Procedure Act, supra, unless dismissal is required because of other reasons.
It is contended that this is a suit against the United States, to which consent has not been given. The Government arrives at this contention by assimilating the action of the Secretary of Labor to his action complained of in the case of Reynolds Corporation v. Morse, 84 U.S.App.D.C. 420, 174 F.2d 159, affirming the judgment and adopting the opinion of Chief Judge Laws in Reynolds Corporation v. Morse, D.C., 81 F.Supp. 137, 138, wherein it is said:
'* * * the complaint in this case is brought against improper parties defendant. The defendants named are officials of the Department of Labor, each of whom is sued in his individual capacity. The United States is not named, notwithstanding the sole relief sought is a declaratory judgment barring its possible rights (a) to deny for a period of time future contracts to plaintiff and (b) to bring suit against plaintiff for liquidated damages.
'From my study of applicable legal authorities, it appears a suit against an employee of the United States in his individual capacity is permitted only when personal action on the part of the employee is required to be restrained or commanded. The employee is permitted to be sued in personam because a judgment against the United States will not accomplish the relief to which the plaintiff is lawfully entitled. In such a case, it is not important that other officials of the United States shall be advised of the suit, or be bound by it, for the reason that the action commanded against the individual will grant full and complete relief.
'* * * As previously stated, what the suit seeks is a judgment barring possible claims by the United States. The United States is the primary party in interest. Its claims may be asserted by officials other than those named in the suit, and in the event they are asserted, judgment against the individual defendants sued in this case may not be pleaded as res judicata.'
In the Reynolds case plaintiff had asserted the defense of the statute of limitations in its motion to dismiss the administrative proceeding, brought for violation of its contracts with the Government by illegally employing child labor. Upon the denial of the motion to dismiss, plaintiff filed suit in this Court for a declaratory judgment that any action to recover liquidated damages for the alleged breaches of the contracts had been barred, and that contracts with the United States could not be refused plaintiff under the provisions of the Act, for the reason that the period of three years' limitation provided by the Act within which blacklisting might be imposed had expired. This did not comprise an assertion, as is here made, that the Secretary of Labor was arrogating authority not conferred by the statute, namely, that he has no authority under the Act respecting contracts with governmental agencies which do not exceed $ 10,000. As was said in Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S. Ct. 340, 344, 56 L. Ed. 570, at page 577:
'The complainant did not ask the court to interfere with the official discretion of the Secretary of War, but challenged his authority to do the things of which complaint was made. The suit rests upon the charge of abuse of power, and its merits must be determined accordingly; it is not a suit against the United States.'
While the language has reference to the failure of the plaintiffs to exhaust their administrative remedies, it seems appropriate here to quote from the opinion in the case of Parker v. Lester, D.C.Cal., 112 F.Supp. 433, at page 440:
'* * * At the outset, however, attention must be directed to the fact that petitioners here do not challenge a factual determination made by the appeals board; rather, they complain that the regulations setting forth the appeals procedure are unauthorized by statute and Constitution and therefore viod. No special familiarity with complicated factual situations is necessary for the granting of relief -- no administrative expertese comes into play. The issue, here, is one wholly of law.'
And at page 444:
'A limited injunction and a declaration of rights will issue.'
I do not see how it can be said that a suit to declare that the Secretary of Labor has acted without the scope of his authority, and thereby to form the basis for an injunction against such action, is a suit against the United States. Congress has by the statute declared that the United States has no right to blacklist persons who do not meet the labor standards determined by the Secretary of Labor in the production of materials delivered to governmental agencies pursuant to contracts which do not exceed $ 10,000. If the Court should determine, when the case is heard on the merits, that the Act does not contemplate the grouping of such contracts entered into in response to a single invitation to bid, it would not then be declaring the rights of the United States, but rather it would declare that the Secretary of Labor has acted in violation of the Act, and that such action is void.
It is also urged by the defendants that the Court should, as a matter of discretion, dismiss the complaint and deny the injunction. Under this heading are grouped three arguments (1) errors, if any, in the administrative proceedings should be corrected by the court having the record before it (2) the balancing of conveniences points to denial of the preliminary injunction and (3) there is no probability that plaintiffs will ultimately succeed. Careful consideration has been given to all these arguments, including the argument that one of the contracts in question exceeded $ 10,000. This matter is in dispute, plaintiffs contending that the original bid and contract contained a typographical error, which was reported and corrected. In any event, it was reduced at the request of plaintiffs, and the matter as to whether it was an error understood by all parties to the contract can be determined at the trial on the merits. And, as regards the determination of the Secretary of Labor to the contrary, such determination, 'if supported by the preponderance of the evidence, shall be conclusive.' This circumstance does not, however, attend the other contracts which admittedly are in amounts less than $ 10,000. Defendants' motion to dismiss does not admit of a different construction than that set forth in the complaint. This decision is based upon the assertion that the Secretary of Labor has acted without statutory authority in grouping several contracts, each in amounts less than $ 10,000, all of which were entered into responsive to a single invitation to bid, in order to meet the statutory minimum jurisdiction.
The motion to dismiss will be denied, and, pending a determination in this case, defendants will be enjoined from taking any further action to cause the publication of ineligibility as to the plaintiffs under the provisions of Section 3 of the Act as a result of proceedings known as PC-639 in the Department of Labor.
Counsel will prepare an appropriate order and findings of fact and conclusions of law consistent with this memorandum to carry this decision into effect.