The opinion of the court was delivered by: GORBEY
Plaintiff is a black female currently employed at the Army Support Center, in Philadelphia, Pennsylvania. Plaintiff has brought this action against the federal government, claiming that she has been discriminated against in her employment by the government on the basis of race. Plaintiff claims a cause of action under 42 U.S.C. § 2000(e)-16, 42 U.S.C. § 1981, the Fifth Amendment to the United States Constitution, and Executive Orders No. 11246 and No. 11478.
At the direction of the court, plaintiff submitted a proposed final pretrial order to the government on November 3, 1975. Within this order, plaintiff submitted her proposed findings of fact. From a review of these proposed findings of fact, it is readily apparent that it is plaintiff's intention at trial to prove that the government has been discriminating against her since June, 1967. Plaintiff's proposals outline five separate complaints which she intends to introduce evidence in support of at trial. In response to this proposed final pretrial order, the government has filed a motion for a pretrial order limiting plaintiff's testimony and exhibits to be offered at trial. The government's motion deals with whether or not this court has jurisdiction over the five separate complaints, each of which involves facts which occurred in five different years.
In determining jurisdiction under any of the bases alleged, the issue of sovereign immunity must be considered.
A civil action against the federal government must be specifically authorized by law and plaintiff must be able to point to a constitutional provision, law or treaty which by its terms waives sovereign immunity and gives the consent of the government to be sued.
"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." United States v. Shaw, 309 U.S. 495, 84 L. Ed. 888, 60 S. Ct. 659; Penn v. Schlesinger, 490 F.2d 700 (5th Cir. 1973).
The Fifth Amendment and the Executive Orders clearly do not express an explicit waiver of sovereign immunity or establish a procedural remedy. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e)-16 did expressly waive sovereign immunity. Before filing suit in a district court, however, under the Civil Rights Act of 1964, a plaintiff must have exhausted his or her administrative remedies.
Plaintiff's final alleged basis of jurisdiction is 42 U.S.C. § 1981. It is settled law that a federal employee plaintiff does have jurisdiction under § 1981 in a discrimination suit against the government. What is not settled is whether or not before filing suit in the district court alleging § 1981 as a basis of jurisdiction a federal employee must first exhaust his or her administrative remedies, as he or she must under 42 U.S.C. § 2000e-16. This is one of the two main issues of this case.
Plaintiff claims that exhaustion of remedies is not required in a case under § 1981. As authority she cites Young v. I.T.T., 438 F.2d 757 (3d Cir. 1971); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1975) and numerous other cases, all of which, however, involved employment discrimination in the private sector. A quick review of these cases will reveal that there is no doubt that a private sector employee is not required to first exhaust his administrative remedies before filing suit under § 1981. However, since plaintiff here is a federal employee suing the federal government, these cases are not determinative of the issue herein.
Since the Third Circuit has not decided this point, I will refer to other circuits and to other district court opinions. Within our own circuit, Judge Bechtle, on September 27, 1974, in Ficklin v. Sabatini, 383 F. Supp. 1147 (E.D.Pa.), stated:
"The court is further convinced that, in order for a Federal employee to maintain a valid cause of action under § 1981, all available administrative remedies must first be exhausted. An independent cause of action challenging alleged racial discrimination in Federal employment may properly be brought under § 1981 only after the administrative remedies established by 42 U.S.C. § ...