PERCY v. BRENNAN 801
PERCY v. BRENNAN 801 Cite as 384 F.Supp. 800 (1074) city administrative remedies; that the 3. United States ~73(9) individual and organizational plaintiffs Director of Office of Federal Conhad standing to bring the action; that tract Compliance has jurisdiction over the State Department of Labor was im- allegations of discrimination of prime mune from suit under doctrine of sover- contractor and subcontractor, but does eign immunity and because its agencies not have jurisdiction to inquire into unwere not "persons" within the meaning constitutionality of contract's equal emof the Civil Rights Act; that the action ployment opportunity clause. Executive could be maintained as a class action; Order No. 11246, 42 U .S.C.A. § 2000e that an evidentiary hearing was necessary for determination of the affirmative action plan's validity; and that letters issued by the Federal and State Departments of Labor concerning the affirmative action plan were invalid for failure to be published in accordance with federal and state law. Plaintiffs' motion for determination of class, for partial summary judgment, and for preliminary relief, granted in part. Defendants' motions to dismiss granted in part and denied in part. 1. Declaratory Judgment ~203 Members of minority group seeking declaration of invalidity of affirmative action plan governing state and federal construction projects did not have to ex.;. haust administrative remedies by suh 0 mitting complaint to Equal Employment Opportunity Commission and Director of Office of Federal Contract Compliance; since those agencies had no jurisdiction to hear complaints regarding unconstitu.i. tional affirmative action plans. CiviJ Rights Act of 1964, §§ 701 et seq., 703 to 705, 42 U.S.C.A. §§ 2000e et seq~~ 2000e-2 to 2000e-4; Executive Order No. 11246, 42 U.S.C.A. § 2000e note. " 2. Civil Rights ~9.10 ... "Unlawful employment practice" in purview of Civil Rights Act of 1964 doet\ not include promulgation of unconstitutional affirmative action plan. Ci~il Rights Act of 1964, §§ 701 et seq., '(03 to 705, 42 U.S.C.A. §§ 2oooe et seq., 2000e-2 to 2000e-4; Executive Ord~r No. 11246, 42 U.S.C.A. § 2oooe note. See publication Words and Phrases for other judicial constructions and definitions. 384 F. Supp.-51 note. 4. Civil Rights ~9.10 Equal employment opportunities provisions of the Civil Rights Act of 1964 neither prohibit discriminatory acts by government officials, except where government is employer, nor proscribe activities of government officials or private entities which operate to foster discrimination by employers or unions. Executive Order No. 11246, 42 U. S.C.A. § 2000e note. 5. Civil Rights ~13.1 Resort to employment discrimination remedies of Civil Rights Act of 1964 was not prerequisite to antidiscrimination suit under Civil Rights Act of 1870. 42 U.S.C.A. § 1981. 6. Civil Rights ~62 Commissions established by New York State Human Rights Law and New York City were authorized only to hear complaints involving discriminatory employment practices by employers, employment agencies, labor organizations, and apprenticeship committees, and had no jurisdiction to consider possible unconstitutionality of affirmative action plan governing federal and state-assisted construction projects. Executive Law N.Y. §§ 296, 297; Administrative Code N.Y. § Bl-7.0(a-c). 7. Administrative La.wand Procedure ~229 Plaintiffs cannot be required to exhaust state procedures when there is no administrative remedy by which plaintiffs could have any assurance of getting relief they want. 8; Constitutional La.w ~42.2(2) Black and Hispanic construction workers who allegedly had been and con-
802 384 FEDERAL SUPPLEMENT tinued to be denied employment in construction industry had standing to bring action challenging constitutionality of affirmative action plan governing federal and state-assisted construction projects. Executive Order No. 11246, 42 U. S.C.A. § 2000e note. 9. Civil Rights e::>9.10 · Constitutional Law e::>215, 253(1) Injuries resulting from racial discrimination fall squarely within protection of Fifth and Fourteenth Amendments to the Constitution, Civil Rights Act of 1870, and Executive Order concerning requirement that federal contractors hire on nondiscriminatory basis. 42 U.S.C.A. § 1981; U.S;C.A.Const. Amends. 5, 14; Executive Order No. 11246, 42 U.S.C.A. § 2000e note. 10. Constitutional Law e::>42.2(2) Organization of black and Hispanic construction workers dedicated to obtaining employment for such workers in construction industry and national organization seeking to protect civil rights of black persons had standing to bring action challenging constitutionality of affirmative action plan governing federal and state construction projects. Executive Order No. 11246, 42 U.S.C.A. § 2000e note. 11. Federal Civil Procedure e::>161 Class of persons and associations representing members of that class could both proceed as proper plaintiffs. 12. Civil Rights e::>13.7 Claim could not be maintained against New York Department of Labor under Civil Rights Act of 1870 since state and its agencies are not "persons" within meaning of Civil Rights Act. 42 U.S.C.A. § 1981. See publication Words and Phrases for other judicial constructions and definitions. 13. Stat.es ~191(1.20) Doctrine of sovereign ~mmunity barred action against New York Department of Labor under Constitution and Executive Order concerning requirement of nondiscriminatory employment practices by federal contractors. Executive Order No. 11246, 42 U .S.C.A. § 2000e note. 14. States e::>191(L20) New York's statutory waiver of im:. munity from suit did not encompass action by minority members against New York Department of Labor challenging affirmative action plan governing federal and state-assisted construction projects. Executive Order No. 11246, 42 U. S.C.A. § 2000e note. 15. Civil Rights e::>42 Complaint alleging that Governor of New York was charged with duty of forcing equal employment opportunity requirements applicable in State, and Industrial Commissioner was responsible for enforcing equal employment opportunity requirements on public construction sites stated cause of action against Governor and Commissioner for alleged failure to properly enforce such requirements. 16. Federal Civil Procedure e::>184 Action challenging constitutionality of affirmative action plan governing federal and state-assisted construction projects could be maintained as class action with class defined as all black and Spanish surnamed persons who were capable of and wished to perform construction work in area governed by affirmative action plan. Fed.Rules Civ. Proc. rule 23(a) (2), 28 U.S.C.A. 17. Federal Civil Procedure ~161 There is no geographical or numerical limit as such on scope of class for maintenance of class action. Fed.Rules Civ.Proc. rule 23, 28 U.S.C.A. 18. Federal Civil Procedure e::>161 There is no requirement to establish need for maint!lining class action if relief with respect to class is otherwise appropriate. Fed.Rules Civ.Proc. rule 23(b) (2), 28 U.S.C.A. 19. Civil Rights e::>9.10 If requirements of affirmative action plan were so minimal that they resulted, albeit unintentionally, in governmental acquiescence in racially discrimi-
