(dissenting) :
I respectfully dissent.
This action was brought against Melvin R. Laird as Secretary of Defense and Robert L. Kunzig as Administrator of the General Services Administration. The complaint sought (1) a declaratory judgment that the award of contracts by the defendants to racially discriminating companies and the failure to enforce the companies’ contractual commitments to nondiscrimination have involved the federal government in discriminatory employment practices which thereby have violated plaintiffs’ right to due process under the Fifth Amendment, and (2) an injunction prohibiting the defendants from awarding any further governmental contracts to the discriminating companies and requiring the cancellation or termination of existing contracts with these companies until such time as the discriminatory practices have been eliminated. Despite the clear import of this prayer for relief, the majority would relegate the plaintiffs to the pursuit of what I consider to be wholly inadequate administrative procedures.
There is no doubt that plaintiffs’ ultimate goal is the end of what they allege are the racially discriminatory hiring and employment practices of the companies mentioned in this action. This case is a direct attempt to achieve that end. Here plaintiffs seek a declaration of the government’s duty, affirmatively to secure nondiscriminatory policies among governmental contractors who are being economically sustained by government contracts and public funds.
In my judgment the majority has misstated plaintiffs’ case by characterizing it as seeking “either strict compliance with equal employment opportunity requirements or the disbarment of the offending companies from government contracts.” Rather, the fundamental thrust of plaintiffs’ action seeks a judicial declaration outlining the extent to which government officials who contract with companies that engage in racially discriminatory hiring and promotion practices must undertake to end racial discrimination by these companies. To put it more succinctly, plaintiffs are saying that these government officals have failed to fulfill their constitutional duty to contract with only nondiscriminatory companies and have thereby subsidized and continue to subsidize with federal funds widespread, blatant and continuing racial discrimination. Plaintiffs are seeking a judicial declaration of basic constitutional rights.
Neither administrative remedies under Executive Order 11246 nor those available under Title VII provide any realistic possibility for the relief plaintiffs seek. Those avenues are for the resolution of employee-employer conflict. Certainly under either procedure the government participates in the form of judge or mediator, but a declaration of governmental duties and responsibilities is not contemplated by such procedures. It may be that administrative remedies are available to government officials to force offending companies to cease such invidious practices. This fact, however, does not mean that the victims of such practices cannot litigate their rights in the federal judicial system.
Even assuming that the majority is correct that plaintiffs could theoretically gain relief through these administrative procedures, there is a strong contervailing consideration which suggests that such relegation in this case is neither required nor appropriate. It is that the requirement of exhaustion is rapidly disappearing from that area of our jurisprudence dealing with the vindication of constitutional rights. See Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Chisley v. Richland Parish School Board, 448 F.2d 1251 (5th Cir. 1971); Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971).
I get the impression that the majority may be saying that federal officials are *313less obligated than their state counterparts to obey the Constitution; certainly, they are no more immune for their violations. See Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693, 98 L.Ed. 884 (1954). While substantially different from a factual standpoint, the basic legal issue involved in United States of America by John N. Mitchell, Attorney General vs. John S. Frazer, as Director, Alabama Personnel Department, 317 F.Supp. 1079 (M.D.Ala.1970), regarding the duty of government officials to protect the rights of citizens against infringement by organizations being subsidized with federal funds, is substantially the same. In United States v. Frazer, the Court determined that the United States was subsidizing various programs that were being administered by the defendant State of Alabama officials. After making a finding of discrimination on the basis of race in hiring and promotional practices oh the part of State officials, the Court observed, among other things, that:
. Failure on the part of any of these Government officials to take legal action in the event that racial discrimination does exist would constitute dereliction of official duty.
Here, the United States is seeking to enforce the terms and conditions which Congress expressly imposed upon the expenditure of federal funds. To put it another way, the United States is merely attempting to enforce the express terms and conditions which the State of Alabama agreed to meet in receiving federal funds. . . .
In the case now before this Court, the only difference is that here the plaintiffs are the ones being discriminated against by the organizations receiving federal funds through various contracts with the United States government being administered by the defendants.
As for the fact that this case is brought under the Fifth Amendment, rather than 42 U.S.C. § 1983, the majority has simply stated a distinction without a difference. Since § 1983 applies only to state action, it is unavailable for challenges to federal officers. More fundamentally, the proper consideration for whether exhaustion is necessary is the similarity of the rights sought to be protected and the reasoning which justifies dispensing with administrative remedies, not the identity of the jurisdictional provision. The crucial factor is that in this case, as in the prior cases, the plaintiffs are seeking protection of or a declaration concerning basic constitutional rights allegedly infringed upon by government officials. There is no sound reason for concluding that an administrative agency is better equipped or more competent than the federal judiciary to determine the merits of plaintiffs’ claims.
The majority has also failed to respond adequately to plaintiffs’ contention that the administrative remedies are ineffective and unavailing. For example, it is clear from a reading of the regulations that under either the Executive Order or Title VII, the plaintiffs could file complaints against the offending companies. This would not, however, guarantee plaintiffs the right to participate in the agency proceedings, although they may be permitted to do so. They have no control whatever over the investigation or prosecution of the action. They must file the complaint and then hope for the best. I find this case sufficiently similar to Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), to render exhaustion inappropriate.
In addition, past practice demonstrates that without a judicial declaration of their duties under the Constitution, the defendant federal officials are unlikely to take the action plaintiffs desire. Plaintiffs alleged that as to at least four of the 11 firms involved here, the OFCC has investigated and found the companies to be discriminating. Yet no action for the protection of plaintiffs’ rights has been taken. Administrative hearings have been held and the defendant officials continue to deal and con*314tract with the discriminating companies. The majority says that if the companies are still violating, then a new complaint can be filed. The mere suggestion of such redundancy, however, points out the fruitlessness of the action.
In sum, it seems to me to be highly ironic that this Court is relegating a claim of constitutional violation by federal officials to other federal administrators despite the fact that the administrators have already exhibited their disinterest in safeguarding plaintiffs’ rights. It may be that the Fifth Amendment does not require the cancellation of contracts made by government officials with discriminating companies. Plaintiffs, however, have been denied an opportunity to present their evidence since the case went out in the district court without a hearing. I would remand the case for a hearing of the merits.