PERCY v. BRENNAN 813
PERCY v. BRENNAN 813 Cite as 384 F.Supp. 800 (1974) tracts]." (Amended Complaint, Ex- this paragraph." 41 C.F.R. § 60-1.- hibit D). 4(b) (2), 39 Fed;Reg. 2365 (January Subsequently, the State Department of Labor found the Mayor's Plan unacceptable because it was not in accord with the New York Plan. 21, 1974). Plaintiffs challenge all three regulations as invalid for failure to be published in accordance with federal and state On January 16, 1974, the U. S. Secretary of Labor, the Assistant Secretary Memorandum as an illegal attempt to law. They also challenge the Brennan of Labor for Employment Standards and preempt local equal employment opportunity programs. the Director of the Office of Federal Contract Compliance issued a regulation; 39 Fed.Reg. 2365, which was published B. MOTION FOR PARTIAL SUMin the Federal Register on January 21, MARY JUDGMENT 1974, to be effective on the date of publishing. It constituted an amendment to judgment enjoining the enforcement of Plaintiffs move for partial summary 41 C.F .R. § 60-1.4 and, according to its the July 19, 1973 Brennan Memorandum preamble was intended: and the June 29, 1973 State letter. "to clarify the extent to which the U. [21] In the companion case, City v. S. Department of Labor will deem Diamond, supra, we determined that the State and local government equal employment opportunity requirements Brennan Memorandum was invalid both because it was not published in accordance with the requirements of the Ad applicable to federally assisted construction contracts subject to the ministrative Procedure Act, 5 U.S.C. §§ equal employment requirements of Executive Order 11246, as amended, and 552, 553, and because it was an unauthorized attempt to preempt local equal its implementing rules, regulations, employment opportunity efforts. The and orders, including Federal equal Secretary of Labor and other federal defendants in Diamond were enjoined employment opportunity bid documents incorporating the requirements from terminating or withholding federal of voluntary or imposed construction industry plans established pursuant to grant funds for eligible City projects the Executive Order." 39 Fed.Reg. where such termination or withholding 2365 (January 21, 1974). occurred solely on the ground that the The regulation required any state or local government which intended to im project was subject to the Mayor's Plan or that the Mayor's Plan exceeded the pose affirmative action requirements on requirements of the New York Plan. contractors working on federally assisted construction projects to submit the The decision in Diamond fits the shoe here and the federal defendants in this requirements to the Director of the Office of Federal Contract Compliance for case are accordingly enjoined from enforcing the Brennan Memorandum on all approval. The Director was to render a federally-assisted construction projects. decision which could be appealed to the Assistant Secretary of Labor for Employment Standards. The regulation further provided: "The State or local government affirmative action hiring and/or training requirements shall not be included in federally assisted construction contracts until the Director, · or, in the case of ~n appeal, the Assistant Secretary, has .had an opportunity to make a determination in accordance with [22] Plaintiffs next argue that the State letter is invalid because it was not published as required by Article 4, § 8, New York Constitution, and New York Executive Law § 102. Article 4, § 8 of the State Constitution (McKinney 1969) provides: "No rule or regulation made by any state department, board, bureau, officer, authority or commission, except such as relates to the organization or internal management of a state de-
814 384 FEDERAL SUPPLEMENT partment, board, bureau, aQthority or commission, shall be effect,ve until it is filed in the office of tpe department of state. The legislature shall provide for the speedy pu~lication of such rules and regulations, by appropriate laws." This requirement is implemented by Executive Law § 102 (McKinney 1972) which provides for publication of all rules and regulations in the New York Code of Rules and Regulations (NYCRR). The scope of tliese provisions has been interpreted by the New York Court of Appeals in People v. Cull, 10 N.Y.2d 123, 218 N.Y.S.2d 88, 176 N. E.2d 495 (1961), in which Judge Fuld stated: "The term 'rule or regulation', has not, it is true, been the subject of precise definition, but there can be little doubt that, as employed in the constitutional provision, it embraces any kind of legislative or quasi~legislative norm or prescription which establishes a. pattern or course of condqct for the future. The label or name employed is not important and, unquestionably, many so-called 'orders' come within the term." ; I The State letter establishes atprocedure for future approval of affir ative action plans, and therefore falls ithin the constitutional and statutory ~ublication requirements as construed in: People v. Cull. Since defendants do n~t contest the fact that the letter was ~ever published, the motion for summ~ry judgment is granted, and the State defendants are enjoined from enforcing the terms of the letter without meeting the necessary publication requirements.8 C. MOTION FOR PRELIMINARY INJUNCTION It follows from our grant to plaintiffs of partial summary judgment that the plaintiffs are entitled to a p~eliminary injunction restraining the fe~eral and state defendants respectively from ens. The grant of summary judgm~nt against the state .defendants is predicated solely on the failure to publish the State letter. forcing both the Brennan Memorandum and the State letter as to locally-administered, public construction sites which receive federal or state assistance as the case may be. D. FEDERAL DEFENDANTS' MO TIONS TO DISMISS The plaintiffs move to dismiss for failure to exhaust the remedy allegedly afforded by the January 1974 regulation. As indicated above in detail, we held in the companion case of City v. Diamond, supra, that the January regulation of the Secretary of Labor was invalidly promulgated and without legal effect. The provisions of the "regulation" therefore afford no administrative remedy for the plaintiffs that need be exhausted before seeking judicial relief. For the reasons set forth above, the motions to dismiss are denied except as to the New York State Department of Labor. The motions for determination of a class and for partial summary judgment are granted. The motion for preliminary relief is granted to the extent indicated. It is so ordered. w.,__ __ --,. 0 : KEY NUMBER SYSTEM T John F. CANT, Plaintiff, v. A. G. BECKER & CO., INC., Defendant. No. 71 C 1824. United States District Court, N. D. Illinois. Oct. 21, 1974. Customer brought action against securities broker for violations of the securities laws. The District Court ren- Plaintiffs have not raised issues going to the merits of the letter on this motion and we intimate no views on that subject.
