account of plaintiff's race. However, there is no allegation that plaintiff is a present employee nor is there any allegation of a discriminatory discharge. Indeed, it is uncontroverted that plaintiff was discharged on May 9, 1972, which discharge was made retroactive to the effective date of April 14, 1972.

 Plaintiff has not exhausted his administrative remedies with respect to any of the claims he presents to this Court. Nevertheless, plaintiff alleges, with some specificity, that his attempts to exhaust his administrative remedies were frustrated by agency personnel; he also claims that administrative remedies are inadequate and/or ineffective.

 There are numerous complex and unresolved legal issues in this area of the law involving federal employment, which bear upon plaintiff's complaint. Such questions, for example are whether a private cause of action can be predicated upon the relevant Executive Orders and whether the Executive Orders and/or 42 U.S.C. § 1981 are waivers of sovereign immunity. Moreover, if we had to reach the issue, we would have to consider certain serious flaws in plaintiff's complaint. For example, plaintiff's complaint for injunctive and promotional relief fails to state a claim upon which relief can be granted since plaintiff is not a federal employee and there is no allegation that his discharge was discriminatory nor is there a request for reinstatement. However, we shall not deal with these potential issues but rather dismiss Count I, as time barred; a defect which cannot be obviated by amendment of the complaint.

 The plaintiff bases his right of action against the government defendants upon the Fifth Amendment, certain Executive Orders, 42 U.S.C. § 1981 and section 11 of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16.

 Exhaustion of administrative remedies is, of course, an explicit requirement for suit under 42 U.S.C. § 2000e-16. The courts have always required exhaustion of available administrative remedies for action such as these against the federal government. See, Beale v. Blount, 461 F.2d 1133 (5th Cir. 1972); Rosenman v. Levbarg, 435 F.2d 1286 (3d Cir. 1969); Baca v. Butz, 376 F. Supp. 1005 (D.N.Mex. 1974); Hackley v. Johnson, 360 F. Supp. 1247 (D.D.C. 1973). The Civil Service Commission, for years, has had regulations and procedures similar to those existing now for the processing of such complaints. In light of the above and the purposes of the exhaustion doctrine, we conclude that exhaustion of available administrative remedies is generally required for suit, against the federal government, under 42 U.S.C. § 1981, the Executive Orders, and the Fifth Amendment. Compare, Penn v. Schlesinger, 490 F.2d 700 (5th Cir. 1973), rev'd en banc, 497 F.2d 970 (5th Cir. 1974); Ficklin v. Sabatini, 383 F. Supp. 1147 (E.D. Pa. 1974); Contra, Kurylas v. U.S. Department of ...


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