even upon such review the Court is convinced that plaintiffs have failed to state a claim upon which relief can be granted.
Plaintiffs allege two bases for their discrimination claims: the Fifth Amendment and 42 U.S.C. § 1981. Treating these in reverse order, the Court notes initially that 42 U.S.C. § 1981 was originally enacted as part of the Civil Rights Act of 1866, 14 Stat. 27, designed to enforce the then recently adopted Thirteenth Amendment. As such it is directed solely at racial discrimination. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413, 20 L. Ed. 2d 1189, 88 S. Ct. 2186 (1968). It is inapplicable to claims of discrimination based upon other grounds. See Lamont v. Forman Bros., 410 F. Supp. 912 (D.D.C., 1976); Kurylas v. U.S. Department of Agriculture, 373 F. Supp. 1072, 1075-1076 (D.D.C. 1974), aff'd without opinion, 514 F.2d 894 (D.C. Cir. 1975); Marshall v. Plumbers and Steamfitters, Local Union 60, 343 F. Supp. 70, 72 (E.D. La. 1972). Plaintiffs, having made no allegation of racial discrimination, have not stated a claim under 42 U.S.C. § 1981.
Plaintiffs' Fifth Amendment claim of discrimination is equally deficient. The only basis for this claim is a statistical showing of the impact of the decision to realign on the Spanish-American workforce at PUAD and in the Army as a whole. At no point have plaintiffs challenged the Secretary's statutory authority to take this action. Indeed, as indicated above, this authority is clear. 10 U.S.C. § 125(a). See also P.L. No. 93-365, 88 Stat. 406 § 501 (Aug. 5, 1974). Further, plaintiffs have not denied that the realignment action is based on demonstrably legitimate considerations. Thus plaintiffs' claim is based upon a statistical showing of an impact altogether collateral to an action otherwise legitimate.
The essence of plaintiffs' claim, based solely on this statistical showing, is that they, as Spanish-Americans, have a constitutionally protected right to a government job in preference to non-Spanish-Americans. Plaintiffs' right to be considered for federal employment is independent of and apart from considerations of national origin. Since it is unquestioned that the Army's civilian workforce must be reduced, the thrust of plaintiffs' argument is that the Secretary of Defense must consider the national origin of those persons to be separated so that a statistical balance or quota can be established. Such a consideration in itself would raise a discrimination issue of constitutional proportions. All plaintiffs are entitled to is a decision by the Secretary that is neutral on the question of national origin. See DeFunis v. Odegaard, 416 U.S. 312, 334, 94 S. Ct. 1704, 40 L. Ed. 2d 164 (1974) (Douglas, J., dissenting). The materials the defendants have submitted with their motion for summary judgment convince the Court that the decision to realign PUAD was based on legitimate factors divorced from any consideration of the national origin of the plaintiffs. The plaintiffs' recital of a "statistical imbalance" is wholly insufficient to contradict this and to state a claim under the Fifth Amendment.
Plaintiffs' original environmental claim challenged the announced transfer of function of the Improved Hawk Missile Conversion Program from PUAD to the Letterkenny Army Depot in Pennsylvania. The Department of the Army has since reversed this transfer decision. Further, the defendants indicate that the original decision was ineffective because it had not been made at the appropriate command level within the Department of the Army.
Now, however, the plaintiffs' environmental claim encompasses the realignment at PUAD. They allege that the defendants' failure to prepare, and consider as part of their decision making process to realign, an environmental impact statement considering certain socio-economic factors, violated the provisions of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq. and the Environmental Quality Improvement Act, 42 U.S.C. § 4371, et seq.
In pertinent part NEPA provides that agencies of the Federal Government shall --
(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on --
(i) the environmental impact of the proposed action,