TUTTLE, Chief Judge:
Appellant, a naturalized citizen of the United States, is a native of Romania. He was employed as an engineer by the defendant Texas Instrument, Inc. from June, 1962 until his discharge in May, 1963. The complaint asserts that the defendants, Texas Instrument, Inc., and Ling-Temco-Vought, Inc., were prime contractors operating under federal government contracts containing certain provisions, required to be included therein by an Executive Order issued by the President, which forbade the defendants from discriminating against any employee or applicant for employment in connection with the performance of their contracts on the basis, inter alia, of national origin. In substance, appellant claims that his discharge from Texas Instrument was motivated by discrimination based upon his national origin, that Ling-Temco-Vought refused to hire him for the same reason, and that the two defendants engaged in a conspiracy to prevent him from securing employment by the use of certain methods described as "blackball" tactics.
Appellant asserts jurisdiction under 28 U.S.C.A. § 1331, the federal question statute, and 28 U.S.C.A. § 1343, providing for jurisdiction of "any civil action authorized by law to be commenced by any person * * * because of the deprivation of any right or privilege of a citizen of the United States by any act done in furtherance of any conspiracy mentioned in section 1985 of Title 42 * *." The trial judge dismissed the complaint for failure to state a claim within the jurisdiction of the district court. We agree that the complaint must be dismissed, but not for want of jurisdiction.
We consider first the claims of discriminatory discharge and refusal to hire.
A. On March 7, 1961, President John F. Kennedy issued Executive Order No. 10925, the pertinent portion of which required all government contracting agencies to include in every government contract the following provision:
Appellant alleges that the defendants have entered into certain government contracts containing the above-quoted provision, and that they have breached that condition of their agreements by discharging and refusing to employ him because of his national origin. Claiming a federal right as a third-party beneficiary under those contracts, he seeks to maintain this action to recover damages which he claims to have suffered by reason of defendants' nonperformance.
Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), teaches that where the complaint is so drawn as to seek recovery directly under the Constitution or laws of the United States, a federal court must entertain the suit,
The claim attempted to be asserted here is based upon a right claimed to be conferred by an Executive Order. That Order, in turn, is to be accorded the force and effect given to a statute enacted by Congress.
B. This brings us to the question whether a private civil action is a permissible method of enforcing the antidiscrimination provisions of Executive Order No. 10925. This question was considered in Farmer v. Philadelphia Electric Co., 329 F.2d 3 (3rd Cir. 1964). Excerpts from that court's analysis of the question are set out in the margin.
Were there an absence of any remedy save that which might be fashioned under the general jurisdiction of the federal courts, the inference would be strong that that jurisdiction was intended to be invoked to give vitality to the contractual assurances of nondiscrimination given pursuant to the Order. But this is not the case. The path was open to appellant under the Order to lay his complaint before the President's Committee on Equal Employment Opportunity. 41 C.F.R. §§ 60.1.20-27. He alleges that he has availed himself of this opportunity, but that the Committee refused him relief. In light of the Order's emphasis on administrative methods of obtaining compliance with the required contractual provisions, and its narrowly limited reference to judicial enforcement thereof, we conclude that that refusal is final. See Switchmen's Union v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943). Accordingly, the claims predicated upon breach of contractual nondiscrimination provisions must be dismissed on the merits for failure to state a cause of action upon which relief can be granted.
We turn now to the claimed conspiracy. The complaint alleges that "at various times subsequent to his discharge by Defendant Texas Instrument, Inc., said Defendant knowingly, intentionally and unlawfully combined with other persons, firms and corporations to deprive the Plaintiff of the equal protection of the laws and of equal privileges and immunities under the laws and his rights as a citizen of the United States by preventing the Plaintiff from obtaining and securing employment, and in causing the Plaintiff to be pressured, threatened, harassed and intimidated by local law enforcement officers who were caused to follow the Plaintiff about and subject him to unreasonable and unwarranted surveillance and interrogation, all under the color of state law and authority, and injuring the Plaintiff in person and property for lawfully attempting to enforce his rights to the equal protection of the laws." Appellant's contention is that by these actions, the defendants have violated 42 U.S.C. §§ 1985(2) and (3).
Original jurisdiction over actions brought to recover damages resulting from such violations is committed to the district courts by 28 U.S.C. § 1343. Clearly, appellant has attempted to state a right based on Sections 1343 and 1985. His federal claim is neither immaterial to the relief sought nor, in our judgment, wholly insubstantial. Thus, under Bell v. Hood, supra, the district court had jurisdiction to determine the question whether the allegations of conspiracy in appellant's complaint stated a federally-granted cause of action. Congress of Racial Equality v. Clemmons, 323 F.2d 54 (5th Cir. 1963).
On the merits, the difficulty with appellant's claim is that it nowhere contains the essential allegations of state action. As we said in Clemmons, supra, "It is still the law that the Fourteenth Amendment and the statutes enacted pursuant to it, including 42 U.S.C.A., § 1985, apply only where there is state action." Id. at 62.
Appellant does allege that the defendants furnished false information to local and federal authorities (including the federal officer sent to investigate the complaint filed by appellant pursuant to Executive Order No. 10925), and that they caused local law enforcement officers to "subject him to unwarranted and unreasonable surveillance and interrogation."
In one sense, of course, these allegations do show involvement by officials "acting under color of state law." But these alleged activities are not the sort of "state action" with which § 1985 is concerned. Appellant alleges that local law enforcement officers were caused to subject him to unreasonable and unwarranted surveillance and interrogation, but he does not allege that the persons responsible for this alleged invasion of his rights were acting under color of state law. In fact, he alleges that the defendants, both private corporations, caused these actions to be taken. As we said in Dinwiddie v. Brown, 230 F.2d 465 (5th Cir. 1956):
The allegations of conspiracy, then, do not state a cause of action upon which relief can be granted, and the complaint should therefore have been dismissed for that reason.
For the reasons stated, the judgment of dismissal is
Section 307 of this Order in pertinent part provides:
The regulations of the President's Committee on Equal Employment Opportunity, issued under Executive Order 10925, 26 F.R. 6585 (July 1961), 41 CFR, § 60-1.24 (b) (2), state in part:
When informal means are unsuccessful, 41 CFR, § 60-1.24 (b) (3) provides that the appropriate sanction or penalty may be imposed. However, the intention of the Committee to maintain control over the imposition of such sanctions and penalties is shown by the provision that
Further, § 60-1.29 of 41 CFR provides that no case shall be referred to the Department of Justice for legal action without ten days' notice to the contractor "affording him an opportunity to comply with the provisions of the Order * * *.", and that
As far as we have been able to ascertain, the Department of Justice has not instituted any proceeding in any court against any noncomplying contractor to enforce the nondiscrimination provisions of a Government contract.
Farmer v. Philadelphia Electric Co., 329 F.2d 3, 8-9 (3rd Cir. 1964).