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HENDERSON v. DCAS REGION

December 31, 1973

Rudolph J. Henderson, Plaintiff
v.
Defense Contract Administration Services Region, New York et al., Defendants


Pierce, District Judge.


The opinion of the court was delivered by: PIERCE

Memorandum and Order

Plaintiff, a Contract Relations Specialist in the Office of Contract Compliance, Defense Contract Administration Services, (DCASR), New York, alleges that the defendants have engaged in racially discriminatory employment practices against him. The action seeks to enjoin these practices, redress the alleged failure of DCASR to establish racially neutral employment and office procedures and for a declaratory judgment.

 The government has moved for judgment on the pleadings under Rule 12(c) of the Fed. R. Civ. P. alleging that (1) the Court lacks jurisdiction over the subject matter and (2) the complaint fails to name an indispensable party. The government has also moved to dismiss on the ground that the complaint is not timely.

 A. Jurisdiction

 Plaintiff relies on 28 U.S.C. § 1343(4) as its jurisdictional basis. That section provides inter alia that "district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person . . . to recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights . . . " It is clear that this statute supplies a jurisdictional basis only if the action is otherwise authorized by law. Blaze v. Moon, 315 F. Supp. 495 (S.D. Texas 1970), aff'd, 440 F.2d 1348 (5th Cir. 1971). It is plaintiff's position that this suit is authorized by Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-1 et seq., as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. §§ 2000e-1 et seq. which includes discrimination in federal employment.

 Section 2000e-16(c) of the 1972 Act, which was enacted on March 24, 1972, provides that a federal employee or an applicant for employment "aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 . . . " Prior to this federal employees were not protected by the provisions of Title VII. The government therefore argues that since the complaint concerns actions which occurred prior to the 1972 Act that Act has no application to this suit. So the question arises: Does section 2000e-16(c) have retroactive effect? Plaintiff contends that statutes that are remedial or procedural in nature are applicable to cases pending at the time of their enactment and that since section 2000e-16(c) is remedial in nature it therefore applies to his case. The government does not contest the validity of the general proposition but asserts that it has no applicability to the present case. It argues that rather than constituting a mere procedural change section 2000e-16(c) is a waiver of sovereign immunity and therefore creates a new substantive right, i.e., allowing an aggrieved party to sue the federal government. The plaintiff, on the other hand, argues that federal employees have long had the right not to be discriminated against on the basis of race by their federal employer and that the section in question merely provides a new remedy for this long existing right. The limited case law on this point is in conflict. *fn1"

 The Court agrees with plaintiff's position that federal employees have long had the right to be free from job discrimination. Thus for many years prior to March 24, 1972 a series of Executive Orders provided safeguards to federal employees against racial discrimination. The earliest one relevant here is E.O. 9980, July 26, 1948, 3 C.F.R. 720 (1943-48 Comp.). There followed E.O. 10590, January 18, 1955, 3 C.F.R. 237 (1954-58 Comp.); E.O. 10925, March 6, 1961, 3 C.F.R. 448 (1959-63 Comp.); E.O. 11246, September 24, 1965, 3 C.F.R. 339 (1964-65 Comp.), and E.O. 11478, August 8, 1969, 3 C.F.R. 803 (1966-70 Comp.). All of these Orders clearly establish a policy against racial discrimination in Federal employment and all prescribe procedures for processing of discrimination complaints varying somewhat from Order to Order. Moreover, section 7151 of Title 5 of the United States Code declares it to be the official policy of the United States "to insure equal employment opportunities for employees without discrimination because of race, color, religion, sex or national origin."

 However, while it is true that in certain limited cases federal employees have been allowed to bring suit in federal courts alleging racial employment discrimination, *fn2" in the main, their efforts have been defeated by the government's successful assertion of the defense of sovereign immunity. *fn3" But, as shown above, it is incontrovertible, that federal employees did have, long before the passage of the 1972 Act, the substantive right not to be discriminated against on the basis of race by their federal employer.

 The drafters of the 1972 Act were aware that while federal employees did have this right, they were very much disenchanted with the means available for its enforcement. Thus the Senate Report on the 1972 Amendment to Title VII stated that "testimony before the Labor Subcommittee reflected a general lack of confidence in the effectiveness of the complaint procedure on the part of Federal employees." *fn4" Further, it was found that "an aggrieved Federal employee [did] not have access to the courts. In many cases, the employee [had to] overcome a . . . Government defense of sovereign immunity . . . " *fn5" It was to curtail these shortcomings that the statute was to provide that "[aggrieved] [federal] employees or applicants [would] also have the full rights available in the courts as [were] granted to individuals in the private sector under title VII." *fn6"

 In light of this brief background, the Court concludes that the 1972 Act is a remedial statute "which [affords] a remedy, or [improves] or [facilitates] remedies already existing for the enforcement of rights and the redress of injuries . . . " 2 J. G. Sutherland, Statutory Construction § 3302 (3rd ed. 1943). Further, the 1972 Act is clearly modern social legislation and such statutes are generally regarded as remedial in nature. 3 J. G. Sutherland, Statutory Construction § 5702 (1973 Cum. Supp.). It is a well settled rule of construction that "a remedial statute shall be so construed as to make it effect its evident purpose and if the reason of the statute extends to past transactions, as well as to those in the future, then it will be so applied." Walker v. Kleindienst, 357 F. Supp. 749, 751 (D.D.C. 1973). The 1972 Act simply added another forum or tribunal in which federal employees may redress their right not to be discriminated against in employment, *fn7" and reflects a Congressional policy that the right of federal employees against discrimination will be better protected if they are able to sue in federal court if dissatisfied with the agency determination.

 The Court therefore concludes that it has jurisdiction to entertain plaintiff's claim.

 B. Indispensable Party

 The government has also moved to dismiss the complaint on the ground that it fails to name an indispensable party, the Civil Service Commission. The Court finds this position without merit.

 Section 2000e-16(c) specifically provides that in a civil action brought by an aggrieved employee "the head of the department, agency, or unit, as appropriate, shall be the defendant." Section 2000e-16(a) makes it clear that the terms "department", "agency" and "unit" are used to describe the employing branch. It follows, then, that the plain terms of the statute indicate that the Civil Service Commission is not an indispensable party. While conceding this, the government, however, argues that the plaintiff in this case is appealing from a decision made by the Commission and that in such a case judicial review is limited to a determination of whether that decision was arbitrary and capricious and that therefore the Civil Service Commissioners are indispensable parties to that determination. The government urges that for this reason the terms "department, agency or unit" as used in section 2000e-16(c) should be read to include the Civil Service Commission. The government's contention is, of course, bottomed on the allegation that the scope of judicial ...


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