WILKEY, Circuit Judge:
Plaintiffs appeal from an order of the District Court dismissing an action for injunctive and declaratory relief against the Secretary of Defense and the Administrator of the General Services Administration. Plaintiffs brought the action on their own behalf and "on behalf of all black employees, applicants for employment, and prospective applicants for employment at the southern facilities" of eleven paper product companies having supply contracts with Defense and GSA, alleging that the rights of plaintiffs (and the class they represent) had been violated under the due process clause of the Fifth Amendment by the failure of the Government to enforce the companies' contractual agreements for nondiscrimination. The action sought an injunction against the two government officials, preventing the award of any future contracts and requiring the termination of the existing ones until all alleged racially discriminatory employment practices should be eliminated. The District Court dismissed the action on two grounds, sovereign immunity and the failure of the plaintiffs to exhaust their administrative remedies. Without reaching the first, we affirm on the latter ground.
The facts are stated fully in the published opinion
The overall enforcement of these nondiscriminatory contract obligations is entrusted not to the specific contracting agencies themselves (although they have primary responsibility for obtaining compliance), but to the Secretary of Labor. Aside from the contracts with his own Department, he has no special interest in any particular contract or contractor, but independently has the specific duty to see that the nondiscriminatory provisions are enforced with all government contractors. To carry out his responsibility the Secretary has created the Office of Federal Contract Compliance and promulgated detailed regulations, which among other things, establish a complete procedure under which any employee or applicant for employment may complain of discriminatory
At the time of oral argument, out of the eleven companies involved here, with three the Government had reached new affirmative action agreements correcting violations found by the investigation, compliance reviews had been conducted and were being analyzed to determine the existence of violation in four instances, and the remaining four companies were scheduled for compliance reviews in the near future.
Although administrative action under Executive Order 11246 has been and is taking place, yet nowhere in the record is it asserted that any specific one of the plaintiffs has filed a complaint against one of the named companies and invoked the procedure provided by Executive Order 11246 and the implementing regulations.
As to the usefulness of plaintiffs resorting to the administrative procedure set up to achieve precisely the results which plaintiffs desire in this case, i. e., either strict compliance with equal employment opportunity requirements or the debarment of the offending companies from government contracts, we are of the opinion that plaintiffs will never know the result until they try.
1. Principally plaintiffs claim that in the instances where the investigation has been made and completed, and corrective action taken pursuant to a new, specific affirmative action agreement, the companies are still in violation. If this is true, there is nothing to preclude the plaintiffs from filing another complaint making such factual assertions as they think can be established, and calling for a hearing on such complaint in which the plaintiffs and witnesses offered by them may be allowed to participate.
2. Plaintiffs further assert that neither Executive Order 11246 nor the regulations provide an absolute right to the complainants or witnesses offered by them to participate in such hearings, but the regulations do provide that if there is a hearing the individual complainant
3. Plaintiffs further assert that in some (but not all) of the instances where revised contractual obligations have been put into effect following the compliance investigation triggered by the show-cause order, the new contracts have been refused to the plaintiffs on the grounds that these agreements are confidential. Whether this is true or not, we would assume that if a complaint were filed by the plaintiffs in regard to any one of these companies in this situation, the contract provisions would be a matter of relevant evidence at the hearing.
In the present posture of this case the plaintiffs came into the United States District Court without any administrative record whatsoever, for the apparent reason that plaintiffs had never pursued a complaint, if they had filed any in the first instance,
Turning now to plaintiffs' second argument against the applicability of the exhaustion doctrine here, the plaintiffs contend that whether their resort to administrative remedies would be useless or useful, they are not relegated to administrative remedies, but can seek redress originally in the federal courts for alleged violation of their constitutional rights by government officials. However, the Supreme Court cases cited by plaintiffs and the dissent here in support of this theory do not involve federal officials but do involve state or other non-federal officers, and furthermore were brought against such officials under the Civil Rights Act.
First, if the existence of Executive Order 11246 and the implementing regulations providing administrative enforcement of a nondiscrimination policy with government contractors is completely meaningless, it follows—and plaintiffs on oral argument candidly so agreed
And unnecessary. Executive Order 11246, plus supporting comprehensive regulations, was tailored to afford a specific remedy for any violation of the due process clause by racial discrimination committed by government contractors. There is no need to construe the due process clause as containing any particular remedy and being virtually self-executing. The remedy provided by Executive Order 11246 is precisely what the plaintiffs seek here, and directed against the type violators, government contractors, by whose actions plaintiffs may be really aggrieved.
Finally, in view of plaintiffs' constitutional claims advanced in the instant case and the availability of alternate judicial and administrative remedies, it would be particularly inappropriate for this court to involve itself with such constitutional claims at this point. Involvement might well be unnecessary, if the plaintiffs pursued the range of alternatives available to them described above and immediately hereafter. As the Supreme Court stated in Aircraft & Diesel Corp. v. Hirsch:
Our conclusion that plaintiffs should not be permitted to initiate an original court action, demanding the remedy of government contract termination with all companies found racially discriminating in employment practices, with the remedy derived directly from the due process clause, is reinforced by the existence of still another remedy to vindicate their rights unresorted to by plaintiffs. Recognizing that Title VII of the Civil Rights Act of 1964 is not an exclusive remedy,
Indeed, two of the named plaintiffs have filed complaints with the Equal Employment Opportunity Commission, but, as the District Court noted,
The manifest disinterest of plaintiffs in pursuing the effective remedies provided by Congress and the Executive can be explained only by their desire to create a hitherto unfound construction and implicit remedy in the Fifth Amendment due process clause, i.e., private party class actions to compel government officials to terminate contracts with private companies having racially discriminatory practices without the benefit of any enabling statute or administrative procedure. To do so would be unwise, unprecedented, and in complete disregard of the carefully thought out remedies provided by both Congress and the Executive to vindicate plaintiffs' rights. The dismissal by the District Court is
I respectfully dissent.
This action was brought against Melvin R. Laird as Secretary of Defense and Robert L. Kunzig as Administrator of the General Services Administration. The complaint sought (1) a declaratory judgment that the award of contracts by the defendants to racially discriminating companies and the failure to enforce the companies' contractual commitments to nondiscrimination have involved the federal government in discriminatory employment practices which thereby have violated plaintiffs' right to due process under the Fifth Amendment, and (2) an injunction prohibiting the defendants from awarding any further governmental contracts to the discriminating companies and requiring the cancellation or termination of existing contracts with these companies until such time as the discriminatory practices have been eliminated. Despite the clear import of this prayer for relief, the majority would relegate the plaintiffs to the pursuit of what I consider to be wholly inadequate administrative procedures.
There is no doubt that plaintiffs' ultimate goal is the end of what they allege are the racially discriminatory hiring and employment practices of the companies mentioned in this action. This case is a direct attempt to achieve that end. Here plaintiffs seek a declaration of the government's duty affirmatively to secure nondiscriminatory policies among governmental contractors who are being economically sustained by government contracts and public funds.
In my judgment the majority has misstated plaintiffs' case by characterizing it as seeking "either strict compliance with equal employment opportunity requirements or the disbarment of the offending companies from government contracts." Rather, the fundamental thrust of plaintiffs' action seeks a judicial declaration outlining the extent to which government officials who contract with companies that engage in racially discriminatory hiring and promotion practices must undertake to end racial discrimination by these companies. To put it more succinctly, plaintiffs are saying that these government officals have failed to fulfill their constitutional duty to contract with only nondiscriminatory companies and have thereby subsidized and continue to subsidize with federal funds widespread, blatant and continuing racial discrimination. Plaintiffs are seeking a judicial declaration of basic constitutional rights.
Neither administrative remedies under Executive Order 11246 nor those available under Title VII provide any realistic possibility for the relief plaintiffs seek. Those avenues are for the resolution of employee-employer conflict. Certainly under either procedure the government participates in the form of judge or mediator, but a declaration of governmental duties and responsibilities is not contemplated by such procedures. It may be that administrative remedies are available to government officials to force offending companies to cease such invidious practices. This fact, however, does not mean that the victims of such practices cannot litigate their rights in the federal judicial system.
Even assuming that the majority is correct that plaintiffs could theoretically gain relief through these administrative procedures, there is a strong contervailing consideration which suggests that such relegation in this case is neither required nor appropriate. It is that the requirement of exhaustion is rapidly disappearing from that area of our jurisprudence dealing with the vindication of constitutional rights. See Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Chisley v. Richland Parish School Board, 448 F.2d 1251 (5th Cir. 1971); Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971).
I get the impression that the majority may be saying that federal officials are
In the case now before this Court, the only difference is that here the plaintiffs are the ones being discriminated against by the organizations receiving federal funds through various contracts with the United States government being administered by the defendants.
As for the fact that this case is brought under the Fifth Amendment, rather than 42 U.S.C. § 1983, the majority has simply stated a distinction without a difference. Since § 1983 applies only to state action, it is unavailable for challenges to federal officers. More fundamentally, the proper consideration for whether exhaustion is necessary is the similarity of the rights sought to be protected and the reasoning which justifies dispensing with administrative remedies, not the identity of the jurisdictional provision. The crucial factor is that in this case, as in the prior cases, the plaintiffs are seeking protection of or a declaration concerning basic constitutional rights allegedly infringed upon by government officials. There is no sound reason for concluding that an administrative agency is better equipped or more competent than the federal judiciary to determine the merits of plaintiffs' claims.
The majority has also failed to respond adequately to plaintiffs' contention that the administrative remedies are ineffective and unavailing. For example, it is clear from a reading of the regulations that under either the Executive Order or Title VII, the plaintiffs could file complaints against the offending companies. This would not, however, guarantee plaintiffs the right to participate in the agency proceedings, although they may be permitted to do so. They have no control whatever over the investigation or prosecution of the action. They must file the complaint and then hope for the best. I find this case sufficiently similar to Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), to render exhaustion inappropriate.
In addition, past practice demonstrates that without a judicial declaration of their duties under the Constitution, the defendant federal officials are unlikely to take the action plaintiffs desire. Plaintiffs alleged that as to at least four of the 11 firms involved here, the OFCC has investigated and found the companies to be discriminating. Yet no action for the protection of plaintiffs' rights has been taken. Administrative hearings have been held and the defendant officials continue to deal and contract
In sum, it seems to me to be highly ironic that this Court is relegating a claim of constitutional violation by federal officials to other federal administrators despite the fact that the administrators have already exhibited their disinterest in safeguarding plaintiffs' rights. It may be that the Fifth Amendment does not require the cancellation of contracts made by government officials with discriminating companies. Plaintiffs, however, have been denied an opportunity to present their evidence since the case went out in the district court without a hearing. I would remand the case for a hearing of the merits.
41 C.F.R. § 60-2.2(c) (1) reads as follows:
(S. Rep. No. 91-1137, Equal Employment Opportunities Act (1970), 20), the committee nonetheless "decided not to recommend such changes in the existing legislative structure at the present time" (Id.), thus leaving the federal contract compliance function with the OFCC rather than "overburdening" the Equal Employment Opportunity Commission with it. See also Hearings on S. 2453 Before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 91st Cong., 1st Sess. 37, 38, 92-98, 100, 114, 168-69, 194.
Similarly, under a Title VII court action directed against the companies, discussed under III infra, comparative advantages would accrue to plaintiffs.
While the plaintiffs assert that there have been only three instances in the entire history of the OFCC program in which formal hearings were instituted for the purpose of debarring a government contractor (In Matter of Timken Roller Bearing Co., OFCC Docket No. 100-68; In Matter of Allen-Bradley Co., OFCC Docket No. 101-68; and In Matter of Bethlehem Steel Co., OFCC Docket No. 102-68), and that no contract has ever been cancelled, such hearings and subsequent debarment are not, of course, the only manner in which final administrative action may be obtained before judicial consideration is appropriate.
The dissent's assertion that filing a new complaint would merely be fruitless is not warranted in view of the scenario which we envision here. In the event that any of the three possible courses of action described above results, the plaintiffs will have final administrative action and will not have to bear the additional burden of asserting that the specific administrative remedies provided for the very situations involved here are meaningless. In addition, the statement by the dissent that the plaintiffs have been denied an opportunity to present their evidence is incorrect; in the first place, they may be able to present it before the OFCC. In the event they are not asked to do so and receive an adverse decision there, they may seek judicial review again, but this time with the advantage of having final administrative action to which they can point.