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VALENTINE v. DRUG ENFORCEMENT ADMINISTRATION

August 13, 1982

TERRY M. VALENTINE, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
THE DRUG ENFORCEMENT ADMINISTRATION OF THE UNITED STATES DEPARTMENT OF JUSTICE, PETER BENSINGER, ADMINISTRATOR OF THE DRUG ENFORCEMENT ADMINISTRATION OF THE UNITED STATES DEPARTMENT OF JUSTICE, JESSE GALLEGOS, EEO DIRECTOR, DRUG ENFORCEMENT ADMINISTRATION OF THE UNITED STATES DEPARTMENT OF JUSTICE, THE UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, AND JAMES H. TROY, DIRECTOR, OFFICE OF EQUAL EMPLOYMENT OPPORTUNITY, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, DEFENDANTS.



The opinion of the court was delivered by: Aspen, District Judge:

  MEMORANDUM OPINION AND ORDER

Plaintiff Terry Valentine ("Valentine"), a caucasian male agent employed by the United States Department of Justice, Drug Enforcement Administration ("DEA"), brought this reverse discrimination action against the DEA, the Equal Employment Opportunity Commission ("EEOC"), and certain individual officials of those agencies alleging that an affirmative action plan adopted by the DEA in 1979 governing the promotion of Hispanic agents within that agency unlawfully discriminated against him and a class of similarly situated persons.*fn1 Valentine contends that the affirmative action plan imposes an unlawful quota that discriminates on the basis of race and national origin in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16, and the Fifth Amendment to the United States Constitution. Valentine also alleges that the process and regulations by which the DEA affirmative action plan was developed and implemented, as set forth in 5 C.F.R. § 713.251 (1976); 5 C.F.R. § 713.601 et seq. (1977-78); and 29 C.F.R. § 1613.601 et seq. (1979-81), violated his rights and the rights of similarly situated members of the purported class to due process of law under the fifth amendment. Valentine seeks declaratory, injunctive and monetary relief for the wrongs alleged in his amended complaint.*fn2

Presently before the Court are the EEOC's motion to dismiss Valentine's due process claim for failure to state a claim upon which relief can be granted [Fed.R. Civ.P. 12(b)(6)],*fn3 and the DEA's motion for summary judgment on both the due process and Title VII claims [Fed.R.Civ.P. 56]. For the reasons set forth below, the EEOC's motion will be granted and the DEA's motion will be granted in part and denied in part.

I.

The Due Process Claim

Valentine alleges that the process and procedures by which the DEA's affirmative action plan was developed in connection with the settlement of a third-party or class complaint filed by Jesse M. Gallegos, a Hispanic Special Agent with the DEA, violated established notions of due process under the fifth amendment in that they failed to provide for the notification of non-Hispanic DEA employees whose rights were affected by resolution of Gallegos' complaint or for the intervention of such other employees in the administrative adjudication process.*fn4 In support of their motions to dismiss and for summary judgment, defendants argue that Valentine's due process attack is barred because section 717 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16, is the exclusive remedy for claims of discrimination by federal employees. Defendants maintain that Valentine has failed to articulate a substantive basis for his due process claim independent or his general claim to be free from discrimination in employment on the basis of race or national origin cognizable under Title VII and that, in the absence of such an independent basis, he is foreclosed from pursuing the due process claim in the instant action.

It is clear that section 717 provides the exclusive judicial remedy for federal employees who claim they have suffered discrimination on the basis of race, color, religion, sex or national origin. Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); Scott v. Perry, 569 F.2d 1064 (9th Cir. 1978); I.M.A.G.E. v. EEOC, 469 F. Supp. 1034, 1036-37 (D.Colo. 1979); Pace v. Mathews, 15 FEP Cases 703 (D.D.C. 1976). Thus, to the extent that Valentine seeks relief under the fifth amendment for alleged discrimination resulting from the adoption of an affirmative action plan in conjunction with the settlement of the Gallegos complaint, see, e.g., Counts I and III of the Amended Complaint, the Court concludes that those claims are duplicative of his Title VII claim and are barred in view of the exclusive section 717 remedy under the Civil Rights Act.

Valentine maintains, however, that he has stated a due process claim under the fifth amendment that is separate and distinct from his Title VII claim with the allegation that he was denied notice of and an opportunity to intervene in the third-party complaint filed by Jesse Gallegos which eventually yielded the DEA goals and timetables for the promotion of Hispanic agents that are challenged in the instant case. See, e.g., Count II of the Amended Complaint. But certain passages in Valentine's briefs belie his attempt to carve out a separate cause of action under the fifth amendment apart from his Title VII discrimination claim. For example, in his brief in opposition to the EEOC's motion to dismiss, Valentine states:

  [t]he EEOC argues that the plaintiffs' claim for relief
  based on the fifth amendment must fail for lack of a
  protectible property or liberty interest. On the contrary,
  plaintiff and his class are attempting to protect their
  legitimate, clear-cut rights to discrimination-free employment,
  including promotion, rights indisputably within the ambit of
  the fifth amendment.
  [i]t is the deprivation of employment opportunity
  for which plaintiffs seek relief under the fifth amendment.

Valentine's Brief in Opposition to EEOC Motion at 7, 11 (emphasis supplied). In response to the DEA's argument that his due process claim is inseparable from his Title VII claim and is thus merged into that claim under the rationale of Brown v. GSA, supra, and subsequent cases, Valentine states:

  [B]ecause of the DEA's resolution of Gallegos' complaint,
  apparently without involvement of [sic] effective consideration
  of the Plaintiffs' rights, a given number of available
  positions is reserved for Hispanics, thereby eliminating from
  competition non-Hispanic agents who otherwise would qualify for
  the positions. It is this deprivation of employment opportunity
  for which Plaintiffs seek redress under the fifth amendment.

Valentine's Brief in Opposition to DEA's Motion at 16-17 (emphasis supplied). It is thus apparent that Valentine's argument in support of his purported due process claim is identical to his Title VII claim which, as discussed above, is his exclusive remedy for employment discrimination.

Furthermore, as the Seventh Circuit noted recently in Shango (Cleve Heidelberg, Jr.) v. Jurich, 681 F.2d 1091 (7th Cir. 1982), the mere existence of a particular procedure, without more, does not create any substantive liberty or property interest so that the failure to make the procedure available in a particular case does not constitute a deprivation of constitutional magnitude. A plaintiff must first identify a substantive liberty or property interest before she or he can demand procedural due process protection for that interest. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). It is only after the existence of a protected interest has been established that a court must ...


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