author: WATERMAN, Circuit Judge: FRIENDLY, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joseph DE SENA et al., Defendants-Appellants.
    Nos. 396, 397 and 484, Dockets 73-2048, 73-2086 and 73-2559.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 9, 1973.
    Decided Dec. 28, 1973.
    Robert L. Ellis, Joseph P. Hoey, Gerald L. Shargel, Amen, Weisman & Butler, New York City, for appellant De Sena.

      James M. La Rossa, New York City, for appellants De Gasero and Mucei.
    Raymond J. Dearie, L. Kevin Sheridan, Asst. U. S. Attys., Robert A. Morse, U. S. Atty., E. D. N. Y., for appellee.
    Before WATERMAN, FRIENDLY and TIMBERS, Circuit Judges.
   WATERMAN, Circuit Judge:

Appellants, jointly indicted as principals in a two-count indictment charging violations of two of the federal bank robbery statutes, 18 U.S.C. §§ 2113(a) and 2113(d), were tried together to a jury. Each was found guilty of both of the crimes charged. They have appealed these convictions, and we find their contentions to be without merit.

On September 17, 1970 there was an armed robbery at the Peninsula National Bank in Far Rockaway, New York. The robbery was carried out by three men who entered the bank, and one witness tended to establish the existence of a fourth perpetrator, a driver of a “getaway” car, who had remained outside the bank during the commission of the crime. After the three men inside the bank had taken approximately $50,000 of the federally insured deposits they successfully escaped.

The sole factual issue at trial was whether appellants were participants in the robbery. In support of its claim that they were, the Government offered the testimony of six eyewitnesses to the crime; five were bank employees and the sixth was a bank customer who happened to observe from outside the bank many of the events connected with the consummation of the crime. These witnesses had had substantial opportunities to view the robbers during the commission of the crime, and at trial the six witnesses, in varying combinations, made positive in-court identifications of each of the appellants as one of those robbers. The Government sought to bolster these in-court identifications by testimony that each witness, some eighteen months after the crime and a year be-, fore trial, had previously identified from photographs each particular appellant whom he was now identifying in court.

To controvert the Government’s claim that they were the robbers, each appellant adduced alibi testimony which the jury apparently disbelieved.

Prior to trial the defense was aware that the Government believed that these three appellants were not the sole participants in the robbery. For example, the grand jury indictment had stated that the appellants and “other persons” had carried out the robbery. Moreover, the Government appears to have indicated at the arraignment of the three of them that the appellants and a known colleague of theirs, one James LaRuffa, had committed the crime. When, immediately before the first prosecution witness was to testify, the defense moved for production of any statement taken by the Government “implicating anybody else in this bank robbery or suggesting that another person committed this bank robbery,” the Assistant United States Attorney declared that the Government had obtained a statement which indicated that LaRuffa had been the driver of the getaway car. This statement which was made by someone other than LaRuffa, was furnished to the district court for an in camera inspection to ascertain whether it must be shown to the defense under the doctrine of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Judge Costantino determined that it was not Brady material and therefore refused to order that it be turned over. At the start of the second day of trial appellant De Sena’s counsel indicated that the Government had apparently granted to LaRuffa (who had earlier pleaded guilty before a different judge, Judge Weinstein, to an information which was designed to cover all pending federal charges against him, including any connected with the Peninsula National Bank robbery) immunity from any prosecution for any crime involved with the Peninsula National Bank stickup. The Government acknowledged the promise of immunity but denied a further assertion of defense counsel that this immunity would not have been granted if the Government had not had in its possession a statement from La-Ruffa himself.

The trial then proceeded. The defense, as an act of trial strategy, chose not to call LaRuffa as a defense witness.

More than two months after the return of the jury’s verdict a motion for a new trial was made by the appellants, pursuant to Rule 33 of the Federal Rules of Criminal Procedure, on the basis of an affidavit of one of defense counsel that LaRuffa had now made a statement to this lawyer that fully exculpated appellants of any part in the bank robbery. At the hearing on the Rule 33 motion LaRuffa refused to testify about the robbery of the Peninsula National Bank, but he did categorically deny having made any statement about the case to anyone. The hearing was then adjourned, but LaRuffa, at this point relying on his constitutional rights, including his right against self-incrimination, remained adamant in his refusal to testify. Referral was made to Judge Wein-stein who, as previously noted, had taken LaRuffa’s plea to the information, and had accepted the Government’s promise not to prosecute for the Peninsula National Bank robbery. Judge Weinstein stated that he would enforce this government promise.

Before Judge Costantino the Government reaffirmed this promise not to prosecute, although it chose not to seek a grant of formal statutory immunity. LaRuffa continued to refuse to testify. Inasmuch as LaRuffa was then under a New York State life sentence for murder, which he had not yet begun to serve, Judge Costantino regarded any order to compel LaRuffa to testify as being an utterly futile judicial gesture.

Appellants first argue that Judge Costantino’s failure to order LaRuffa to testify at the Rule 33 hearing, coupled with the refusal of the United States Attorney to seek a formal statutory grant of immunity, constitutes the suppression of evidence to which the defense was entitled. There is no merit to this contention.

On the facts here we need not decide whether the defense can compel the Government to seek a grant of formal statutory immunity. Both the Government and appellants agree that LaRuffa had been granted de facto immunity from prosecution for the robbery of the Peninsula National Bank. The Government’s public promise not to prosecute, reaffirmed at the Rule 33 hearing, was without doubt judicially enforceable. In re Kelly, 350 F.Supp. 1198, 1199-1200 (D.Ark.1972); see Santobello v. New York, 404 U.S. 257, 262-263, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).

Appellants’ argument is thus reduced to an assertion that Judge Costantino’s failure to compel a witness to testify, despite the fact that immunity had been granted to him, amounted to “suppression of evidence.” This line of reasoning must be rejected.

We note initially that appellants could have, of course, sought to elicit exculpatory information from LaRuffa by calling him as a defense witness at trial. The fact that the defense deliberately chose to avoid this expeditious and reasonable procedure permits the inference that the defense believed that LaRuffa’s testimony would not have been helpful. In retrospect the defendants can, of course, say it would have been futile to call LaRuffa because he would have refused to testify and the district judge would not have compelled him to do so; but such hindsight cannot bring the motion for a new trial within the minimum requirements of Rule 33 that a motion not made within seven days after verdict rest on “newly discovered evidence.”

The district court was confronted here with an obdurate witness whose' reasons for refusing to testify were not limited to his personal right against self-incrimination. LaRuffa, in informing the judge that he would not under any circumstances testify concerning the bank robbery, indicated that he would not testify “for the reason that [he] just will not testify.” As mentioned above, La-Ruffa was then under a New York State life prison sentence for murder, a sentence which he had not begun to serve, and it is obvious that Judge Costantino was helpless in the face of the witness’s obstinacy. To order LaRuffa to testify under threat of a six-months’ sentence for contempt of court would have been a pointless gesture. We do not have the slightest doubt that if the judge had so ordered the order would have been totally ineffectual. To contend that the district court’s inaction constituted “suppression of evidence” is to strain logic to the breaking point.

Appellants next urge us to direct the district court to hold a hearing to determine whether the Government “lost, destroyed or suppressed” exculpatory evidence. This request is based principally upon appellants’ contention that La-Ruffa’s plea of guilty to the information pleaded to before Judge Weinstein would not have been accepted by that judge as “covering” among other things the robbery here at issue without “substantial evidence that [LaRuffa] participated in the Peninsula robbery.”

The Government has asserted that the only applicable document in its possession is a statement by a third party, not LaRuffa, which implicates La-Ruffa and appellants in the Peninsula National Bank robbery. We have examined this document, which was also examined by the district court, to ascertain whether it contained exculpatory Brady material. We find that the Government’s description of the statement is accurate, and we also find that the content of the document is of sufficient specificity to support acceptance of La-Ruffa’s plea. We thus reject appellants’ contention that the circumstances surrounding LaRuffa’s guilty plea create the inference that documents other than the third party’s statement exist.

Inasmuch as no reason has been presented which would justify our ordering a hearing to determine whether other documents exist, we are compelled to rule against the appellants.

Finally, appellants seek a new trial on the basis of the allegedly erroneous introduction into evidence at trial of the testimony of the witnesses who made the in-court identifications that they had made prior photographic identifications. This circuit appears to allow such corroboration of in-court identifications, United States v. Forzano, 190 F.2d 687, 689 (2 Cir. 1951); see United States v. Sacasas, 381 F.2d 451, 454 (2 Cir. 1967); and we choose not to disturb this position.

Although appellants in their brief do not dwell upon it, we should address ourselves to a further point. Some of the photographs from which the witnesses made the prior identifications appear in the familiar double-shot juxtaposed format associated with “mug shots.” These photographs were introduced into evidence following the direct testimony of these prior photographic identifications. Inasmuch as the jury may infer from the nature of this type of photograph that a defendant has had problems with the law prior to his most recent arrest, the introduction of this sort of picture may in certain circumstances undermine the defendant’s right to a fair trial. Unquestionably such was not the case here. We have examined these photographs. They have no visible markings that would indicate any prior convictions. The bottoms of the pictures have been taped with adhesive material, upon which is the legend “evidence,” so that no one could determine whether any incriminating inscriptions or numbers appeared below the photographs under the tape. Presumably this taping was performed outside the jury’s view as it should have been. Moreover, the introduction of these pictures was not performed in a manner that would lead the jury to infer that there was something highly damaging or suspicious about the pictures themselves. Though it is certainly not the fact shown here we could well assume, ar-guendo, that error was committed by the Government while introducing the pictures into evidence, and, despite that, we would still deny appellants a new trial because of the infinitesimal possibility in view of the overwhelming evidence against appellants that their rights were prejudiced by such an imagined error.

Affirmed.

FRIENDLY, Circuit Judge

(concurring) :

I join fully in Judge Waterman’s opinion except that, for reasons stated in my dissent in United States v. Harrington, 490 F.2d 487, I could not agree with the suggestion, if such there be, that taping of police photographs in the jury’s presence would, without more, require a reversal. The better practice, of course, is to conduct any taping or cutting outside the view of the jury, but emergencies may arise in which prosecutors and trial judges may fail to achieve this. In such instance a conviction should be reversed only after a careful weighing of all relevant factors.

Of less importance, I see no occasion for the conjectural final sentence of the opinion.

      . At oral argument defense counsel disputed the Government’s assertion that all the appellants were informed about Laftuffa’s participation at their arraignments. The point is unimportant for it is not denied that by the start of the trial all appellants were aware of the Government’s conception of BaRuffa’s part in the scheme to rob the bank.

      . LaRuffa was at the time of the hearing serving a federal prison sentence.

      . See note 2, supra.

      . Appellants argue that this document was exculpatory. They speculate that the statement which describes LaRuffa’s part in the crime is inconsistent with the other evidence in the case which appellants claim discloses that there were only three perpetrators. This analysis of the evidence is inaccurate, however. The bank customer who witnessed the crime from outside the bank trailed the three fleeing robbers to the getaway car, and he testified that two of the robbers got into the back seat through doors that were already open while the third entered the front seat through the open door on the passenger’s side. This testimony is entirely compatible with the substance of the statement in the Government’s possession given by the undisclosed third party.


source: Caselaw Access Project

author: STUART, District Judge.

license: Public Domain

text:
    CRYOGENIC EQUIPMENT, INC., and Fidelity and Deposit Company of Maryland, Appellants, v. SOUTHERN NITROGEN, INC., and Hunter Turbo Corp., Appellees.
    No. 73-1436.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 11, 1973.
    Decided Jan. 22, 1974.

      Robert C. Compton, El Dorado, Ark., for appellant.
    William J. Wynne, El Dorado, Ark., and William H. Hodge, Little Rock, Ark., for appellee.
    Before BRIGHT and STEPHENSON, Circuit Judges, and STUART, District Judge.

       W. C. Stuart, District Judge, Southern District of Iowa, sitting by designation.

   STUART, District Judge.

Southern Cryogenics, Inc., a corporation not a party to this action, was formed in the early 1960’s to produce and market liquid oxygen. One of the by-products of the process used by Southern to produce the oxygen was another common, but potentially profitable gas — nitrogen. Because Southern lacked the facilities needed to liquify this gaseous by-product, the nitrogen produced was simply bled off into the atmosphere and wasted. In an effort to exploit the profit potential represented by this waste gas, William J. Wynne, a stockholder of Southern, formed a new corporation, Southern Nitrogen, Inc. (SNI), an appellee herein.

SNI contracted with the appellant, Cryogenics Equipment, Inc. (CEI), to have CEI construct a nitrogen liquification plant adjacent to Southern’s already operational oxygen liquification facility, which plant was to be used to liquify the nitrogen produced by Southern. An integral part of the plant furnished by CEI, a turbo expander unit with an attached compressor, was purchased by CEI from the other appellee herein, a third-party defendant below, Hunter Turbo Corp. (Hunter).

The contract between SNI and CEI, a result of lengthy and detailed negotiations by representatives of both parties, called for SNI to pay CEI $135,000 in exchange for a liquification plant with the capacity to liquify 45,000 standard cubic feet of nitrogen gas per hour. In addition to the specification of plant capacity, the contract contained the following paragraph .in its “Standard Conditions of Sale”:

1. WARRANTY: Cryogenic Equipment, Inc. (CEI) warrants that the equipment delivered hereunder shall be of the kind and quality described herein, and no other warranty, except of title, shall be implied. * * * Equipment and accessories purchased by CEI from outside vendors are warranted only to the extent of the outside vendors’ warranties to CEI. * * * In no event shall CEI be liable for anticipated profits, consequential damages or loss of use of the equipment or of any installation into which the equipment may he put. (Emphasis added.)

For reasons not germane to this appeal, the plant furnished by CEI was unable to perform satisfactorily and required numerous costly repairs. SNI then brought the instant action against CEI seeking actual, consequential and punitive damages in the amount of $700,000. CEI counterclaimed for $19,703.37, claiming that amount was still due it on the purchase price. CEI also filed a third-party complaint against Hunter for indemnity, claiming that the inability of the plant to perform as promised was due to Hunter’s breach of its contract with CEI. Hunter, in turn, counterclaimed against CEI for the $26,457.22 Hunter asserted was the balance due it from CEI. CEI responded to this counterclaim by seeking indemnity therefor from SNI.

After a six-day trial before the Hon. Oren Harris, the jury returned the following verdicts:

1. For SNI on its complaint against CEI in the amount of $121,500;

2. For CEI on its counterclaim against SNI in the amount of $13,500;

3. For Hunter on the third-party complaint of CEI; and

4. For Hunter on its counterclaim against CEI in the amount of $23,093.-22.

The verdict in favor of SNI was further broken down in a special interrogatory as follows:

Loss of profits $86,500
Damage to property 0
Cost of modifications $35,000

CEI appeals from so much of the verdict against it in favor of SNI as represents loss of profits and from the verdict in favor of Hunter. SNI has not cross-appealed from the verdict rendered on CEI’s counterclaim against it and the correctness of that verdict is not before us.

I. Loss of Profits

In support of its contention that it was error for the court below to submit the question of lost profits to the jury, CEI argues, alternatively, that the contract absolved it from any liability to SNI for loss of profits, or, even if it might otherwise be so liable, the evidence adduced at trial was too remote and speculative to justify submitting that issue to the jury. Because we agree with appellant’s position with respect to the effect of the contract, we find it unnecessary to discuss the sufficiency of the evidence of lost profits.

In Gramling v. Baltz (1972), 253 Ark. 361, 485 S.W.2d 183, the Arkansas Supreme Court was faced with the assertion that § 2-719 of the Arkansas Uniform Commercial Code, Ark.Stat.Ann. § 85-2-719 (Add.1961), conditions the enforceability of contractual limitations or exclusions of liability for consequential damages on a single factor — that such limitations not be unconscionable. While it agreed that freedom from unconseionability was one criterion of validity, the court went further, stating that such contractual limitations must also be phrased in “clear and unmistakable language,” citing with approval the following disclaimer upheld in Southwest Forest Indus, v. Westinghouse Elec. Corp. (9th Cir., 1970), 422 F.2d 1013, cert, denied (1970), 400 U.S. 902, 91 S. Ct. 138, 27 L.Ed.2d 138: “Westinghouse shall not be liable for consequential damages.” See Council Bros. v. Ray Burner Co. (5th Cir., 1973), 473 F.2d 400.

Both parties seem to agree that Gramling represents the Arkansas law on limitations of remedy. SNI, however, takes issue with CEI’s characterization of its disclaimer as “clear and unmistakable.” Pointing to the fact that the front page of the contract contains language expressly guaranteeing the nitrogen plant to have a certain capacity, SNI claims that the disclaimer buried on the back of the contract “deep in the WARRANTY section of [CEI’s] pre-printed form” is ineffective as a modification of CEI’s liability for the express guarantee of capacity. If the disclaimer is to be accorded any force at all, SNI asserts, it should be limited solely to liability for breach of the warranties contained in the WARRANTY paragraph itself.

With this position we cannot agree. Clearly, in view of the expertise of the negotiators of this agreement (SNI’s Wynne being a highly respected and knowledgeable commercial lawyer of some 18 years’ standing and CEI’s Lorenz being an engineer with some 24 years’ experience in production and management in the cryogenics industry) and the complete absence of any evidence of a disparity of bargaining power the limitation of remedy was not unconscionable. See K & C Inc. v. Westinghouse Elec. Corp. (1970), 437 Pa. 303, 263 A.2d 390.

Nor can it validly be claimed that the limitation was unclear or misleading. The record indicates that Wynne was familiar with the WARRANTY paragraph as early as August 9, 1969, approximately four months before CEI sent SNI its final proposal. In addition, the contract contains a sentence immediately preceding the express guarantee relied on by SNI to the effect that that guarantee is subject to the conditions of sale — including the disclaimer — appearing on the reverse side of the contract. Finally, not even SNI contends that the limitation is phrased in equivocal language. Thus, we are convinced that the challenged limitation, phrased as it is and placed in the WARRANTY paragraph in the contract is not misleading. It is just such a clear and unmistakable disclaimer of liability for loss of profits as was held valid in Southwest Forest Indus, v. Westinghouse Elec. Corp., supra, and approved in Gramling. Accordingly, we hold that it was error to submit the issue of liability for lost profits to the jury.

II. Hunter’s counterclaim

CEI also appeals from the verdict in favor of Hunter and denying it recovery on its indemnity counterclaim against SNI, claiming that the verdict was contrary to the preponderance of the evidence. CEI “freely” admits, however, that “this point is not in the league with points I and II [involving its liability for lost profits].” We agree. Viewed in the light most favorable to appellees, there is more than ample evidence in the record to support a jury finding that CEI undertook to pay Hunter for the extra work it performed and that such extra expenses as CEI incurred were in no way the responsibility of SNI. Accordingly, CEI’s contentions with regard to the Hunter counterclaim and its indemnity counterclaim against SNI are without merit.

III. Relief

In view of the special interrogatory submitted to the jury, there is no need to remand this ease for a new trial on the question of damages. So much 'of the judgment below as represents lost profits of SNI, that is, $86,500, is hereby vacated. The remainder of the judgment is affirmed.

This case is remanded to the district court for entry of judgment in accordance herewith.

Remanded with directions.

      . It should be noted that this court is not faced with the factual situation that the Arkansas Supreme Court faced in Gramling. In that case, a disclaimer was held invalid because it was ambiguous — it was not clear from tlie language of tlie disclaimer whether it sought to limit remedies or warranties. SNI and CEI agree that the disclaimer here in issue is a limitation of remedy.


author: TUTTLE, Circuit Judge: LEWIS R. MORGAN, Circuit Judge GODBOLD, Circuit Judge BY THE COURT:

text:
    Willie PENN, Individually, Etc., et al., Plaintiffs-Appellees, v. James R. SCHTLESINGER, Individually and as Secretary of Defense, Etc., et al., Defendants-Appellants.
    No. 72-3684.
    United States Court of Appeals, Fifth Circuit.
    Dec. 18, 1973.
    Rehearing En, Banc Granted March 15, 1974.

      Ira DeMent, U. S. Atty., Kenneth E. Vines, Asst. U. S. Atty., Montgomery, Ala., Morton Hollander, David Anderson, Walter H. Fleischer, James C. Hair, Jr., Civ. Div., Dept, of Justice, Washington, D. C., for defendants-appellants.
    Morris S. Dees, Jr., Southern Poverty Law Center, Joseph J. Levin, Jr., Montgomery, Ala., Orzell Billingsley, Jr., Birmingham, Ala., J. L. Chestnut, Jr., Selma, Ala., for plaintiffs-appellees.
    Before TUTTLE, GODBOLD and MORGAN, Circuit Judges.
   TUTTLE, Circuit Judge:

This interlocutory appeal pursuant to 28 U.S.C.A. § 1292(b) raises three questions: (1) Whether racial discrimination in hiring and promotion by federal agencies is actionable by discriminatees; (2) Whether such claims of discrimination are barred by sovereign immunity; and (3) Whether these plaintiffs exhausted available administrative remedies before filing suit in federal court.

Plaintiffs-appellees Willie Penn, Charles Foster, and the Alabama State Conference of the NAACP, on behalf of themselves, the organization’s membership, and “all blacks in Alabama similarly situated” brought this action against the United States and the individuals heading seventeen federal agencies employing persons in Alabama. Plaintiffs Penn and Foster, both civilian employees of the Department of Defense at Maxwell Air Force Base in Alabama allege they have been denied promotions or advancement solely because of their race. The district court held that the plaintiffs had stated a claim upon which relief could be granted, that sovereign immunity barred relief against the United States but not against the individual government officials, and that the plaintiffs had sufficiently exhausted their administrative remedies before filing this suit. The court, while permitting discovery to proceed, allowed the defendants to make an interlocutory appeal on the controlling questions of law involved in the suit. We affirm.

I. CAUSE OF ACTION.

Assuming for purposes of this interlocutory appeal that the plaintiffs have defined a proper class under Rule 23 and that they were discriminated against by some seventeen federal agencies having offices in Alabama, the question remains whether the plaintiffs have stated a claim upon which relief can be granted.

The parties are agreed that Title VII of the Civil Rights Act of 1964 is inapposite. First, the plaintiffs claim that Executive Order No. 11478, as amended by Executive Order No. 11590, creates a cause of action by discrimina-tees against the federal government. Second, plaintiffs allege that 42 U.S.C. § 1981 enables them to sue the federal government for infringement of their right to make and enforce employment contracts on equal grounds with white citizens. Third, they contend that the Fifth Amendment of the United States Constitution creates a direct cause of action by discriminatees against the federal government.

Since, as will'subsequently appear, we hold the opinion that the complaint states a claim upon which relief can be granted under Section 1981, we preter-mit the questions whether this claim might also be cognizable under either the Executive Order or the' Fifth Amendment.

Our decision in Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (1970), held that Section 1981 provided a cause of action to a black employee allegedly discharged solely because of her race. Thus, this Section creates a cause of action for employment contract discrimination against private employers. Though no decision directly in point has been brought to our attention, we think it clear that the rationale of the Dobbs House decision applies to employment discrimination by federal officials as well as by private employers.

In District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 605, 34 L.Ed.2d 613 (1973), the Supreme Court said that Section 1982 is “an ‘absolute’ bar to all such discrimination, private as well as public, federal as well as state.” 409 U. S. at 422, 93 S.Ct. at 605. The Court held that Section 1982 was intended to prohibit particular types of discrimination regardless of their sources. In this respect, Section 1982 was contrasted with Section 1983. While the former was enacted to implement the principles enunciated in the Thirteenth Amendment, the latter legislation, enacted eleven years later, was based upon the Fourteenth Amendment. While Section 1982 prohibited discriminatory activity from whatever source, Section 1983 was directed only at discriminatory activities of the states.

The narrow question in this case is whether Section 1981 is more closely analogous to Section 1982 or to Section 1983. In our view, there is no doubt but that Section 1981, like its sister Section 1982, provides a cause of action against all discrimination against blacks, because of race or color, in the making and enforcement of contracts. Therefore, the allegation that the federal government has violated the plaintiffs’ contract rights on account of their race does state a cause of action under Section 1981 of the Civil Rights Act of 1866. Hence, we turn to the question whether sovereign immunity bars recovery against the federal government and its employees when an action is brought under Section 1981.

II. SOVEREIGN IMMUNITY.

In the first place, we agree with the district court’s analysis that Section 1981 does not constitute a waiver of sovereign immunity by the federal government. It is well settled that a waiver of sovereign immunity must be specific and explicit; such a waiver cannot be implied by construction of an ambiguous statute. See United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L. Ed. 888 (1940); Barefield v. Byrd, 320 F.2d 455 (5th Cir. 1963), cert, denied, 376 U.S. 928, 84 S.Ct. 675, 11 L.Ed.2d 624 (1964). Since Section 1981 contains no explicit waiver of sovereign immunity by the federal government but merely a general prohibition of discrimination on racial grounds, it does not constitute a waiver of this immunity. Any doubt concerning disposition of this issue was put to rest in our decision of Beale v. Blount, 461 F.2d 1133 (5th Cir. 1972), which held a Section 1981 suit for in-junctive relief against the federal government to be barred by the doctrine of sovereign immunity.

While the plaintiffs concede and the district court held that Beale v. Blount bars this suit as against the government itself, the plaintiffs present two arguments which they contend circumvent the sovereign immunity bar with respect to the individual federal officials. First, they argue that the Fifth Circuit cases of Beale v. Blount and Blaze v. Moon, 440 F.2d 1348 (5th Cir. 1971) constituted improper extensions of the Eighth Circuit case of Gnotta v. United States, 315 F.2d 1271 (8th Cir. 1969), cert, denied, 397 U.S. 934, 90 S.Ct. 941, 25 L.Ed.2d 115 (1970). While it is true that Gnotta involved review of an administrative finding that no discrimination had been proven while Blaze and Beale were cases in which discrimination had been admitted, we are bound by precedent in this circuit to accept the extension of Gnotta to cases of admitted discrimination. Second, the plaintiffs contend that Blaze and Beale must be read in light of two Supreme Court decisions which recognize certain exceptions to the doctrine of sovereign immunity in suits against federal officials. Larson v. Domestic and Foreign Commerce Corporation, 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949) and Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963). Chief Justice Vinson stated these exceptions to sovereign immunity as follows:

“There may be, of course, suits for specific relief against officers of the sovereign which are not suits against the sovereign . . . [First,] where the officer’s powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing the business which the sovereign has empowered him to do or he is doing it in a way which the sovereign has forbidden. His actions are ultra vires his authority and therefore may be made the object of specific relief ... a second type of case is that in which the statute or order conferring power upon the officer to take action in the sovereign’s name is claimed to be unconstitutional here, too, the conduct against which specific relief is sought is beyond the officer’s powers and is, therefore, not the conduct of the sovereign.” 337 U.S. 689-690, 69 S.Ct. 1461, 1462.

In our opinion, a violation of Section 1981 by a federal official must be deemed an ultra vires action on the official’s part. Since this federal statute specifically prohibits racial discrimination in the making and enforcement of employment contracts, we cannot infer that federal officials responsible for making employment contract decisions are acting within the scope of their duties on behalf of the sovereign when they act in a racially discriminatory manner.

However, since Beale v. Blount held further that injunctive relief against allegedly racially discriminatory practices by individual federal officials in the Post Office Department was barred by the doctrine of sovereign immunity, we must examine in greater detail the relief requested by the plaintiffs in order to ascertain what relief would, if granted, run against the sovereign rather than merely against an officer of the sovereign acting ultra vires.

The plaintiffs did not seek to enjoin these officials from violating Section 1981. However they did seek “a declaration that the defendants have engaged in a practice of denial of equal right to contract with blacks in Alabama in employment and that such practice is a violation of Title 42 U.S.C. § 1981.” Further, they requested that defendants institute a practice of hiring one black for every one white hired until the ratio of blacks in defendants’ federal jobs in Alabama is approximately in proportion to the percentage of blacks in Alabama’s population.

With respect to the individual named-plaintiffs, Willie Penn sought to require that his rating be increased to G.S. 11 and that he be promoted into the next available position in base procurement for which he is qualified; a further order was sought requiring the Department of Defense to pay him a sum of money, including interest, to represent the salary Penn would have received had he been promoted without regard to race. Plaintiff Foster requested an order requiring the Department of Defense to increase his rating to no less than G.S. 5 and promotion into the next available position in procurement or elsewhere for which he is qualified, an order requiring back pay for wages he would have earned had he been promoted without regard to race, and an award of damages for humiliation and embarrassment suffered as a result of racially discriminatory practices.

In Beale v. Blount, this court drew a distinction between a claim for injunctive relief and a claim for reinstatement, holding the former barred by the doctrine of sovereign immunity. The latter, being in the nature of a mandamus action, by-passed this obstacle. 461 F.2d at 1137-1138. A declaratory judgment, if equivalent to a claim for injunctive relief would be similarly barred by the doctrine of sovereign immunity. Under other circumstances, it might be more analogous to a mandamus action. On this interlocutory appeal, with no declaratory order before us, we cannot of course prejudge which classification might be appropriate.

The remainder of the relief requested, save the claims for back wages and for damages, both of which would impinge upon the Treasury, are in the nature of mandamus actions. Thus, upon remand, it is within the power of the court (1) to order promotion of the plaintiffs if appropriate and (2) to institute affirmative remedies on behalf of .the class if such remedies are necessary to overcome ultra vires discrimination by the individual defendants.

III. EXHAUSTION OF REMEDIES.

Since sovereign immunity does not present a bar to all the relief requested by plaintiffs, we must now turn to the question of whether the plaintiffs sufficiently exhausted available administrative remedies before filing this suit.

Before petitioning to the district court, Penn had repeatedly made known his desire for advancement to his white supervisor. This supervisor failed to inform Penn of his right to file a complaint with an Equal Employment Opportunity Officer. Therefore, Penn did not enter into the latter stages of the Equal Employment Opportunity Commission and Civil Service Commission processes for handling racial discrimination grievances. Plaintiff Foster had likewise complained about his lack of advancement to his white supervisors. One of these, who was also an Equal Employment Opportunity Counselor, had discouraged Foster from prosecuting his complaints administratively. This supervisor had advised him “that he would have to file a suit if he expected to carry his complaint further.” We must decide whether these actions taken by Penn and Foster, in light of the responses they received from their supervisors, constituted exhaustion of their administrative remedies.

It has been decided by this Court that one seeking relief in the federal courts from actions taken by federal administrative agencies must first exhaust the administrative remedies available to him. However, as the Supreme Court pointed out in McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969), exhaustion of administrative remedies is not a matter of black letter law. The Court there said:

“The [exhaustion] doctrine is applied in a number of different situations and is, like most judicial doctrines, subject to numerous exceptions. Application of the doctrine to specific cases requires an understanding of its purposes and of the particular administrative scheme involved.” Id. at 193, 89 S.Ct. at 1662.

In 1971, when Penn and Foster filed this suit, the scheme for filing complaints was set out in 5 C.F.R. Part 713. Under Section 713.213(a), an aggrieved employee first had to approach a designated EEO Counselor within his agency or branch. This counselor, who was authorized to attempt to settle the grievance informally, was required to advise the employee of his right to file a more formal complaint with the EEO Officer should the informal attempt fail. The filing of a formal complaint under Section 713.214 triggered an investigation by the agency’s Director of Equal Employment Opportunity (5 C.F.R. § 713.-216). After completion of this investigation and review of the investigative file by the complainant, the agency was required to further provide another opportunity for informal resolution of the complaint. 5 C.F.R. § 713.217(a). If this, too, was unsuccessful, the complainant had to be notified in writing of the agency’s proposed disposition of the complaint and advised of his right to a full evidentiary hearing before an impartial appeals examiner (5 C.F.R. § 713.217(b)). If a hearing was held, 5 C.F.R. § 713.218, the appeals examiner was required to make findings and analyses of “the matter which gave rise to the complaint and the general environment out of which the complaint arose” and render a recommended decision on the merits of the complaint, “including remedial action, where appropriate.” 5 C.F.R. § 713.218(g).

The agency head or his delegate then received these findings and recommended decision, and made a decision for the agency on the information in the complaint file. 5 C.F.R. § 713.221(a). If the agency head either rejected or modified the recommended decision, the reasons for that action had to be set forth. 5 C.F.R. § 713.221(b)(2). At this point, the agency head could require “any remedial action authorized by law determined to be necessary or desirable to resolve the issues of discrimination and to promote the policy of equal opportunity.” 5 C.F.R. § 713.221(c). This decision had to be transmitted in writing to the complainant, together with copies of the hearing record and the appeals examiner’s findings and recommended decision, and it had to inform him of his right to appeal to the Civil Service Commission. 5 C.F.R. § 713.-221(b) and (d).

After review by the Civil Service Commission, all the possible administrative remedies which the plaintiffs might have pursued would have been terminated. There is no question but that at this point, suit in federal court alleging that discrimination had occurred and no remedy had been afforded would have been proper.

If the plaintiffs had deliberately bypassed their administrative remedies, this suit would clearly be inappropriate. In Beale v. Blount, supra,., the plaintiffs had been invited by postal authorities to file a formal claim of racial discrimination. Beale failed to do so and argued that presentation of this claim was unnecessary. This court held to the contrary, dismissed the suit for failure to exhaust administrative remedies, and declared :

“We adhere to the time-tested requirement that available administrative remedies be exhausted prior to the institution of a mandamus action. The federal bureaucracy’s efforts to police its own practices with respect to discrimination in employment on the basis of race should not be undermined. This would be the predictable effect of sanctioning resort to the federal courts before completion of the administrative review process.” 461 F.2d at 1139.

This suit, however, is substantially different from that of Beale v. Blount. Here, rather than deliberately by-passing their administrative remedies, the plaintiffs approached the administrative officials charged at the first level with responsibility for processing these complaints. The question before us is whether the plaintiffs need have done more before filing suit in federal court.

The defendants contend that further exhaustion would allow the Civil Service Commission to exercise its authority to rectify discriminatory employment practices. They argue further that requiring no more exhaustion than was present here would hamper the achievement of uniformity in the resolution of complaints of discrimination. Finally, they contend that allowing the suit constitutes an uneconomical use of judicial time.

There is little merit to these arguments. First, it was the fault of the agency officials, not the plaintiffs, that the Civil Service Commission was given no opportunity to pass upon the complaints. Second, no disuniformity is created by a rule which says that exhaustion is completed at the point where agency personnel refused to further process grievance and pass them on to the next link in the chain of command. Third, judicial time is not needlessly wasted for our interpretation of the exhaustion requirement here should help insure that, in the future, federal agencies process such complaints in accordance with their own procedures rather than short-circuiting them into federal court.

For the reasons stated above, the order of the district court granting the United States’ motion to dismiss and denying the individual defendants’ motion to dismiss is affirmed and the case remanded for further proceedings not inconsistent with this opinion.

LEWIS R. MORGAN, Circuit Judge

(specially concurring):

Although I agree fully with the reasoning and results of the majority opinion in this case, a few words about the issue of exhaustion may be helpful. Judge Tuttle correctly states that in light of our conclusion that the plaintiffs exhausted all available administrative remedies, it is unnecessary to decide whether exhaustion was required. Nevertheless, it seems clear from existing precedent that in an action under the Civil Rights Act of 1866, 42 U.S.C. § 1981 et seq., exhaustion of administrative remedies is not required.

The question may have remained open after McNeese v. Board of Ed., 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), since the court held there that resort to the state administrative remedies may well have been futile. However, the more recent decision of Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967), seems to have settled the question, at least for the time being. Both of these decisions related to the failure to exhaust state administrative remedies, while in this case we have a question of resort to federal administrative remedies. However, the policies behind the requirement of exhaustion of state administrative remedies are even stronger than those requiring exhaustion of federal administrative remedies, because of comity considerations. Thus, if state exhaustion is not required, a fortiori, exhaustion of federal remedies should not be required.

It is true that McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969), while holding that a failure to exhaust remedies within the Selective Service System did not preclude raising certain defenses in a criminal prosecution for failure to report for induction, included strong language in support of the exhaustion requirement. However, that case cannot possibly be held to have overruled Damico. Therefore, although the wisdom of this exception to the exhaustion requirement has been questioned, we are apparently left with a flat exemption to the requirement of exhaustion in civil rights cases. But see, Eisen v. Eastman, 421 F.2d 560 (2 Cir. 1969).

Although this circuit has followed this rule in some cases, Caldwell v. National Brewing Company, 443 F.2d 1044 (5 Cir. 1971), it has not always done so. Beale v. Blount, 461 F.2d 1133 (5 Cir. 1972). It is this unfortunate inconsistency which creates confusion among the judiciary and the bar. Although this was not the case in which to do so, we should take the earliest opportunity to rationalize and make consistent this confusing area of the law.

GODBOLD, Circuit Judge

(dissenting) :

This is not run of the mill litigation but potentially a massive case. In my view the allegations of plaintiffs concerning their reasons for failing to utilize their administrative remedies are not a sufficient basis for transferring this inquiry out of the carefully structured grievance system provided by the United States government and into the federal courtroom.

The suit is a class action directed at the employment practices of 17 agencies of the United States operating in the State of Alabama. Named as defendants were the United States and the individual heading each agency (and his successor), including 10 cabinet officers of the United States government plus a substantial array of other government officials. The agencies, the individual defendants, and the number of Alabama employees of each agency are:

Department of Defense and Melvin R. Laird: 16,348 employees
Treasury Department and John B. Connally: 689 employees
Department of Justice and Richard Kleindienst: 264 employees
Department of the Interior and Rogers C. B. Morton: 170 employees
Department of Agriculture and Earl Butz: 1200 employees
Department of Commerce and Maurice Stans: 128 employees
Department of Labor and James D. Hodgson: 5 employees
Department of Health, Education and Welfare and Elliot L. Richardson: 2,161 employees
Department of Housing and Urban Development and George Romney: 182 employees
Department of Transportation and John A. Volpe: 414 employees
U.S. Postal Service and Elmer T. Klassen: 901 rural mail carriers, 167 Fourth Class postmasters and 7,329 employees
General Services Administration and Robert L. Kunzig: 46 employees
General Accounting Office and Elmer B. Staats: 12 employees
NASA and Dr. James C. Fletcher: 5,454 employees
Railroad Retirement Board and Howard W. Habermayer: 10 employees
Small Business Administration and Thomas S. Kleppe: 37 employees
Selective Service System and Dr. Curtis W. Tarr: 17 employees

Only the individual government officers remain in the case as defendants, since the United States was ordered dismissed on the ground of sovereign immunity and no cross-appeal was taken from that order. The case was certified to us for interlocutory appeal under 28 U.S.C. § 1292(b). The District Court has not ruled on the class action feature, but if plaintiffs are permitted to represent the class they have staked out they will be entitled to pervasively investigate and litigate the employment practices of a wide spectrum of agencies with thousands of employees.

In addition to alleging a prima facie statistical case of discrimination, the complaint states that the listed agencies have engaged in a broad range of discriminatory practices, including the following: failure to recruit blacks ; use of nonvalidated employment and advancement tests; oral selection interviews; employment of persons without employment tests and without adequate guidelines to insure nondiserim-inatory hiring or with adequate guidelines that are arbitrarily disregarded; arbitrary selection of white persons over equally qualified blacks; promotions of less qualified whites or whites with less seniority than blacks; discrimination and denial of the right to equal contract in employment based solely on race.

The judicial remedies sought are far-reaching: (1) a declaration that defendants have (a) systematically and unconstitutionally discriminated against blacks in employment on racial grounds, (b) violated Executive Order 11478 relating to equal employment opportunity in the federal government, and (c) denied to blacks the right to contract regarding their employment-; (2) an order in the nature of mandamus compelling defendants to perform their duties under Executive Order 11478; (3) establishment of a one-to-one hiring ratio in the 17 named agencies in Alabama until the percentage of black employees is approximately the percentage of blacks in Alabama’s population; and (4) promotions and back pay for the individual plaintiffs.

The narrow fulcrum employed to lever this plenary inquiry out of institutional channels and into the federal court system consists of vague and unverified allegations by two individuals employed by a single federal agency (and at one location) concerning informal remarks alleged to have been made to them by two (or three) other government employees designated as EEO “counselors” or “officers.” Seldom was so small a camel’s nose employed to drag so large a camel into the tent.

In the original complaint the plaintiffs were the NAACP and Penn. Penn charged that he had been employed as a GS-1 and after 20 years had been promoted to only GS-5, when in fact his experience, ability, training, seniority and job knowledge entitled him to a rating of GS-10 or 11, and that failure of his white superiors to promote him was based solely upon his race. As to exhaustion, Penn originally alleged only this:

Mr. Penn let his supervisor know that he was desirous of receiving a promotion to any better paying [job] or to one that carried more responsibility. Mr. Penn put his superiors on notice of his desire of advancement.

The government filed a motion to dismiss asserting failure to exhaust, and by an amended complaint this language was added regarding Penn :

The supervisor to whom Plaintiff Penn made complaints and made known his desire to fill any better paying or more responsible position was Ruth Hunter. ... In addition to Mrs. Hunter’s position as head of Procurement, she is also the alternate Chief Counselor for Equal Employment Opportunity at MAFB. Mrs. Hunter never informed Plaintiff Penn of his right to file a complaint with an E.E.O. officer. Under 5 CFR 713.213(a) it was Mrs. Hunter’s legal duty to advise Plaintiff of his right to file such complaints.

The amended complaint also added Foster as a plaintiff and class representative. He alleged various unsuccessful efforts to seek better employment at Maxwell Air Force Base, and then as to exhaustion alleged:

Plaintiff Foster then called a Mr. Glenn, Chief Counselor for Equal Employment Opportunity at MAFB. Glenn referred Mr. Foster to A. C. Carter, Equal Employment Opportunity Officer, a white man. Plaintiff had a meeting with Mr. Carter in which he asked Carter to check the eligibility roster (promotion register) to determine where his (Foster’s) name was in relation to the two ladies who had been promoted. Carter would not give Foster that information, and during the course of the conversation indicated to Mr. Foster that he would have to file a suit if he expected to carry his complaint further. Carter and Glenn did not inform Foster of any other remedies available to him.

In its order on motion to dismiss the District Court noted the basic principle that available administrative remedies must be exhausted before a court will decide a constitutional question, and referred to Beale v. Blount, 461 F.2d 1133 (CA 5, 1973), in which this court affirmed the dismissal of a discharged federal employee’s complaint for failure to exhaust. The court, however, distinguished Beale on the ground that the plaintiff therein made no attempt to exhaust his administrative remedies and did not allege that resort to administrative processes would be a meaningless ritual, but merely claimed that he did not need to present his claim administratively before bringing suit, while the instant plaintiffs alleged that they had attempted to exhaust “only to be thwarted in the initial stages of those proceedings by federal officials charged with the duty of hearing complaints of racial discrimination and informing plaintiffs of additional channels of appeal.” Characterizing their actions as “abortive attempts to exhaust” and accepting all allegations as true, the District Court concluded that Penn’s and Foster’s failure to go farther in the administrative processes was solely due to the breaches of duty expressly imposed on other governmental employees [presumably Mrs. Hunter and Glenn, EEO counselors, and Carter, and EEO officer].

The amended allegations as to Penn charged no more than that Mrs. Hunter failed to inform him of his right to file a complaint. The allegations as to Foster are twofold — that Glenn and Carter failed to inform him of his right to file a complaint and that Carter “indicated” to him that he would have to file suit if he expected to go farther.

The exhaustion requirement is fully discussed in McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969), which points out that “ Mpplication of the doctrine to specific cases requires an understanding of its purposes and of the particular administrative scheme involved.” Id. at 193, 89 S.Ct. at 1662, 23 L.Ed.2d at 203. Mc-Kart refers to these purposes, among others: (1) avoiding premature interruption of the administrative process, in recognition that it is desirable that the agency develop a record and have the opportunity to exercise its discretion and apply its expertise; (2) recognizing that the exhaustion doctrine is an “expression of executive and administrative autonomy” and that the courts should not interfere with the agency until it has completed its action or exceeded its jurisdiction; (3) practical notions of judicial efficiency, since the complaining party may vindicate his rights administratively and the courts may never have to intervene; (4) permitting an administrative agency to discover and correct its own errors; (5) avoiding the flouting of the administrative process that can weaken the agency’s effectiveness by encouraging people to ignore its procedures.

When one scrutinizes the specific administrative system here involved in the light of the foregoing policies, as Mc-Kart instructs judges to do, it becomes apparent that the issue of the possibly discriminatory hiring practices of these numerous agencies in an entire state cries out for nonjudicial handling.

Pursuant to the sweeping mandate of Executive Order 11478, the Civil Service Commission promulgated comprehensive regulations that are particularly well calculated to ensure ready reception and prompt, fair disposition of discrimination claims.

Under the procedural provisions of the regulations, an agency must first seek to resolve a charge of discrimination promptly through consultation between the aggrieved person and an Equal Employment Opportunity counselor. 5 C. F.R. § 713.213. If this is unsuccessful, the aggrieved person may file a formal complaint, id. § 713.214, which triggers an investigation by the agency’s Director of Equal Employment Opportunity, id. § 713.216. Upon the completion of this investigative file, the agency must provide another opportunity for informal resolution of the complaint, id. § 713.217(a).

If attempts at informal resolution fail again, the complainant must be notified in writing of the agency’s proposed disposition of the complaint and advised of his right to a full evidentiary hearing before an impartial appeals examiner, id. § 713.217(b). If a hearing is held, see id. § 713.218, an appeals examiner must thereafter make findings and analyses of “the matter which gave rise to the complaint and the general environment out of which the complaint arose” and render a recommended decision on the merits of the complaint, “including remedial action, where appropriate, with regard to the matter . and general environment out of which the complaint arose.” Id. § 713.218(g). These findings and recommended decision must be transmitted to the agency head or his designee, who then makes the decision of the agency on the information in the complaint file. Id. § 713.-221(a). If the agency either rejects or modifies the recommended decision, as opposed to adopting it, the reasons for that rejection or modification must be set forth. Id. § 713.221(b)(2). The agency “shall require any remedial action authorized by law determined to be necessary or desirable to resolve the issues of discrimination and to promote the policy of equal opportunity.” Id. § 713.221(c). The agency decision must be transmitted in writing to the complainant, together with copies of the hearing record and the appeals examiner’s findings and recommended decision, and the decision must also inform the complainant of his right to appeal to the Civil Service Commission. Id. § 713.-221(b) and (d).

Upon an appeal to the Commission, the 1971 regulations provide for a review by the Board of Appeals and Review, without a hearing, of the complaint file and all relevant written representations made to the Board. Id. § 713.234. The .Board, which may remand a complaint to the agency for further investigation or rehearing, must issue a written decision setting forth the reasons for its conclusions. Id. § 713.234. Copies of the Board’s decision must be sent to the complainant, his representative, and the agency, and when corrective action is ordered, the agency “shall report promptly to the board that the corrective action has been taken.” Id. § 713.234. The Board’s decision is final, but the Commissioners, upon request, may reopen the decision for consideration of new and material evidence, if the decision involves an erroneous interpretation of law or regulation or a misapplication of established policy, or if the decision is of an exceptional nature. Id. § 713.235.

In my view the McKart policies are disserved by permitting these plaintiffs to skip all the administrative procedural steps that begin with the filing of a written complaint. In the beginning it is to be noted that plaintiffs do not claim that the administrative system is insufficient, see NLRB v. Shipbuilding Local 22, 391 U.S. 418, 88 S.Ct. 1717, 20 L.Ed.2d 706 (1968), or that resort to it will be futile. Ogletree v. McNamara, 449 F.2d 93 (CA 6, 1971). There has been no opportunity for a record to be developed at the agency level. The agency appeal bodies and the Civil Service Commission, which handles these matters nationwide, will have no opportunity to exercise discretion and expertise.

Moreover, the agency is denied the benefit of the policy that it be permitted to discover and correct its own errors. The majority refers to this consideration but declines to give it weight on the ground that it was the fault of the agency and not plaintiffs that the agency had no opportunity to pass on plaintiffs’ complaints. But the policy favoring self correction applies at least as forcefully to procedural slipups as to erroneous agency decisions on the merits of discrimination claims.

The majority opinion, as I read it, intimates that excusing plaintiffs from exhausting is appropriate as a means of penalizing or rebuking erring administrators and impelling them to do better next time. With deference, it seems to me that this misconceives the policies undergirding exhaustion. The sound reason for lowering the barrier is not to teach the agency a lesson but to ensure that when a complaining employee faces a genuinely futile administrative effort, he will be allowed directly into court.

This brings us to the question of the waste of judicial tools which this case entails. When the District Court ruled, the plaintiffs’ right to an administrative remedy was still viable, and it remains viable at this time. See 5 C.F.R. § 713.213(a). Under the 1972 Regulations, now in effect, the complaint must be acted upon by the agency within 180 days from filing. We are now, more than a year after the District Judge denied the motion to dismiss, and pursuant to an appeal certified to us by the District Judge, striving at the appellate level to reach decision on the threshold question of whether plaintiffs should be in federal court at all. Although the majority says they should, all may still be in vain, since at this juncture there has been no determination whether in the informal conferences the supervisory personnel at Maxwell Air Force Base actually said, or failed to say, what plaintiffs allege. Additionally, of course, the judicial time and manpower already expended will be but the tip of an iceberg once the broad investigation which the majority would permit actually occurs.

To this point I have addressed myself to broad policies that relate to the requirement of exhaustion. There are other and more narrow reasons why plaintiffs should not be excused from exhausting. The material in the complaint bearing on plaintiffs’ informal contacts with Maxwell personnel designated as EEO officials was added by amendment after exhaustion surfaced as an issue and in an effort to allege frustration. But neither plaintiff has alleged that he lacked actual knowledge of his right to file a formal administrative complaint, or that his failure to proceed further in administrative channels was in faot caused by the remarks made to him. I can find nothing in the amended complaint to support the District Court’s conclusion that plaintiffs’ failure to go farther was solely due to the misbehavior of others. Rather, the pleadings do not exclude the possibility that plaintiffs knew of the procedures available to them and determined to repair to the court as an advised choice. ,

These are not mere niceties of pleading. The Supreme Court has accepted as desirable ends the establishment and utilization of institutional remedies, as has this court. See, e. g., Stevenson v. Board of Education of Wheeler County, 426 F.2d 1154 (CA 5), cert, denied, 400 U.S. 957, 91 S.Ct. 355, 27 L.Ed.2d 265 (1970); Lucas v. Chapman, 430 F.2d 945 (CA 5, 1970); Ferguson v. Thomas, 430 F.2d 852 (CA 5, 1970); Wood v. Alamo Heights Indep. School Dist., 433 F. 2d 355 (CA 5, 1970). If in fact Penn and Foster were not thrown off the track by the allegedly incomplete or inaccurate information given them, or if they learned of the correct procedure before reaching the doors of the courthouse, the policies undergirding exhaustion require that they must exhaust.

I am not unmindful that the complaint may adequately allege failure on the part of Maxwell Air Force Base EEO de-signees to comply with their duties. Counselors, for example, whom aggrieved employees must consult before taking any other step, are charged with the affirmative duty of providing written notice of the right to file a formal complaint. See 5 C.F.R. § 713.213(a). Nevertheless, I believe the review procedures set-up by the Civil Service Commission regulations are objectively so comprehensive and so fair that McKart requires us to find the failures here alleged insufficient to justify permitting these plaintiffs to circumvent them. The same factors which, when applied as McKart sets out, command that exhaustion be required also mandate that the courts not permit departure from the requisite exhaustion on anything less than very strong grounds.

In this case there is an additional factor not present in McKart. The District Court held that the complaint states claims against the individual government officers under Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949), and Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963). We cannot know whether under the prayer for other and general relief all members of the class will seek back pay. But it seems to me that the mere exposure of individual government officers to the possibility of personal back pay liability is manifestly unfair. Under the administrative procedure there is no problem of sovereign immunity, and back pay awards, if any, can be assessed against the government.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORN-BERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RON-EY, and GEE, Circuit Judges.

BY THE COURT:

A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc.

It is ordered that the cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.

      . “When a district judge, . . . shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order . . .”

      . The agency' heads being sued are the Secretaries of the Departments of Defense, Treasury, Interior, Agriculture, Commerce, Labor, Health, Education and Welfare, Housing and Urban Development, Transportation, The Attorney General, The Postmaster General, The Directors of the General Services Administration and The Selective Service System, The Comptroller General, and The Chairman of the Railroad Retirement Board and The National Aeronautics and Space Administration.

      . Neither of these questions has yet been litigated.

      . Though Title VII proscribes unlawful employment practices including racially discriminatory hiring and promotion, the federal government is not included within the definition of “employer” under the Act. 42 U.S. C. § 2000e(b).'

      . This order, in relevant part, reads :
      “Section 1. It is the policy of the government of the United States to provide equal opportunity in federal employment for all persons, to prohibit discrimination in employment because of race, color, religion, sex, or national origin, and to promote the full realization of equal employment opportunity through a continuing affirmative program in each executive department and agency . . .
      “Section 2. The head of each executive department and agency shall establish and maintain an affirmative program of equal employment opportunity for all civilian employees and applicants for employment within his jurisdiction in accordance with the policy set forth in Section 1. It is the responsibility of each department and agency head, to the maximum extent possible, to provide sufficient resources to administer such a program in a positive and effective manner ...
      “Section 3. The Civil Service Commission shall provide leadership and guidance to departments and agencies in the conduct of equal employment opportunity programs . .
      “Section 4. The Civil Service Commission shall provide for the prompt, fair, and impartial consideration of all complaints of discrimination in federal employment on the basis of race, color, religion, sex, or national origin. Agency systems shall provide access to counselling for employees who feel aggrieved and shall encourage the resolution of employee problems on an informal basis. Procedures for the consideration of complaints shall include at least one impartial review within the executive department or agency and shall provide for appeal to the Civil Service Commission . . . ”

      . “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” (Emphasis added).

      . The due process clause of the Fifth Amendment restricts the federal government in some areas which would be covered by the. equal protection clause of the Fourteenth Amendment if applied to a state. See, e. g. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954) (holding racial segregation violates due process).

      . Another Executive Order, which we held did not create such a cause of action, is similar to, albeit distinguishable from, Executive Order No. 11478, See Farkus v. Texas Instruments, Inc., 375 F.2d 629 (5th Cir. 1967).
      Though the constitutional claim of racially discriminatory employment practices appears to be closely analogous to the claim of the plaintiffs in Bolling v. Sharpe, supra, the existence of a statutory cause of action under Section 1981 renders it unnecessary for us to decide whether such private actions as this one are necessary to insure compliance with the due process clause by the federal government. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 at 398, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (concurring opinion by Mr. Justice Harlan.)

      . Like Section 1981, Section 1982 was part of the Civil Rights Act of 1866, enacted pursuant to Congress’s power under the Thirteenth Amendment.

      . Plaintiff Penn’s motion for a preliminary injunction against the director of the Procurement Section to prevent her from “intimidating, harassing and threatening plaintiff Willie Penn or any class plaintiff as a result of plaintiff Penn filing his law suit” has not been pressed upon this appeal. We therefore decline to discuss this remedy further.

      . In Beale v. Blount, supra, the Court drew a distinction between federal court actions against federal officials and federal court action against a state agency or official. This distinction, having been drawn, is binding on us. We cannot accept appellant’s argument, therefore, that we equate the present suit with one in which a Section 1981 plaintiff may deliberately by-pass administrative remedies under Title VII of the Civil Rights Act. See Caldwell v. National Brewing Company, 443 F.2d 1044 (5th Cir. 1971).

      . The 1972 Amendments to the Economic Opportunity Act are irrelevant to disposition of the claims herein.

      . K. Davis, Administrative Laws Treatise, 1970 Supp., § 20.01.

      . The Order, which was buttressed by the Equal Opportunity Act of 1972, Pub.L. 92-261, 86 Stat. 111, 42 U.S.C. § 2000e-16 (1970), declares that the policy of equal opportunity is to be promoted “through a continuing affirmative program in each executive department and agency” and “must be an integral part of every aspect of personnel policy and practice in the employment, development, advancement, and treatment of civilian employees in the Federal Government.” The order provides that “[tlhe head of each executive department and agency shall establish and maintain an affirmative program of equal employment opportunity for all civilian employees and applicants for employment within his jurisdiction * * In this regard, the order specifies that the responsibilities of executive department and agency heads include, e. g., provision of sufficient resources to administer the program “in a positive and effective manner”, recruitment which reaches “all sources of job candidates”, full utilization of the present skills of each employee, provision of “the maximum feasible opportunity to employees to enhance (their) skills so they may perform at their highest potential and advance in accordance -with their abilities”, and provision of training and advice to supervisors to assure their understanding and implementation of this equal employment opportunity policy. The order directs that the Civil Service Commission shall, e. g., provide leadership and guidance to departments and agencies in the conduct of equal employment opportunity programs, review and evaluate agency program operations periodically, and issue such regulations, orders and instructions as it deems necessary and appropriate to carry out the Executive Order. And with respect to complaints alleging discrimination, the order directs that:
      “The Civil Service Commission shall provide for the prompt, fair, and impartial consideration of all complaints of discrimination in Federal employment on the basis of race, color, religion, sex, or national origin. Agency systems shall provide access to counseling for employees who feel aggrieved and shall encourage the resolution of employee problems on an informal basis. Procedures for the consideration of complaints shall include at least one impartial review within the executive department or agency anil shall provide for appeal to the Civil Service Commission.”
      The Civil Service Commission has promulgated Equal Opportunity Regulations which implement all of the directives of Executive Order 11478, as amended (5 C.F.R. Part 713 (1972 rev.)). These regulations specify in detail the procedures which each department or agency shall follow in processing and resolving individual complaints of discrimination.

      . The regulations in force at the inception of this suit were promulgated in 1971, and were superceded in 1972. Note 3, infra, discusses certain of the changes made by the 1972 version.

      . In October 1972, a few days after the District Court had entered its order, the Equal Opportunity Regulations were revised by the Civil Service Commission (see 37 Fed.Reg. 22717, October 21, 1972). As a result of this revision, the regulations now additionally require that an agency resolve a complaint within 180 calendar days after it is filed, including the time spent in conducting an evidentiary hearing. 5 C.F.R. § 713.220. The regulations now specify the relief which an agency must offer employees and applicants for employment against "whom the agency is found to have discriminated, including, for example, retroactive promotion with back pay and retroactive appointment to the position previously denied with back pay. Id. § 713.271.
      The earlier regulations permitted an organization acting in an aggrieved person’s behalf to file and prosecute his claim but not to raise general allegations of discrimination unrelated to the individual complaint. The amended regulations broaden this right, providing for filing with an agency of “general allegations by organizations or other third parties of discrimination in personnel matters within the agency which are unrelated to an individual complaint.” Id. § 713.251. Any such allegation shall be stated with sufficient specificity so that the agency may conduct an investigation, and the agency “shall notify the party submitting the allegation of its decision, including any corrective action taken on the general allegations.” The third party may appeal the agency decision to the Commission, which “shall issue a decision on the allegation ordering such corrective action, with or without back pay, as it deems appropriate.” Id.

      . The majority refers to agency personnel’s “refusing to further process grievances and pass them on to the next link in the chain of command.” This seems to me a somewhat exaggerated characterization of what plaintiffs contend. (The relevant portions of the complaint are quoted in the early part of this opinion.)

      . The facts and the statistics of the current strains on judicial capacities need not be reiterated here. See e. g., Remarks of Warren E. Burger, Chief Justice of the United States, to the American Bar Association, August 6, 1973.

      . Where alleged frustration of administrative remedy is based on lack of information or misinformation concerning the correct procedural route to follow, it is at least questionable whether failure to exhaust should be excused if before suit is filed the complaining party is advised by counsel of the correct procedural route to follow administratively.


author: PER CURIAM:

text:
    MEETINGS & EXPOSITIONS, INC., Plaintiff-Appellant, v. TANDY CORPORATION, Defendant-Appellee.
    No. 606, Docket 73-2571.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 19, 1973.
    Decided Jan. 9, 1974.

      John G. Ledes, New York City (Gabriel I. Levy, and Levy & Ledes, New York City, of counsel), for plaintiff-appellant.
    Alexander R. Hamilton, New York City (J. Frederic Taylor, and Burke & Burke, New York City, of counsel), for defendant-appellee.
    Before FRIENDLY, MANSFIELD and OAKES, Circuit Judges.
   PER CURIAM:

The complaint in this diversity action, filed in the District Court for the Southern District of New. York on October 2, 1973, was for breach of a contract between plaintiff, Meetings & Expositions, Inc., and Storm Printing Company (Storm). Under the contract, Storm agreed to print the September, 1973, issue of plaintiff’s magazine which was intended for distribution at a trade show in Detroit. The complaint alleged that defendant Tandy Corporation (Tan-dy) was a Delaware corporation having its principal place of business in Fort Worth, Texas ; that Tandy, “a conglomerate of various divisions and companies engaged in diversified activities throughout the United States,” maintained offices for the transaction of business within the Southern District of New York; and that Storm was part of one of . the divisions of Tandy and had its principal place of business in Dallas, Texas. The judge signed an order submitted along with the complaint requiring Tandy to show cause on October 3 why the court should not issue a preliminary injunction restraining Storm, which allegedly had breached its contract, from retaining possession of various materials that plaintiff had furnished and from interfering with the printing and publication of plaintiff’s magazine. On the return day Tandy submitted a cross-motion to dismiss pursuant to F.R.Civ.P. 12(b)(2). This was supported by an affidavit of its attorney, which alleged that the offices of Tandy mentioned in the complaint were not business offices but merely retail outlets of Tandy’s “Radio Shack” division; that Storm was not a division of Tandy but rather of Trinity Forms Company (Trinity), a Texas corporation which was in turn a wholly-owned subsidiary of Tandy; and that Trinity was a viable corporate entity with its own board of directors, a majority of whom were not officers or directors of Tandy. Without giving plaintiff an opportunity to answer the affidavit, the judge heard argument on the motion to dismiss and indicated that he would render a decision on the following day. During the argument he suggested the possibility of settlement.

The parties acted on this suggestion and executed what they termed an “Agreement and Stipulation of Settlement,” which Judge Duffy approved on October 4. Tandy agreed to cause Storm to deliver to plaintiff in New York on October 4 fifty copies of the magazine against receipt of plaintiff’s check for $7500 personally guaranteed by plaintiff’s president, and also to cause Storm to ship or deliver another 500 copies in accordance with plaintiff’s instructions. By noon on October 9 plaintiff was to replace its $7500 corporate check with a certified, cashier’s or bank check of the same amount, to be delivered in New York to Tandy’s attorneys. Thereafter Tandy would cause Storm to ship or deliver the remaining copies of the magazine and various advertising materials in accordance with plaintiff’s instructions. It was agreed that Storm would not be required to pay or advance any shipping or delivery costs. If plaintiff failed to deliver the check, the clerk, upon an affidavit of default by one of Tandy’s attorneys, was to enter judgment against plaintiff in the sum of $9800 plus costs. Upon full performance of the agreement, the parties were to file with the court a further stipulation dismissing the action with prejudice.

Plaintiff claims that it timely delivered the certified check, and concedes that Tandy met its obligations under the settlement agreement to the extent of arranging for delivery of the first 550 copies of the magazine. However, it alleges that Tandy failed to cause Storm to deliver to the Dallas Postmaster the remaining 32,000 copies in accordance with its instructions. Accordingly, on October 17, plaintiff submitted to Judge Duffy an order requiring Tandy to show cause why it should not be punished for contempt. For two days the judge declined to sign the order to show cause. Then, on the afternoon of October 19, he filed an order, supported by a two-page opinion, dismissing the action for lack of in personam jurisdiction over Tandy. While the opinion referred to the settlement agreement, there was no discussion of its effect on the jurisdictional dispute. The opinion concluded:

Rather than perpetuate the needless charade to maintain this action on the books of this District, it is hereby ordered that the ease be dismissed in its entirety.

After plaintiff filed a notice of appeal, the judge substituted a revised and somewhat longer opinion. The new material included a reference to a New York principle that “absent an agency relationship or facts sufficient to pierce the corporate veil a parent corporation is not subject to jurisdiction because of the activities of a subsidiary.” The court then concluded that plaintiff had failed to show an agency relationship or facts that would justify the “piercing of the corporate veil” — a conclusion that was quite irrelevant to a ease where the parent was subject to jurisdiction because of its own activities in New York. Proceeding to the settlement agreement, the opinion sought to dispose of this on the basis that F.R.Civ.P. 12(b) permits a general appearance without waiver of a timely motion to dismiss for lack of personal jurisdiction, citing Judge Maris’ opinion in Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871, 874 (3 Cir.), cert, denied, 322 U.S. 740, 64 S.Ct. 1057, 88 L.Ed. 1573 (1944), and 2A Moore, Federal Practice, ¶ 12.12, at 2325 n. 17 (2d ed. 1972). The “charade” sentence remained.

The judge’s action was wholly unjustified. His ruling that Tandy’s motion to dismiss for lack of jurisdiction should have been granted since Storm was a division of Trinity rather than of Tandy misconstrued the issue as being one of jurisdiction over Trinity and Storm, whereas the named defendant was Tandy and personal jurisdiction over it was not disputed. To be sure, if there was no agency relationship or basis for piercing the corporate veil, the complaint would be subject to dismissal under Rule 12(b)(6) for failure to state a claim on which relief could be granted against Tandy, and Tandy now asks us to uphold the order on the ground that its motion was in effect a “speaking motion” for summary judgment under that subsection. But Tandy had not asked for such relief below. Even if it had, plaintiff would have been entitled to submit opposing affidavits and, if need be, to have discovery. Plaintiff was given no opportunity to do this on October 3 and had no reason to do so after the stipulation had been executed and approved by the judge on October 4.

Indeed, execution of the stipulation rendered the previous controversy academic. A stipulation and agreement of settlement, entitled in the action and “so ordered” by the judge, is quite different from a general appearance. Whether or not the court previously had personal jurisdiction over Tandy, the stipulation was a consent to the exercise of the court’s power to compel compliance. We thus do not need to rely on such additional circumstances as that the negotiation and signing of the settlement agreement in New York very likely would have subjected Tandy to suit in New York under the New York long-arm statute, CPLR § 302(a)(2), McKinney’s Consol.Laws, c. 8, if personal jurisdiction had not already existed, and that Tandy’s agreeing to “cause” Storm to do various things gives at least some support to the idea that an agency relationship did exist.

While the district court had not only the power but the duty to enforce a settlement agreement which it had approved, it is not clear whether contempt was the proper remedy. We need not decide that issue now. In both the proposed order to show cause and the affidavit in support of the contempt motion, plaintiff sought such further and different relief as might be proper, and added that “if plaintiff has not prayed for proper, and sufficient relief,” it should be granted any appropriate relief “to which it might be entitled.” A district court has the power to enforce summarily, on motion, a settlement agreement reached in a case that was pending before it. J. Kahn & Co. v. Clark, 178 F.2d 111 (5 Cir. 1949); E. L. “Bunch” Hullet, Inc. v. Universal C.I.T. Credit Corp., 259 F.2d 685, 688 (10 Cir. 1958); Cia Anon Venezolana de Navegacion v. Harris, 374 F.2d 33 (5th Cir. 1967); Autera v. Robinson, 136 U.S. App.D.C. 216, 419 F.2d 1197 (1969); Beirne v. Fitch, 167 F.Supp. 652, 654 (S.D.N.Y.1958). Although there may be instances when the facts at issue are so complex that summary enforcement is not proper, see Autera v. Robinson, supra, 419 F.2d at 1200, this case is not one of them. After giving Tandy an opportunity to present by affidavit any facts that are alleged to justify its noncompliance and plaintiff an opportunity to reply, the court should enter an appropriate order. Naturally, the court should take into account the $7500 plaintiff claims to have paid under the settlement agreement, which the court’s order of dismissal has apparently allowed Tandy to retain. If, because of the delay in the delivery of the magazines, an order directing compliance with the terms of the settlement agreement would not now afford plaintiff satisfactory relief, the court should order such other relief as it deems proper under the circumstances. In the alternative, plaintiff is, of course, free to seek its remedy in a suit against Tandy for breach of the settlement agreement. J. Kahn & Co. v. Clark, supra, 178 F.2d at 114.

The order dismissing the complaint is reversed and the cause is remanded for further proceedings, consistent with this opinion, before another judge.

      . The settlement agreement was entitled in the action in the usual manner and “So Ordered” by Judge Duffy at the foot of the agreement.

      . The same result would obtain even if the court’s power to enforce the settlement agreement in this diversity ease were controlled by Xew York law. Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 N.Y. 435, 444, 160 N.E. 778 (1928) ; William Randall & Sons v. Garfield Worsted Mills, 178 App.Div. 196, 165 N.Y.S. 125 (2d Dep’t 1917) ; Berlowitz v. Horowitz, 250 App.Div. 728, 293 N.Y.S. 450 (2d Dep’t 1937).