Brown v. General Services Administration Brief for Petitioner
Public Court Documents
January 1, 1975
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Brief Collection, LDF Court Filings. Brown v. General Services Administration Brief for Petitioner, 1975. d74a69b7-b69a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/17bb655d-70f4-4a5e-a7eb-de76ccc50e15/brown-v-general-services-administration-brief-for-petitioner. Accessed October 08, 2025.
Copied!
(tart n! % United States
O ctober T erm , 1975
No. 74-768
Clarence B ro w n ,
Petitioner,
v.
G eneral S ervices A dm inistration , et al.
BRIEF FOR PETITIONER
J ack G reenberg
J ames M . N abrit , III
C harles S teph en R alston
M elvyn R . L even th al
B arry L . G oldstein
B il l L a n n L ee
E ric S chnapper
10 Columbus Circle
New York, New York 10019
J eep G reenup
200 West 135th Street
New York, New York 10030
Counsel for Petitioner
TABLE OF COINTENTS
Opinions Below ................ .................. ........... ................... 1
Jurisdiction ............................................. 1
Questions Presented .......................................................... 1
Statutory Provisions Involved ............................. 2
Statement of the Case ......................................... ............ 4
Summary of Argum ent...................................................... 7
A rgum ent
I. Jurisdiction Over This Action Is Conferred
By Statutes Adopted Prior To Section 717
of Title V II of The 1964 Civil Rights A c t ....... 11
A. 1. The 1866 Civil Rights Act ................... 14
2. The Mandamus Act ..... 22
3. The Tucker Act ........... 26
4. 28 U.S.C. § 1331 ......................................... 31
5. Administrative Procedure Act ............. 36
B. Application of Section 717 to Discrimina
tion Occurring Before March 24, 1972 ....... 38
C. Section 717 Did Not Repeal Pre-Existing
Remedies for Discrimination in Federal
Employment ......................... 38
PAGE
11
PAGE
II. This Action Should Not Be Dismissed For
Failure To Exhaust Administrative Remedies 44
A. Exhaustion of Administrative Remedies Is
Not a Prerequisite To An Action Under
The 1866 Civil Rights Act, etc..................... 45
1. Independent Remedies ............................ 46
2. Purposes of Exhaustion .......................... 49
3. Other Policy Considerations ................. 56
B. Even If Exhaustion Is Generally Required
In Such Actions, It Should Not Be Re
quired In This Case ................................. 61
C onclusion ........ ...........................................-..................... 67
A ppendix A ................................... laa
A ppen d ix B .......................................................................... 2aa
T able op A uthorities
Cases:
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) ..36, 45
Ableman v. Booth, 21 How. (62 U.S.) 506 (1858) ------- 18
Adams v. Witmer, 271 F.2d 29 (9th Cir. 1959) 37
Albemarle Paper Co. v. Moody, 43 U.S.L.W. 4880
(1975) _______________ ________ ___ -............ 25, 49, 50, 55
Alcoa S.S. Co. v. United States, 80 F.Supp. 158 (S.D.
N.Y. 1948) ............. ......... .. ........... ............... —......... . 28
Alexander v. Gardner-Denver Co., 415, U.S. 36 (1974)
37, 40, 42, 46, 50, 51, 55, 56, 64
Allison v. United States, 451 F.2d 1035 (Ct. Cl. 1971)
29, 40
Ill
Arrington v. Massachusetts Bay Transportation Au
thority, 306 F.Supp. 1355 (D. Mass. 1969) ........... . 14
Arrow Meat Company v. Freeman, 261 F.Supp. 622
(D. Ore. 1966) ........ ...... ........... ........ .... ........ .............. 36
Aycock-Lindsey Corporation v. United States, 171 F.2d
518 (5th Cir. 1948) ...................... ..................... .............. 29
Beale v. Blount, 461 F.2d 1133 (5th Cir. 1972) ..... 24, 25, 30
Beers v. Federal Security Administrator, 172 F.2d 34
(2nd Cir. 1949) ___ ______________________ ___ _____ 28
Bennett v. Gravelle, 4 EPD U7566 (4th Cir. 1971) .... .15, 35
Berk v. Laird, 429 F.2d 302 (2d Cir. 1970) _____ ____ 34
Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388 (1971) ........ ................... ....... .......... ............ ...28,35
Blanc v. United States, 244 F.2d 708 (2d Cir. 1957) .... 31
Board of Trustees of Arkansas A & M College v. Davis,
396 F.2d 730 (8th Cir. 1968) ........................................... 35
Bolling v. Sharpe, 347 U.S. 497 (1954) ..... ..17, 23, 28, 34, 35
Boudreau v. Baton Rouge Marine Contracting, 437
F.2d 1011 (5th Cir. 1971) ............... ............. ............. ..15, 40
Bradley v. School Board of the City of Richmond, 416
U.S. 696 (1974) .... ..... ............................................... ..... 38
Brady v. Bristol Meyers, Inc., 459 F.2d 621 (8th Cir.
1972)............... ........................ ......... .......................... ....... 15, 40
Brooks v. Marcelli, 331 F.Supp. 1350 (E.D. Pa. 1971) .. 42
Brooks v. United States, 337 U.S. 49 (1949) ................ 29
Brown v. Gaston County Dyeing Machine Co., 457 F.2d
1377 (4th Cir. 1972) ............. ........... .............. ........... . 15
Caldwell v. National Brewing Co., 443 F.2d 1044 (5th
Cir. 1971) ......... ........................ ......................... .............. 15
Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966) .... 36
Carriso v. United States, 106 F.2d 707 (9th Cir. 1939) .. 28
Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971)____17, 35
PAGE
IV
Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972) ........ . 35
Chambers v. United States, 451 F.2d 1045 (Ot. Cl.
1971) ..................................................................................8,29
Christian v. New York Department of Labor, 414 U.S.
614 (1974) ____ 54,65
Citizens Committee for Hudson Valley v. Volpe, 425
F.2d 97 (2d Cir. 1970) ............................ ............... . 36
Citizens to Preserve Overton Park v. Volpe, 401 U.S.
402 (1971) ............. .............................. ...................... ..... 36
City of New York v. Ruckelshaus, 358 F.Supp. 669
(D.D.C. 1973) ....... ............................ ........................ ..... 24
Clackamas County, Oregon v. Mackay, 219 F.2d 479
(D.C. Cir. 1954) ........... 26
Clay v. United States, 210 F.2d 686 (D.C. Cir. 1954) .. 31
Oompagnie General Translantique v. United States, 21
F.2d 465 (S.D.N.Y. 1927) ................................. .......... 28, 29
Congress of Racial Equality v. Commissioner, 270
F.Supp. 537 (D. Md. 1967) ............................................ 12
Copeland v. Mead Corp., 51 F.R.D. 266 (N.D. Ga. 1970) 15
Cortwright v. Resor, 325 F.Supp. 797 (E.D.N.Y. 1971) 32
Damico v. California, 389 U.S. 416 (1967) ..... 46
Davis v. Romney, 355 F.Supp. 29 (E.D. Pa. 1973) ____ 36
Davis v. Washington, 352 F.Supp. 187 (D.D.C. 1972) .... 23
District of Columbia v. Carter, 409 U.S. 418 (1973)
7, 8,16,17
Dugan v. Rank, 372 U.S. 609 (1963) ............................... 34
Estrada v. Alliens, 296 F.3d 690 (5th Cir. 1969) ..... ..... 37
Ex Parte Young, 209 U.S. 123 (1908) .............. ...... .... .33, 34
Farmer v. Philadelphia Elec. Co., 329 F.2d 3 (3d Cir.
1964)
p a g e
3 2
V
Faruki v. Rogers, 349 F.Supp. 723 (D.D.O. 1972) ....... 23
Garfield v. United States ex rel. Goldsby, 211 U.S. 249
(1908) .................................................... .......... ............ . 24
Gibson v. Mississippi, 162 U.S. 595 (1866) ...... ............ 23
Glover v. Daniel, 434 F.2d 617 (5th Cir. 1970) ........... ........ 14
Glover v. St. Louis, etc., R.R., 393 U.S. 324 (1969) ......50, 52
Gnotta v. United States, 415 F.2d 1271 (8th Cir.
1969) ........................................................... .................... 12,29
Griggs v. Duke Power Co., 461 U.S. 424 (1971) ........... 49
PAGE
Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir. 1975) ..... 49, 59, 66
Guerra v. Manchester Terminal Corp,, 350 F.Supp. 529
(S.D. Tex. 1972) .............................................................. 45
Hackett v. McGuire Brothers Inc., 445 F.2d 442 (3d
Cir. 1971) .......................................................................... 15
Hague v. C.I.O., 307 U.S. 496 (1939) ............... .............. 49
Harris v. Kaine, 352 F.Supp. 769 (S.D.N.Y. 1972) .... . 36
Henderson v. Defense Contract Administration Ser
vices, 370 F.Supp. 180 (S.D.N.Y. 1973) ........................6,23
Hill v. United States, 40 Fed. 441 (C.C. Mass. 1889).... *27
Hurd v. Hodge, 334 U.S. 24 (1948) ............ ....... ..... .....16,17
Huston v. General Motors Corp., 477 F.2d 1003 (8th
Cir. 1973) .......................................................................... 6
Indian Trading Co. v. United States, 350 U.S. 61 (1955) 21
Jackson v. United States, 129 F.Supp. 537 (D. Utah
1955) .................................................................................. 30
James v. Ogilvie, 310 F.Supp. 661 (N.D. 111. 1970) ...... 15
Jarrett v. Resor, 426 F.2d 213 (9th Cir. 1970) ............... 22
Jenkins v. General Motors Corp., 475 F.2d 764 (5th Cir
1973) .................................................................................. 45
Johnson v. Cain, 5EPD j[8509 (D.Del. 1973) ... ...14,35
VI
Johnson v. Goodyear Tire & Rubber Co., 349 F.Supp.
3 (S.D. Tex. 1972) ............................ 15
Johnson v. Railway Express Agency, 44 L.Ed. 2d 295
(1975) ................ 9,14,40,46,
47, 49, 63
Jones v. Alfred H. Mayer C'o., 392 U.S. 409 (1968) ....... 17,
18,42
Jones v. United States, 127 F.Supp. 31 (E.D.N.C.
1954) .................................................................................. 27
Keifer & Keifer v. Reconstruction Finance Corp., 306
U.S. 381 (1938) ............................... 22
Kletschka v. Driver, 411 F.2d 436 (2d Cir. 1969) ......... 37
Lancashire Shipping Co. v. United States, 4 F.Supp.
544 (S.D.N.Y. 1933) ...................................................... 28
Larson v. Domestic and Foreign Commerce Corp., 337
U.S. 643 (1949) ....... ............. ........................................._. 34
Law v. United States, 18 F.Supp. 42 (D.Mass. 1937) .... 28
Lazard v. Boeing Co., 322 F.Supp. 343 (D. La. 1971) .... 15
Leonhard v. Mitchell, 473 F.2d 709 (2d Cir. 1973) ..... 23
Lloyds’ London v. Blair, 262 F,2d 211 (10th Car. 1958) 27
Lombard Corporation v. Resoc, 321 F.Supp. 687 (D.
D.C. 1970) ...................................................... 37
London v. Florida Department of Health, 313 F.Supp.
591 (N.D. Fla. 1970) .......................................... ......... 44 ̂35
Long v. Ford Motor Co., 352 F.Supp. 135 (E.D. Mich.
1972) ...................................................................... 40
Long v. Ford Motor Company, 496 F.2d 500 (6th Cir.
1974) ...................................................................
Macklin v. Spector Freight Systems, Inc., 478 F.2d
979 (D.C. Cir. 1973)
page
4 0
vii
Malone v. Baldwin, 369 IT.S. 643 (1962) ................. ......... 34
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ....8,22,
26, 32
McDonnell-Douglas Corp. v. Green, 411 U.S. 792
(1972) ....... ....... ................... ..................... ........... 37,45
McGee v. United States, 402 U.S. 479 (1971) ............... 45
McIIoney v. Callaway, No. 74-0-1729, E.D.N.Y.......... 57
McKart v. United States, 395 U.S. 185 (1969).......45, 49, 50,
58, 61
McLaughlin v. Callaway, No. 74-1237, S.D. Ala............. 57
McNeese v. Board of Education, 373 U.S. 668 (1963) .... 46
McQueary v. Laird, 449 F.2d 608 (10th Cir. 1971) ....... 26
Miguel v. McCarl, 291 U.S. 442 (1934) .......................... 24
Mills v. Board of Education of Ann Arundel, 30
F.Snpp. 245 (D. Md. 1938) ................................. ...... 14
Minnesota v. United States, 305 U.S. 382 (1939) ....... 22
Monroe v. Pape, 365 U.S. 167 (1961) ....................... 46
Morrow v. Crisler, 479 F.2d 960 (5th Cir. 1974).........14,35
Morton v. Mancari, 417 U.S. 535 (1974) .... ...9,17, 23, 41, 44
Murphy v. Colonial Fed. Savings and Loan, 388 F.2d
609 (2d Cir. 1967) .......................................................... 32
N.A.A.C.P. v. Allen, 340 F.Supp. 703 (M.D. Ala. 1972) 35
National Helium Corporation v. Morton, 326 F.Supp.
151 (D. Kan. 1971) .......... .......... .............. ............. .... 37
National Helium Corporation v. Morton, 455 F.2d 650
(10th Cir. 1971) ......... .................................................... 37
Northeast Residents Association v, Department of
Housing and Urban Development, 325 F.Supp. 65
(E.D. Wis. 1971) ........................ ............... .......... ........ 36
Norwalk Core v. Norwalk Redevelopment Agency, 395 .
. F.2d 920 (2d Cir. 1968) ....... ....................................... 37
PAGE
Vlll
Pacific Telephone, etc. Co. v. Keykendall, 265 U.S. 196
(1924) .................................. ............................................. 65
Palmer v. Rogers, 6 EPD «[J8822 (D. D.C. 1973) .........31, 32
Parisi v. Davidson, 405 U.S. 34 (1972) ...... .................. 65
Penn v. Schlesinger, 490 F.2d 700 (5th Cir. 1973)
24, 25, 47, 55
Penn v. Schlesinger, 497 F.2d 970 (5th Cir. 1974).......25, 55
Penn v. Schlesinger, No. 74-476 ............................ -........ 65
Perry v. United States, 308 F.Supp. 245 (D. Colo. 1970) 27
Pettit v. United States, 488 F.2d 1026 (Ct. Cl. 1973)..... 30
Philadelphia Co. v. Stimson, 223 U.S. 605 (1912) ....... 34
Place v. Weinberger, No. 74-116 ...................................... 38
Prentis v. Chesapeake & Ohio Railway, 211 U.S. 210
(1908) ................................ ......... -................................. . 65
Rambo v. United States, 145 F.2d 670 (5th Cir. 1944).... 31
Rayonier v. United States, 352 U.S. 315 (1957) ...... 22
Renegotiation Board v. Bannercraft Co., 415 U.S. 1
(1974) .................................................. ............ ........ - ...... 51
Rice v. Chrysler Corp., 327 F.Snpp. 80 (E.D. Mich.
1971) .... ......... - ................................................................. 15
Road Review League v. Boyd, 270 F.Supp. 650
(S.D.N.Y. 1967) ............. 36
Roberts v. United States ex rel. Valentine, 176 U.S. 221
(1900) ...................................................................... 24
Ross Packing Co. v. United States, 42 F.Supp. 932
(E.D. Wash. 1942) ......... 28,29
Rural Electrification Administration v. Northern States
Power Co., 373 F.2d 686 (8th Cir. 1967) ................. 22
Rusk v. Cort, 369 U.S. 367 (1962) ............. ....................... 36
Sampson v. Murray, 415 U.S. 61 (1974) ............................. 24
Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir.
1970) .................................................... 15,40
p a g e
IX
PAGE
Scanwell Laboratories Inc. v. Shatter, 424 F.2d 859
(D.C. Cir. 1970) ............................. -.............................. 37
Schener v. Rhodes, 416 U.S. 232 (1974) ...... ................ 35
Schicker v. United States, 346 F.Supp. 417 (D. Conn.
1972) ................................. -......... -................................ 36
Schroede Nnrsing Care, Inc. v. Mutual of Omaha Inc.
Co., 311 F.Supp. 405 (E.D. Wis. 1970) ....... ................. 37
Screws v. United States, 325 U.S. 91 (1945) .... ............ 17
Service v. Dulles, 354 U.S. 363 (1957) ....... ..................... 24
Settle v. E.E.O.C., 345 F.Supp. 405 (S.D. Tex. 1972).... 35
Sinclair Nav. Co. v. United States, 32 F.2d 90 (5th Cir.
1929) .................................................. - ............................. 28
Smiley v. City of Montgomery, 350 F.Supp. 451 (M.D.
Ala. 1972) .............. ..................... - ................................. 14
Smith v. United States, 458 F.2d 1231 (9th Cir. 1972) 28
Somma v. United States, 283 F.2d 149 (3rd Cir. 1960)..65, 66
Spanish Royal Mail Line Agency, Inc. v. United States,
45 F.2d 404 (S.D.N.Y. 1930) ....... ...............................~ 28
Sperling v. U.S., 9 EPD fL0,100 (3d Cir. 1975) .... . 64
Spillway Marina, Inc. v. U.S., 445 F,2d 876 (10th Cir.
1971) ........... .. .................... ------------- 27
Strain v. Philpott, 4 EPD flf[7885 (M.D. Ala. 1971).....14, 35
Suel v. Addington, 465 F.2d 889 (9th Cir. 1972).........14, 35
Sullivan v. Little Hunting Park, 396 U.S. 229 (1969).... 42
Sultzbach Clothing Co. v. United States, 10 F.2d 363
W.D. N.Y. 1925) .............................. ......... ......... ......... . 28
Sutcliffe Storage & Warehouse Co. v. United States,
162 F.2d 849 (1st Cir. 1947) ........................................ 27
Swain v. Callaway, 5th Cir. No. 75-2002 .................. ...... 57
Thorn v. Richardson, 4 EPD H7630 (W.D. Wash. 1971) 24
Tillman v. Wheaton-Haven Recreation Association,
410 U.S. 431 (1973) ............................................ 8,16,17, 42
X
Toilet Goods Association v. Gardner, 360 F.2d 677
(2d Cir. 1966) .................................................................. 34
Union Trust Co. v. United States, 113 F.Snpp. 80 (D.
D.C. 1953) ...................... 27
United States ex rel. Parish, v. MacYeagh, 214 U.S. 124
(1909) ..... 24
United States v. Emery, Bird, Thayer R.R. Co., 237
U.S. 28 (1915) ....................................................... 29
United States v. Hellard, 322 U.S. 363 (1944) ............. 22
United States v. Hvoslef, 237 U.S. 1 (1915) ....... 28
United States v. Johnson, 153 F.2d 846 (9th Cir. 1946) 27
United States v. Jones, 109 U.S. 513 (1883) ................... 22
United States v. Shaw, 309 U.S. 495 (1939) ..... 22
United States v. Yellow Cab Co., 340 U.S. 543 (1950)..22, 27
Wasson v. Trowbridge, 382 F.2d 807 (2d Cir. 1967) ..... 34
Waters v. Wisconsin Steel Works, 427 F.2d 476 (7th
Cir. 1970) ....... ........ ........................ .................... .......... 15, 40
Watkins v. Washington, 3 EPD 1J8291 (D.D.C. 1971) .. 35
Weinberger v. Salfi, 43 U.S.L.W. 4985 (1975) .......45, 49, 51
Weinberger v. Weisenfeld, 43 U.S.L.W. 4393 (1975) ....45, 49
West v. Board of Education of Prince George’s County,
165 F.Supp. 382 (D.Md. 1958) ...................... ............ . 14
Work v. United States ex rel. Lynn, 266 U.S. 161 (1924) 24
Young v. International Telephone & Telegraph, 438
F.2d 757 (3d Cir. 1971) .................................................. 40
Young v. International Tel. & Tel. Co., 438 F.2d 757
(3d Cir. 1971) .......................................................... . 15
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579
(1952) ........................................................... ........ ........... 34
PAGE
Zwickler v. Koota, 389 U.S. 241 (1967) 47
X I
Constitutional Provisions: page
U.S. Constitution, Article I, section 9 .................-........ 28
IJ.8 . Constitution, Fourth Amendment ........... ............. 28
TJ.S. Constitution, Fifth Amendment ................... 13, 21, 23,
28, 36, 43
U.S. Constitution, Eleventh Amendment ..................... 33
Statutes:
5 U.S.C. §702 ....................................................................13, 36
5 U.S.C. §704 ...................................................................... 45
5 U.S.C. §706 ....... ............................................................... 36
25 U.S.C. §461 ...... ..... - ....... -......... ...... - ................ -..... - 44
5 U.S.C. §7151 .................................................12,13, 23, 43, 54
28 U.S.C. §1254 (1) .................................................. 1
28 U.S.C. §1331 .......... ..................................3, 8,13, 27, 31, 32,
35, 37, 43, 53
28 U.S.C. §1343 ................................................ -3, 8,19, 20, 21
28 U.S.C. §1346 ....................................................4, 7, 8,13, 26,
27, 28, 29, 30
28 U.S. §1361 ............. ................. - ....................... 4, 7, 8,13, 22,
26, 30, 31
28 U.S.C. §1491 ........... ............... .................................8, 29, 40
42 U.S.C. §1971 (c) ............................................................. . 42
42 U.S.C. §1981 ...................................—.3, 7, 8,13-17, 20, 21,
23,40, 42-48, 50, 58, 61
42- U.S.C. §1982 .................................................. 7, 8,16,17, 42
Xll
PAGE
42 U.S.C. §1983 .................................................................. 15, 42
42 U.S.C. §2000a........................................................ ......... 42
42 U.S.C. §2000e-5; Section 706 of Title V I I ............ 39,43
42 U.S.C. §2Q00e-6; Section 707 of Title V II _______ 39
42 U.S.C. §2000e-16; Section 717 of Title V I I .......1, 2, 6, 7,
9,11,13, 38-44, 47, 54,
58, 59, 63, 64, 66
42 U.S.C. §3612 .... .............................. ............................... 42
Administrative Procedure Act ...................7, 8,13, 36, 37, 45
Civil Rights Act of 1866 ............ ........................ 7, 9,13-20, 23,
37, 45, 53, 62
Civil Rights Act of 1870 ................. ...............................15, 20
Civil Rights Act of 1871 ...................... 20
Civil Rights Act of 1957 ............... 42
Civil Rights Act of 1964 ........................... 2
Fugitive Slave A c t ..... ........................................................ 18
Immigration and Nationality Act of 1952 ....................... 36
Indian Reorganization Act of 1934 .... .................. ........... 9, 44
Mandamus Act ....... ....................................... 7, 8,13, 22, 37, 46
National Labor Relations A c t .......................................... 28
Social Security Act ...... .............................. ......... ............. 28
Transportation Act — ............................... ...................... 28
Tucker Act .............7, 8,13,14, 26, 27, 29, 30, 31, 37, 43, 46, 53
14 Stat. 27 ....................................................... ...... 15,16,19, 20
14 Stat. 28 ............................. .................. .......... ...... ......... 19
X l l l
14 Stat. 29 ........................................................................... 19
16 Stat. 140 ..... .................................. -................................. 15
76 Stat. 744 .... ....................................................... ........... 30, 31
78 Stat. 699 .................................................... ............... ..... 30
Anno. Code of Cal., §1422 ................................. ................ 48
Code of Ala., Title 7, §5526 .................... ............. ............. 48
Code of S.C., §10-146 ...... ........ ........................ ............. . 48
New York Civil Practice Law and Rules, §214............... 48
Tenn. Code Anno. §28-304 ........... ................................ . 48
Vernon’s Anno. Texas Revised Civil Statutes, Art. 5526 48
Regulations:
5 C.F.R. part 351 ...... ...... ........ ......... ................ ....... ..... 57
5 C.F.R. part 532 ..... .......... ..... ........................................ 57
5 C.F.R. part 713 ......... ....... ....... 12,13, 24, 29, 43, 45, 46, 57
5 C.F.R. part 771 ....... ..... ............................... ............... . 57
5 C.F.R. §300.103 ........................................ ......... ............. 57
5 C.F.R. §713.201 .............................. ........... ............... ..... 24
5 C.F.R. §713.203 ............. ..... ........... ................................. 54
5 C.F.R. §713.213 ............................................ ............. . 48
5 C.F.R. §713.214 ......................... ...... ......... ............ ........ 53
5 C.F.R. §713.216 ........... ............ ............ ........... ............... 60
5 C.F.R. §713.217 ........................................................ ....... 60
5 C.F.R. §713.219 ................................................................ 57
5 C.F.R. §713.220 ......... .................................................... 47, 62
PAGE
5 C.F.R. §713.251 ............................... ............... ................. 57
5 C.F.R. §713.261 .... ........ ........ ....... ....... .......................... 57
5 C.F.R. §713.271 ............ ..............................................8,25,53
5 C.F.R. §772.306 ................................................................ 57
Executive Orders:
Executive Order 9980 ........................................ ........... ... 24
Executive Order 10590 ........................... ..... ..... ........... . 24
Executive Order 10925 ................................................... 24
Executive Order 11246 ........ .......... ..................... ........ .... 24
Executive Order 11478 .................................. 13, 24, 29, 41, 43
Executive Order 11590 .................. 24
Legislative Materials:
S. Rep. No. 92-415, 92nd Cong., 1st Sess......23, 38, 49, 52, 57
S. Rep. 1390, 88th. Cong., 1st Sess....................... ........... 30, 31
H. Rep. No. 92-238, 92nd Cong., 1st Sess...... .......... 49, 51, 63
H. Rep. 1604, 88th Cong., 2d Sess................................... 30
Hearings Before a Subcommittee of the Senate Com
mittee on Labor & Public Welfare, 92 Cong., 1st Sess.
(1971) ........................... 12,13,42
Hearings Before a Subcommittee of the Senate Judi
ciary Committee, 91st Cong., 2d Sess. (1970) .........12,13
Hearings Before the Subcommittee on Labor of the
House Committee on Education and Labor, 92 Cong.,
1st Sess. (1971) ........ .............. ........ ................................ 12
Cong. Globe, 38th Cong., 1st Sess. ................................... 21
x i v
PAGE
XV
Gong. Globe, 39th Cong., 1st Sess........... ............ ............ 20
108 Cong. Rec................................... ........... .......... ............. 26
110 Cong. Rec. ................................ ...................................31, 42
117 Cong. Rec...................................................... ....... ........ 39
118 Cong. Rec. ........................ ...................... ......... 38, 39, 42,43
PAGE
Other Authorities:
G. Bentley, History of the Freedmen’s Bureau (1955).. 18
M. King, Lyman Trumbull (1965) ............. .... ........... . 18
Moore’s Federal Practice .................................................. 27
K. Stamp, The Era of Reconstruction (1965) ........... . 18
Schlesinger and Israel, The State of the Union Mes
sages of the President (1966) .......... ......... ............... 21
ten Broek, Equal Under Law (1951) .................... 18,20
U.S. Commission on Civil Rights, The Federal Civil
Rights Enforcement Effort 1974 .......... ........ .52, 53, 54, 61
Byse and Fiucca, “ Section 1361 of the Mandamus and
Venue Act of 1962” , 81 Harv. L. Rev. 308 (1967)...... 26
Graham, “The Conspiracy Theory” of the Fourteenth
Amendment” , 47 Yale L.J. 371 (1938) ..................... 20
Graham, “ The Early Anti-Slavery Backgrounds of the
Fourteenth Amendment” , 1950 Wise. L. Rev. 479...... . 20
Board of Appeals and Review. Work Load Statistics,
Fiscal Years 1972, 1973, 1974 64
I n t h e
g>uprrme CUmtrt nf itp? Stairs
O ctober T erm , 1975
No. 74-768
Clarence B ro w n ,
v.
Petitioner,
G eneral S ervices A dm inistration , et al.
BRIEF FOR PETITIONER
Opinions Below
The opinion of the Court of Appeals is reported at 507
F.2d 1300, and is set forth in the Appendix to the Petition,
pp. 2a-18a. The opinion order of the District Court, which
is not reported, is set forth in the Appendix to the Peti
tion, p. la.
Jurisdiction
The judgment of the Court of Appeals was entered on
November 21, 1974. The Petition was filed on December
20, 1974 and granted on May 27, 1975. Jurisdiction of the
Court is invoked pursuant to 28 U.S.C. §1254(1).
Questions Presented
1. Is jurisdiction over this action conferred by statutes
enacted prior to the adoption in 1972 of section 717 of
Title VII?
2
2. Was this action properly dismissed for failure to ex
haust administrative remedies 1
Statutory Provisions Involved
Section 717(a) of Title Y II of the 1964 Civil Bights Act,
as amended, 42 U.S.C. § 2000e-16(a), provides:
All personnel actions affecting employees or ap
plicants for employment (except with regard to aliens
employed outside the limits of the United States) in
military departments as defined in section 102 of title
5, United States Code, in executive agencies (other
than the General Accounting Office) as defined in sec
tion 105 of title 5, United States Code (including em
ployees and applicants for employment who are paid
from nonappropriated funds) in the United States
Postal Service and the Postal Rate Commission, in
those units of the Government of the District of Colum
bia having positions in the competitive service, and
in those units of the legislative and judicial branches
of the Federal Government having positions in the
competitive service, and in the Library of Congress
shall be made free from any discrimination based on
race, color, religion, sex or national origin.
Section 717(c) of Title VII of the 1964 Civil Rights Act,
as amended, 42 U.S.C. §20G0e-16(c), provides:
Within thirty days of receipt of notice of final action
taken by a department, agency, or unit referred to in
subsection 717(a), or by the Civil Service Commission
upon an appeal from a decision or order of such de
partment, agency, or unit on a complaint of discrimi
nation based on race, color, religion, sex, or national
origin, brought pursuant to subsection (a) of this
section, Executive Order 11478 or any succeeding Ex-
3
ecutive orders, or after one hundred and eighty days
from the filing of the initial charge with the depart
ment, agency, or unit or with the Civil Service Com
mission on appeal from a decision or order of such
department, agency, or unit until such time as final
action may be taken by a department, agency, or unit,
an employee or applicant for employment, if aggrieved
by the final disposition of his complaint, or by the
failure to take final action on his complaint, may file a
civil action as provided in section 706, in which civil
action the head of the department, agency, or unit, as
appropriate, shall be the defendant.
Section 1981, 42 U.S.C., provides:
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 bene
fit of all laws 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.
Section 1331(a), 28 U.S.C., provides:
The district courts shall have original jurisdiction
of all civil actions wherein the matter in controversy
exceeds the sum or value of $10,000, exclusive of in
terest and costs, and arises under the Constitution,
laws or treaties of the United States.
Section 1343(4), 28 U.S.C., provides:
The district courts shall have original jurisdiction
of any civil action authorized by law to be commenced
by any person:
* # # # #
4
(4) To recover damages or to secure equitable or
other relief under any Act of Congress providing for
the protection of civil rights, including the right to
vote.
Section 1346, 28 U.S.C., provides in pertinent part:
(a) The district courts shall have original jurisdic
tion, concurrent with the Court of Claims, o f :
# * # # #
(2) Any other civil action or claim against the
United States, not exceeding $10,000 in
amount, founded upon the Constitution or any
Act of Congress, or any regulation of an ex
ecutive department, or upon any express or
implied contract with the United States, or
for liquidated or unliquidated damages in
cases not sounding in tort.
Section 1361, 28 U.S.C., provides:
The district courts shall have original jurisdiction
of any action in the nature of mandamus to compel an
officer or employee of the United States of any agency
thereof to perform a duty owed to the plaintiff.
Statement o f the Case
Petitioner is black and has for eighteen years been an
employee of the General Services Administration, herein
after “ GSA” .1 (A. 4a) He is a GS-7 but has been cer-
1 Subsequent to the filing of the Petition for Writ of Certiorari,
petitioner was transferred to another government agency. That
lateral transfer has no effect on his claim for back pay or injunc
tive relief. Petitioner is still a GS-7 and still wants the specific
GS-9 position in the General Services Administration for which
he applied in 1971.
5
tilled eligible and rated “ highly qualified” for a GS-9 posi
tion. He has for the past eight years been repeatedly de
nied that GS-9 promotion. (A. 15a-17a)
October 19, 1970, the names of petitioner and two whites
were submitted to petitioner’s white supervisor for the
filling of a GS-9, Communications Specialist, vacancy; all
of the candidates wrere rated “highly qualified;” a white
obtained the promotion. Immediately thereafter, petitioner
contacted his Equal Employment Opportunity Counsellor
at GSA and was advised to withhold a formal complaint
of discrimination because two new GS-9 vacancies were
imminent; petitioner complied with the EEO Counsellor’s
request and terminated proceedings. (A. 36a)
June 15, 1971, the names of petitioner and two whites
-were submitted to petitioner’s supervisor for the filling of
a GS-9 vacancy; on this occasion only petitioner and one
of the white candidates were rated “highly qualified;” a
white candidate was again selected. On July 15, 1971, peti
tioner filed his Complaint of Discrimination against the
Director of the Transportation and Communications Ser
vice and the Chief of the Commissions Division, GSA.
Petitioner’s complaint alleged inter alia, that he had been
seeking a promotion since 1967 to a GS-9 position and that
in every instance he had been rejected because of his race.
(A. 5a-15a) The agency investigation revealed that peti
tioner had been repeatedly passed over for promotion in
favor of white employees. In addition, subsequently pub
lished statistics reveal that, while blacks are employed at
GSA in significant numbers in grades GS-7 and lower, they
are clearly under-represented in all grades GS-8 and above
(Appendix A, infra, p. laa). October 19,1972, GSA notified
petitioner that on the basis of the investigative file it pro
posed to find that it had not discriminated against him and
advised him of his right to a hearing. (A. 30a)
6
December 13, 1972, a bearing was held on petitioner’s
complaint. February 9, 1973, the Hearing Examiner found,
on the basis of petitioner’s supervisors’ testimony, that the
whites selected for the positions in contest were more
“ cooperative” than the petitioner and, accordingly, that
petitioner was not passed over because of his race. (A.
40a)
March 23, 1973, twenty months after petitioner filed his
administrative complaint, GSA issued its final agency deci
sion concluding* that it had not discriminated against peti
tioner on the basis of race.2 (A. 43a)
Petitioner was notified of the agency decision on March
26, 1973. (A. 45a) The letter of notification advised him
that he could within 30 days commence a civil action in the
United States District Court, or within 15 days file an
appeal to the Appeals Review Board of the Civil
Service Commission. On the basis of this letter petitioner
decided to file suit. Because petitioner had great difficulty
locating an attorney who would represent him,, he did not
succeed in filing his complaint until May 7, 1973, 12 days
after the deadline for filing an action under section 717.3 * * * * 8
2 On August 10, 1973, the government moved to dismiss this
action in the district court on the ground, inter alia, that peti
tioner had not commenced his action within the 30 days required
under section 717. On July 27 and September 24, 1973 the same
United States Attorney filed memoranda in the same district
court, in Henderson v. Defense Contract Administration Services,
370 P.Supp. 180 (S.D. N.Y. 1973), arguing that section 717 did
not apply to employees such as petitioner who were the victims
of discrimination prior to March 24, 1972.
8 Within a week of receiving the letter of March 23, petitioner
presented himself and the letter to the clerk of the United States
District Court for the Southern District of New York, where the
pro se clerk advised him to retain a private attorney. Compare,
Huston v. General Motors Corp., 477 F.2d 1003 (8th Cir. 1973).
Prior to obtaining the services of counsel, petitioner unsuccess
fully sought assistance from three other attorneys and several
civil rights organizations.
7
However, petitioner asserted federal jurisdiction under
several statutes other than §717.
On September 27, 1973, the District Court for the South
ern District of New York dismissed the action for lack of
jurisdiction (Petition, p. la ). On November 21, 1974, the
Court of Appeals for the Second Circuit affirmed that dis
missal (Petition, pp. 2a-18a). The Second Circuit con
cluded: (1) that section 717 had, by implication, repealed
pro tanto the Tucker Act, the Mandamus Act, the 1866
Civil Eights Act, the Administrative Procedure Act, and
the other statutes which petitioner asserted created fed
eral jurisdiction; (2) that section 717 applied to discrimina
tion occurring prior to its effective date, March 24, 1972,
and that the implied repeal was accordingly retrospective;
and (3) that in any event, petitioner could not sue because
he had not filed an appeal from the final agency decision
to the Appeals Review Board of Civil Service Commission,
and thus had not completely exhausted his administrative
remedies.
Summary of Argument
I. A. Prior to the adoption, in 1972, of section 717 of
Title VII, which gave federal employees the same right
to sue under Title V II enjoyed by private employees, fed
eral jurisdiction to remedy federal employment discrimina
tion already existed under several other statutes.
1. The 1866 Civil Eights Act, 42 U.S.C. § 1981, prohibits
all forms of employment discrimination, including dis
crimination by the federal government. This Court has
already held that § 1982, which also derives from the 1866
Act, applies to the federal government, District of Colum
8
bia v. Carter, 409 U.S. 418 (1973), and that § 1981 and
§ 1982 should be similarly construed. Tillman v. Wheaton-
Haven Recreation Association, 410 U.S. 431 (1973). Carter
and Tillman compel the conclusion that § 1981 applies to
the federal government. Section 1343(4), 28 U.S.O., con
fers jurisdiction to enforce § 1981.
2. The Mandamus Act, 28 U.S.C. § 1361, authorizes
the district courts to issue writs of mandamus to enforce
the prohibition against federal employment discrimination
contained in the Fifth Amendment, several statutes and
executive orders, and the applicable regulations. Since
federal officials have no discretion to discriminate against
petitioner on the basis of race, their duty to act in a non-
discriminatory manner is ministerial. Because discrimina
tion is unlawful, the responsible officials are not protected
by sovereign immunity. Marbury v. Madison, 5 U.S. 137
(1803). Although mandamus is not usually available to
compel the payment of money, it is when there is ministerial
duty to make a payment. The applicable regulations create
such an absolute duty to make an award of back pay in
any case of federal employment discrimination. 5 C.F.R.
§ 713.271(b).
3. The Tucker Act, 28 U.S.C. § 1346, confers jurisdic
tion on the district courts over actions against the United
States founded upon the Constitution or any law or regula
tion. Section 1346 was amended in 1964 for the express
purpose of permitting federal employees to sue for back
pay. The similar language of 28 U.S.C. § 1491 ha.s been
construed by the Court of Claims to establish jurisdiction
over federal employment discrimination actions. Chambers
v. United States, 451 F.2d 1045 (Ct. Cl. 1971).
4. Jurisdiction over this action is also conferred by 28
U.S.C. § 1331 and the Administrative Procedure Act.
9
B. Section 717 did not repeal the remedies for federal
employment discrimination which existed before 1972.
In construing section 717, the Court should look to the
meaning and construction of Title V II as applied to private
employees, since section 717 was adopted to give federal
employees the same rights already enjoyed by private
workers. This Court has already held that Title V II did not
repeal the pre-existing remedies of private employees.
Johnson v. Railway Express Agency, 44 L.Ed. 2d 295
(1975).
Section 717 does not expressly repeal the 1866 Civil
Rights Act or any other remedy. Repeals by implication
are not favored. Congress expressly rejected proposals to
make Title VII the exclusive remedy for employment dis
crimination. In Morton v. Mancari, 417 TJ.S. 535 (1974), this
Court held that the siibstantive provisions of section 717 did
not repeal the apparently inconsistent preference for Indian
employees in the Indian Reorganization Act of 1934. It
follows, a fortiori, that section 717 did not repeal the exist
ing complimentary remedies enforcing the same substan
tive prohibition against racial discrimination.
II. A. Exhaustion of administrative remedies should
not be required of federal employees who bring employ
ment discrimination actions under statutes other than Title
VII. Exhaustion is not required of state or private em
ployees who bring employment discrimination cases under
the 1866 Civil Rights Act. Johnson v. Railway Express
Agency, 44 L.Ed. 2d 295 (1975). Federal employees should
not be treated differently. The administrative procedure
established by the Civil Service Commission is merely one
of several independent remedies among which employees
may choose.
The traditional factors which militate in favor of an
exhaustion requirement are not present in a federal em
10
ployment discrimination case. Congress correctly con
cluded in 1972 that neither the Civil Service Commission
nor the agencies have any expertise in employment dis
crimination matters. Since the finding of discrimination is
mandatory on the establishment of certain facts, this is not
an area where the agencies have any discretion to exercise.
In July, 1975, the Civil Eights Commission concluded, as
had Congress three years earlier, that the administrative
procedure is so biased against aggrieved employees as to
make resort thereto essentially futile. In Fiscal Tear 1973,
of 26,627 informal complaints and 2,743 formal complaints
by federal employees, only 22 resulted in back pay or retro
active promotions.
I f exhaustion were generally required, the federal courts
would be obligated to determine (a) whether each partic
ular complaint would have been futile in view of the many
defects in the administrative procedure, and (b) whether
an employee had chosen the correct administrative pro
cedure among the 9 different procedures established by
regulation. The judicial time consumed in deciding these
questions would be better used resolving the merits of the
discrimination claims. The delays and effort required to
vigorously prosecute an administrative complaint place a
significant burden on employees, and should not be imposed
where there is little chance of success. Because of the
great importance of eradicating discrimination, the most
efficacious remedy should be the first invoked, and the choice
of remedy should be made by the aggrieved employee, not
by the courts.
B. Even if exhaustion is generally required in federal
employment discrimination cases, further exhaustion efforts
should not be required in this case. Although Civil Ser
vice .Commission regulations require an agency to resolve
a discrimination case within 180 days, the defendant agency
11
did not decide the instant case for 617 days. It would be
unreasonable to impose on petitioner the further delay of
an administrative appeal. Congress,, in adopting section
717, made appeals to the Appeals Review Board optional
because it concluded such appeals were generally futile.
This Court should not require plaintiffs suing under stat
utes other than Title V II to meet a more stringent exhaus
tion requirement than Congress thought reasonable.
Should the Court conclude that petitioner’s suit was pre
mature, the appropriate disposition of this action is not
dismissal with prejudice but merely an appropriate stay
of judicial proceedings while exhaustion is completed. This
is the usual practice in cases of inadequate exhaustion.
I f the government objects to this action because it claims
petitioner’s case should be considered by the Appeals Re
view Board, it must now afford petitioner an opportunity to
appeal to the Board.
ARGUMENT
I.
Jurisdiction Over This Action Is Conferred By Stat
utes Adopted Prior To Section 717 o f Title VII o f The
1964 Civil Rights Act.
In 1971-72, when Congress was considering adopting sec
tion 717 or other legislation to assure federal employees
a right to judicial determination of their claims of dis
crimination, both the Civil Service Commission and the
Department of Justice advised Congress that federal em
ployees already had that right. Irving Kator, the Deputy
Executive Director of the Commission, testified:
“ There is also little question in our mind that a
Federal employee who believes he has been discrim-
12
mated against may take his case to the Federal
courts . . . .” 4
The Commission submitted a written statement insisting:
“We believe Federal Employees now have the oppor
tunity for court review" of allegations of discrimina
tion, and believe they should have such a right.” 5
The Commission argued that the then leading cases deny
ing federal employees such a right to sue, Gnotta v. United
States, 415 F.2d 1271 (8th Cir. 1969), cert, denied, 397 U.8 .
934 (1970), and Congress of Racial Equality v. Commis
sioner, 270 F.Supp. 537 (D.Md. 1967), were incorrectly de
cided.6 Assistant Attorney General Ruckelshaus assured
a Senate subcommittee that the courts could remedy any
unconstitutional or unlawful federal action.7 Although
4 Hearings Before Subcommittee of the Senate Committee on
Labor & Public Welfare, 92 Cong., 1st Sess. 301 (1971) p. 296.
5 I d p. 310.
6 The Commission reasoned: “As it appears that the attention
of the court in the CORE case was not directed to the statute (5
U.S.C. § 7151) . . . and that case involved no constitutional issue,
we do not regard it as dispositive of the matter under considera
tion. To the same effect see Gnotta v. United States, 415 F.2d 1271
(8th Cir. 1969), in which one court found no jurisdiction to re
view an alleged failure of promotion due to discrimination but did
not discuss the statutory or constitutional issues that might be in
volved in such an action. We are of the opinion that an individual
who has exhausted the discrimination complaint procedure pro
vided in Part 713 of the Civil Service regulations (5 CFR part
713) may obtain judicial review of the alleged discriminatory
action . . .” Hearings Before the Subcommittee on Labor of the
House Committee on Education and Labor, 92 Cong., 1st Sess.
386 (1971).
7 Hearings Before a Subcommittee of the Senate Judiciary Com
mittee, 91st Cong., 2d Sess. (1970), pp. 69, 74, 256-257:
’ “ [ T ] o some extent injunctive remedies are already avail
able. The constitutionality of any program can be challenged.
13
the Civil Service Commission insisted that section 717
“would add nothing” 8 to the rights federal employees
already enjoyed under earlier statutes, Congress adopted
section 717 in view of its concern that the courts might
not construe the existing statutes to provide such a remedy.
Petitioner asserts that jurisdiction over his claims of
federal employment discrimination is conferred by stat
utes adopted prior to section 717: the 1866 Civil Rights
Act,9 the Mandamus Act,10 the Tucker Act,11 the Adminis
trative Procedure Act12 and 28 U.S.C. §1331, and that the
defendants’ alleged refusal to promote him on account of
race violates the Fifth Amendment, the 1866 Civil Rights
Act, 5 U.S.C. §7151,13 14 Executive Order 11478“ and 5 C.F.R.
part 713.15 Petitioner urges that sovereign immunity pre
The authority within the program of an official to act can be
challenged.”
“ [T]here is no doubt that a court today may look into un
authorized or unconstitutional agency action . . . ”
8 Hearings Before Subcommittee on Labor of the Senate Com
mittee on Labor & Public Welfare, 92d Cong., 1st Sess. 301 (1971).
9 42 U.S.C. §1981.
10 28 U.S.C. §1361.
“ 28 U.S.C. §1346.
12 5 U.S.C. §§702-06.
13 5 U.S.C. §7151 provides:
It is the policy of the United States to insure equal employ
ment opportunities for employees without discrimination be
cause of race, color, religion, sex or national origin. The
President shall use his existing authority to carry out this
policy.
14 See n.39, infra, p. 23.
16 See n.40, infra, p. 24.
14
sents no obstacle to injunctive relief requiring an end to
discrimination, to injunctive relief to enforce the ministerial
duty to award back pay in cases of discrimination, or to
monetary relief against tbe defendant individuals. A waiver
of sovereign immunity is necessary for awards of punitive
and compensatory damages, and that waiver is found in
the Tucker Act and the 1866 Civil Eights Act.
A. 1. The 1866 Civil Rights Act
Section 1981, 42 U.S.C., which derives from Section 1
of the 1866 Civil Eights Act, provides that “All persons
within the jurisdiction of the United States shall have the
same right in every state and Territory to make and en
force contracts. . . .” (Emphasis added). This includes
employment contracts and thus entails a ban on racial
discrimination in hiring and promotion. Johnson v. Rail
way Express Agency, 44 L.Ed. 2d 295, 301 (1975). Sec
tion 1981 has been uniformly held to bar discrimination
in employment by state16 and local17 governments, by pri-
16 See e.g. Johnson v. Cain, 5 EPD 8509 (D. Del. 1973); Suel
v. Addington, 465 F.2d 889 (9th Cir. 1972); Strain v. Philpott,
4 EPD 7885, 7562, 7521 (M.D. Ala. 1971); Morrow v. Cnsler,
491 F.2d 1053 (5th Cir. 1974) (en banc) ; London v. Florida De
partment of Health, 313 F.Supp. 591 (N.D. Fla. 1970).
17 See, e.g., Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971);
Arrington v. Massachusetts Bay Transportation Authority, 306
F.Supp. 1355 (D. Mass. 1969) ; Glover v. Daniel, 434 F.2d 617
(5th Cir., 1970); Smiley v. City of Montgomery, 350 F. Supp. 451
(M D Ala 1972) • West v. Board of Education of Prince George’s
County, 165 F.Supp. 382 (D. Md. 1958); Mills v. Board of Edu
cation of Ann Arundel, 30 F.Supp. (D. Md. 1938).
15
vate employers,18 and by labor unions.19 Jurisdiction over
federal employment discrimination actions was expressly
upheld under §1981 in Bowers v. Campbell, 505 F.2d 1155
(9th Cir. 1974).
The class of persons protected by section 1981 is de
scribed in the all encompassing language to be “ [a]ll per
sons within the jurisdiction of the United States.” Had
Congress wished to limit the statute to exclude federal
discrimination, it knew how. Section 1983, 42 U.S.C., ex
pressly limits coverage action under color of the state law,
as did a number of other post Civil War civil rights pro
visions. See, e.g., 16 Stat. 140, §§l-3.20
18 See, e.g., Sanders v. B olls Houses, Inc., 431 F.2d 1097 (5th
Cir. 1970), cert, denied, 401 U.S. 948 (1971) ; Bice v. Chrysler
Corp., 327 F.Supp. 80 (E.D. Mich. 1971) ; Hackett v. McGuire
Brothers Inc., 445 F.2d 442 (3d Cir. 1971) ; Young v. International
Tel. & Tel. Co., 438 F.2d 737 (3d Cir. 1 9 7 1 ) Brown v. Gaston
County Dyeing Machine Co., 457 F.2d 1377 (4th Cir. 1972),
cert, denied, 93 S. Ct. 319 (1972); Boudreau v. Baton Bouge
Marine Contracting, 437 F.2d 1011 (5th Cir. 1971); Caldwell v.
National Brewing Co., 443 F.2d 1044 (5th Cir. 1971), cert, denied,
404 U.S. 998 (1970) ; Brady v. Bristol Myers, 452 F.2d 621 (8th
Cir. 1972) ; Bennett v. Gravelle, 323 F.Supp. 203 (D. Md.
1971); Copeland v. Mead Corp., 51 F.R.D. 266 (N.D. Ga. 1970);
hazard v. Boeing Co., 322 F.Supp. 343 (E.D. La. 1971) ; Long
v. Ford Motor Co., 352 F.Supp. 135 (E.D. Mich. 1972) ; Guerra
v. Manchester Terminal Corp., 350 F.Supp. 529 (S.D. Tex. 1972);
Jenkins v. General Motors Corp., 475 F,2d 764 (5th Cir. 1973).
19 Waters v. Wisconsin Steel Works, 427 F.2d 476 (7th. Cir.
1970), cert, denied, 400 U.S. 911 (1970); James v. Ogilvie, 310
F.Supp. 661 (N.D. 111. 1970) ; Guerra v. Manchester Terminal
Corp., 350 F.Supp. 529 (S.D. Tex. 1972) ; Johnson v. Goodyear
Tire & B uller Co., 349 F.Supp. 3 (S.D. Tex. 1972) ; Jenkins v.
General Motors Corp., 475 F.2d 764 (5th Cir. 1973).
20 The criminal provisions of section 2 of the 1870 Civil Rights
Act, 16 Stat. 140, apply only to conduct under color of state law;
the criminal provisions of the 1866 Act apply to conduct under
color of any law. 14 Stat. 27. See n.22, infra, p. 17.
16
That section 1981 prohibits federal discrimination is com
pelled by District of Columbia v. Carter, 409 U.S. 418
(1973) and Tillman v. Wheaton Haven Recreation Asso.,
410 TJ.S. 431 (1973). Section 1981 was originally enacted
as part of Section 1 of the 1866 Civil Eights Act, 14 Stat.
27. Section 1 of that Act protected, not only the rights now
covered in §1981, including the right to contract, but also
the right to buy and own real property. Manifestly if any
one of the rights covered by section 1 was protected against
federal discrimination, all must have been, for the enumera
tion of rights draws no distinction among them. Subse
quent to 1866, section 1 of the Civil Eights Act was divided
into two sections; the provisions regarding real property
were placed in 42 U.S.C. §1982,21 and the other provisions
in §1981. This restructuring, however, involved no change
in substance. The scope of §1981 and §1982 are necessarily
the same. In Tillman v. Wheaton Haven Recreation Asso.,
410 TJ.S. 431 (1973), the Court held:
The operative language of both §1981 and §1982 is
traceable to the Act of April 9, 1866, e.31, 1, 14 Stat.
27. Hurd v. Hodge, 334 TJ.S. 24, 30-31 (1948). In light
of the historical interrelationship between §1981 and
§1982, we see no reason to construe these sections
differently . . .
410 U.S. at 439-40. Since the Court had concluded that
§1982 covered discrimination by private clubs, it held that
§1981 did as well.
Hurd v. Hodge, 334 U.S. 24 (1948), and District of Co
lumbia v. Carter, 409 U.S. 418 (1973), hold that section 1982
applies to discrimination by the federal government.
21 “All citizens of the United States shall have the same right,
in every State and Territory, as is enjoyed by white citizens
thereof to inherit, purchase, lease, sell, hold, and convey real and
personal property.”
1 7
That provision bars
all such discrimination, private as well as public, fed
eral as well as state. Jones v. Alfred II. Mayer & Co.,
supra, at 413. With this in mind, it would be anom
alous indeed if Congress chose to carve out the Dis
trict of Columbia as the sole exception to an act of
otherwise universal application. And this is all the
more true where, as here, the legislative purposes
underlying §1982 support its applicability in the Dis
trict. The dangers of private discrimination, for
example, that provided a focal point of Congress’
concern in enacting the legislation, were and are, as
present in the District of Columbia as in the States,
and the same considerations that led Congress to ex
tend the prohibitions of §1982 to the Federal Govern
ment apply with equal force to the District, which is
a mere instrumentality of that Government. 409 U.S.
at 422.22 23 (Emphasis added).
The reasoning of Carter is fully applicable to §1981 ;33 since
§1982 applies to the Federal government, §1981 does so
as well.
The legislative background of the 1866 Civil Rights dem
onstrates the correctness of Carter, Hodge and Tillman,
and gives no reason to believe that Congress wTould have
intended to deny to newly freed slaves protection from
discrimination by federal officials.24 It is unlikely that Con-
22 See also Screws v. United States, 325 U.S. 91, 97, n,2 (1945)
(§2 of the 1866 Act, rendering criminal certain discrimination
against “any inhabitant of any State, Territory or District,” ap
plies to federal officials).
23 Bolling v. Sharpe, 347 U.S. 497, 499 (1954), found “unthink
able” the suggestion that while the states were prohibited from dis
criminating in education the federal government was not. On the
extent and nature of racial discrimination in federal service, see
Morton v. Mancari, 417 U.S. 535, 545 n.22 (1974).
24 The abolitionists in control of Congress in 1866 had for a
generation been anxious to abolish slavery and all its trappings
1 8
grass, having forbidden slavery throughout the nation, in
tended by section 1 of the Civil Eights Act to abolish the
“badges of slavery” only in the states and to leave them
intact in the nation’s capitol. See Jones v. Alfred H. Mayer
Co., 392 ILS. 409, 439 (1968).25 The memory of the mis
treatment of blacks by federal officials under the Fugitive
Slave Act was still fresh in the minds of abolitionists in
1866.26 Freedmen’s Bureau agents were reported to be
more sympathetic to the desires of white Southern
planters than the needs of freedmen..27 By April of
1866, Congress was aware of President Johnson’s oppo
sition to its reconstruction program, and believed that he
was actively undermining enforcement of new legislation
and dismissing federal officers who supported Congress’
policies.28 That concern about the conduct of federal offi-
in the District of Columbia. Henry B. Stanton, in an address to
the Massachusetts legislative urging abolition in the District of
Columbia, had argued: “ [Hjaving robbed the slave of himself,
and thus made him a thing, Congress is consistent in denying to
him aU the protection of the law as a man. His labor is coerced
from him by laws of Congress: No bargain is made, no wage is
given . . . There is not the shadow of legal protection for the
family state among the slaves of the District . . . No slave can
be a party before a judicial tribunal, . . . in any species of action
against any person, no matter how atrocious may have been the
injury received. He is not known to the law as a person: much
less, a person with civil rights . . . Congress should immediately
restore to every slave, the ownership of his own body, mind and
soul, transfer them from things without rights, to men with rights
. . the slave himself should be legally protected in life and
limb, in his earnings, his family and social relations, and his
conscience.” ten Broek, Equal Under Law, p. 46, 41-57 (1951).
25 Congress also had ample reason for concern that the federal
officials of the Freedmen’s Bureau, established in 1865, were seri
ously mistreating and exploiting the newly freed black former
slaves. G. Bentley, History of the Freedmen’s Bureau 77 84
125-132 (1955).
26 See J. Ten Broek, Equal Under Law, 57-65 (1951) ; Ableman
v. Booth, 21 How. (62 U.S.) 506 (1858).
27 See e.g. K. Stamp, The Era of Beconstuetion, 133-34 (1965).
28 See M. King, Lyman Trumbull, 293-95 (1965).
19
eials is manifest in other provisions of the 1866 Civil Rights
Act, which compels federal marshalls, on pain of criminal
punishment, to enforce the Act,29 expressly requires that
the district attorneys and other officials he paid for en
forcing the Act at the usual rates,30 and authorized the
circuit courts, rather than the President, to appoint com
missioners with the power to arrest and imprison persons
violating the Act.
The 1866 Civil Rights Act, in addition to forbidding em
ployment discrimination in section 1, expressly provided a
judicial remedy:
[T]he district courts of the United States, within
their respective districts, shall have . . . cognizance
. . . concurrently within the circuit courts of the United
States, of all cases, civil and criminal, affecting per
sons who are denied . . . any of the rights secured to
them by the first section of this act . . .
14 Stat. 27. This provision is now incorporated in 28
U.S.C. §1343(4).31
It is particularly unlikely that the Congress which en
acted the 1866 Civil Rights Act could have intended that,
to the extent that federal officials violated its provisions,
2914 Stat. 28, §5.
3014 Stat. 29, §7.
81 “ The district courts shall have original jurisdiction of any
civil action authorized by law to be commenced by any person:
-y-•vc v.-
(4) To recover damages or to secure equitable or other relief
under any Act of Congress providing for the protection of
civil rights, including the right to vote.”
See Hague v. C.I.O., 307 U.S. 496, 508, n.10 (1939).
2 0
aggrieved citizens would have no legal remedy.32 The aboli
tionists who finally won control of the Congress in the
1860’s and 1870’s had long maintained that the rights de
scribed in Reconstruction Amendments, and legislation
were not new, but already existed by virtue of the privi
leges and immunities clause and the Bill of Rights.33
The purpose of such Amendments and legislation was,
above all, to make those rights enforceable. The 1866
Civil Rights Act was entitled “An Act to protect all Persons
in the United States in the Civil Rights, and Furnish the
Means of their Vindication.” 14 Stat. 27 (emphasis added)
Congressman Wilson, speaking in favor of the 1866 Civil
Rights Bill, explained:
Mr. Speaker, I think I may safely affirm that this
bill, so far as it declares the equality of all citizens
in the enjoyment of Civil rights and immunities, merely
affirms existing law. We are following the Constitu
tion. We are reducing to stature form the spirit of
the Constitution. We are establishing no new right,
declaring no new principle. It is not the object of
this bill to establish new rights, but to protect and
enforce those which already belong to every citizen.
Cong. Globe, 39th Cong. 1st Sess. 1117.
32 If Congress had wanted to limit jurisdiction to discrimina
tion involving state action, it knew how to do so. Sections 2 and 3
of the 1870 Civil Rights Act and section 1 of the 1871 Civil Rights
Act expressly restrict their coverage to action taken under color
of state law, as does 28 U.S.C. §1343(3). No such limitation is
to be found in section 2 of the 1866 Act or section 1343(4), and
its absence must be taken as revealing Congressional intent to do
just what those provisions said— confer jurisdiction over all vio
lation of §1981, regardless of whether the violation may be by state
officials, federal officials, or private parties.
33 See generally ten Brock, Equal Under Law (1951); Graham,
“ The Early Anti-Slavery Backgrounds of the Fourteenth Amend
ment,” 1950 Wise. L. Rev. 479; Graham, “ The Conspiracy Theory
of the Fourteenth Amendment,” 47 Yale L.J. 371 (1938).
21
Since federal discrimination was already forbidden by the
Fifth Amendment, to hold the 1866 Civil Rights Act un
enforceable against federal defendants would be to render
the Act, in this regard, nugatory.
Section 1981 entails in certain instances34 35 a waiver
of sovereign immunity. The Congress which enacted section
1981 had no fondness for sovereign immunity, and could not
have contemplated that ex-slaves aggrieved by federal mis
conduct would have to seek a remedy through a private
bill.36 This Court has already made clear that it will not “ as
a self-constituted guardian of the Treasury import immu
nity back into a statute designed to limit it.” Indian Trading
v. United States, 350 U.S. 61, 69 (1955), or “whittle down
. . . by refinements” a statute affecting sovereign immunity.
34 No sovereign immunity would be involved in an action for
injunctive relief or to enforce the regulation requiring back pay.
See pp. 32-35, infra. Section 1981, in conjunction with §1343(4),
covers ordinary damages and certain other appropriate relief.
35 That Congress, only three years earlier, led by many of the
prominent abolitionists, had enacted the first comprehensive
waiver of federal immunity in an attempt to end the long stand
ing practice of seeking redress from Congress through private
bills. President Lincoln, in his first State of the Union message,
had urged such abolition:
It is important that some more convenient means should be
provided, if possible, for the adjustment of claims against
the Government especially in view of their increased number
by reason of the war. It is as much the duty of Government
to render prompt justice against itself in favor of citizens
as it is to administer the same between private individuals.
The investigation and adjudication of claims in their nature
belong to the judicial department.
Schlesinger and Israel, The State of the Union Messages of the
President, v. 2, 1060 (1966) (Emphasis added). The legislation
waiving that immunity was enacted largely to end the practice
of redressing grievances through private bills, which left many
citizens without a remedy, fostered lobbyists pressing dubious
claims, and corrupted the Congress. See> Cong. Globe, 38th Cong.,
1st Sess. 1674-75.
22
United States v. Yellow Cab Co., 340 U.S. 543, 550 (1950).36
On the contrary, precisely because that immunity “gives
the government a privileged position, it has been appro
priately confined,” Keifer & Keifer v. Reconstruction Fi
nance Corp., 306 U.S. 381, 388 (1938), and any authority
to sue “ is to be liberally construed/-' United States v. Shaw,
309 U.S. 495, 502 (1939). When Congress establishes by
statute a legal right, including a right against the federal
government, it must be deemed enforceable by the courts
unless there is an unequivocal congressional intent to the
contrary.87
2. The Mandamus Act
Section 1361, 28 U.S.C., provides:
The district courts shall have original jurisdiction of
any action in the nature of mandamus to compel an
officer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff.
This provision, enacted in 1962, was intended to confer
upon the district courts the mandamus power until then
limited to the District Court for the District of Columbia.
Jarrett v. Resor, 426 F.2d 213 (9th Cir. 1970); Rural Elec
trification Administration v. Northern States Power Co.,
373 F.2d 686 (8th Cir. 1967), cert, denied, 387 U.S. 945. A
writ of mandamus is available to compel a federal officer
to perform any ministerial act, Marbury v. Madison, 5 U.S.
(1 Cranch) 137 (1803), regardless of whether the official’s
obligation arises under the Constitution, a federal statute,
86 See also Rayonier v. United States, 352 U.S. 315, 320 (1957).
87 Minnesota v. United States, 305 U.S. 382, 388, n.5 (1939);
United States v. Eellard, 322 U.S. 363 (1944); United States v.
Jones, 109 U.S. 513 (1883), 519-521.
23
a regulation or an Executive Order. Leonhard v. Mitchell,
473 F.2d 709, 713 (2d Cir. 1973).
The defendant officials clearly have such a ministerial
duty to make promotions without discrimination on the
basis of race. The Fifth Amendment guarantee of due
process of law absolutely prohibits the federal government
from discriminating against blacks in employment, educa
tion, or any other regard. Bolling v. Sharpe, 347 U.S. 497
(1954).38 The authority of the defendants in personnel mat
ters is strictly circumscribed by section 7151 of Title 5 of
the United States Code, which declares it to be the official
policy of the United States “ to insure equal employment
opportunities for employees without discrimination be
cause of race, color, religion, sex or national origin,” and
directs that the President shall carry out this policy.39 Of
course, racial discrimination by defendants is also for
bidden by the Civil Rights Act of 1866, 42 U.S.C. §1981,
88 “ [T]he Constitution of the United States, in its present form,
forbids, so far as civil and political rights are concerned, discrim
ination by the General Government, or by the States, against any
citizen because of his race.” 347 U.S. at 499, quoting Gibson v.
Mississippi, 162 U.S. 595, 591 (1866). The Senate Report on the
1972 amendments to Title YU concluded on the basis of Bolling
that “ [t]he prohibition against discrimination by the Federal
government, based upon the Due Process clause of the Fifth
Amendment, was judicially recognized long before the enactment
of the Civil Rights Act of 1964.” S.Rep. No. 92-415, 92nd Cong.,
1st Sess. (1971) 13. The Fifth Amendment has been expressly
held to bar federal discrimination in employment Davis v. Wash
ington, 352 F.Supp. 187 (D.D.C. 1972) a fd , 512 F.2d 956 (D.C.
Cir. 1975), petition for writ of certiorari pending, No. 74-1492;
Faruki v. Rogers, 349 F.Supp. 723 (D.D.C. 1972) (three judge
district court).
39 Section 7151 is no mere assertion of social goals; it is a direct
and Unequivocal command to the exemitive branch not to discrim
inate against petitioner because of his race. See Henderson v. De
fense Contract Administration.. 370 F.Supp. 180 (S.D.N.Y. 1973) ;
Morton v. Mancari, 417 U.S. 535, 546 n.21 (1974).
24
infra, pp. 14-19, and by federal regulations and Executive
Orders.40
The lower courts have held that mandamus is available
to compel federal defendants to hire and promote without
regard to race. Beale v. Blount, 461 F.2d 1133 (5th Cir.
1972) ; Penn v. Schlesinger, 490 F.2d 700, 704-05 (5th
Cir. 1973), reversed on other grounds, 497 F.2d 970 (5th
Cir. 1974); Thorn v. Richardson, 4 EPD If 7630, at p. 5490
(W.D. Wash. 1971). At least since Service v. Dulles, 354
U.S. 363 (1957), this Court has recognized that federal
personnel decisions are subject to judicial scrutiny. Samp
son v. Murray, 415 U.S. 61, 71 (1974).
Mandamus is also available to enforce a ministerial duty
to pay a particular sum of money to the plaintiff,41 though
40 Part 713, 5 C.F.R., implements, inter alia, a series of Ex
ecutive Orders dating back to 1948. See E.O. 9980, July 26, 1948;
E.O. 10590, January 18, 1955; E.O. 10925, March 6, 1961; E.O.
11246, September 24, 1965; E.O. 11478, August 8, 1969; E.O. 11590.
Both part 713 and Executive Order 11478 establish that it is
the policy of the government of the United States “ to provide
equal opportunity in federal employment for all persons, to pro
hibit discrimination in employment because of race,” E.O. 11478,
§1; 5 C.F.R. §713.202; and both provide that each executive de
partment and agency “shall establish a program to assure equal
opportunity in employment and personnel operations without re
gard to race.” E.O. 11478, §2; C.F.R. Part 713.201(a).
41 In United States ex rel. Parish v. MacVeagh, 214 U.S. 124
(1909), the Secretary of the Treasury had refused to pay the
plaintiff $181,358.95, whieh payment was required by a special
Act of Congress. This Court held that mandamus was available
to compel the Secretary to issue a draft in that amount. 214 U.S.
at 138. In Miguel v.' McCarl, 291 U.S. 442 (1934), this Court
held that mandamus was available to compel the payment of a
pension unlawfully withheld by the Comptroller General and the
Army Chief of Finance. In Roberts v. United States ex rel.
Valentine, 176 U.S. 221 (1900), this Court upheld a writ of
mandamus directing the Treasurer of the United States to pay
interest on certain bonds issued by the District of Columbia.
See also Garfield v. United States ex rel. Goldsby, 211 U.S. 249
(1908); Work v. United States ex rel. Lynn, 266 U.S. 161 (1924);
City of New York v. Ruckelshaus, 358 F.Supp. 669 (D. D.C.
1973) .
25
not to compel payment in an ordinary disputed tort or
contract action. In the instant action plaintiff seeks, inter
alia, an award of back pay. Were this a mere claim for
consequential damages mandamus would be inappropriate.
But the applicable regulations place upon defendants an
express obligation to compute and award back pay in
cases of racial discrimination, rendering the award of such
back pay ministerial.42 The mandatory nature of back pay
awards under the regulation is somewhat more favorable
to employees than the standard applied by courts in
Title Y II litigation, which involves a limited degree of
discretion. Albemarle Paper Co. v. Moody, 43 U.S.L.W.
4880 (1975). I f the district court finds discrimination, the
defendants will have an absolute obligation to provide back
pay, and that court can compel performance of that minis
terial act by a writ of mandamus.43
42 Section 713.271(b), 5 C.F.R., provides:
Remedial action involving an employee. When an agency
or the Commission, finds that an employee of the agency was
discriminated against and as a result of that discrimination
was denied an employment benefit, or an administrative deci
sion adverse to him was made, the agency shall take remedial
actions which shall include one or more of the following, but
need not be limited to these actions:
Retroactive promotion, with back pay computed in the same
manner prescribed by §550.804 of this chapter, when the
record clearly shows that but for the discrimination the em
ployee would have been promoted or would have been em
ployed at a higher grade, except that the backpay liability
may not accrue from a date earlier than 2 years prior to
the date the discrimination complaint was filed, but in any
event, not to exceed the date he would have been promoted.
(Emphasis added)
43 The decisions of the Fifth Circuit in this regard may be di
vided. The panel in Beale held that back pay was awardable along
with reinstatement in an appropriate case. 461 F.2d 1133, 1138.
The original panel in Penn concluded that back pay was unavail
able because it would “ impinge upon the Treasury.” 490 F.2d 700,
704-5, but the Fifth Circuit en banc adopted the decision of Judge
Godbold which appears to permit back pay awards because of
§713.271 (b), 490 F.2d 700, 713-14; 497 F.2d 970.
26
Sovereign immunity is no obstacle to the award of relief
by writ of mandamus. That defense to a mandamus action
was raised and rejected long ago in Marbury v. Madison,
5 U.S. (1 Cranch), 137, 166, 170-171 (1803).44 In addition
to sanctioning mandamus actions against federal officials,
section 1361 also authorizes mandamus against “ any
agency” of the United States, including in this case the
defendant General Services Administration.45 Certainly
section 1361 constitutes a waiver of immunity in any action
“ in the nature of m a n d a m u s i f it did not that provision
would be a dead letter.
3. The Tucker Act
Section 1346, Title 28 United States Code, provides in
pertinent part:
(a) The district courts shall have original jurisdic
tion, concurrent with the Court of Claims, o f :
* »Y- A!,
tv
44 See Clackamas County, Oregon v. McKay, 219 F.2d 479, 488-
496 (D.C. Cir. 1954), vacated as moot, 349 U.S. 909 (1955) ;
McQueary v, Laird, 449 F.2d 608, 611 (10th Cir. 1971); Byse
and Fiucea, “ Section 1361 of the Mandamus and Venue Act of
1962” 81 Harv. L. Rev. 308, 340-42 (1967).
45 That section 1361 authorized mandamus against an agency
was well understood. Senator Mansfield, explaining the bill on
behalf of the Judiciary Committee, stated that under it the court
can only compel “the official or agency to act where there is a
duty which the committee construes as an obligation, to act . . .
As stated in the House report, the bill does not define the term
‘agency,’ but the committee agrees that it should be taken to
mean any department, independent establishment, commission,
administration, authority, board, or bureau of the United States,
or any corporation in which the United States has a proprietary
interest.” 108 Cong. Rec. 18784. (Emphasis added)
27
(2) Any other civil action or claim against the
United States, not exceeding $1Q,00 046 in amount,
founded either upon the Constitution or any Act
of Congress, or any regulation of an executive
department, or upon any express or implied con
tract with,the United States, or for liquidated or
unliquidated damages in cases not sounding in
tort.
This statute, known as the Tucker Act, is an express waiver
of sovereign immunity as to claim's within its scope,47 and
thus covers punitive and compensatory damages as well as
hack pay.
46 The original Complaint contained no allegation as to the
size of plaintiffs claim. The proposed Amended Complaint alleges,
that the amount “in controversy” exceeds $10,000, (A. 61a) hut the
United States denied that such an amount was at stake. Defen
dant’s Memorandum In Opposition to Plaintiff’s Motion to Amend,
p. 4. If this Court were to determine that jurisdiction to award
back pay and damages existed only under section 1346, plaintiffs
would be entitled to waive recovery in excess of $10,000 and thus
confer jurisdiction on the district court, and would do so. See
Perry v. United States, 308 F.Supp. 245 (D.Colo. 1970), aff’d
442 F.2d (10th Cir. 1971) ; Sutcliffe Storage & Warehouse Co.
v. United States, 162 F.2d 849 (1st Cir. 1947) ; United States v.
Johnson, 153 F.2d 846 (9th Cir. 1946) ; Hill v. United States, 40
Fed. 441 (C.C. Mass. 1889); Jones v. United States, 127 F.Supp.
31 (B.D.N.C. 1954).
The standards for computing jurisdictional amounts under
§1331 and §1346 are not the same, for §1331 alone authorizes
injunctive relief. Thus, where the prospective value of the in
junctive relief exceeded $10,000, but the monetary award was less
than $10,000, jurisdiction would exist under both provisions. The
same would be true where the combined value of the monetary
and injunctive relief exceeded $10,000, or involved fundamental
civil liberties of priceless value, so long as the dollar amount
sought did not exceed $10,000. See 1 Moore’s Federal Practice
If 0.96.
47 United States v. Yellow Cab Co., 340 U.S. 543 (1951); Spill
way Marina, Inc. v. U.S., 445 F.2d 876 (10th Cir. 1971); Lloyds’
London v. Blair, 262 F.2d 211 (10th Cir. 1958 )■■ Union Trust.
Co. v. United States, 113 F.Supp. 80 (D.D.C. 1953), a fd in part,
221 F.2d 62, cert, denied, 350 U.S. 911.
2 8
Petitioner’s claims, clearly fall within the literal language
of section 1346. Racial discrimination in federal employ
ment is prohibited by the Fifth Amendment to the Con
stitution and by several statutes. See, Bolling v. Sharpe,
347 U.S. 497 (1954). An action is “ founded upon” the Con
stitution whenever the damages are alleged to result from a
violation of the Constitution; the plaintiff need not prove
the Constitution expressly authorizes a lawsuit for that
particular type of violation, since the Constitution itself
contains no express authorization of litigation for violation
of any of its provisions.48 Similarly, an action is “ founded
upon” a federal statute if the government action complained
o f is a violation of that statute, regardless of whether the
statute itself creates or contemplates a cause of action.49
The lower courts have unanimously rejected the argument
that an action under the Tucker Act can only be “ founded
upon” a federal statute which itself creates a remedy or
48 See Smith v. United States, 458 F.2d 1231 (9th Cir. 1972)
(Fifth Amendment); United States v. Hvoslef, 237 U.S. 1 (1915)
(Article I, Section 9) ; Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971) (Fourth Amendment).
49 Section 1346(a)(2) has long been construed to authorize
actions to compel a refund of fines or penalties, on the ground
that the propriety of the fine or penalty was governed by a fed
eral statute. See Garriso v. United States, 106 F.2d 707 (9th Cir.
1939); Compagnie General Transatlantique v. United States, 21
F.2d 465 (S.D. N.Y. 1927), aff’d, 26 F.2d 195. Spanish Royal
Mail Line Agency, Inc. v. United States, 45 F.2d 404 (S.D. N.Y.
1930) ; Sinclair Nav. Co. v. United States, 32 F.2d 90 (5th Cir.
1929); Suitzbach Clothing Co. v. United States, 10 F.2d 363 (W.D.
N.Y. 1925); Law v. United States, 18 F.Supp. 42 (D. Mass.
1937); Lancashire Shipping Co. v. United States, 4 F.Supp. 544
(S.D. N.Y. 1933). Litigation under §1346 has been expressly sanc
tioned as “founded upon” a wide variety of other statutes which
set the standard for government conduct, but contained no men
tion of any remedy. See, e.g., Beers v. Federal Security Admin
istrator, 172 F.2d 34 (2nd Cir. 1949) (Social Security A c t ) ; Ross
Packing Co. v. United States, 42 F. Supp. 932 (E.D. Wash. 1942)
(National Labor Relations Act.); Alcoa S.S. Co. v. United States,
80 F. Supp. 158 (S.D. N.Y. 1948) (Transportation A ct).
2 9
right of action.50 51 In United States v. Emery, Bird, Thayer
R.R. Co., 237 U.S. 28 (1915), this Court held that an action
to recover a tax was “ founded upon” the Corporation Tax
Law under which the tax was collected, although that tax
provision contained no remedial provision. 237 U.S. at
31-32.61
Section 1346 covers “ any claim” arising under the Con
stitution, statutes or regulations, and, while there are ex
press exceptions,52 they are not applicable to this case.
See Brooks v. United States, 337 TLS. 49, 51 (1949).
This construction of §1346 is supported by the interpre
tation given by the Court of Claims to the similarly worded
provisions of 28 U.S.C. §1491. Chambers v. United States,
451 F.2d 1045 (Ct. Cl. 1971); Allison v. United States, 451
50 AycocJc-Lindsey Corporation v. United States, 171 F.2d 518
(5th Cir. 1948) ; Compagnie General Transatlantique v. United
States, 21 F.2d 465 (S.D. N.T. 1927); Boss Packing Co. v. United
States, 42 F. Supp. 932, 937 (B.D. Wash. 1942).
51 This action also arises under the Executive Order and reg
ulation forbidding discrimination in federal employment. 5 C.F.R.
§713; Executive Order 11478. In Gnotta v. United States, 415
F.2d 1271 (8th Cir. 1969), cert, denied, 397 U.S. 984, the court
concluded that no action under the Tucker Act could be had to
enforce the order and regulation on the ground that, neither men
tioned money claims, and “none of the executive orders or regula
tions . . . purports to confer any right on an employee of the
United States to institute a civil action for damages against the
United States.” 415 F.2d at 1278. This reasoning is not correct.
First, since the decision in Gnotta the regulations have been
amended to authorize the award of back pay. Second, no mere
regulation or Executive Order could, by itself, create a federal
cause of action; only Congress has that power. Third, the reason
ing in Gnotta— that an action can only be “founded upon” a
regulation which itself creates a cause of action— is precisely the
construction of the Tucker Act consistently rejected by all other
federal courts.
52 Section (d) provides: “ The district courts shall not have
jurisdiction under this section of any civil action or claim for
a pension.”
30
F.2d 1035 (Ct. Cl. 1971); Pettit v. United States, 488 F.2d
1026 (Ct. Cl. 1973). The decisions of the Court of Claims
construing its own jurisdiction must be afforded substantial
weight. See Beale v. Blount, 461 F.2d 1133, 1135 n.2 (5th
Cir. 1972).
That back pay is available under the Tucker Act is made
abundantly clear by its legislative history. Prior to 1964,
§1346 expressly excluded from its coverage “ [a]ny civil
action or claim to recover fees, salary or compensation for
official services of officers or employees of the United
States.” See, 28 U.S.C.A. §1346(d)(2) (1962). This ex
ception was understood to preclude the award of back pay.
Jackson v. United States, 129 F.Supp. 537 (D. Utah 1955).
In 1964 this restrictive provision of Section 1346 was re
pealed. Pub. L. 88-519, 78 Stat. 699. The House Re
port,153 the Senate Report,* 54 * * * * * * and the congressional de-
63 H. Rep. 1604, 88th Cong., 2d Sess., p. 2:
“ The committee notes that by virtue of the act of October 5,
1962 (76 Stat. 744, 28 U.S. §1361), it is now possible for
Government Employees who claim to have been improperly
discharged to sue in their home districts for reinstatement.
However, the present prohibition of subsection (d) (2) of
section 1346, 28 United States Code makes it necessary for
any claim for back pay to be brought in the Court of Claims.
The committee believes that when the amount claimed as back
pay is not more than $10,000, and is therefore within the
monetary limit of the district courts’ general jurisdiction of
contract claims against the United States the issue of rein
statement and the issue of compensation should be susceptible
of being disposed of in a single action.”
54 S.Rep. 1390, 88th Cong., 1st Sess., 2 U.S. Code Cong, and
Admin. News (1964), p. 3255:
“Under the existing statutes, any officer or employee of the
United States is required to file only in the Court of Claims
here in Washington a civil suit to recover fees, salary, or
compensation for services rendered as an officer or employee
of the United States. By virtue of the act of October 5, 1962
3 1
bates* 65 all agreed that the primary purpose of the change
was to allow actions for back pay in the district courts.66
4. 28 U.S.C. § 1331
Section 1331, 28 U.S.C., confers jurisdiction on the dis
trict courts in any action in which the sum in controversy
(76 Stat. 744, 28 U.S.C. 1361), it is now possible for Gov
ernment employees who allege they have been improperly dis
charged to sue in their home districts for reinstatement, but
under the prohibition of subsection (d) of 28 U.S.C., Section
1346, the employee’s claim for back pay, which very fre
quently accompanies his claim for reinstatement, must be
brought in the Court of Claims. Under the circumstances
it is clear, that in order to do complete justice as efficiently
and inexpensively as possible, the district courts should be
given jurisdiction of the compensation claimed as well as
the improper discharge, in order that they may be disposed
of in a single action.”
65110 Cong. Rec. 19766 (Remarks of Sen. Keating) :
“ This bill will have its most salutary effect in employee dis
charge cases. Today, under a 1962 statute, a Government
employee who claims to have been improperly removed from
his position may sue to get his job back in his local federal
court. But the subsection of the Judicial Code which the
present bill would repeal today prevents the employee, if he
succeeds in establishing his right to reinstatement from get
ting a judgment in the same action for the backpay to which
he is also entitled. To get the back pay, he must either bring
another suit in the Court of Claims or, in some instances,
seek the additional relied administratively. Now, if this bill
is finally approved, it will be possible for him to secure
both reinstatement and complete monetary relief in single
proceeding.”
66 Injunctive relief is not available under the Tucker Act. See
Clay v. United States, 210 F.2d 686 (D.C. Cir. 1954) ; Bambo v.
United States, 145 F.2d 670 (5th Cir. 1944), cert, denied, 324
U.S. 848; Blanc v. United States, 244 F.2d 708 (2d Cir. 1957).
District court jurisdiction under the Tucker Act to award back
pay for employment discrimination was expressly upheld in Palmer
v. Rogers, 6 BPD fl8822, p. 5493 n. 1 (D.D.C. 1973).
3 2
exceeds $10,00Q57 and which “arises under the Constitution,
laws or treaties of the United States.” The term “ laws”
is not limited to statutes, but includes any regulation or
Executive Order with the force of law.58
Section 1331 thus confers jurisdiction over the individual
defendants in this federal employment discrimination ac
tion59 unless those individuals are protected from suit by
the sovereign immunity of the federal government. At least
since Mctrbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
it has been clear that federal employees who act in excess
of their authority or in violation of the Constitution enjoy
no such immunity. This Court expressly rejected the sug
gestion that the Secretary of State could not be sued
because he was a federal official:
It is not by the office of the person to whom the writ
is directed, but the nature of the thing to be done, that
the propriety . . . of issuing a mandamus is to be de
termined. Where the head of a department acts in a
case, in which executive discretion is to be exercised;
in which he is the mere organ of executive will; it is
again repeated, that any application to a court to
control, in any respect, his conduct would be rejected
without hesitation.
But where he is directed by law to do a certain act
affecting the absolute rights of individuals, in the per
formance of which he is not placed under the particular 67 68 69
67 Regarding the allegation of jurisdictional amount, see n. 46,
supra, p. 27.
68 Murphy v. Colonial Fed. Savings and Loan, 388 F.2d 609
(2d Cir. 1967) ; Farmer v. Philadelphia Elec. Co., 329 F.2d 3
(3d Cir. 1964).
69 Several lower courts have sustained jurisdiction on this basis.
See e.g., Palmer v. Rogers, 6 EPD jf 8822, p. 5493 (D. D.C. 1973);
Corlwright v. Resor, 325 F.Supp. 797, 808 (E.D. N.Y. 1971).
33
direction of the President and the performance of
which the President cannot lawfully forbid, and there
fore is never presumed to have forbidden; as for ex
ample, to record a commission, or a patent for land,
which has received all the legal solemnities; or to give
a copy of such record; in such cases, it is not perceived
on what ground the courts of the country are further
excused from the duty of giving judgment that right
he done to an injured individual, than if the same ser
vices were to he performed by a person not the head
of a department.
5 U.8. at 168.
The similar question of whether state sovereign im
munity and the Eleventh Amendment bar a federal action
against state officials has been similarly answered. In
Ex Parte Young, 209 U.S. 123 (1908), the Attorney Gen
eral of Minnesota urged the action was in effect one
against the state, and thus barred by the Eleventh Amend
ment. This Court rejected this contention, and held that
state officials could be enjoined from taking actions which
would violate the Constitution:
The act to be enforced is alleged to be unconstitu
tional; and if it be so, the use of the name of the
state to enforce an unconstitutional act to the injury of
complainants is a proceeding without the authority of,
and one which does not affect, the state in its sovereign
or governmental capacity. It is simply an illegal act
upon the part of a state official in attempting, by the
use of the name of the state, to enforce a legislative
enactment which is void because unconstitutional. If
the act which the state attorney general seeks to en
force be a violation of the Federal Constitution, the
officer, in proceeding under such enactment, comes into
3 4
conflict with the superior authority of that Constitu
tion, and he is in that case stripped of his official or
representative character and is subjected in his person
to the consequences of his individual conduct.
209 TT.S. at 159-160. The limitation on the immunity of
state officers delineated in Ex Parte Young is the same
limitation applicable to federal officials. Philadelphia Co.
v. Stimson, 223 U.S. 605, 621 (1912). See also Dugan v.
Rank, 372 U.S. 609, 621-624 (1963); Malone v. Baldwin,
369 U.S. 643 (1962); Larson v. Domestic and Foreign
Commerce Corp., 337 U.S. 643 (1949).
I f the action at issue is unlawful, it may be enjoined
even though the activity may involve a large number of
federal employees, substantial sums of money, or policies
supported by high public officials. Bolling v. Sharpe, 347
U.S. 497 (1954); Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952). These cases were properly deemed
suits against individuals rather than against the United
States, not because the issues were unimportant, or the
relief in some metaphysical sense “negative” rather than
“ affirmative” , but because, since the activity challenged
was unconstitutional, such activity was ipso facto not that
of the sovereign.60
If, as alleged, the individual defendants did deny plain
tiff promotions because of his race, they did so—not as
agents of the United States cloaked with its immunity—
but as private individuals on an unlawful and invidious
60 The lower courts have consistently rejected out of hand con
tentions by the United States that its officers were protected by
sovereign immunity when they act in violation of the Constitution
or in excess of their statutory authority. Wasson v. Trowbridge,
382 F.2d 807 (2d Cir. 1967) ; Toilet Goods Association v. Gardner,
360 F.2d 677, 683, n. 6 (2d Cir. 1966) aff’d, 387 U.S. 158 (1967) ;
Berk v. Laird, 429 F.2d 302, 306 (2d Cir. 1970).
35
enterprise of their own, and it is those individuals, not
the plaintiff, who are interfering with the administration
of official government policy. Settle v. E.E.O.C., 345
F.Supp. 405 (S.D. Tex. 1972). Were this an action alleg
ing racial discrimination in employment by a state, a
defense of sovereign immunity would necessarily fail, for
the Constitution places upon the states a legally enforce
able obligation to hire and promote employees without
discriminating on the basis of race.61 “ [I]t would be un
thinkable that the same Constitution would impose a lesser
duty on the federal Government.” Bolling v. Sharpe, 347
U.S. 497, 500 (1954).62
Insofar as a complaint seeks damages against the indi
vidual defendants, it clearly states a cause of action under
§1331. Bivens v. Six Unknown Federal Narcotics Agents,
403 U.S. 388, 398 (1971). Government officials have no
“executive immunity” from liability for injury caused by
a bad faith act of discrimination in violation of federal law.
Scheuer v. Rhodes, 416 U.S. 232 (1974).
61 State officials practicing discrimination in employment have
been repeatedly held to lack sovereign immunity. Board of Trus
tees of Arkansas A & M College v. Davis, 396 F.2d 730, 732 (8th
Cir. 1968); Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971).
Federal courts have consistently taken jurisdiction over litiga
tion against state agencies and officials to resolve allegations of
racial discrimination in hiring or promotion. See, e.g. Carter v.
Gallagher, supra; Castro v. Beecher, 459 F.2d 725 (1st Cir. 1972) ;
N.A.A.C.P. v. Allen, 340 F.Supp. 703 (M.D. Ala. 1972) ; Johnson
v. Cain, 5 EPD ([ 8509 (D. Del. 1973); Suel v. Addington, 465
F.2d 889 (9th Cir. 1972) ; Bennett v. Gravelle, 4 EPD If 7566 (4th
Cir. 1971) ; Strain v. PUlpott, 4 EPD M 7885, 7562, 7521 (M.D.
Ala. 1971); Morrow v. Crisler, 479 F.2d 960, modified on rehear
ing en lane, 491 F.2d 1053 (5th Cir. 1974) ; London v. Florida
Department of Health, 313 F.Supp. 591 (N.D. Fla. 1970), aff’d,
448 F.2d 655 (5th Cir. 1971).
62 See also Watkins v. Washington, 3 EPD (18291, p. 6988 (D.
D.C. 1971).
3 6
5. Administrative Procedure Act
Section 10(a) of the Administrative Procedure Act, 5
IJ.S.C. §702, provides in broad language that “ [A] person
suffering legal wrong because of agency action, or ad
versely affected or aggrieved by agency action within the
meaning of a relevant statute, is entitled to judicial review
thereof.” The instant action is within the literal language
of the Administrative Procedure Act. Plaintiff is un
deniably aggrieved by the refusal of the defendants to
promote him. A refusal to promote plaintiff because of
his race would be contrary to law,63 arbitrary, capricious
and in violation of his rights under the Fifth Amendment
to the Constitution. 5 U.S.C. §706. The coverage of the
Administrative Procedure Act is to be liberally inter
preted.64 65 The Administrative Procedure Act itself confers
jurisdiction on the district court. Rusk v. Cort, 369 U.S.
367, 370, 372 (1962).6B The “legal right” which plaintiff
seeks to enforce need not be contained in a statute which
63 “Law” clearly includes regulations. See e.g. Citizens to Pre
serve Overton Park v. Volpe, 401 U.S. 402, 417 ff. (1971).
64 Abbott Laboratories v. Gardner, 387 U.S. 136, 140-141 (1967).
65 Justice Brennan, concurring, concluded that the Administra
tive Procedure Act was a general grant of jurisdiction. 369 U.S. at
380, n. 1. Justice Harlan dissented on the ground that jurisdic
tion had been withdrawn by the Immigration and Nationality Act
of 1952, but agreed that otherwise it would have been conferred
by the Administrative Procedure Act. See 369 U.S. at 383-399.
See also Citizens Committee for Hudson Valley v. Volpe, 425
F.2d 97, 102-103 (2d Cir. 1970) cert, denied 400 U.S. 949 (1970) ;
Cappadora v. Celebrezze, 356 F.2d 1, 5-6 (2d Cir. 1966); Schicker
v. United States, 346 F.Supp. 417, 419 (D. Conn. 1972) modified
on other grounds sub nom., Schicker v. Romney, 474 F.2d 309
(2d Cir. 1973) ; Road Review League v. Boyd, 270 F.Supp. 650,
651 (S.D.N.Y. 1967); Harris v. Kaine, 352 F.Supp. 769, 772
(S.D.N.Y. 1972) ; Davis v. Romney, 355 F.Supp. 29, 40-42 (B.D.
Pa. 1973) ; Northeast Residents Association v. Department of
Housing and Urban Development, 325 F.Supp. 65, 67 (B.D. Wise.
1971) ; Arrow Meat Company v. Freeman, 261 F.Supp. 622, 623
(D. Ore. 1966).
3 7
establishes an independent basis of jurisdiction; it is suffi
cient that the statute was enacted to protect plaintiff’s
interests. Norwalk Core v. Norwalk Redevelopment
Agency, 395 F.2d 920, 933 (2d Cir. 1968). The Act waives
any immunity of the agencies whose conduct is subject
to review.66
The Constitution, Acts of Congress, an Executive Order
and federal regulations all strip the defendants of any
discretion to discriminate, and this is not an area in which
the agencies or Civil Service Commission have significant
expertise.67 Jurisdiction68 is thus clearly appropriate un
der the Administrative Procedure Act.
66 Kletschha, v. Driver, 411 F.2d 436, 445 (2nd Cir. 1969);
Scanwell Laboratories Inc. v. Shaffer, 424 F.2d 859-873-4 (D.C.
Cir. 1970) ; Estrada v. Ahiens, 296 F.2d 690, 698 (5th Cir. 1969) ;
Adams v. Witmer, 271 F.2d 29, 34 (9th Cir. 1959).
See also National Helium Corporation v. Morton, 326 F.Supp.
151, 154 (D. Kan. 1971) aff’d 455 F.2d 650, Lombard Corpora
tion v. Besoc, 321 F.Supp. 687, 692-693 (D.D.C. 1970) ; Schroede
Nursing Care, Inc. v. Mutual of Omaha Inc. Co., 311 F.Supp.
405-409 (E.D. Wis. 1970). Other courts have reached the same
result by arguing that, if the defendant individuals have acted
unlawfully, the action is not one against the sovereign. See e.g.
National Helium Corporation v. Morton, 455 F.2d 650 (10th Cir.
1971).
67 See pp. 49-50, infra.
68 Under the Tucker Act, the Mandamus Act, the 1866 Civil
Rights Act and 28 U.S.C. §1331, it is clear that, as in a Title VII
action, the district court is required to consider all available
evidence, make an independent determination of whether there
was discrimination, and formulate a remedy, regardless of what
may have transpired in any administrative proceedings. Alex
ander v. Gardner-Denver Co., 415 U.S. 36 (1974); McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1972). Under the Admin
istrative Procedure Act, a court’s responsibility to “review” agency
action may be the same or somewhat narrower, depending upon
the nature of the claim. This issue—the nature of review under
the Administrative Procedure Act in a federal employment dis
crimination aetion—need not be decided in this case.
3 8
B. Application of Section 717 to Discrimination Occurring
Before March 24, 1972
The Second Circuit concluded that §717 applies to dis
crimination occurring before its effective date, March 24,
1972. P. 9a-13a. In the light of this Court’s decision
in Bradley v. School Board of the City of Richmond,
416 U.S. 696 (1974), petitioner believes that the holding
of the Court of Appeals on this issue was correct. See
Place v. Weinberger, No. 74-116.
C. Section 717 Did Not Repeal Pre-Existing Remedies for
Discrimination in Federal Employment
Any inquiry into the meaning of section 717 must begin
with an examination of Title Y II as it applies to private
employees, since section 717 was adopted by Congress for
the express purpose of giving federal employees the same
rights as are enjoyed by employees in the private sector.
Under section 717, the Senate report stated, “ Aggrieved
employees or applicants will also have the full rights avail
able in the courts as one granted to individuals in the pri
vate sector under Title VII.” 69 Senator Dominick, one of
the draftsmen of the Senate version of §717(c), argued:
A federal employee . . . would . . . have a right . . .
to go into court himself in order to get a solution to
his problem . . . It seems to me that where we are
dealing with job discrimination, it makes no difference
what type of job you have, you should be entitled to
the same remedies anyone else has, and this is a right
to have the federal court determine whether70 or not
you have been discriminated against.
69 S.Rep. No. 92-415, pp. 16-17 (emphasis added).
70118 Cong. Rec. 3967 (emphasis added).
3 9
Senator Williams, the floor manager of §2515, agreed
Previously, there have been unrealistically high bar
riers which prevented or discouraged a federal em
ployee from taking a case to court. This will no longer
be the case. There is no reason why a federal employee
should not have the same private right of action en
joyed by individuals in the private sector. . . ,n
Accordingly the rights afforded a federal employee under
Title Y II must be at least as great as those provided to
private employees.71 72
Even prior to the adoption of §717, it was well established
that that Title had not in any way repealed or preempted
71118 Cong. Bee. 4922 (emphasis added).
72 Section 717(d) expressly provides that, in litigation by fed
eral employees, the provisions of section 706(f) through (g), regu
lating private Title VII litigation, shall be fully applicable. Only
three distinctions appear on the face of the statute in the treat
ment of federal and private employees: (1) During the 180 day
period before a civil action may be commenced, a federal claim
is processed by the defendant agency and Civil Service Commis
sion rather than EEOC. Congress so provided, despite its convic
tion that the Civil Service complaint process was generally in
effective, solely because it concluded that giving this responsibility
to EEOC would “impose an unmanageable burden on that over
worked and underfunded agency.” 117 Cong. Bee. 31718 (B,e-
marks of Senator Kennedy) (1971). (2) Federal employees must
file a civil action under Title VII within 30 days of receipt of a
“right to sue” letter, whereas private employees, who prior to 1972
also had a 30 day limit, are now allowed 90 days within which
to sue. See §707 (f) , 717(c). The legislative history is silent as
to the reason for, or any recognition of, this difference. The time
limit under 706(f) was changed at several times during the con
sideration of the 1972 Act, and the failure of the draftsmen to
conform §717(c) to the final alteration may have been inadvertent.
(3) Certain provisions of section 706 refer to actions of the EEOC
rather than the Civil Service. Commission or other agencies, and
thus may be technically inapplicable to federal employees. See
§§706(g), ( f ) ( 1 ) .................................
40
42 U.S.C. §1981 or any other pre-existing statutes.73 This
Court subsequently74 75 held in Johnson v. Railway Express
Agency, 44 L.Ed. 2d 295 (1975), that Title V II had not
repealed pre-existing statutes providing remedies to pri
vate employees for racial discrimination in employment.76
Since Title VII did not repeal the section 1981 rights of
private employees, it necessarily follows that Title VII
did not repeal the section 1981 and other pre-existing
rights76 of federal employees.
73 Long v. Ford Motor Go., 496 F.2d 500, 503.04 (6th Cir.
1970) ; Brady v. Bristol Meyers, Inc., 459 F.2d 621 (8th Cir.
1972) ; Young v. International Telephone & Telegraph, 430 F.2d
757, 760-764 (3d Cir. 1971) ; Boudreaux v. Baton Rouge Marine,
437 F.2d 1011, 1016-17 (5th Cir. 1971) ; Sanders v. Dobbs Houses,
Inc., 431 F.2d 1097, 1100-01 (5th Cir. 1970).
74 Since the adoption of §717 two other circuits have rejected
the pre-emption argument. Waters v. Wisconsin Steel Works, 427
F.2d 476, 484-85 (7th Cir. 1970) ; Macklin v. Spector Freight Sys
tems, Inc., 478 F.2d 979, 993-996 (D.C. Cir. 1973).
75 “Despite Title V II’s range and its design as a comprehensive
solution for the problem of individious discrimination in employ
ment, the aggrieved individual clearly is not deprived of other
remedies he possesses and is not limited to Title VII in his search
for relief.” Similarly in Alexander v. Garden-Denver Co., 415
U.S. 36 (1974) this Court held:
[Llegislative enactments in this area have long envinced a
general intent to accord parallel or overlapping remedies
against discrimination . . . . Moreover, the legislative history
of Title VII manifests a Congressional intent to allow an
individual to pursue his rights under both Title VII and
other applicable state and federal statutes. The clear infer
ence is that Title VII was designed to supplement, rather
than supplant, existing laws and institutions relating to em
ployment discrimination.
415 U.S. at 47.
76 The other statutes establishing the rights of federal employees
to maintain civil actions in the district courts are set out supra, pp.
22-38. In addition, 28 U.S.C. §1491 confers jurisdiction on the
Court of Claims over claims of racial discrimination in federal
employment. See Allison v. United States, 451 F.2d 1035 (Ct. Cl.
1971) .
41
Section 717 on its face contains no express repeal of
any pre-existing statute. On the contrary, section 717(c)77
provides
Nothing contained in this Act shall relieve any Gov
ernment agency or official of its or his primary respon
sibility to assure non-discrimination in employment as
required by the Constitution and statutes or of its or
his responsibilities under Executive Order 11478 relat
ing to equal employment opportunity in the Federal
Government. (Emphasis added)
The Second Circuit suggestion that section 717 tacitly
repealed all pre-existing remedies encounters
head-on the “ cardinal rule . . . that repeals by impli
cation are not favored.” . . . The courts are not at
liberty to pick and choose among congressional enact
ments, and when two statutes are capable of coexis
tence, it is the duty of the courts, absent a clearly
expressed congressional intent to the contrary, to re
gard each as effective. “When there are two acts upon
the same subject, the rule is to give the effect to both
if possible. . . . The intention of the legislature to
repeal ‘must be clear and manifest.’ ”
Morton v. Mancari, 417 TJ.S. 535, 549, 551 (1974) Congress
added the remedy in section 717, not because it thought
existing remedies unduly harsh or excessive, but because
it felt they had been “ ineffective for the most part.” Id.,
p. 546. That Congress thus provided federal employees
with independent overlapping remedies for racial discrim
ination is consistent with the general policy of providing
” 42 U.S.C. §2000e-16(c).
4 2
such a variety of remedies for the protection of important
civil rights.78
Congress has repeatedly and expressly rejected pro
posals to make Title Y II the exclusive remedy for claims
of racial discrimination in employment. In 1964 Senator
Tower proposed an amendment making Title Y II the
exclusive remedy for discrimination in employment. The
amendment was defeated on the floor of the Senate. 110
Cong. Rec. 13650-52. In 1972 Senator Hruska proposed
an amendment which would have made Title VII the ex
clusive remedy for claims of employment discrimination.
The amendment was opposed by the Department of Jus
tice79 and defeated on the Senate floor.80 A similar proposal
was rejected by the House Labor Committee.
78 Employment: Alexander v. Gardner-Denver, 415 U.S. 36
(1974). Housing: 42 U.S.C. §3612, et seq. and 42 U.S.C. §1982;
Jones v. Alfred H. Mayer Co., 392 U.S. 409, 416-17, n. 20 (1968) ;
Sullivan v. Little Hunting Park, 396 U.S. 229, 240 (1969). Places
of Public Accommodation: 42 U.S.C. §2000a and 42 U.S.C. §1981;
Tillman v. Wheaton-Haven Bee. Assoc., 410 U.S. 431 (1973).
Voting: 42 U.S.C. §1983 and 42 U.S.C. §1971 (c) ; Brooks v. Mar-
celli, 331 F.Supp. 1350, 1352, n. 5 (E.D. Pa. 1971) (statutes au
thorizing suits by the Attorney General alleging violations of the
1957 Voting Rights Act did not repeal private cause of action
under §1983).
79 Hearings Before a Subcommittee of the Senate Committee on
Labor and Public Welfare, 91st Cong. 1st Sess. 162-163 (1971).
The testimony was quoted at length in the Senate debates. 118
Cong. Rec. 3369-70.
80 In opposing the Hruska Amendment, Senator Javits argued:
“ There are other remedies, but those other remedies are not
surplusages. Those other remedies are needed to implement the
promise we made under the Constitution to prevent discrimina
tion in employment. The laws of 1866, 1871, as well as the law
of 1964 are to implement that promise. . . . Mr. President, the key
to the proposition which we laid before the Senate—-incidentally,,
this has now been the law for the last 8 years—is that what this
amendment would seek to do is cancel away much of that law. It
seems to me that should not be the attitude of the Senate, in face
of the fact, as I say, that employees are not fully protected by the
exclusive remedy which is sought , to be compelled by this amend
4 3
The coverage of section 717 is clearly not coextensive
with that of section 1981 and other pre-existing legal reme
dies. The statutes differ both as to relief available81 and
as to employees covered.82 These earlier statutes provide
for relief not necessarily available under Title VII. For
these reasons it is apparent that section 717 and pre-exist
ing statutes are not “irreconcilable” but complement one
another and provide a diverse arsenal of remedies for an
aggrieved federal employee.83
ment.” 118 Cong. Rec. 3761-62. See also 118 Cong. Rec. 3371-72
(Remarks of Senator Williams) ( “ I believe that to make Title
VII the exclusive remedy for employment discrimination would
be inconsistent with our entire legislative history of the Civil
Rights Act.” )
81 Under section 1981 and section 1331 an employee would be
entitled in appropriate circumstances to punitive or compensatory
damages against the government officials individually. Such dam
ages would also be awardable against the agency itself under sec
tion 1981 and the Tucker Act. Under remedies other than Title
VII, particularly section 1981, a federal employee would not be
subject to the limited exhaustion requirement of section 717(c).
Section 717 has several advantages over alternative statutes: it
provides for awards of attorneys’ fees, court appointed counsel,
and waiver of court costs, features which we may presume are
particularly important to aggrieved federal employees of limited
resources. Title VII’s two year limitation on back pay, if appli
cable to the federal government, would not restrict the back pay
available under any of the pre-existing remedies.
Section 706(g) provides that back pay liability shall not
accrue “ from a date more than two years prior to the filing of
a charge with the Commission.” A federal employee, however,
does not file a charge with the E.E.O.C. but with his own agency
or the Civil Service Commission. Whether such a limitation should
nonetheless be imposed in federal eases because of the congressional
policy of treating federal and private employees similarly under
Title VII is a question not presented in this case.
82 Section 717 does not cover aliens employed outside the limits
of the United States, employees of the Government Accoimting
Office, and persons in the Government of the District of Columbia
and the legislative and judicial branches who are not in the com
petitive service.
83 Title VII, sections 1981 and 7151, Executive Order 11478,
5 C.F.R. part 713 and the Fifth Amendment, which bar dis-
44
In Morton v. Mancari, supra, the appellees urged that
section 717, proscribing racial discrimination in government
employment, had repealed sub silentio the provisions of the
Indian Reorganization Act of 1934,84 which established an
employment preference for qualified Indians in the Bureau
of Indian Affairs. Despite the apparent conflict between
the provisions of the two statutes, this Court held that sec
tion 717 had not repealed the earlier law. If section 717 did
not tacitly repeal an apparently inconsistent substantive
rule, it follows a fortiori that it did not repeal pre-existing
remedies enforcing the same substantive prohibition against
racial discrimination established by section 717 itself.
II.
This Action Should Not Be Dismissed For Failure To
Exhaust Administrative Remedies.
Petitioner maintains that an aggrieved federal employee
should not be required to exhaust administrative remedies
before invoking his independent statutory remedies. Even
if the Court concludes that such exhaustion should gen
erally be required, it was improper to dismiss the instant
action because, inter alia, (1) the administrative agency
had already exceeded by a year the legal deadline for
processing discrimination complaints, (2) petitioner was
not afforded a hearing on his claim that further exhaustion
would have been futile, and (3) when an employee
has failed to adequately exhaust, the district court should
not dismiss the action but should issue an appropriate stay
of judicial proceedings while exhaustion is completed.
crimination in federal employment, necessarily bar any reprisals
by federal officials for the filing of complaints alleging such dis
crimination.
84 25 U.S.C. §461.
4 5
A. Exhaustion o f Administrative Remedies Is Not a Prerequi
site To An Action Under The 1866 Civil Mights Act, etc.
In the instant ease petitioner took all steps necessary
to apply for a promotion to GS-9, which was denied June
27, 1971.85 The question presented is whether, prior to
maintaining a non-Title Y II action, he was also required
to collaterally attack the decision of June 27 by invoking
the procedures established by 5 C.F.R. part 713. The de
cision as to whether to require exhaustion depends upon
the nature of the claim and “the particular administrative
scheme at issue.” Weinberger v. Salfi, 43 U.S.L.W. 4985,
4990 (1975). Even where a statutory scheme expressly
requires exhaustion, this Court has permitted resort to
the courts without complete exhaustion under appropriate
circumstances. See e.g. McKart v. United States, 395 U.S.
185 (1969); Weinberger v. Weisenfeld, 43 TLS.L.W. 4393
(1975). Unlike Title VII, neither the 1866 Civil Rights Act
nor the other statutes relied on by petitioner contain any
express exhaustion requirement.86 This Court should “ not
engraft on the statute [s] a requirement that may inhibit
the review of claims of employment discrimination in the
federal courts.” McDonnell Douglas Corp. v. Green, 411
U.S. 792, 799 (1973).
85 This is not a case in which an employee sued over a promo
tion for which he had never applied. Compare McGee v. United
States, 402 U.S. 479 (1971).
86 Section 704 of the Administrative Procedure Act requires
under certain circumstances that the agency action attacked be
“ final.” This is a general requirement of ripeness, not mechanical
exhaustion, and has been applied “ in a pragmatie way” consider
ing both the nature of the issue and the burden on the parties.
Abbott Laboratories v. Gardner, 387 U.S. 136, 148-150 (1967).
4 6
1. independent Remedies
The question of exhaustion, like that of implied repeal,
must be resolved primarily with reference to the rights of
private employees under similar circumstances,87 For fed
eral and private employees alike, “ [t]he legislative his
tory of Title V II manifests a congressional intent to allow
an individual to pursue independently his rights under
both Title Y II and other applicable state and federal stat
utes.” Alexander v. Gardner-Denver Co., 415 U.S. 30, 48
(1974). Precisely because of the independent nature of
these remedies a private employee is not required to in
voke them in any particular order. A private employee
need not, for example, exhaust his Title V II administrative
remedies before filing a §1981 action—indeed, under cer
tain circumstances he may not so delay commencing* his
§1981 action. Johnson v. Railway Express Agency, 44 L.Ed.
2d 295 (1975). This comports with the general rule that
the exhaustion of state administrative remedies is not a
prerequisite to civil rights litigation in the federal courts.88
Federal employees should not be subjected to the burden
of an exhaustion requirement from which all state and
private employees are immune. A federal employee is af
forded a comparable arsenal of independent remedies, and
he is free to choose whether to invoke §1981, the Tucker
Act, the Mandamus Act, etc. The administrative complaint
procedure established by 5 C.F.R. part 713 is another such
administrative remedy available to a federal employee
which he can choose to invoke when he concludes it is the
best course. Congress has to a limited extent required an
87 See pp. 38-39, supra.
88 Damico v. California, 389 U.S. 416 (1967); McNeese v. Board
of Education, 373 U.S. 668 (1963) ; Monroe v. Pape, 365 U.S. 167
(1961).
4 7
employee to use this administrative remedy before filing a
Title V II action,89 but no such precondition is placed on
actions under other statutes.
The creation of the E.E.O.C. administrative remedy by
Title VII for state and private employees has been
held not to reflect a Congressional requirement that
all private compaints be processed there first. That rea
soning applies a fortiori to section 717(c), which did not
create the administrative remedy but was intended in
stead to limit any obligation to use that already exist
ing procedure and does not involve problems of comity.90
This independence of remedial schemes is consistent with
the decisions of this Court in construing the civil rights
acts to give “due respect to a suitor’s choice of a federal
forum for the hearing and decision of his federal constitu
tional claims” . Zwickler v. Koota, 389 U.S. 241, 248 (1967).
The reasoning of Johnson v. Railway Express Agency,
44L.Ed. 2d 295 (1975), rebuts the suggestion of the Second
Circuit that a federal employee not only can but must so
delay his §1981 action pending exhaustion. In a number
of states, including that involved in Johnson, the statute
of limitations applicable to a §1981 case is one or two
89 The employee need not process his claim all the way through
the Appeals Keview Board, or even await final agency action; he
may commence suit if final agency action has not occurred within
180 days of filing his administrative complaint. Section 717(c).
A majority of all administrative complaints are not decided with
in 180 days, despite an express requirement in §713.220 that they
be resolved in that time.
so « [T]he 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.” Penn v.
Schlesinger, 490 F.2d, 700, 707 (5th Cir. 1974) (Morgan, Con
curring), rev’d 497 F.2d 970 (5th Cir. 1974).
48
years.91 Petitioner’s case, however, was already 19 months
old when final agency action occurred, and doubtless would
have aged still further pending an appeal to the Appeals
Review Board.92 Particularly in view of the severe limi
tations on the types of claims that may be processed
under the Civil Service Regulations,93 it is unlikely that
there will be a “ complete identity of the causes of action”
considered in that process and raised in the §1981 action.
44 L.Ed. 2d at 306, n. 14. In view of the policy that federal
and private employees be treated alike, a federal employee
should not be compelled to endure a delay before filing a
§1981 action under circumstances which, if acquiesced in
by a private employee, could be characterized as sleeping
on his rights.
The administrative and judicial processes might prove
complementary if an employee chooses to pursue them
simultaneously. A section 1981 action would entitle the
employee to invoke discovery procedures, which are essen
tial to unearth the facts but which are not available in the
administrative process. The administrative process, on
the other hand, may involve opportunities for conciliation,
e.g., through the efforts of the E.E.O. Counselor.94 The
employee would be free to seek to stay or accelerate the
judicial proceeding to dovetail with activities in the
91 Code of Ala., Title 7, §5526 (1 year) ; Tenn. Code Anno,
§28-304 (2 years) ; Code of S.C, §10-146 (2 years) ; Anno. Code
of Cal, §1422 (2 years); Vernon’s Anno. Texas Revised Civil
Statutes, Art. 5526 n. 193.5 (2 years).
Petitioner's complaint was filed within the 3 year New York
statute of limitations. Civil Practice Law and Rules, §214.
92 The regulations place no limitation on the amount of time
the Board may delay before deciding an appeal.
93 See pp. 53-54, infra, p. 43, supra.
94 5 C.F.R. §713.213.
4 9
administrative process. See Johnson v. Railway Express
Agency, 44 L.Ed. 2d at 304.95
2. Purposes of Exhaustion
This Court has delineated criteria which must be con
sidered in determining if exhaustion is to be required, in
cluding whether agency expertise or agency discretion are
required, whether exhaustion is needed to permit an agency
to learn the relevant facts or corerct its mistakes, and
whether resort to the administrative process is likely to be
futile. McKart v. United States, 395 U.S. 185, 194-5 (1969);
Weinberger v. Salfi, 43 U.S.L.W. 4985, 4990 (1975); Wein
berger v. Weisenfeld, 43 U.S.L.W. 4393, 4395, n. 8 (1975).
These factors militate against requiring exhaustion in fed
eral employment discrimination cases.
The agencies have no particular expertise to offer. The
issue is not a matter of ordinary personnel management,
but of unlawful discrimination. Congress expressly con
cluded in 1972 that the Civil Service Commission itself was
lacking in such expertise.96 After 10 years of employment
discrimination litigation the federal courts are consider
ably more expert in the applicable legal problems than
personnel officials inside or outside government.97 The
96 A court could not impose such a stay over the objection of
the employee, since to do so would be the equivalent of establishing
an exhaustion requirement. Cf. Grubbs v. Butz, 514 F.2d 1323
(D.C. Cir. 1975).
96 Both the House and Senate Reports noted that the Commis
sion “has been plagued by a general lack of expertise in recog
nizing and isolating the various forms of discrimination within
the system.” H.R. Rep. No. 92-238, p. 24; S. Rep. No. 92-415,
p. 15.
97 The pre-eminent example of this expertise is the area of
testing, where the courts have invalidated as not job-related
standardized tests in widespread industrial use. See Griggs V.
Duke Power Co., 461 U.S. 424 (1971) ; Albemarle Paper Co. V.
Moody, 43 U.S.L.W. 4880 (1975).
5 0
government officials who process these complaints are ill
equipped to deal with the complex law that has grown
up in the area; the regulations do not require that the
officials involved be attorneys, and the instruction manuals
are largely devoid of reference to applicable court decisions.
Even among the decisions of the Appeals Review Board,
reliance on or citations to the law as announced by federal
courts is virtually non-existent.98 Frequently the processing
of discrimination complaints is in the hands of officials
whose primary duties lie elsewhere. Clearly these officials
have far less expertise than the E.E.O.C., yet the courts do
not, out of deference to the E.E.O.C., delay action in a
§1981 case or give weight to its determinations in a par
ticular case. Alexander v. Gardner-Denver Co., 415 II.S.
36, 44 (1974).
This is not an area in which the agencies may properly
be said to have any discretion. Once the facts are estab
lished, the conclusions and remedy follow as a matter of
law. See McKart v. United States, 395 IT.S. 185 (1969) ;
Albemarle Paper Co. v. Moody, 43 TJ.S.L.W. 4880 (1975).
The resolution of those statutory and constitutional issues
“is a primary responsibility of the courts, and judicial con
struction has proved especially necessary” with respect to
§1981, whose broad language frequently can be given to
meaning only by reference to public law concepts. Alex
ander v. Gardner-Denver Co., 415 II.S. 36, 57 (1974).
Agency discretion seems particularly inappropriate in a
case of alleged discrimination, for it is a claim which calls
into question the motives of the very agency officials decid
ing the case. Compare Glover v. St. Louis, etc., R.R.,
393 U.S. 324, 331 (1969). It is particularly for this reason
that the courts must be regarded as the forum “ for the
ultimate resolution of discriminatory employment claims.”
See n. 102, infra, p. 52.
51
Alexander v. Gardner-Denver Co., 415 TLS. 36, 60, n. 21
(1974).
Nor is this the type of case in which exhaustion is neces
sary to permit the agency to develop a factual record. That
principle is applicable to a situation such as a rate making
case, where the relevant evidence is in the possession of
the plaintiff and the agency uses its power and expertise
to develop a record. In an employment action, however,
the relevant evidence is almost entirely in the possession
of the defendant agency, which clearly does not need an
administrative proceeding to learn what its records and
employees would reveal. The plaintiff needs that informa
tion, but he usually cannot rely on the administrative proc
ess to develop a factual record, because there are no pro
visions whatever for discovery. Compare Renegotiation
Board v. Bannercraft Co., 415 U.S. 1, 24, n. 23 (1974).
This Court has long recognized that exhaustion should
not be required where there is no reasonable chance that
the administrative proceedings will result in a decision
favorable to the complainant. Weinberger v. Salfi, 43
U.S.L.W. 4985, 4990' (1975). Congress concluded in 1972,
after extensive hearings, that the administrative complaint
process had proved “ ineffective for the most part,” and
“had impeded rather than advanced the goal of the elim
ination of discrimination in Federal employment.” 99 The
Civil Rights Commission concluded in 1975 that the Civil
99II. Rep. No. 92-238, pp. 23-24, stated:
A critical defect of the federal equal employment program
has been the failure of the complaint-process. That process
has impeded rather than advanced the goal of the elimina
tion of discrimination in Federal employment. The defect,
which existed under the old complaint procedure, was not
corrected by the new complaint process. The new procedure,
intended to provide for the informal resolution of complaints,
has, in practice denied employees adequate opportunity for
impartial investigation and resolution of complaints.
5 2
Service “ Commission’s regulations governing complaint
procedures by agencies deny Federal employees a full
and fair consideration of their employment discrimination
grievances.” 100 The Civil Eights Commission found that
the administrative process was biased against the ag
grieved employee for a wide variety of reasons, includ
ing: (1) the failure of the agencies and the Appeals
Review Board to follow Title V II law; (2) unreason
able time and other technical limitations on administrative
complaints; (3) effective refusal to process class action
allegations; (4) control of the entire investigation and
decision process by the defendant agency;101 (5) inad
equate instructions to investigators.102 The Commission
found that, in Fiscal 1973, although federal employees made
Under the revised procedure, effective July 1, 1969, the
agency is still responsible for investigating and judging it
self. Although the procedure provides for the appointment
of a hearing examiner from an outside agency, the examiner
does not have the authority to conduct an independent in
vestigation. Further, the conclusions and findings of the ex
aminer are in the nature of recommendations to the agency
head who makes the final agency determination as to whether
discrimination exists. Although the'complaint procedure pro
vides for an appeal to the Board of Appeals and Review in
the Civil Service Commission, the record shows that the Board
rarely reverses the agency decision.
The system, which permits the Civil Service Commission
to sit in judgment over its own practices and procedures which
themselves may raise questions of systemic discrimination,
creates a built-in conflict-of-interest.
See also, S.Rep. No. 92-415, p. 14.
100 United States Commission on Civil Rights, The Federal Civil
Rights Enforcement Effort— 1974, v. 5, p. 621 (July, 1975) ; p.
31aa. The relevant portions of the Report are reprinted in Ap
pendix B to this brief.
101 Compare Glover v. St. Louis, etc., BR., 393 U.S. 324, 331
(1969).
102 United States Commission on Civil Rights, The Federal Civil
Rights Enforcement Effort— 1974, v. 5, pp. 61-86, 619-24, 655-59,
pp. 3aa-39aa.
5 3
26,627 informal complaints to E.E.O. Counselors, and filed
2,743 formal written complaints, only 22 federal employees
received back pay or retroactive promotions.103 It is readily
apparent from the Commission’s Report that for a federal
employee aggrieved by racial discrimination resort to the
administrative process is futile.
There are, moreover, a wide variety of complaints cog
nizable in court for which the regulations do not authorize
relief. The agency will not give relief for discrimination
occurring more than 30 days before the complaint process
is begun, even if a continuing violation is involved.104 Thus,
although petitioner’s administrative complaint alleges a
continuing policy of discrimination since 1967,105 petitioner
could not win complete relief in the administrative process,
since the agency could not give him back pay or other relief
for the period before June, 1971. In the courts, however,
the statutes of limitations are far longer106 and, where a
continuing violation is involved, relief is not limited by
such statutes. Monetary compensation under the regula
tions is limited to back pay,107 but under the Tucker Act
and the 1866 Civil Rights Act petitioner would be entitled
under appropriate circumstances to compensatory or
punitive damages against the agency, and, under the 1866
Act and §1331, against the individual defendants. Thus,
even if petitioner were to “ prevail” in the administrative
process, he still could not receive all the relief to which he
103 Id., pp. 67, 85; pp. 9aa, 27aa.
104 5 C.F.R. §713.214; United States Commission on Civil Rights,
The Federal Civil Rights Enforcement Effort—1974, v. 5, pp. 65-
66, pp. 7aa-8aa.
105 Appendix, p. 15a.
106 The New York statute of limitations is 3 years, 36 times as
long as the 5 C.F.R. §713.214 limitation.
107 5 C.F.R. §713.271.
54
might be entitled in court. Moreover, because the burden
of proof placed on an employee in the administrative pro
cess is far more stringent than that applied by the courts,
the same evidence which would be deemed insufficient by
the agency could, in a court of law, compel judgment for
the employee.108 In addition, there are a variety of pos
sible technical defects which would doom an administra
tive complaint to rejection, but would in no way limit the
jurisdiction or power of a court to grant relief.109
The issue presented by this case is not whether federal
agencies will be precluded from investigating or remedying
unlawful discrimination because an employee filed a law
suit rather than pursuing an administrative complaint. No
statute, regulation or Executive Order forbids any federal
official from stopping or remedying discrimination merely
because an administrative complaint has not been filed or
pursued. On the contrary, section 717(e), section 7151, and
the Civil Service Commission Regulations110 require super
visory officials to investigate, stop and fully remedy any
problem of investigation regardless of whether an adminis
trative complaint has been filed. Compare Christian v.
New York Department of Labor, 414 U.S. 614, 624, n. 10
(1974). This responsibility reflects the fact that, in our
108 See United States Commission on Civil Rights, The Federal
Civil Rights Enforcement Effort— 1974, v. 5, pp. 78, 84; pp. 20aa,
26aa.
109 Id., pp. 65-69;. pp. 7aa-llaa. In Fiscal 1974 10 percent
of all administrative complaints were rejected on such technical
ities.
Petitioner maintains that each of these limitations and defects
in the administrative process is unlawful; whether they are in
fact invalid is a question not presented by this case.
110 5 C.F.R. §713.203. Any regulation which required or even
permitted agency officials to tolerate discrimination in the absence
of a well pleaded administrative complaint would, of course, be
invalid.
55
constitutional scheme, racial discrimination is not a minor
personal inconvenience but a violation of fundamental
national policies. Alexander v. Gardner-Denver Co., 415
U.8. 36, 45 (1974). The law requires the federal govern
ment, as it does private employers, “ to self-examine and
self-evaluate their employment practices, and to endeavor
to eliminate, so far as possible, the last vestiges of an un
fortunate and ignominious page in this country’s history.”
Albemarle Paper Co. v. Moody, 43 U.S.L.W. 4880, 4884
(1975).
In the ordinary course of things an agency or its
officials, acting sua sponte after the commencement of
a lawsuit, would be able to resolve any problem of dis
crimination well before a court could actually set the mat
ter for trial, benefiting directly from any discovery in
that proceeding. The plaintiff employee would of course
cooperate with any such investigation and the process
would not need to differ significantly from the adminis
trative complaint procedure in which the prime movant and
investigator is supposed to be the agency itself. In Penn v.
ScMesinger, however, the government suggested that, al
though the most virulent form of discrimination might well
be practiced at Maxwell Air Force Base, and although offi
cials there might be systematically breaking the law, there
was nothing that the Secretary of Defense or anyone else
could do unless Mr. Penn would drop his lawsuit and file an
administrative complaint. See Penn v. ScMesinger, 490
F.2d 700, 706 (5th Cir. 1973); 497 F.2d at 975-76 (5th Cir.
1974). That contention is not merely wrong, it reflects an
attitude which underlies the whole problem of exhaustion.
I f federal officials had recognized that they had an inde
pendent responsibility to assure non-discrimination, the
agencies involved would sua sponte have long ago com
pleted their consideration of these problems of discrimina
56
tion, and the exhaustion issue in this case and Penn would
be moot.
3. Other Policy Considerations
A variety of other considerations militate against an
exhaustion requirement in federal employment discrimina
tion cases.
In terms of futility alone, any exhaustion rule would be
honeycombed with exceptions. A very substantial portion
of all employees would be able to establish that some or
all o f their complaint would not stand a reasonable chance
of success. Any relevant allegation of futility would require
an evidentiary hearing of potentially vast scope.
The futility or efficacy of the administrative process
would necessarily vary from agency to agency and over
time. In a case such as this, where petitioner challenges
the efficacy of taking discrimination appeals to the Appeals
Review Board, a detailed inquiry as to the workings and
record of the Board would be necessary. A decision after
any such inquiry would not be res judicata as to other
employees, and would apply as a matter of collateral
estoppel against the agency or Board only until its prac
tices materially changed. Manifestly the time consumed
in adjudicating exhaustion questions would easily exceed
the judicial efforts that might be saved by an exhaustion
requirement. See Alexander v. Gardner-Denver Co., 415
U.S. 36, 59 (1974).
I f an exhaustion rule were applied to these cases, the
courts would be obliged to decide, not only whether to
require exhaustion in each case, but what steps were neces
sary to exhaust. A federal employee aggrieved by em
ployment discrimination may find his complaint covered
by several of the nine overlapping and inconsistent admin
istrative procedures.111 The regulations provide no guid
ance as to how to proceed in such a situation.112 Within
each procedure there are a variety of ways in which an
employee can process his complaint; he must decide what
issues to raise in the complaint, whether to demand a hear
ing, etc. Congress in 1972 concluded that, where federal
employees were confronted by a government defense of
failure to exhaust administrative remedies, there is “no
certainty as to the steps required to exhaust such reme
dies” .113 The time and energies of the lower courts are
already being consumed by government arguments that
aggrieved employees chose the wrong administrative pro
cess.114 Those judicial resources would be far better spent
deciding these cases on the merits than resolving scholastic
controversies about the “ correct” way to exhaust.
111 These include (a) charges of reprisal, 5 C.F.R. §713.261-
.263, (b) third party complaints, 5 C.F.R. §713.251; (c) allega
tions of discrimination in an adverse action proceeding, 5 C.F.R.
§772.306;. (d) appeal from termination of a probationary em
ployee, 5 C.F.R. part 315; (e) challenge to Civil Service Commis
sion job requirements, 5 C.F.R. §300.103-104; (f) appeals from
a reduction in force, 5 C.F.R. part 351; (g) a grievance proceed
ing, 5 C.F.R. part 771; (h) appeal from a reduction in grade, 5
C.F.R. part 532; (i) a simple allegation of discrimination, 5 C.F.R.
part 713.
112 Notwithstanding 5 C.F.R. §713.219, the general practice is
to require federal employees to make an election of administra
tive remedies, and to do so without any explanation as to the
procedural and substantive consequences of the choice.
113 S. Rep. No. 92-415, 92nd Cong., 1st Sess. p. 16.
114 See e.g. McHoney v. Callaway, No. 74-C-1729 E.D. N.Y.
(government contends employee erred by invoking adverse action
process rather than §713); Swain v. Callaway, 5th Cir. No. 75-
2002 (government contends employee erred by failing to demand
an administrative hearing) • McLaughlin v. Callaway, No. 74-
1237,. S.D. Ala. (government contends employee erred by filing
an ordinary administrative complaint rather than a third party
complaint).
5 8
Exhausting administrative remedies often poses a serious
burden on the employee. Where the employee is seeking a
promotion or a job, or a substantial award of back pay, the
delay may well mean that the essential needs of the em
ployee and his family will go unmet. I f the employee wants
to pursue the administrative process seriously and thus re
tains an attorney, the out of pocket cost will be substantial
compared to the income of ordinary civil servants, and reg
ulations do not provide for awards of counsel fees even if
he wins.* 116 The time and effort which must be expended
on the administrative complaint may be substantial.
There are, to be sure, a variety of reasons why an em
ployee would want to resort to the administrative process
if it offers a reasonable chance of success—it is less
expensive, less formal, and less time consuming than an
ordinary court case. Given these advantages, and the pos
sible forfeiture of his Title VXI rights,116 an employee would
be foolhardy to abandon the administrative route so long
as there is a meaningful chance that he can obtain there the
relief he seeks. McKart v. United States, 395 U.S. 185, 200
(1969). But there are situations in which such a meaning
ful chance of success does not exist, and the minute pos
sibility is far outweighed by the burdens on the employee.
In such circumstances the employee ought, in all fairness,
to have immediate access to the courts.
116 Petitioner maintains the absence of such a provision is un
lawful, and that a prevailing employee would be entitled to a
court award for counsel retained in connection with the admin
istrative proceeding.
116 If an employee sued under §1981 without ever filing an
administrative complaint he could not invoke section 717. If the
employee filed a complaint but sued before both final agency
action and the passage of 180 days, his section 717 right to sue
would accrue on the occurrence of either event and he could then
add that basis of jurisdiction to his complaint.
59
The question is whether an employee or the Court should
decide whether those circumstances are present. The em
ployee knows the internal workings of the agency, the fate
of past complaints, the attitudes of officials who will decide
the case, the influence of the defendant supervisors, and the
extent to which his complaint is within the scope of the ad
ministrative remedies, and he is particularly aware of the
burden that further administrative proceedings would im
pose on him in terms of time, effort, the cost of an attorney,
and the delay until relief is finally awarded. The employee’s
self-interest will preclude abandoning the administrative
process except where it is clearly futile or unreasonable
delay has occurred. There is no reason to believe that a
federal judge, unfamiliar with the processes and history
of the agency, unaffected by the burdens of further delay,
and preoccupied with the problem of reducing his docket,
would better able to make this judgment than the em
ployee.117
The very requirement of exhaustion may tend to under
mine the effectiveness of the administrative process. Under
the applicable regulations the employee has a great degree
of control over the nature of the process and, consequently,
117 It is noteworthy that, in section 717, Congress gave the em
ployee broad discretion to decide when it was in his interest to
continue in the administrative process. At any time 180 days
after filing a complaint or after filing an appeal, and after final
agency action, the employee can choose to pursue that process
or to file a civil action. The employee’s decision is, of course,
binding on the court, which has no authority to require further
administrative proceedings but must itself hear the case as ex
peditiously as possible. Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir.
1975).
Similarly, if a federal employee’s claim is like or related to
that of second employee who files a class action under section 717,
the first employee may participate in that section 717 class action
without filing an administrative complaint, or may choose to file
such a complaint in addition to or instead of participation in the
class action.
60
over how long it will take. I f an employee insists on a de
tailed investigation, provides the investigator with much
information,118 negotiates at length on the basis of the in
vestigation,119 asks for a full hearing,120 asks for his own
witnesses to be called for such a hearing and subjects other
witnesses to lengthy cross examination, and, if unsuccess
ful, files a substantial brief with the Appeals Review Board,
both the agency and Board action will doubtless take
longer and far exceed the 180 limit. If, on the other hand,
the employee believes the administrative process is futile
and knows he has to complete it before suing, he can sub
stantially abbreviate it by waiving various aspects of the
process. An exhaustion requirement would tend to force
an employee to follow the latter course, and thus decrease
the likelihood of any favorable administrative ruling and
increase the probability that judicial intervention will be
required.
So long as every employee is required to go through
that process, the agency has no incentive to make the
process either expeditious or fair. On the contrary, a
process replete with delays and heavily biased against
the employee serves the dual purpose of postponing the
day when the agency is brought into court and of so
discouraging and exhausting the complainant that he is
unlikely to sue. Such seems to have been the effect in re
cent years of the agency assumption that exhaustion is
required. In 1972 Congress clearly identified a wide range
of defects in the administrative process and mandated the
Civil Service Commission to reform it. Since then, how
ever, virtually none of the problems Congress identified
have been solved, and the regulations which Congress found
118 5 C.F.R. §713.216.
119 5 C.F.R. §713.217(a).
120 5 C.F.R. §713.217 (c).
6 1
totally inadequate remain largely unchanged.121 This situa
tion may be a direct result of the belief by the Commis
sion and agency officials that employees would have to
suffer through the administrative process no matter how
bad it might be. In the long run, of course, this means
that fewer cases will actually be remedied in the adminis
trative process and that more aggrieved employees will
end up in court.
The absence of an exhaustion requirement, however,
would create the incentive for reform that has heretofore
been missing. The Commission and affected agencies would
naturally prefer that complaints of discrimination not be
brought to court. I f an aggrieved employee is free to
choose between the administrative process and direct ac
cess to the courts, government officials will have to take
steps to render that process attractive to employees, in
terms of both speed and effectiveness, or the process will
be less likely to be used. That would tend to deter agency
officials from withholding information about the complaint
process or discouraging its use. Compare Penn v. Schle-
singer, No. 74-476.
B. Even If Exhaustion Is Generally Required In Such Actions,
It Should Not Be Required In This Case
Assuming, arguendo, that the requirement of exhaustion
is applicable to section 1981 actions against the federal
government, that is not conclusive of the correct disposi
tion of this case. Even where exhaustion is generally ap
propriate, that requirement should not be “blindly” ap
plied. McKart v. United States, 395 U.S. 185, 201 (1969).
121 See United States Commission on Civil Rights, The Federal
Civil Rights Enforcement Effort— 1974, v. 5, pp. 61-62; pp. 3aa-
4aa.
6 2
The Second Circuit, however, did not consider whether
such exhaustion was appropriate on the facts of this
particular case. The Court of Appeals stated “There is
nothing in the allegations of Brown’s complaint which
justifies the ‘premature interruption of the administra
tive process’ P. 16a. This statement is somewhat un
fair. At no time prior to oral argument in the Court of
Appeals did the United States ever contend that peti
tioner had not adequately exhausted his administrative
remedies. Neither in its various motions in the district
court, nor in its lengthy appeal brief, did the Depart
ment of Justice suggest petitioner was obligated to appeal
to the Appeals Review Board. Petitioner, assuming that no
further exhaustion was required since he had met the ex
haustion standards of §717(c), repeatedly asserted he had
fully exhausted his administrative remedies.122 Only at oral
argument did the government suggest that petitioner might
have had an obligation to appeal to the Board. While it
may have been within the discretion of the Court of Appeals
to permit the government to raise such an entirely new
issue for the first time at oral argument, it certainly was
unreasonable to penalize petitioner for having failed to
respond to that argument some 18 months earlier when his
complaint was filed.
The delays which had already occurred in the processing
of his complaint excused petitioner from any responsibility
to further exhaust. The Civil Service Commission’s regula
tions expressly require that every agency must take final
action on an employment discrimination complaint within
180 days after it is filed. 5 CFR §712.220(a). Section 717
(c), which embodies a congressional determination as to the
maximum amount of delay to which a federal employee
should be subjected, gives such employees a right to sue
without further exhaustion 180 days after a complaint is
122 Brief f or Appellant, No. 73-2628, 2d Cir. pp. 2, 61.
6 3
filed. In the instant case the defendant agency consumed
617 days processing petitioner’s complaint. The agency had
been in violation of the government’s own regulations for
over a year when petitioner finally filed suit.
Petitioner urges that, if exhaustion is required in these
cases, the courts should adopt this 180 day rule as fixing
the point in time after which further efforts at exhaustion
are not required in a non-Title Y II action. That time
limit reflects the considered judgment of Congress and the
Civil Service Commission as to what would constitute a
reasonable deadline, considering both the burdens on the
employee and the time needed for an expeditious admin
istrative proceeding. Such a rule would be congruent with
the comparable provisions of Title VII, would provide a
clear standard by which both agencies and employees can
guide their conduct, and would avoid the uncertainty and
litigation generated by an ad hoc approach in each case.
Federal employees are also entitled to sue under §717
once final agency action has occurred. Employees should be
equally free to invoke their non-Title V II remedies at that
point as well, regardless of whether 180 days have passed.
The provision in §717 allowing federal employees to sue
without taking an appeal to the Appeals Review Board
is based on an express congressional determination that
such appeals are usually futile because “ the record shows
that the Board rarely reverses the agency decision” .123
Inasmuch as the entire exhaustion doctrine, unlike statutes
of limitations124 *, is a creation and creature of the federal
judiciary, this Court should, we submit, defer to congres
sional judgment in this regard rather than requiring the
aggrieved employee to prove in each case that such an
123 H. Rep. 92-238, 92nd Cong., 2d Sess., p. 24.
124 See Johnson v. Railway Express Agency, 44 L. Ed. 2d 295,
302 (1975).
6 4
appeal would be pointless.125 If an employee were required
either to appeal to the Appeals Review Board or to impair
his non-Title Y II rights,126 he would have to choose between
such impairment and sacrificing the right deliberately pro
vided by Congress under §717 to sue without further delay.
Such a result would change sections 717 and 1981 from
complementary to conflicting remedies, and tend to require
an employee to elect between them.127
Petitioner, moreover, maintains that, as a matter of fact,
an appeal to the Appeals Review Board would be futile.
The Board’s Annual Reports clearly establish a prima facie
case of futility—in the last three fiscal years the Board
has reversed an agency decision and entered a finding of
discrimination in only 37 of 1876 appeals, less than 2%.128
In most of the 37 cases, moreover, neither back pay nor
promotions were awarded to the complainant. I f afforded
an appropriate evidentiary hearing on this question, peti
126 See p. 51, stipra.
126 Those- rights would not be forfeited by his failure to take
such appeal, provided he took it later upon being afforded an
opportunity to do so by the court. See pp. 65-67, infra.
127 Such forced elections among independent remedies is con
trary to the congressional scheme. Alexander v. Gardner-Denver
Co., 415 U.S. 36, 49-51 (1974). It is manifestly inconsistent with
Alexander to require an aggrieved employee to sacrifice his rights
under one remedy as a condition of receiving relief under another
remedy. Were the rule otherwise, an employer could condition
the providing of partial relief under one independent scheme upon
the waiving of the employee’s rights to seek complete relief under
a complimentary scheme, a clearly impermissible result. It is un
clear whether an employee might be able to partially avoid this
dilemma by suing under §717 on the 5th day and appealing to the
Board on the 10th day, but Congress certainly did not contemplate
that such tactical maneuvering would be necessary to preserve
independent remedies.
128 Board of Appeals and Review, Work Load Statistics, Fiscal
Tears 1972, 1973, 1974. See Sperling v. U.S., 9 EPD 10,100, p.
7487 (3d Cir. 1975).
65
tioner would adduce evidence demonstrating why so few
appeals are successful and that the process is little more
than an empty ritual.129
In any event, if this Court, or the district court on re
mand, should conclude that petitioner had an obligation to
further exhaust the administrative remedies, the proper
disposition of the case would not be an outright dismissal.
At least since Prentis v. Chesapeake & Ohio Railway, 211
U.S. 210, 232 (1908), it has been clear that, where a party
has not properly exhausted his administrative remedies,
the court is not to dismiss the case but merely to stay
proceedings while that administrative proceeding is re
sumed and completed.130
In Penn v. Schlesinger, No. 74-476, the government, while
objecting that plaintiffs had not exhausted their admin
istrative remedies, did not seek a dismissal with prejudice,
129 At such a hearing the evidence would show: (1) that the
Board virtually never follows or even considers substantive fed
eral law as expounded by the courts regarding employment dis
crimination; (2) that the Board members have neither expertise
nor experience in employment discrimination or personnel mat
ters; (3) that there has been racial discrimination in the promo
tion of Board personnel; (4) that Board members tend to vote
along racial lines; (5) that the Board does not treat its earlier
decisions as meaningful precedent, and decides each case on an
ad hoc basis; (6) that the seven members of the Board write each
year approximately 3,000 opinions totaling some 15,000 pages,
and that this volume of work precludes Board members from
significant consideration of the facts of each case; (7) that the
opinions in each case are drafted by appeals examiners employed
by the Board before it is considered by the members, that these
drafts are rarely altered by the Board, and that the examiners
are primarily recent law school graduates with no experience
whatever in federal personnel problems, employment discrimina
tion questions, or the practice of law.
180 See also Christian v. New York Department of Labor, 414
U.S. 614, 624 (1974) ; Pacific Telephone, etc. Co. v. Keykendall,
265 U.S. 196 (1924); Parisi v. Davidson, 405 U.S. 34, 36 (1972) ;
Somma v. United States, 283 F.2d 149 (3d Cir. 1960).
6 6
but asked only that the plaintiffs be required to complete
exhaustion. The government correctly recognized that, if
this procedure were followed, a time limit should be placed
on further administrative proceedings to prevent unfair
delay.131
Where a litigant has failed to satisfy applicable exhaus
tion requirements, this is certainly the correct approach.132
It would of course be inappropriate for any governmental
defendant to object that there were as yet unused admin
istrative processes, and yet oppose permitting the plaintiff
to invoke such procedures. That is particularly true for fed
eral employees as to whom Congress itself has determined
that the exhaustion requirements are unclear.133 An em
ployee should not be required to guess, at peril of forfeiting
his claim, when the moment has arrived which a court may
later determine was the right time to sue. Accordingly,
if this Court or the district court concludes that petitioner
131 Appellants’ Supplemental Brief on Behearing En Banc, Penn
v. Schlesinger, No. 72-3684, 5th Cir. p. 10, n. 9. “ On the remand the
district court should proceed by dismissing the complaint without
prejudice to the plaintiffs filing a new action, if necessary, upon
exhaustion of administrative remedies. In the alternative, the
district court could simply stay all further proceedings until
plaintiffs have exhausted their administrative remedies. Cf.
Somma v. United States, 283 F.2d 149 (C.A. 3, 1960). The court
may also wish to specify a time period within which the defendant
agencies could act on plaintiff’s claims and after which plaintiffs
could return to court. This approach was adopted in the Equal
Employment Opportunity Act of 1972, 42 TJ.S.C. 2000e-16(c)
which gives agencies 180 days from the filing of the initial charge
within which to act after which the aggrieved employee or ap
plicant may file suit.”
132 In a section 717 action, of course, such a stay of judicial
proceedings would be inappropriate once the specific exhaustion
requirements of that statute were met. Congress authorized the
filing of a civil action after 180 days because it concluded that
it would be unfair to the plaintiff to require him to delay further,
Grubbs v. Blitz, 514 F.2d 1323 (D.C. Cir. 1975).
133 See p. 57, supra.
67
was required to further exhaust his administrative reme
dies, the district court on remand should permit petitioner
to file an appeal with the Appeals Review Board, and if
he does so, to issue an appropriate stay of further pro
ceedings134 for a period of no more than 180 days while
the Board considers that appeal.
CONCLUSION
For the above reasons, the judgment and opinion of the
Second Circuit should be reversed.
Respectfully submitted,
J ack G reenberg
J ames M. N abrit , III
Charles S teph en R alston
M elvtn R . L eventhal
B arry L . G oldstein
B ill L a n n L ee
E ric S chnapper
10 Columbus Circle
New York, New York 10019
J eep Greenup
200 West 135th Street
New York, New York 10030
Counsel for Petitioner
134 The stay would not normally bar all judicial proceedings.
Under most circumstances, as in the instant case, discovery should
be permitted during this period, since there is no provision for
discovery in the administrative process and the information re
vealed would be of assistance to the agency or Board, and, if they
deny relief, to the court.
A P P E N D I X
Region Two— -General Services Administration
Work-Force Analysis By G.S. Grade
November 30, 1973
Appendix A*
G.S. White
Other**
Minority Black Total
% of Total
Black
1 ■-- — — — —
2 2 — 6 8 75%
3 78 14 48 140 34%
4 192 21 71 284 25%
5 205 31 87 323 27%
6 55 4 21 80 26%
7 80 12 25 117 21%
8 15 1 2 18 11%
9 92 5 17 114 15%
10 — — — — —
11 140 1 21 162 13%
12 107 10 5 122 4%
13 52 3 3 58 6%
14 23 1 2 26 8%
Totals 1041 103 308 1452 21.2%
Average
Grade
Black Male Black Female White .Male White Female
6.89 5.25 8.8 5.08
* This compilation derives from Affirmative Action Plan PY 1975,
G.S.A., Region Two. It is not part of the record in this case.
** Spanish Surname, American Indian & Oriental
laa
Excerpt from The Federal Civil Rights Enforcement Effort—
1974, Volume V, To Eliminate Employment Discrimination.
A Report of the United States Commission on C ivil Rights,
July 1975.
Appendix B
(See Opposite) HeW*
2aa
61
IV. P rocessin g T it le VII Complaints
P rio r to the exten sion o f T it le VII coverage to Federal employment,
the Commission had issued reg u la tion s governing employment d iscr im in ation
201
com plaints brought under E xecutive Orders 11246 and 11478. In 1971,
con gression a l committees in both the House and Senate s tron g ly c r i t i c i z e d
the Commission's com plaint procedures and determined that they may have
a c tu a lly denied employees im partia l in v e st ig a t io n s and fa ir c o n s i
d era tion . Bias again st complainants appeared to the committees to be
inherent in the procedures, s in ce the a lle g e d ly d iscrim in atory agencies
were resp on sib le fo r in v e st ig a t in g the com plaints and rendering fin a l
d e c is io n s , unbound by the fin d in gs o f the hearing o f f i c e r s . A gencies '
f in a l d e c is io n s were appealable to the Commission's Board o f Appeals
202
and Review (BAR), but were affirm ed in most c a s e s . F in a lly , the
committees found that the com plaints system , as w e ll as other parts
o f the Federal Equal Employment Opportunity (EEO) program, had been
se r io u s ly weakened by the Commission’ s narrow view o f d iscr im in ation
as p rim arily a problem o f in d iv id u a l b ig o try rather than the r e su lt
203
o f system ic p r a c t ic e s . The Senate conanittee, whose p rov is ion s on 201 202 203
201. 5 C .F.R. § 713.211, e t se£ . (1969).
202. L e g is la tiv e H istory , supra note 42 , at 84 and 423.
203. Id . The Commission's complaint procedures were a ls o s tron g ly
c r i t i c i z e d in a rep ort prepared by Ralph N ader's P ublic In terest
Research Group in June 1972. See M.W. Brewer, J r . , P u b lic In terest
Research Group, Behind the Prom ises: Equal Employment Opportunity
in the Federal Government (1972).
3 a a
62
Federal employment u lt im a te ly passed, rep orted that the new T i t l e VII
a u th ority was " . . . intended to enable the CoasEission to re con s id er i t s e n t ire
com plaint s tru ctu re and the re la t io n s h ip between the em ployee, agency and
204
Commission in these c a s e s ,"
As in d ica ted in the d iscu ss ion below , alm ost three years a f te r
the enactment o f th is le g is la t io n , the C oam ission 's reg u la tion s were
s t i l l fundam entally biased against the employment d iscr im in a tion com
p la in a n t, fo r many o f the same reasons recogn ized by the con g ression a l
committees in 1971, In a d d it io n , the Commission's In terp reta tion s o f
com plainants' su bstantive and p rocedural r ig h ts were in many resp ects
205
con tra ry to the requirem ents o f T i t le V II .
206
The Commission reg u la tion s in e f f e c t in 1975 s e t out d e ta ile d
steps which aggrieved persons must fo llo w in ch a llen g in g employment
204. Id . at 423.
205. The Commission m aintains that parts o f the 1972 Amendments t o T i t le VII
"were d ra fted to accommodate s p e c i f i c a l l y to th e" com plaint system e x is t in g
at the time o f the enactment o f the le g is la t io n . "T h e re fo re ," the Commission
b e l ie v e s , "th e b a s is fo r the r e p o r t ’ s con clu s ion that the system and the
r ig h ts granted to Federal employees and a p p lican ts are con tra ry t o T i t le VII
requirem ents is d i f f i c u l t to f in d ." Hampton l e t t e r , supra note 7 .
206. 5 C.F.R. § 713.211 e t s e q . (1974 ). The reg u la tion s adopted in
1969 were on ly s l ig h t ly rev ised in 1972 fo llow in g the enactment o f
the 1972 Amendments to T i t l e V II. 5 C .F .R . 8 713.211 e t seq 37
Fed. Reg. 22717 (O ct. 21, 1972). A l i s t in g o f the r e v U iS S f made
at that time is found In FPM L etter No. 713-17 (Attachment 1 ) , Nov. 3 ,
1972, For a d iscu ss io n o f the re v ised com plaint r e g u la t io n s , see ,
B r ie f fo r the N ational A ssoc ia tion fo r the Advancement o f C olored
People (NAACP) Legal Defense and Education Fund as Amicus Curiae,
Laurel v . United S ta tes , appeal docketed No. 74-3746, 5th C ir . 1974.
Further r e v is io n s were made in the reg u la tion s in 1974 to in clu d e
p rov is ion s fo r the p rocessin g o f com plaints a lle g in g d iscr im in a tion
on the b a s is o f age, pursuant to P u b lic Law 93-259 ( e f f e c t i v e Mav 1
1974). FPM L etter 713-28, Ju ly 9 , 1974. ’
4aa
63
d iscr im in a tion in Federal employment. . Follow ing an in form al p rocess ,
com plaints proceed through form al in v e s t ig a t io n and a hearin g , i f
requested by the com plainant, and are then su b ject to f in a l d e c is io n
by the agency head or other designated o f f i c i a l . Complainants may f i l e
a c i v i l a c t io n in U.S. d i s t r i c t cou rt a fte r 180 days from the in i t ia t io n
o f the com plaint or a fte r f in a l agency a c t io n . They may a ls o appeal the
208
agen cy 's f in a l d e c is io n to the Commission's Appeals Review Board.
These procedures do not apply to general a lle g a t io n s o f d iscrim in a
t io n unrelated to a s p e c i f i c in d iv id u a l, which are made by an in d iv id u a l
209
complainant or a th ird p arty . When com plaints are made a lleg in g
d iscr im in a tion against a c la s s , the agency is requ ired only to e s ta b lish
a f i l e and to n o t i fy the complainant o f i t s d e c is io n , which the complainant
may appeal to the Commission w ith in 30 days. There is no requirem ent that
the agency conduct an in v e s t ig a t io n , nor are any time lim its s e t fo r agency
210
a ct io n . Complainants are not perm itted access to the in v e s t ig a to ry f i l e
u n t i l the case is c lo s e d , and there is no r ig h t o f appeal to the Appeals
211
Review Board. Further, the Commission reg u la tion s do not acknowledge that
207
207. Employee com plaints a lle g in g improper agency a ction s on grounds other
than r a c e , e th n ic , or sex d iscr im in a tion are processed accord ing to e n t ir e ly
d if fe r e n t procedures which provide fo r a hearing b e fo re the Commission, but
no r ig h t o f appeal to the Commission's h igh est review ing a u th ority , the
Appeals Review Board - 5 C .F.R. § 772. These procedures apply t o em ployees'
cha llen ges to adverse action s such as term ination , p rob ation , or pay c la s s i
f i c a t i o n . Complainants frequ en tly are faced w ith having to e le c t which o f
these procedures t o fo llo w in ch a llen g in g an adverse a ct io n which they b e lie v e
to be r a c ia l ly or sex u a lly d iscr im in a tory .
208. The name o f the Board o f Appeals and Review was changed in 1974 to the
Appeals Review Board.
209. 5 C.F.R. i 7 1 3 .2 1 2 (b ).
210. 5 C .F.R. 8 713.251. There are no procedural requirem ents governing the
conduct o f such in v e s t ig a t io n s . 211
211. FPM L etter No. 713-20 (Jan. 27, 1975).
5a<
64
com plainants ra is in g general a lle g a t io n s have the r ig h t to f i l e a c i v i l
212
a ct io n in c o u r t . During the f i r s t quarter o f f i s c a l year 1975,
approxim ately 25 general a lle g a t io n com plaints had been re fe r re d to
213
the Commission fo r rev iew . However, complainants ch a llen g in g an
agency ’ s employment p r a c t ic e , fo r example, a jo b requirem ent which may
ad verse ly a f fe c t a m in ority group, may pursue the ch a llen ge through
214
the regu lar com plaint p rocedures. However, when an employment p ra c t ic e
requ ired by the Commission is ch a llen ged , the com plaint may be made in
215
the form o f an appeal t o the Commission. The Commission has fa i le d to
212. 5 C.F.R. § 713.281.
213. The Commission did not begin to c o l l e c t data on the t o t a l number o f
such com plaints f i l e d n a tio n a lly u n t i l f i s c a l year 1975. In the Washington,
D .C ., area a lon e , 14 general com plaints were review ed during f i s c a l year
1974. In on ly two in stan ces was the agency ’ s d e c is io n rev ersed , In one
o f these ca ses , the agency was ordered to e s ta b lish a S ixteen P oint Program.
The S ixteen P oint Program, now c a lle d the Spanish Speaking Program, is
d iscu ssed on p . 108 in f r a . In the oth er in s ta n ce , the agency was in stru cted
to d iscon tin u e req u ir in g a job q u a l i f ic a t io n which was re la ted to a s in g le
recru itm ent sou rce . Interview w ith Paul L e s l ie , C h ie f, Washington Operations
D iv is io n , Bureau o f Personnel Management E valuation s, CSC, Nov. 13, 1974.
214. 5 C .F.R . § 3 0 0 .1 0 4 (c ) . v
215. 5 C.F.R. § 3 0 0 .1 0 4 (a ), An appeal i s made to the Appeals Review
Board whose d e c is io n is f in a l , su b je ct to d is c r e t io n a r y review by the
Commissioners. 5 C .F.R . § 772.401; 5 C .F.R . § 772.308. In a t le a s t
two in s ta n ces , cou rt cha llen ges to the Commission's entrance exam inations
have been dism issed or remanded fo r fa i lu r e o f the complainants to exhaust
these ad m in istra tive p roced ures. Douglas v . Hampton, supra note 121; League
o f United L atin Am. C itizen s v . Hampton, 501 F.2d 843 (D.C. C ir . 1974).
To d a te , there have been few com plaints f i l e d w ith the Commission pursuant
to these r e g u la t io n s . See In Re S h ir ley Long, Appeals Review Board, CSC,
Nov. 13, 1972 (f in d in g improper a jo b requirem ent by the U.S. Park P o lice
that candidates weigh a minimum o f 145 lb s . and have a minimum height
o f 5 ’ 8” ) .
baa
65
c ro s s -r e fe r e n c e these p rov is ion s in the standard com plaint reg u la t io n s ;
thus, many complainants are unaware that they may ch a llen ge broad
216
p ra ct ic e s in th e ir com plaints.
Although T it le VII in clu d es no r e s t r ic t io n s on the f i l in g o f a
com plaint again st a Federal agency, the Commission has imposed strin g en t
217
co n d it io n s . The Commission reg u la tion s bar a p p lican ts or employees
from in it ia t in g in d iv id u a l com plaints un less an inform al com plaint is f i r s t
r e g is te re d w ith in 30 days o f the date on which the a lle g e d ly d is -
218
crim inatory act occu rred . In a d d itio n , the complainant must a lle g e
216. Interview with Charles R alston , A ttorney , NAACP Legal Defense and
Educational Fund, Mar. 20, 1975.
217. The Commission s t r i c t l y construes the d e f in it io n o f ap p lican t fo r
employment. I t has h e ld , fo r example, that a person who takes a Federal
Government b a s ic entry exam ination but who has not ap p lied fo r employment
at a s p e c i f i c agency is not an ap p lican t w ith the C iv i l S erv ice Commission
or other agency and, th e r e fo r e , may not f i l e a com plaint. Appeals Review
Board D ecision in Case No. 713-74-278, Dec. 11, 1973. 218
218. The current reg u la tion s do not conta in a p ro v is io n included in previous
reg u la tion s which perm itted the f i l in g o f a complaint at any time i f the
a lleg ed d iscr im in a tion was continu in g in nature. Compare 5 C.F.R. § 713.213
(1969) w ith 5 C.F.R. § 713.214 (1972). T i t le VII complainants may f i l e
d iscr im in a tion charges w ith the EEOC against p riv a te employers or State
and loca l- governments w ith in 180 days o f the date o f the a lleg ed d is cr im i
natory a c t , 42 U.S.C. 2 0 0 0 e -5 (e ), but the sta tu tory time lim ita t io n has
been held not to apply in cases charging continuing d iscr im in a tion .
Culpepper v . Reynolds M etals C o ., 296 F. Supp. 1232, 1235-6, (N.D. Ga.
1969), r e v ’ d on other grounds. 421 F.2d 888 (5th C ir . 1970). Federal
com plainants, however, must comply w ith the Commission’ s s t r i c t time
lim ita t io n s unless- they can show good cause fo r the d e lay . 5 C.F.R. §
7 1 3 .2 1 4 (a )(4 ) . Thus, a Federal com plaint was r e je c te d as untim ely where
a female a lleg ed continuing sex d iscr im in a tion in prom otion p ra ct ice s on
the grounds that her com plaint was f i l e d 247 days a fte r the most recent
d en ia l o f prom otion to h er . Appeals Review Board, D ecision in Case No.
713-74-291, Dec. 17, 1973. The Commission’ s p o s it io n barring com plaints
a lle g in g continuing d iscr im in a tion is squarely in c o n f l i c t w ith T i t le VII
law. The Commission b e lie v e s that "th e requirement fo r tim ely f i l in g o f
com plaints b e n e fits a l l p a r tie s as i t perm its a comprehensive in v e s t i
ga tion o f recen t events which are s t i l l fresh and r e co n s tru c t ib le in the
w itn esses ' m inds." Hampton l e t t e r , supra note 7.
7 a a
66
219
a s p e c i f i c a ct o f d iscr im in a tion . The com plaint is trea ted in form ally
by an Equal Employment Opportunity C ounselor, who is d ire c te d to seek
r e s o lu t io n o f the matter w ith in 21 days. I f in form al measures f a i l , the
coun selor must inform the aggrieved person o f the r ig h t to f i l e a form al
220
w ritten com plaint w ith in 15 days o f the n o t ic e . 219 220
219. Hampton l e t t e r , supra note 7 . D espite con g ress ion a l c r i t ic is m o f
the Commission's tendency to view the problem o f d iscr im in a tion as one
o f in d iv id u a l a ction s and to ignore system ic d iscr im in a tion , the Commission,
n ev erth e le ss , con d ition s i t s com plaint procedures on the a lle g a t io n o f
a s p e c i f i c a ct o f d iscr im in a tion . See L e g is la t iv e H istory , supra note 42,
at 423.
220. The Commission m aintains that !,the grea t m a jor ity o f EEO-related
issu es o f concern to employees are reso lv ed in fo rm a lly , and some form o f
c o r r e c t iv e a ct io n is taken by the agency as a r e s u lt o f over on e-th ird
o f these con tacts w ith co u n s e lo rs ." T h erefore , the Commission b e lie v e s
that th is p rocess i s "an e f f e c t iv e means o f r e so lv in g problems qu ick ly and
in form a lly and su b s ta n t ia lly reducing the number o f issu es which need to
be processed through the form alized com plaint system and the c o u r ts ."
Hampton l e t t e r , supra note 7. On the other hand, there may be some
qu estion whether com plainants are fu l ly inform ed at th is stage o f the
nature o f the d iscr im in a tion they may have experienced or o f the r e l i e f
to which they may be e n t it le d . R alston in terv iew , supra note 216.
67
In the p ast, from 10 to 11 percent o f a l l inform al com plaints
developed in to form al com p la in ts:
Number o f Persons
Counseled______
Number o f Formal
Complaints
F is c a l Year 1972
F is c a l Year 1973
F is ca l Year 1974
16,883
26,627
31,484
1,834 (11%)
2,743 (10.3%)
3,435 (10.9%) 221
The vast m a jor ity o f form al com plaints in each f i s c a l year a lleg ed race
d iscr im in a tion , fo llow ed in frequency by a lle g a t io n s o f d iscr im in ation
222
on the b a sis o f sex , n a tion a l o r ig in , and r e l ig io n .
When a com plaint i s f i l e d , the head o f the agency or designated
o f f i c i a l may r e je c t any p ortion o f the com plaint which is o f a general 221 222
221. Memorandum to Irvin g K ator, A ssistan t E xecutive D ire cto r , CSC, from
Anthony W. Hudson, D ire cto r , O ff ic e o f Federal Equal Employment Opportunity,
CSC, Aug. 23, 1974. Approximately 35 to 45 percent o f the inform al com plaints
were fo llow ed by some " c o r r e c t iv e a c t io n ," but not n e c e ssa r ily any s p e c i f i c
r e l i e f to the com plainant. Id- An an alysis o f c o r r e c t iv e action s taken by
agencies in f i s c a l year 1973 found that these measures most fr e q u e n tly 'co n
s is te d o f an "improved personnel p r a c t i c e ," prom otion, redu ction or r e s c is s io n
o f adverse a c t io n , tra in in g o p p o r tu n it ie s , or reassignm ent. The next most
frequ en tly occu rrin g c o r r e c t iv e a ction s were reinstatem en t, p r io r i t y con sid
era tion fo r prom otion, improved EEO p r a c t ic e s , and removal o f adverse m ateria l
from o f f i c i a l personnel fo ld e r s . Telephone in terview w ith Anthony W. Hudson,
D ire cto r , O ff ic e o f Federal Equal Employment Opportunity, CSC, Nov. 25, 1974.
222. Race d iscr im in a tion com plaints represented 68 .4 percent o f the t o ta l .
form al com plaints in f i s c a l year 1972, 61 percent in f i s c a l year 1973, and
60 .3 percent in f i s c a l year 1974. The r e sp e ct iv e fig u res fo r the other
bases were as fo l lo w s : sex -fem ale , 16 p ercen t, 20 p ercen t, 21.7 p ercen t; sex -
m ale, 3 .6 p ercen t, 4 p ercen t, 6 .3 p ercen t; n a tion a l o r ig in , 9 .1 p ercen t,
10 p ercen t, 9 .5 p ercen t; r e l ig io n , 2 .6 p ercen t, 5 p ercen t, 4 .3 p ercen t.
Hudson memorandum, supra note 221. The Commission's tabu la tion o f
com plaints d id not in d ic a te the number o f com plaints a lle g in g both sex
and race or n a tion a l o r ig in d iscr im in a tion .
9aa
223
In f i s c a l year 1974, 10nature and not re la te d to the in d iv id u a l.
percent o f f in a l com plaint d is p o s it io n s reported by agencies were r e je c t io n s
224
o f com plain ts. The Commission has not issu ed c le a r g u id e lin es
s p e c ify in g what types o f a lle g a t io n s are "u n re la ted " to an in d iv id u a l
225
com plaint. I t has c o n s is te n t ly h e ld , however, that com plaints
a lle g in g d iscr im in a tion against a p a r ticu la r c la s s o f em ployees, o f
which the complainant is a member, are not w ith in the purview o f the
226
standard com plaint procedures. In c o n tra s t , c la ss and in d iv id u a l
223. 5 C .F.R . § 713.215. The complainant may ch a llen ge such a r e je c t io n
by appealing to the Commission or by f i l i n g a c i v i l a c t io n . Id .
224. Of 2,650 d is p o s it io n s , 265 were r e je c t io n s . Hudson memorandum,
note 221. ’
225. The Commission has m erely in d ica ted that a lle g a t io n s o f d iscr im in a tion
which do not f a l l w ith in the purview o f the reg u la tion s are those not f i l e d
by an employee or ap p lican t fo r employment in the agency where the act
occu rred , do not r e la te to an employment m atter over which the agency has
ju r is d ic t io n , or are not based on ra ce , c o lo r , sex , r e l ig io n , or nation a l
o r ig in . FPM L etter No. 713-213, Sept. 21, 1973. The Commission has in d i
cated that "each com plaint must be considered on i t s own m erits . What may
be an 'u n re la te d ' a lle g a t io n in one com plaint may w e ll be the core o f another
com p la in t." Hampton l e t t e r , supra note 7.
■ 223 224 225 226 • fo r example, Appeals Review Board, D ecision in Case No. 713-74-275,
Dec. 10, 1973. The complainant a lleg ed that an agency p o l ic y o f c o n tro llin g
grade e s c a la t io n , which app lied to on ly two jo b c la s s i f i c a t i o n s , was d is c r im i
natory on the b a s is o f sex , s in ce v ir t u a l ly a l l employees in the two c la s s i
f ic a t io n s were women. The complainant was an employee in one o f the two
jo b c a te g o r ie s . S im ila r ly , a Native American employee denied a prom otion
f i l e d a com plaint a lle g in g d iscr im in a tion against Native Americans in pro
m otions; the c la ss a lle g a t io n in the com plaint was r e je c te d . Appeals Review
Board, D ecision in Case No. 713-74-289, Dec. 17, 1973. Since the Commission
does not permit the regu lar p rocessin g o f c la ss -w id e com plain ts, some Federal
d i s t r i c t cou rts have held that a c la ss a c t io n law s u it i s barred . See e g
Pendleton v. S ch les in g er , No. 1689-73 (D.D.C. Aug. 9, 1974). In NoTCmbe7l974,
the NAACP Legal Defense and Educational Fund f i l e d a law suit ch a llen gin g the
Commission's p ra c t ic e o f severin g c la ss a lle g a t io n s from in d iv id u a l com plain ts.
B arrett v . United States C iv i l Serv. Comm'n, C iv i l No. 75-1694 (D.D.C. Nov. 20,
1974). See a ls o , le t t e r from W illiam P. Berzak, Chairman, Appeals Review
Board, to A llen B lack , NAACP Legal Defense and E ducational Fund, Oct. 18, 1974,
which affirm ed that the Commission does not perm it in d iv id u a ls to in clu d e c la ss
d iscr im in a tion a lle g a t io n s in th e ir in d iv id u a l com plaints.
1 0 a a
69
d iscr im in a tion claim s under T i t le VII have h i s t o r i c a l ly been trea ted
sim ultaneou sly , s in ce the Federal courts have long held that employ-
227
ment d iscr im in a tion i s , by d e f in i t io n , c la ss d iscr im in a tion . From
the com plainant's stand p oint, severance o f c la ss issu es from the
in d iv id u a l claim in the ad m in istra tive p rocess can be extrem ely
detrim ental because i t may preclude c o l le c t io n and in trod u ction o f
evidence r e la t in g to the c la ss which may be h igh ly m ateria l to the
228
in d iv id u a l 's case .
The ru le o f r e je c t in g p ortion s o f com plaints not p rev iou sly
ra ised a lso appears to be contrary to the h is t o r ic treatm ent o f
T it le VII com plaints. Charges b e fore the EEOC have g en era lly been
broadened, where ap p rop riate , to encompass l ik e and re la ted issues
229
to the one ra ised by the charging p arty . This p ra c t ic e was adopted
by EEOC and upheld by the courts on the grounds that v ictim s o f
employment d iscr im in a tion most o ften do not comprehend the complex
230
sources o f that d iscr im in a tion . There is no reason to b e lie v e that
Federal employees are any d if fe r e n t .
1 1 1 • See, e .g . , O atis v . Crown Z e lle rb a ch , 398 F.2d 496, 499 (5th C ir .
1968); Jenkins v . United Gas Corp. 400 F.2d 28, 33 (5th C ir . 1968).
228. Interview with R oderick Boggs, Federal Employment P r o je c t , Washington
Lawyers Committee fo r C iv i l R ights Under the Law, Mar, 19, 1974. In
p riv a te employment d iscr im in a tion ca ses , s t a t i s t i c s showing the r e la t iv e
status o f the e n t ir e c la ss are re leva n t to the in d iv id u a l d iscr im in ation
com plaint. McDonnell-Douglas Corp, v . Green, 411 U.S. 792 (1973).
229. See, e .g . , Sanchez v . Standard Brands, I n c . , 431 F.2d 455 (5 th C ir .
1970).
230. See, e ^ . , Danner v . P h il l ip s Petroleum C o ., 447 F.2d 159, 161-2
(5th C ir . 1971). Although m atters not ex p ress ly ra ised by the Federal
employee in the in form al com plaint may be r e je c te d from the form al com plaint,
m atters not ex p ress ly ra ised in the formal com plaint may be subsequently
in v estig a ted i f they r e la t e to the "work s i t u a t io n ." 5 C.F.R. 8 7 1 3 .21 6 (a ).
l la a
70
I f a com plaint is not r e je c te d , i t is then the r e s p o n s ib i l i t y o f
the agen cy 's Equal Employment O pportunity O ff ic e r to p rov id e fo r the
231
com plaint in v e s t ig a t io n . Complainants are not g iven the r ig h t to
in flu en ce the scope or method o f the in v e s t ig a t io n . The reg u la tion s do
not req u ire that in v e s t ig a to rs be c e r t i f i e d or tra ined in employment
d iscr im in a tion m atters, but on ly that they be employees from a p art o f the
agency not subordinate to the agency o f f i c i a l in charge o f the u n it in
232
which the com plaint a rose . U ntil September 1974, the Commission p ro
vided agencies w ith in v e s t ig a to rs on a reim bursable b a s is . E ffe c t iv e
September 3 , 1974, agencies were requ ired t o ass ign th e ir own s t a f f s to
233
in v e s t ig a t io n s . Thus, d e sp ite con g ress ion a l concern expressed in 1971
that there was an inherent b ia s in the com plaint in v e s t ig a t io n procedures,
Commission reg u la tion s s t i l l p rov ide that the in v e s t ig a t io n be conducted by
234
employees o f the a lle g e d ly d iscr im in a tory agency.
231. 5 C.F.R. § 713.216.
232. Id . In v estig a to rs o f Federal T i t l e VII com plaints may be persons w ith
in v e s t ig a t iv e experien ce or those who work in occu pation s req u ir in g in v e s t i
g a t iv e s k i l l s , such as a tto rn ey s , a u d ito rs , personnel management s p e c ia l i s t s ,
or management a n a ly sts . FPM L etter No. 713-34 , supra. The Commission provides
tra in in g fo r agency in v e s t ig a to r s , and has proposed a ru le which would requ ire
c e r t i f i c a t i o n by the Commission. Hampton l e t t e r , supra note 7.
233. FPM L etter No. 713-34, June 1974. However, between September 1973
and A p r il 1975, the Commission conducted 18 in v e s t ig a t io n s on the requests
o f agencies and between December 1974 and A p r il 1975 assumed ju r is d ic t io n
o f 62 com plaint in v e s t ig a t io n s because o f undue delay by a g en cies . Hampton
l e t t e r , supra note 7. The Commission's p o l ic y is to conduct in v e s t ig a t io n s
fo r agen cies where there is a p o te n t ia l c o n f l i c t o f in t e r e s t , p u b l ic i ty or
ou tsid e in t e r e s t , or where the agency is sm all. Id .
234. In 1973, th is Commission recommended that the C iv i l S erv ice Commission
reeva lu ate i t s reg u la tion s prov id in g fo r in v e s t ig a t io n s by agency person n el,
s in ce there were se r iou s qu estion s about the im p a r t ia lity o f such in v e s t i
g a to rs . See, U.S. Commission on C iv i l R ig h ts , The Federal C iv i l R ights
Enforcement E f fo r t : A Reassessment 55 (1 9 7 3 ). The Commission sees no basis
fo r the statement that there is inherent b ia s in the in v e s t ig a t io n p rocess .
Hampton l e t t e r , supra note 7.
12S-S.
71
Commission regulations further provide that the investigation include
a thorough review of the general work environment in which the complaint
arose and a comparison of the "...treatment of members of the complainant’ s
group identified by his complaint as compared with the treatment of other
employees in the organizational segment in which the alleged discrimination
235
occurred...." This provision ignores the possibility that the complaint
may have arisen in an organizational segment in which there was discriminatory
236
segregation of one class. It further militates against proper analysis
of the work force, since the complainant’s group is to be compared with
237
the aggregate of all other groups rather than with each separate group.
In addition, the term "organizational segment" is not defined to
indicate clearly how broad or restricted the investigation should be.
The Commission issued g u id e lin es in 1971 expla in ing in more d e ta il
238
how complaint investigations are to be conducted. These investigation
guidelines suffer from a number of deficiencies, only a few of which
235. 5 C .F.R. § 713.216.
236. For example, a com plaint may a r is e in an a ll-fe m a le c l e r i c a l p oo l or
in an a l l -b la c k m ail room. The Commission does not b e lie v e th is p ro v is io n to
be d e f ic ie n t because the term "o rg a n iza tion a l segment" may be in terp reted very
broad ly . Hampton l e t t e r , supra note 7.
237. An an alysis might f in d , f o r example, that 40 percent o f m in or itie s
and 20 percent o f nonm inorities are concentrated in the low est fou r grades.
I f the complainant i s a m in ority fem ale, the in v e s t ig a t io n should compare
the c o n d it io n o f m in ority fem ales sep arate ly w ith that o f nonm inority fem ales,
m inority m ales, and nonm inority males in order to determine the d isp a r ity
between the statu s o f m in ority fem ales, and the other groups. In a typ ica l
s itu a t io n , th is an a lysis would fin d that 50 percent o f m in ority fem ales,
40 percent o f nonm inority fem ales, 30 percent o f m in ority m ales, and 5
percent o f nonm inority males are concentrated in these grades. Thus, the
d is p a r ity between the com plain ant's group and the group w ith the best
status i s a d if fe r e n c e o f 45 p ercen t, rather than 20 p ercen t. For data
showing the com position o f the work fo r c e in the low est fou r grades, cross -
tabu lated by race and sex , see CSC, Manpower S t a t is t ic s D iv is io n , Bureau
o f Manpower Inform ation Systems, Federal C iv ilia n Personnel S t a t is t ic s :
Federal C iv ilia n Employment by M inority Group and Sex, Nov. 30, 1972.
238. Invest i g a tin g Complaints o f D iscrim in ation in Federal Employment, CSC,
Oct. 1971 /h e re in a fte r c ite d as In v estig a tion G u id e lin e s /.
13aa
72
would be e lim in ated in rev ised d ra ft g u id e lin es c ir c u la te d in November
239
1974. The most ser iou s d e fic ie n c y in the current g u id e lin es is th e ir
fa i lu r e to in clu d e a c o rr e c t d e f in i t io n o f the meaning o f d iscr im in a tion .
The g u id e lin es im p l ic i t ly adopt a d e f in it io n lim it in g d iscr im in a tion
240
to ov ert acts or patterns o f "u n fa ir trea tm en t." The g u id e lin e s in
241
d ra ft stage in 1974 d id not c o r r e c t th is d e f ic ie n c y , d esp ite the w e ll
e sta b lish ed r u le under T i t le VII that i l l e g a l d iscr im in a tion includes
not on ly d isp a ra te or u n fa ir treatm ent, but a ls o n eu tra l treatm ent which
had a d isp a ra te e f f e c t on any e th n ic , r a c ia l , or sex group, un less ju s t i -
242
f ie d by some com p ellin g , nondiscrim in atory purpose.
Second, the g u id e lin es g en era lly l im it the scope o f the in v e s t ig a t io n
to the a ct ion s and d e c is io n s o f the a lle g e d ly d iscr im in atory agency
o f f i c i a l and to the o rg a n iza tion a l segment in which the com plaint
243
a rose . The proposed new g u id e lin es would perm it extending the in v e s t i -
239. D raft In v e st ig a t io n G uidelines (u ndated), provided by Mr. Anthony W.
Hudson, D ir e c to r . O ff ic e o f Federal Equal Employment O pportunity. CSC, Nov. 1,
1974 /h e re in a fte r c ite d as D raft In v e s t ig a t io n G u id e lin e s /.
,240. The current g u id e lin es s ta te that the in v e s t ig a t io n should be s u f f i
c ie n t ly comprehensive to uncover any evidence o f ov ert d iscr im in a tion and
should develop enough in form ation to bring o u t . . .a n y p attern o f n on se le ction
or u n fa ir treatm ent o f members o f the com plain ant's group which might c o n s t i
tute evidence o f d is cr im in a t io n ------" In v e st ig a t io n G u id e lin es , supra note 238.
at 5.
241. The d ra ft g u id e lin es s ta te that "A pattern o f d iscr im in a tion is esta b
lish ed by evidence which shows d isp a ra te treatment o f members o f the com
p la in a n t 's group when compared w ith the treatm ent o f members o f other g rou p s ."
D raft In v estig a tion G u id e lin es , supra note 239, at 29-30.
242. G riggs v . Duke Power C o ., supra note 114.
243. In v estig a tion G u id e lin es , supra note 238, at 9 . This l im ita t io n can
operate sev ere ly to the disadvantage o f the com plainant, s in ce s t a t i s t i c a l
evidence based on the agency as a whole has been held to be h ig h ly m ateria l
to an in d iv id u a l 's ca se . See, fo r exam ple. Robinson v . Warner, No. 1654-23
(D .D .C ., June 24, 1974) in which the cou rt supplemented the ad m in istra tive
record w ith s t a t i s t i c a l evidence based on the e n t ir e Navy Command Systems
Support A c t iv ity and reversed the agen cy 's f in a l determ ination o f non d iscrim i
n a tion .
l 4 a a
73
gation to other units under the same administrative jurisdiction but not
244
to the agency as a whole.
Third, the guidelines on investigating complaints arising in the
selection or promotion process fail to include essential instructions
on investigating a personnel action. The guidelines merely instruct
the investigator to list the name, sex, race, or ethnicity of each of
the candidates and their relative ranking. There are no instructions
to investigate the possibility of systemic discrimination in the ranking
itself or in the process by which candidates were placed on the certificate
245
list of eligibles. The proposed new guidelines indicate that the
investigator should ,T. . . consider the need for looking into the reasons
why the complainant did not appear on the certificate or was not rated
246
high enough to be within reach on the certificate," but they do not
244. Draft In v estig a tion G u id elin es , supra note 239, at 30.
245. In v estig a tion G u id elin es , supra note 238, at 15-17. The fa i lu r e to
in clu d e such an an a ly sis in an in v e s t ig a t io n can se r io u s ly in ju re the com
p la in a n t. For example, a b lack female who was the only b lack in her d iv i
s ion and who had been passed over fo r prom otion three times and fo r tra in in g
op p ortu n ities two times was held not to have been su b jected to race d is c r im i
nation on the grounds that the s e le c t io n p a n e l's d e c is io n was based on
"documentary ap p ra isa ls and eva lu a tion s" and the personal knowledge o f the
candidates by the three panel members, two su perv isors and the s e le c t in g
o f f i c i a l . Appeals Review Board, D ecision in Case No. 713-74-284, Dec. 13,
1973. Race d iscr im in a tion can e a s i ly occur in su p erv iso rs ' ap p ra isa ls o f
em ployees. See, e .g . , Rowe v . General M otors, 457 F.2d 348 (5 th C ir . 1972).
Y et, the Commission made the d e c is io n in the above case w ithout any in d i
ca tion that an in v e s t ig a t io n had been made o f the eva lu a tion s and ra tin gs
given b lack a p p lican ts and employees by the agency. The Commission main
ta in s , however, that the procedures fo r in v e st ig a t in g prom otion action s
are adequate because they determine how and why each candidate is ranked.
Hampton l e t t e r , supra note 7.
246. Draft In v estig a tion G u id elin es , supra note 239, at 11.
15&&
74
include instructions on the method by which this investigation should
247
be conducted. Neither the current nor proposed guidelines contain
any instructions concerning the investigation of qualification standards
which may have had an illegally discriminatory effect on the complainant.
Finally, both sets of investigation guidelines suffer from extreme
vagueness. For example, both instruct the investigator to determine
whether there exists "...any improper segregation of personnel by reason
of their membership in the group alleged to have been discriminated
249
against,” but there is no explanation of the meaning of the term
"improper." Similarly, the investigator is instructed to collect
information about the agency's merit promotion plan and procedures,
250
If needed for an understanding of the case." However, there are no
criteria included for determining the relevance of such information,
or for evaluating a merit promotion system to determine compliance
with the dictates of Title VII.
247. Id . at 39-43.
248. In review ing in d iv id u a l com plain ts, the Commission does not con sid er
the jo b re la ted n ess o f a p a r ticu la r s e le c t io n standard which r e je c te d the
com plainant. The d ra ft g u id e lin e s propose to p ro h ib it the in c lu s io n in the
in v e s t ig a t iv e f i l e o f any Commission Job Element Guides or ra tin g schedules
Id . at 15. This in form ation cou ld be e ss e n t ia l to ch a llen g in g the jo b
re la ted n ess o f a q u a l i f ic a t io n standard.
249. In v estig a tion G u id elin es , supra note 238, at 10; Draft In v estig a tion
G u id e lin es , supra note 239, at 31.
250. In v estig a tion G u id e lin es , supra note 238, a t 17; D raft In v estig a tion
G u id e lin es , supra note 239, at 42.
16a
75
The new g u id e lin es in d ra ft stage as o f November 1974 contained
two d is t in c t improvements over the current g u id e lin es in that they
emphasized the importance o f the in v e s t ig a t o r 's m aintaining independence
251
from the agen cy 's o f f i c i a l s and that they perm itted the in v e s t ig a to r to
c o l l e c t in form ation re leva n t to a b a s is o f d iscr im in a tion oth er than
252
that charged by the com plainant. The r e v is io n s to the 1971 v ers ion o f
253
the G uidelines were prepared w ithout con su ltin g w ith EEOC, d esp ite
a c le a r request from Congress In 1972 that the Commission
254
ob ta in EEOC's a d v ice on equal employment m atters.
251. D raft In v estig a tion G u id elin es , supra note 239, at 12. The d ra ft
g u id e lin es would p ro h ib it s p e c i f i c a l l y , fo r example, the d is c lo s u r e o f
the in v e s t ig a t iv e f i l e to these o f f i c i a l s during the in v e s t ig a t io n . I d .
252. Id . at 26. Perm itting th is f l e x i b i l i t y to the in v e s t ig a to r i s
im portant, s in ce i t i s not uncommon fo r a complainant, to a l le g e one
b a s is o f d iscr im in a tion , e . g . , sex d iscr im in a tion , when in fa c t
she or he may be the v ic t im o f race or ethn ic d iscr im in a tion as w e ll .
253. Hudson telephone in terv iew , supra note 221. The Commission consu lted
w ith rep resen ta tiv es from agency in te rn a l EEO programs, in clu d in g
rep resen ta tiv es from EEOC. However, the Commission d id not con su lt w ith
the EEOC O ff ic e o f Compliance. Hampton l e t t e r , supra note 7.
254. L e g is la tiv e H istory , supra note 42 , at 425. The Commission's s t a f f in
d ica ted that EEOC was not consu lted concerning the r e v is io n because the
Commission p erce ived that the two agen cies had b a s ic d if fe r e n c e s in
approach to in v e s t ig a t io n s . A ccording to the Commission’ s s t a f f ,
Federal com plaint in v e s t ig a to rs are to lo o k fo r evidence that in d iv id u a ls
rece iv ed d isp a ra te treatm ent; the Commission's s t a f f f e l t that EEOC
in v e s t ig a t io n s were d ire c te d p rim arily to c o l le c t in g s t a t i s t i c a l
evidence on the c l^ s s as a whole. Hudson telephone in terv iew , supra
note 221. For a d iscu ss io n o f EEOC in v e s t ig a t io n s , see Chapter V in fr a .
EEOC in v e s t ig a t io n s , in f a c t , appear to e n ta il c o l l e c t i o n o f both
types o f in form ation . There i s a strong reason to b e lie v e that
Congress intended that the b a s ic approach o f the Commission be more
l ik e that o f EEOC in a l l m atters and that the Commission u t i l i z e the
r e s e r v o ir o f ta len t and e x p ertise a v a ila b le w ith in the EEOC fo r
improving Federal com plaint and other equal employment programs. L e g is la tiv e
H istory , supra note 42, at 425.
rfaa
76
Commission reg u la tion s req u ire the agency to make a second attempt
to re so lv e the com plaint in form a lly fo llow in g the com pletion o f the
255
investigation. If an adjustment of the complaint is not obtained, the
complainant is to be notified of the proposed disposition by the agency
25
and o f the r ig h t to request a hearing w ith in 15 days o f the n o t i f i c a t io n .
In f i s c a l year 1974, s l ig h t ly le s s than 25 percent o f the com plainants
, 257whose cases were decided had requested and received a hearing.
258
Hearings are c lo sed proceed ings conducted by a com plaints
259
examiner, who i s c e r t i f i e d by the Commission and who must be an employee
255. 5 C.F.R. § 7 1 3 .2 1 7 (a ). The complainant i s e n t it le d to review the
in v e s t ig a t io n f i l e .
256. 5 C .F.R . § 71 3 .21 7 (b ).
257. Hearings were held in 643 o f the 2,650 cases which re ce iv ed f in a l
d is p o s it io n s during f i s c a l year 1974. Hudson memorandum, supra
note 221 j Hudson telephone in terv iew , supra note 221 •
258. Only persons d ir e c t ly connected w ith the com plaint may atten d .
5 C.F.R. § 7 1 3 .2 1 8 (c )(1 ) . However, the a lle g e d ly d iscr im in a tory
o f f i c i a l is not e n t it le d to be p resen t. D iscrim in ation Complaints
Examiners Handbook, O f f ic e o f Federal Equal Employment O pportun ity ,
Apr. 1973, at 36.
259. 5 C .F.R . § 7 1 3 .2 1 8 (a ). Complaints examiners must meet the
q u a l i f ic a t io n s e s ta b lish ed in the Commission’ s GS-930 (Hearings and
Appeals) S e r ie s , which i s a p p lica b le to most hearing o f f i c e r p o s it io n s
not su b je ct to the A dm inistrative Procedure A ct. A law degree i s not
requ ired but may su b s t itu te fo r work experien ce in a d ju d ica tin g ca ses .
E xpertise in T it le V II law or employment d iscr im in a tion m atters i s not requ ired .
Memorandum to J . P h ilip Bohart, A ctin g D ire cto r , Personnel and Labor R elations
D iv is io n , from H. Alan McKean, C h ie f, Standards D iv is io n , Apr. 1, 1974. This
c e r t i f i c a t i o n standard was adopted in con ju n ction w ith a reorg a n iza tion o f the
employee appeals system w ith in the Commission and the establishm ent o f the
Federal Employee Appeals A u th ority . The reorg a n iza tion p rim arily a f fe c te d the
system through which employees appeal adverse personnel a c t ion s and did not
change any o f the appeal p ro v is io n s p erta in in g to d iscr im in a tion com plain ts.
CSC, New Federal Employee Appeals System (undated).
l 8 a a
77
from another agency except in unusual circum stances. The complainant
261
has the r ig h t to be represented by counsel and to cross examine
w itnesses but not the r ig h t to obtain inform ation other than that
262
c o lle c t e d by the agency or to subpoena documents or w itn esses . The
hearing is not to be an ad versa ria l proceeding but rather an exten sion
263
o f the in v e s t ig a t io n .
To a s s is t com plaints exam iners, the Commission issued an exam iner's
handbook in A p ril 1973, which g iv es in s tru c t io n s on preparing fo r and
conducting a hearin g , adm itting and evaluating ev iden ce , and w ritin g
264
recommended d e c is io n s . Although the D iscrim in ation Complaints
260
260. Where an agency i s prevented by law from d is c lo s in g to persons
without se cu r ity c learan ces inform ation concerning the matter complained
o f , the com plaints examiner may be an employee o f the agency. 5 C.F.R.
§ 71 3 .21 8(a ).
261. With resp ect to represen ta tion by cou n sel, the Commission on C iv il
Rights recommended in 1970 that fr e e le g a l a ss ista n ce be provided on re
quest to a l l employees who requ ire i t . Enforcement E ffo r t rep ort , supra
note 147, at 358. The C iv i l S erv ice Commission has not implemented such a
program in the ensuing 5 y ears .
262. The com plaints examiner has the au th ority to requ ire agen cies to
produce w itnesses requested by the complainant when the com plaints
examiner determ ines that the testim ony is "necessary" and where i t is
not "a d m in is tra tiv e ly im practicab le" f o r the agency to comply w ith the
request. 5 C.F.R. § 7 1 3 .2 1 8 (e ). Both the agency and the complainant
have the r ig h t to submit evidence in the form o f documents, a f f id a v i t s ,
or testim ony o f w itnesses . D iscrim in ation Complaints Examiner Handbook,
supra note 258, at 85, 87. The complainant may a ls o request that the
examiner request evidence or testim ony. I f the examiner denies the request,
reasons must be given in the record .
263. D iscrim ination Complaints Examiners Handbook, supra note 258, at 5.
See a ls o , le t t e r from Robert E. Hampton, Chairman, CSC, to Arthur F.
Sampson, Acting A dm inistrator, General S erv ices A dm inistration , June 18, 1973.
264. Id.
1 9 &&
78
Examiners Handbook was issued more than a year a f te r T i t le V II became
a p p lica b le to Federal employment, i t con ta in s no g u id e lin es or inform ation
265
on su bstantive T i t l e VII law. In a d d it io n , the Handbook’ s in s tru c t io n
concerning the meaning o f d iscr im in a tion and qu estion s o f burden o f p roo f
are contrary to the weight o f au th ority under T i t l e V II » The Handbook
266
d escr ib es d iscr im in a tion e x c lu s iv e ly in terms o f d ispa ra te treatment and
p rov id es that complainants have the i n i t i a l burden to present evidence o f
d isp a ra te treatm ent. The weight o f T i t le V II law, however, does not p lace
the burden on p la in t i f f s to show d isparate treatm ent; in stead , p la in t i f f s
are held to make out a prima fa c ie case o f i l l e g a l d iscr im in ation by p re
sen tin g s t a t i s t i c a l evidence showing a d isp a r ity in the employment status o f
267
the a lleg ed d iscr im in atees and oth er em ployees. The Commission’ s hand
book does not in d ica te that Federal T it le V II com plainants have access to
268
th is procedure in the con text o f the ad m in istra tive hearin g . I f the
record e s ta b lish e s that d isp a ra te treatm ent has occu rred , then
the examiner is in s tru cted to view the evidence most fa vora b ly to the
agency and to make a fin d in g o f d iscr im in a tion i f a reasonable mind
could not in fe r from the evidence so viewed that the agency ’ s a ct io n
was free from d iscr im in a tion on the b a s is o f ra ce , c o lo r , se x , r e l ig io n ,
265. The Commission d oes , however, provide a d ig es t o f T it le VII cases
fo r com plaints exam iners. Hampton l e t t e r , supra note 7.
266. Id . at 57, 62. As noted on p. 72 supra. T i t le VII reaches n o t 'o n ly
d ispa ra te treatment but n eu tra l treatment vh ich has a d isp a ra te im pact.
267. See e .g ..M cD onnell Douglas Corp. v . Green, supra note 228;
Rowe v T T en era l Motors C orp ., supra note 245; Parham v . Southwestern
B ell Telephone C o ., 433 F.2d 421 (8th C ir . 1970).
268. Complaints examiners frequ en tly exclude evidence p ro ffe re d to show
d iscr im in a tion aga in st the com plain ant's c la s s and such a c tion s are
ro u tin e ly a ffirm ed by the Appeals Review Board. See e .g . . Appeals Review
Board D ecision in Case No. 713-73-593 (June 14, 1973).
2 0 a a
79
or n a tion a l o r ig in . In sh ort , the in s tru c t io n s lead a reasonable person
to b e liev e that the com plaints examiner is in stru cted to apply a standard
which g ives the b e n e fit o f the doubt to the a lle g e d ly d iscr im in atory agency.
The fin d in g s and recommendations o f the com plaints examiner are
not b inding on the agency unless the examiner recommends a fin d in g o f
d iscr im in a tion and the agency has not issu ed a f in a l d e c is io n w ith in
270
180 days a f te r the com plaint was f i l e d . I f the agency r e je c t s or
m od ifies the d e c is io n recommended by the com plaints examiner, o r i f
the agen cy 's d e c is io n i s made when a hearing is not requested , i t
271must se t fo r th the s p e c i f i c reasons fo r i t s f in a l a c t io n . During
f i s c a l year 1974, 7 percent o f f in a l agency d is p o s it io n s made a
272
fin d in g o f d iscr im in a tion .
269
269. D iscrim ination Complaints Examiners Handbook, supra note 2585 a t
62. The Handbook s ta tes as fo llo w s :
Where the record shows d ispa ra te treatm ent, the
Examiner must then evaluate the evidence and
assemble the fa c t s which tend to e s ta b lish a case
fr e e from d iscr im in a tion based on the com plainant’ s
ra ce , c o lo r , r e l ig io n , sex , o r n a tion a l o r ig in . I f a
reasonable and unprejudiced mind cou ld not in fe r from the
fa c t s so assembled that the agency was fr e e from d is cr im i
na tion in the m atter, then the Examiner should make
a fin d in g o f d iscr im in a tion . Id .
270. 5 C .F .R . i 7 1 3 .2 2 0 (d ); I 7 1 3 .22 1 (b ).
271. 5 C .F .R . § 713.221. However, the Commission has he ld that an agen cy 's
fa i lu r e to p rov ide s p e c i f i c reasons fo r i t s a c t io n does not in v a lid a te the
d e c is io n i f the ARB prov ides reasons in i t s review . Minutes o f C iv i l S ervice
Commission, Feb, 27, 1974, d e c lin in g to reopen Appeals Review Board D ecisions
Nos. 713-73-595, 713-74-179, and 713-74-43 .
272. A fin d in g o f d iscr im in a tion was made in 170 o f 2,650 d is p o s it io n s .
Hudson memorandum, supra note 221, F inal d is p o s it io n s in clu d e r e je c t io n s
or ca n c e lla t io n s o f com plaints. F indings o f d iscr im in ation
con stitu ted 12.8 percent o f a l l d e c is io n s on the m erits . Complaints
examiners made fin d in g s o f d iscr im in a tion more frequ en tly than did
agen cies . In the 643 cases which went t o a hearing, com plaints examiners
recommended a fin d in g o f d iscr im in a tion in 109 (1 6 .9 percent) cases .
Agencies adopted con tra ry fin d in g s in 26 .6 percent o f these ca ses . CSC, O ff ice
o f F ederal Equal Employment O pportunity, Performance by Agency and CSC Complaints
Examiners in EEO D iscrim in ation Complaint Cases During FY 1974 (u ndated).
21aa
80
Commission reg u la tion s requ ire that agen cies proceed w ith the
p rocessin g o f com plaints w ithout "undue delay" so that com plaints are
reso lv ed w ith in 180 days a f te r f i l i n g , inclu d in g time consumed by a
273
hearing. However, in f i s c a l year 1974, the Government-wide average
time spent p rocessin g a com plaint was 201 days, which was 26 days
274'
longer than that o f f i s c a l year 1973. Some m ajor agency com plaint
275
p rocessin g procedures averaged w e ll over 300 days.
273. 5 C .F.R . § 713.220.
274. Memorandum to Irv in g K ator, A ssistan t E xecutive D ir e c to r , CSC,
from Anthony Hudson, D ir e c to r , O ff ic e o f Federal Equal Employment
O pportunity, CSC, Precom plaint Counseling and D iscrim in ation Complaint
A c t iv ity During F is c a l Year 1974, Aug. 23, 1974. A gencies whose
average com plaint p rocessin g time in f i s c a l year 1974 exceeded 180
days were as fo l lo w s : Department o f A g ricu ltu re (214 d a y s ); Department
o f the Army (211 d a y s ) ; Atomic Energy Commission (317 d a y s ) ; Department
o f Commerce (256 d a y s ) ; Defense C ontract Audit Agency (307 d a y s ) ; Defense
Supply Agency (211 d a y s ); Environmental P ro te ction Agency (259 d a y s );
Equal Employment Opportunity Commission (296 days) Federal Communications
Commission (856 d a y s ); General S erv ices A dm inistration (212 d a y s);
Department o f H ealth , Education and W elfare (367 d a y s); Department o f
Housing and Urban Development (369 d a y s ); Department o f the In te r io r (197
d a y s ) ; Department o f J u s tice (250 d a y s ) ; Department o f Labor (253 d a y s );
N ational A eronautics and Space A dm inistration (254 d a y s ) ; N ational
Labor R ela tion s Board (296 d a y s ); S e le c t iv e S erv ice System (370 d a y s);
Small Business A dm inistration (252 d a y s ); Department o f T ransportation
(395 d a y s); U.S. In form ation Agency (238 d a y s ); and U.S. P osta l S erv ice
(189 d ay s). A gencies whose average com plaint p rocessin g time in f i s c a l
year 1974 met the 180-day l im it were as fo l lo w s : A dm in istrative O ff ic e
o f U.S. C ourts, U.S. A ir F orce , Army and A ir Force Exchange, C iv i l
S erv ice Commission, Commission on C iv i l R igh ts , Federal Maritime
Commission, General Accounting O f f i c e , Government P rin tin g O f f i c e ,
N ational Guard Bureau, N ational Science Foundation, Department o f the
Navy, O f f ic e o f Management and Budget, Smithsonian, Department o f S ta te ,
Tennessee V a lley A u th ority , Department o f the Treasury, and Veterans
A dm in istration . During f i s c a l year 1974, there were no com plaints
f i l e d aga in st ACTION, Agency fo r In tern a tion a l Development, C iv i l
A eronautics Board, Defense Communications Agency, D efense In te l l ig e n c e
Agency, D efense Mapping Agency, Defense Nuclear Agency, Federal Power
Commission, N ational G allery o f A rt, N ational M ediation Board, N ational
S ecu rity Agency, O ff ic e o f Economic O pportun ity, or U.S. S o ld ie rs Horae.
Id .
275. See, fo r example, HEW, HUD, DOT, c ite d in note 275 supra.
2 2 a a
ai
T it le VII au th orizes the Federal complainant to f i l e a c i v i l
a c t io n in U.S. d i s t r i c t cou rt i f the agency does not make & d e c is io n
276
w ith in 180 days o r w ith in 30 days o f the f in a l agency a c t io n . A
complainant may delay c i v i l a c t io n by appealing to the Commission’ s
277 278
Appeals Review Board fo r a review o f the record . In f i s c a l year
1974, approxim ately 30 percent o f agencies* f in a l d is p o s it io n s o f
279
com plaints were appealed to the Appeals Review Board. In approx i
m ately 75 percent o f these ca se s , the agency d e c is io n fin d in g no
276. 42 U .S.C. § 2000e“ 16c. A c i v i l a c t io n may be f i l e d w ith in 30
days a f te r f in a l agency a c t io n or f in a l a c t io n by the Commission i f
the-:com plainant e le c t s to appeal to the Commission.
2 7 7 . The Appeals Review Board, form erly c a l le d the Board o f Appeals
and Review, c o n s is t s o f nine members appointed by the Chairman o f
the Commission. Board members are career c i v i l servants who serve
at the p leasure o f the Chairman. As o f November 1974, the Board
con sisted o f 6 anglo m ales, 1 b la ck m ale, 1 Spanish surnamed male,
and 1 b la ck fem ale. The Board members, a l l o f whom are a tto rn ey s ,
are a ss is te d by a s t a f f o f 21 examiners and 15 c l e r i c a l w orkers.
None o f the s t a f f or Board members, as o f November 1974, had had any
prev iou s experien ce in T i t le VII law. Interview w ith W illiam Berzak,
Chairman, Appeals Review Board, Nov. 7 , 1974.
278. There i s no r ig h t to a hearing b e fo re the Board, although i t
w i l l r e ce iv e w ritten arguments in a d d ition to the record com piled
below . 5 C .F .R . i 713.234; Berzak in terv iew , supra note 277.
279. 808 o f the 2 ,650 f in a l d is p o s it io n s were appealed to the
Board during f i s c a l year 1974. Appeals Review Board, R eceip ts and
P roduction : EEO Appeals (O ct. 26, 1974).
2 3 a a
82
d iscr im in a tion o r r e je c t in g the com plaint was a ffirm ed . In s l ig h t ly
more than 10 percent o f the ea ses , the Board remanded the com plaint
281
to the agency fo r fu rth er in v e s t ig a t io n , and in approxim ately 7 percent
282
the appeal was ca n ce lled by the com plainant. The Board reversed
a g en cie s ' r e je c t io n s o f com plaints and fin d in g s o f no d iscr im in a tion in
283
5 .5 percent o f the t o t a l d e c is io n s rendered.
The Board review s the record t o determ ine i f i t shows that the complainant
284
was su b jected to d ispa ra te treatm ent. I t doee not con s id er d iscr im in a tion
in the form o f d isp a ra te im pact. I f d isp a ra te treatm ent i s shown, the
burden i s then s h ifte d t o the agency to come forward w ith evidence
280
° - ° 7' 8 Board decisions affirmed agencies’ decisions finding
SSS^f1 ti°n or rejecting the complaint. In fiscal year 1973,
585 of 692 Board decisions (or 84.5 percent) affirmed agencies'
not©8279?' PP Revlew Board* toeipts and Production, supra
y^r 1973f H V T T deciaion* "ere ln this category. In fiscal
cases L ^ c L a | T BO“ d deCisl°aS <25 of 692> remanded
rhfv—\ . I\ 1973’ °nly 1,4 Percent of Board final dispositions were the result of cancellations by complainants.
tW° perceat of the decisions, the Board recommended that further corrective action be taken by agencies.
The remaining decisions reversed agency decisions on the grounds ■
that improper procedures had been followed (.8 percent) or relected the appeal as untimely (.5 percent). rejected
MtreS? Board' s definition of "disparate treatment" appears to be
Zt TftLZTT,' f t,has,held> for example, that "favoritism" Is
fe i L w n “ f 11™ prohibited by law or regulations. Appeals
D®ci®don dn p38* No- 713-74-285, Dec. 17, 1973, wherein
employes 1 * alleged that supervisors showed favoritism to white
2 4 a a
83
that the treatm ent was ju s t i f i e d by some law fu l purpose, such as
Commission or agency q u a l i f ic a t io n standards. An agency ’ s d e c is io n
fin d in g no d iscr im in a tion w i l l be upheld i f the evidence in the record
285
supports the con clu s ion that the d isp a ra te treatm ent was ju s t i f i e d .
The Board does not fo l lo w or r e fe r to ju d ic ia l d e c is io n s in te rp re tin g
the su bstantive or p rocedural requirem ents o f T i t le V II , nor does i t
286
fo llo w the ru le o f s ta r e * d e c is is with regard to i t s own p r io r d e c is io n s .
Although i t is w e ll s e t t le d , under T i t l e VII law that the complainant
need not show d ir e c t p ro o f o f in te n t io n a l d iscr im in a tion and that a s t a t i s t i c a l
d is p a r ity s h i f t s the burden to the employer t o show eviden ce o f n on -d iscrim i
n a tion , the Board does not apply th is standard. In one case decided in 1973,
287
the Board c o r r e c t ly fo llow ed th is standard but was reversed by the Commission.
The 1972 Amendments to T i t l e VII gave the Commission express
a u th ority to order rein statem en t, back pay, and other r e l i e f to persons
288
found to be v ictim s o f d iscr im in a tion . Commission reg u la tion s prov ide
285. Telephone in terv iew with W illiam Berzak, Chairman, Appeals Review Board,
CSC, Nov. 27, 1974. I f , however, the record is not s u f f i c i e n t ly com plete,
the Board may remand the case or conduct an independent review .
286. The d ec is ion s o f the Appeals Review Board are la r g e ly ad hoc d isp o s it io n s
which do not r e fe r to p r io r d e c is io n s o f the Commission or any su bstantive ru les
o f law. The Commission does not publish these d ec is ion s but m erely makes
them a v a ila b le at headquarters and ce rta in reg ion a l o f f i c e s .
287. Minutes o f the C iv i l S erv ice Commission, Nov. 14, 1973, rev ersin g Appeals
RPVIPW RnarH n o n ie in n T3 /.rc * °
288. 42 U.S.C. I 20 00e-1 6 (b ).
84
that a person denied employment or prom otion sh a ll be given p r io r i t y
con sid era tion fo r any e x is t in g vacancy where the record shows that
289
d iscr im in a tion e x is te d when the s e le c t io n was made. However, such
persons are not e n t it le d to back pay or other r e tr o a c t iv e r e l i e f
unless the record shows that the person would have been se le c te d
290
but fo r the im perm issible d iscr im in a tion . The Commission's r u le ,
which p la ces a heavy burden o f p roo f on com plainants seeking r e tr o
a c t iv e r e l i e f , i s com pletely con tra ry to the weight o f T i t le VII
case law, which holds that once d iscr im in a tion has been found, the
employer has the burden o f showing that the v ic t im would not have
291
been se le c te d even in the absence o f the i l l e g a l d iscr im in a tion .
As a r e s u lt o f the Commission's r e s t r i c t iv e in te rp re ta tio n o f the
289. 5 C .F.R . § 713.271.
290. Id . Thus, the Commission has held that where sex d iscr im in a tion
was found in the d en ia l o f a prom otion to a fem ale com plainant, she
was not e n t it le d to r e tr o a c t iv e r e l i e f , even though she was the top
ranked candidate f o r the p o s it io n , on the grounds that she might have
been denied the prom otion on grounds other than sex , s in ce h ir in g
o f f i c i a l s have some lim ited d is c r e t io n . Appeals Review Board,
D ecis ion in Case No. 713-74-437, Mar. 14, 1974. S im ila r ly , where
r a c ia l d iscr im in a tion was found in the ra tin g s made by a prom otion
p anel, the b la ck com plainant, who was ranked second b e s t , was not
given back pay or other r e tr o a c t iv e r e l i e f , s in ce the record did
not dhow that but fo r the r a t in g s , the complainant would have been
s e le c te d . Appeals Review Board, D ecis ion in Case No. 713-74-277,
Dec. 10, 1973.
291. See, e . g . , Pettway v . American Cast Iron P ipe C o ., 494 F.2d 211
(5th C ir . 1974). In la te 1974, a Federal d i s t r i c t cou rt ru led that
the Commission's standard on r e tr o a c t iv e r e l i e f was im proper. Day v .
W einberger, No. 74-292 (D.D.C. Nov. 4 , 1974). The Commission m aintains
that i t s p o s it io n comports w ith a d e c is io n by the Court of Claims in 1971,
Chambers v . United S ta tes , 451 F.2d 1045 (Ct. C l. 1971). Hampton l e t t e r ,
supra note 7. However, the d i s t r i c t cou rt in Day v . Weinburger s p e c i f i c a l ly
noted that the Chambers d e c is io n was no longer a p p lic a b le because i t was
rendered p r io r t o the passage o f the 1972 amendments to T i t le V II.
2 6 a a
85
rem edial a u th ority i t has been given in T i t le V II , f u l l r e l i e f is
ra re ly provided to d iscr im in a te e s . In f i s c a l year 1973, r e tr o a c t iv e
r e l i e f was provided in 22 (o r 3 p ercen t) o f 778 cases in which a ction
292
was taken to c o r r e c t d iscr im in a tion .
Thus, i t is c le a r that Federal T i t le VII com plainants fa ce
severe disadvantages throughout the com plaint p rocess . The
a lle g e d ly d iscrim in atory agency not on ly has c o n tr o l over the content
o f the com p la in t's a l le g a t io n s but over the in v e s t ig a t io n as w e ll.
While the complainant has a r ig h t to a hearing b e fo re an independent
293
examiner, the com pla in ant's r ig h ts are lim ited in that p roceed in g , and
the fin d in g o f the hearing examiner i s not b inding on the agency in
most ca ses . The f in a l d e c is io n made by the a lle g e d ly d iscr im in atory
agency i s appealable to the Commission, but is not su b ject to a review
accord in g to T i t le V II case law. More im portantly , the substantive r ig h ts
guaranteed under T it le V II, as w e ll as important T i t le VII ev id en tia ry and
procedural r u le s , are not a v a ila b le to the Federal com plainant. F in a lly ,
when a c i v i l a c t io n i s f i l e d in co u r t , the complainant may w e ll not be
292. Hudson telephone in terv iew , supra n ote 221. Hampton l e t t e r , supra
note 7.
293. S ince com plaints examiners are paid by the a lle g e d ly d iscrim in atory
agency, an argument cou ld be made that the examiners are not t o t a l ly
independent. D iscrim in ation Complaints Examiners Handbook, supra note 258.
The Commission em phasizes, however, that the examiner i s re fe rred by the
Federal Employee Appeals A uthority which i s reimbursed by the agency fo r
the exam iner's s e r v ic e . Thus, the examiner i s not paid d ir e c t ly by the
agency. Hampton l e t t e r , supra note 7.
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given a f u l l t r i a l , but on ly a review o f the ad m in istra tive record .
Three years a f te r the passage o f the 1972 A ct, i t d id not appear that
the ex ten sion o f T it le V II to Federal employment had led to any mean
in g fu l changes in the handling o f com plaints or the su bstantive r ig h ts
295
o f Federal employees to be fr e e from d iscr im in a tion .
294
294. As o f A p ril 1975, the cou rts were d iv id ed on the qu estion o f
whether S ection 71 7 (c) o f T i t le V II, as amended, 42 U .5.C . § 2 0 0 0 e -1 6 (c ),
g iv es Federal employees the r ig h t to a t r i a l de novo or on ly to a review
o f the a d m in istra tive re co rd . See, e .g . , Sperlin g v . United S ta tes , No.
79-1533 (3rd C ir . Apr. 18, 1975); Henderson v . Defense Contract Servs.
A dm inistration , 370 F. Supp. 180 (S.D .N.Y. 1973) (h o ld in g that a r ig h t
to a t r i a l de novo e x is t s ) . Contra Salone v . United S ta tes , No. 74-1975
(10th C ir . Feb. 21, 1975); Hackley v . Johnson, 360 F. Supp. 1247 (D.D.C.
1973), Appeal d ocketed , No. 73-2072, D.C. C ir . Oct. 17, 1973.
295. The Commission m aintains that i t i s in c o r re c t to s ta te that
com plainants fa ce severe disadvantages throughout i t s procedures.
"The r ig h ts o f the com plainant;1 the Commission m aintains, "are fu l ly
safeguarded and the Commission standards are in fa c t more fa vora b le to
the complainant than is required by the courts under T it le VII p ro
ceedings in the p riv a te s e c t o r ." Hampton l e t t e r , supra note 7. In
a d d it io n , the Commission emphasizes that no F ederal cou rt has yet
found the procedures in con s is ten t with T i t le V II . Id .
2Sao
619
Chapter 1
FINDINGS AND CONCLUSIONS
C iv i l S erv ice Commission (CSC)
1 . The United States C iv i l S erv ice Commission oversees and se ts
standards governing the c iv i l ia n personnel p ra ct ic e s o f the Federal
Government, which employs n early four percent o f the N ation ’ s work fo r c e .
T i t le VII o f the 1964 C iv i l R ights A c t, as amended in 1972, p roh ib its
Federal agencies and departments from d iscr im in atin g again st app lican ts
or employees on the b a s is o f r a c e , c o lo r , r e l ig io n , sex , or n a tion a l
o r ig in . Under T i t le VII the Commission is re sp on s ib le fo r ensuring that
Federal employment p ra ct ic e s are non discrim inatory and fo r review ing agency
a ffirm a tiv e a c t io n plans on an annual b a s is . In a d d itio n , the Commission
has been charged w ith en forc in g E xecutive orders s in ce 1965, which requ ire
agen cies to m aintain com plaint procedures as w e ll as nondiscrim inatory
p r a c t ic e s .
2 . I t is the p o s it io n o f the Commission on C iv i l R ights that the
F ederal Government should be bound by the same standards on equal employment
opportun ity and a ffirm a tiv e a c t io n as govern the p ra ct ic e s o f a l l other em ployers.
However, CSC m aintains that i t is not requ ired to adhere to the T i t le VII
g u id e lin es e sta b lish ed by the Equal Employment Opportunity Commission (EEOC)
fo r a l l other employers o r to fo l lo w the a ffirm a tiv e a c t io n p r in c ip le s
a p p lica b le to employers who are Federal co n tra cto rs .
3 . Although Congress expressed deep concern in 1972 that many^&f the
c i v i l s e r v ice employee s e le c t io n standards appeared to be d iscr im in a tory ,
the Commission has fa i le d to carry out i t s r e s p o n s ib i l it y under T i t le VII
2 9 a a
620
to demonstrate empirically that all Federal examination procedures having
an adverse impact on minorities and women are manifestly related to job
performance.
a. The Commission has adopted gu id e lin es fo r dem onstrating the
jo b re la tedn ess o f exam ination procedures which are su b s ta n t ia lly weaker
than the gu id e lin es o f the Equal Employment Opportunity Commission* The
Supreme Court in 1971 gave grea t d eference to the EEOC g u id e lin e s , which
are a p p lica b le to p r iv a te em ployers, as w e ll as State and lo c a l governments.
b . To screen ap p lican ts fo r entry in to m ajor p ro fe ss io n a l
and ad m in istra tive p o s it io n s , the Commission has developed a new exami
n a tion , the P ro fe ss io n a l and A dm inistrative Career Examination (PACE),
which has not been demonstrated em p ir ica lly to be re la te d to jo b performance
or to lack cu ltu ra l and/or sex b ia s .
c. The Commission has failed to conduct a systematic analysis
t o determine i f i t s procedures fo r evaluatin g and ranking candidates on the
b a sis o f b iog ra p h ica l in form ation are d iscr im in a tory or to show e m p ir ica lly
that such procedures are jo b r e la te d . A study conducted by the General
Accounting O ff ic e in 1973 included su b sta n tia l evidence that these procedures
were not r e l ia b le in d ica to rs o f jo b perform ance.
d . Federal law p ro h ib its h ir in g o f f i c i a l s from con sid erin g
any candidates other than the top three ranked in d iv id u a ls when h ir in g
from outsid e the c i v i l s e r v ic e . This ’ ’r u le o f th ree” i s requ ired by
s ta tu te . A v a ila b le evidence in d ica tes that CSC's ranking procedures are
not r e l ia b le in d ica to rs o f su cce ss fu l jo b perform ance and may, in fa c t ,
screen out q u a li f ie d cand id ates. N everth eless, the Commission has
fa i le d to recommend to Congress that the " ru le o f th ree” be m odified
to permit con s id era tion o f a l l q u a li f ie d cand idates.
3 0 a a
621
e . The Commission has fa i le d to make recommendations to Congress
w ith regard to m odifying the requirem ent that veterans be given pre feren ce
in s e le c t io n , although th is p ro v is io n has a c le a r ly d iscrim in atory impact
on women.
f . CSC p roh ib its agencies from making r a c e , sex , or
e th n ic ity a c r i t e r io n fo r s e le c t io n o f candidates even when agencies
are attem pting to adhere to a ffirm a tiv e a c t ion goa ls to e lim in ate
the v e st ig e s o f p r io r d iscr im in a tion .
4 . The Commission's reg u la tion s governing com plaint procedures to
be m aintained by agencies deny Federal employees a fu l l and fa i r con s id era tion
o f th e ir employment d iscr im in a tion g r iev a n ces . The d e f ic ie n c ie s in the
Commission's previous reg u la tion s which were c r i t i c i z e d by Congress in 1972
p e r s is t in the reg u la tion s in e f f e c t in e a r ly 1975.
a. S t r ic t time lim ita t io n s imposed on complainants at each
stage o f the p ro ce ss , as w e ll as other p re r e q u is ite s , pose seriou s b a rr ie rs
to Federal employees in bringin g com plain ts. These b a rr ie rs are not faced
by employees who f i l e d iscr im in a tion charges b e fo re the Equal Employment
Opportunity Commission.
b. Complainants alleging a pattern or practice of discrimi
nation or discrimination on a classwide basis are not guaranteed the
right to a hearing or expeditious investigation,
c . The agency charged w ith d iscr im in a tion has the. p r in c ip a l
co n tro l over the framing o f com plain ts, the in v e s t ig a t io n , and the f in a l
d e c is io n on com plaints brought by th e ir employees or a p p lica n ts .
d . The Commission's in s tru ction s on com plaint in v estig a tion s
s u ffe r from a number o f s ig n if ic a n t d e f i c ie n c ie s , inclu d in g the fa i lu r e to
3 I a a
622
d e fin e d iscr im in a tion accord ing to T i t l e VII law and to provide adequate
guidance on d e te ct in g d iscr im in a tion in the s e le c t io n p ro ce ss . The guide
lin e s do not provide that com plaint in v e s t ig a t io n s con sid er whether general
personnel p ra ct ic e s have had a d isp ro p o rt io n a te ly adverse impact on the
com plainant's group. New g u id e lin es in d ra ft stage as o f November 1974
would not c o rr e c t most o f the d e f ic ie n c ie s in the current in s tr u c t io n s .
e . Complainants a lle g in g an in d iv id u a l a ct o f d iscr im in a tion are
g iven the opportun ity to have a h ea rin g , but the hearing provided fo r in the
Consulssion1s reg u la tion s is not considered by the Commission to be an adver
s a r ia l proceed in g . N either su bstantive nor p rocedural T i t l e VII law is required
to be a p p lied . For example, T it le VII case p reced en t, which holds that
s t a t i s t i c a l ev iden ce o f d is p a r it ie s co n s t itu te s a priraa fa c ie v io la t io n o f
the Act, is not fo llow ed in these p roceed in gs. In a d d it io n , the com plaints
examiner is in s tru cted to apply a standard in making a determ ination which
g iv es the b e n e fit o f the doubt to the a lle g e d ly d iscr im in atory agency. More
ov er , the exam iner's determ ination is m erely a recommendation to the accused
agency, which has the au th ority to make the f in a l determ ination, su b je c t to
lim ited review by the Commission's Appeals Review Board (ARB) and d is cr e t io n a r y
review by the Commission.
f . The Appeals Review Board, in issu in g d e c is io n s on employment
d iscr im in a tion m atters, has not fo llow ed the su bstan tive T i t le VII law and,
in some ca se s , has adopted in te rp re ta tio n s o f law in co n s is te n t w ith T i t l e V II,
g . Although T it le VII provides Federal complainants the r ig h t to
f i l e a c i v i l : a c t io n in Federal d i s t r i c t co u r t , a number o f courts have lim ited
th is proceeding to a review o f the ad m in istra tive r e co r d , w h ile other courts
have perm itted Federal p la in t i f f s a t r i a l de novo.
3 2 a a
623
h. Although the 1972 Amendments to T i t le VII gave the
Commission a d d itio n a l au th ority to provide r e tr o a c t iv e r e l i e f to
v ictim s o f d iscr im in a tion , such r e l i e f appears to be provided in only
three percent o f the in stan ces in which a c tion is taken to c o rr e c t
d is c rim in a tion .
5 . The Commission's g u id e lin es on agency a ffirm a tiv e a ct io n plans
are d e f ic ie n t and c le a r ly in f e r io r to s im ila r procedures a p p lica b le
under E xecutive Order 11246, as amended, to p r iv a te employers which are
Government co n tra cto r s . In a d d it io n , the Commission's review s o f agency
a ffirm a tiv e a c t ion plans are inadequate.
a . The Commission's a ffirm a tiv e a c t io n gu id e lin es f a i l t o requ ire
agen cies to conduct adequate analyses fo r determ ining i f u n d e ru tiliz a tio n
o f m in o r itie s and women e x is ts in th e ir work fo r c e s , although such a req u ire
ment is expected o f a l l Federal con tra ctors under E xecutive Order 11246.
b . In con tra st to Government c o n tra cto r s , Federal agencies
are not requ ired to e s ta b lis h g oa ls and tim etables fo r e lim in atin g under
u t i l i z a t io n o f m in o r it ie s and women. Although the Commission's s t a t i s t i c s
in d ic a te that ser iou s u n d e ru tiliz a tio n o f these groups e x is t s in the h igh er-
le v e l p o s it io n s at most a g en cies , few v o lu n ta r ily s e t goa ls and tim etables
fo r e lim in atin g these d is p a r i t ie s . The Commission has fa i le d to issu e
adequate in s tru c t io n s on the proper development o f g oa ls and t im etab les .
A gencies which v o lu n ta r ily e s ta b lis h o b je c t iv e s appear to s e t them so low
as to preclude the agency from ever e lim in atin g the u n d e ru tiliz a tio n which
i t has id e n t i f ie d . At le a s t one agency e sta b lish ed a h ir in g goa l which
led to a decrease in the percentage o f the c la ss whose employment the
agency had intended to in crea se .
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c . The Commission f a i l s to requ ire adequate rep ortin g on the
e f f e c t s o f a ffirm a tiv e a c t io n measures on the employment o f m in o r it ie s and
women; as a r e s u l t , there is l i t t l e , i f any, evidence that a ffirm a tiv e action
plans are accom plishing m eaningful improvement in the status o f these groups.
d . Many agencies f a i l to submit th e ir a ffirm a tiv e a c t ion plans
w ith in the time requ ired by the Commission, as w e ll as f a i l t o adhere to
the Commission’ s in s tru c t io n s on conducting assessments o f equal opportunity
d e f i c ie n c ie s . Of 17 n a tion a l a ffirm a tiv e a c t ion plans review ed, none included
adequate assessm ents. N everth eless, the Commission approved the vast m a jor ity
o f these plans w ithout ordering any c o r r e c t iv e r e v is io n s .
6 . The Commission is re sp on s ib le fo r conducting p e r io d ic review s o f agency
employment p ra c t ic e s to determine com pliance w ith a l l a p p lica b le laws and
re g u la t io n s , inclu d in g m erit system requirem ents and T i t le V II. This eva lu a tion
program su ffe r s from a number o f d e f i c ie n c ie s .
a . The Commission evaluates no more than 15 percent o f a l l
Government in s ta l la t io n s per year.
b . The Commission’ s gu id e lin es fo r s t a f f conducting evaluation s
are inadequate. These gu id e lin es do not g iv e in s tru c t io n s fo r system atic
in v e s t ig a t io n to determine i f agency h ir in g , placem ent, and prom otion p ra ct ice s
have a d isp ro p o rt io n a te ly adverse impact on m in o r itie s and women.
c . A review o f rep orts on 13 such eva lu ation s found that the
Commission r o u t in e ly f a i l s to con sid er patterns and p ra ct ic e s which may
c o n s t itu te system ic d iscr im in a t io n . In a d d it io n , when the Commission found
d iscr im in atory p r a c t ic e s , i t fa i le d t o order the agency to prov ide r e l i e f
t o the v ictim s o f such d is cr im in a tion , d esp ite s p e c i f i c au th oriza tion to do
j 1-i 3,3,
so in T i t le V II.
655
Chapter 1
RECOMMENDATIONS
C iv i l S erv ice Commission
We recommend that the P residen t issu e an E xecutive order d ire c t in g the C iv i l
S erv ice Commission, w ith in s ix months, to change i t s current op era tion s to ensure
that the Federal Government adheres to the same equal opportun ity and a ffirm a tiv e
a c t io n standards as are a p p lica b le to other em ployers. The E xecutive order should
s ta te that in implementing the recommendations s e t fo r th below the Commission's
a c t ion s w i l l be su b je ct to the approval o f the Equal Employment Opportunity
Commission (EEOC).
1. The Commission should take step s to ensure that a l l employee s e le c t io n
methods used by the Federal Government conform to T i t le VII standards, as d e lin eated
by the Equal Employment Opportunity Commission.
a. The Commission should begin im mediately to conduct analyses o f a l l
Federal s e le c t io n procedures having an adverse impact on women and m in o r itie s to
determine whether the standards ap p lied fo r h ir in g , placem ent, and prom otion can
be demonstrated em p ir ica lly to be re la ted to jo b perform ance and to la ck c u ltu ra l
an d/or sex b ia s . Further, even i f d iscr im in atory standards are shown to have
em pirica l v a l id i t y , they must not be used un less the Commission demonstrates that
le s s d iscrim in atory s e le c t io n standards are in a p p lica b le .
b . The Commission should undertake th is a n a ly s is in coord in a tion w ith the
Equal Employment Opportunity Commission and independent experts in the f i e l d o f s e le c
t io n standards v a lid a t io n . The Commission should make p u b lic a l l rep orts o f i t s
an alyses.
c . The Commission should recommend to Congress le g is la t io n to remove any
lim ita t io n s on i t s a b i l i t y to e lim in ate d iscrim in atory s e le c t io n standards.
(1 ) The Commission should recommend to Congress the
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seriou s m od ifica t io n in the law req u ir in g p r e fe r e n t ia l treatm ent o f veterans needed
to reduce i t s extrem ely d iscr im in a tory e f f e c t on women by prov id in g that veterans
p re feren ce in Federal employment be a v a ila b le to in d iv id u a ls on a one-tim e b a sis
on ly w ith in f iv e years a f te r d isch arge from the s e r v ic e .
(2 ) The Commission should recommend to Congress e lim in ation o f the
"ru le o f t h r e e ," to perm it h ir in g o f f i c i a l s to s e le c t from a w ider range o f can d id ates,
s in ce current ranking and te s t in g procedures are u n re lia b le and may u n ju s t i f ia b ly
screen out q u a li f ie d m in o r it ie s and women.
d. The Commission should adopt ru les p erm ittin g agen cies to make ra ce ,
e t h n ic i t y , o r sex a c r i t e r io n o f s e le c t io n when h ir in g o r prom oting in d iv id u a ls in
accordance w ith an a ffirm a tiv e a c t io n p lan designed to e lim in ate u n d e ru tiliz a tio n
o f m in or itie s and women. U n d eru tiliza tion s h a ll be considered reso lv ed at the p o in t at
which there i s rep resen ta tion equ iva lent to the numbers in the a v a ila b le work fo r c e .
2. The Commission should issu e com pletely rev ised com plaint procedures which
p rov id e Federal employees charging d iscr im in a tion a f u l l and fa i r proceed ing con
s is te n t w ith T i t l e VII standards.
a . The Commission should adopt the same procedures governing the f i l i n g
o f charges as those used by EEOC, a llow in g com plainants to a l le g e con tin u in g d is
crim in a tion , p rov id in g fo r le s s s t r i c t time l im it a t io n s , and tre a tin g w ith in the
scope o f the i n i t i a l com plaint a l l issu es l ik e and re la ted to the s p e c i f i c a lle g a t io n
made by the in d iv id u a l.
b . A l l com plaints should be p rocessed accord in g to the same procedures,
reg ard less o f whether they a l le g e a p a r tic u la r a ct o f d iscr im in a tion o r system ic
d iscr im in a tion again st an in d iv id u a l o r a c la s s .
c . The in form al cou n selin g p eriod should be made o p t io n a l, s in ce i t
serves to delay the form al p roceed ing .
3oaa
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d. The Commission should p rov ide on request fr e e le g a l a ss ista n ce
to complainants o f a l l grades.
e . A ll in v e st ig a t io n s should be conducted by an independent
o f f i c e w ith in the Commission accord ing to in v e s t ig a t io n procedures con s is ten t
w ith .T itle VII standards.
(1 ) The Commission should e s ta b lish an o f f i c e o f in v estig a tion s
w ith in v e s t ig a to rs tra ined in employment d iscr im in a tion m atters.
(2 ) The Commission should adopt in v e s t ig a t io n procedures
designed to cover a l l forms o f d iscr im in a tion , inclu d in g employment
p ra c t ic e s which have a d ispa ra te impact on m in or itie s and women. In
e s ta b lish in g these proced u res, the Commission should con su lt w ith the
EEOC and the Wage and Hour D iv is ion o f the Department o f Labor.
f . Complainants should be g iven the r ig h t to obtain a l l in fo r
m ation re leva n t to the com plaint or re leva n t to the obtain in g o f in fo r
m ation bearing on the com plaint. The standard o f re levan ce should be that
contained in Rule 26 o f the Federal Rules o f C iv i l P rocedure. Agency d en ia ls
o f requests fo r in form ation should be appealable to hearing exam iners.
g . A ll hearings should be conducted b e fore independent hearing exam
in ers accord ing to procedures adequate fo r p ro te ctin g T i t le VII r ig h ts .
(1 ) C e r t i f ic a t io n o f hearing examiners should be based on
demonstrated e x p ertise in T i t le VII law.
(2 ) Hearing examiners should be reimbursed by the Commission
rather than by the accused agency.
(3 ) Complainants should be given the r ig h t to subpoena w itnesses
and documentary ev iden ce.
3 7 a a
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(4 ) Any agency o f f i c i a l accused in a com plaint should be
g iven the r ig h t to p a r t ic ip a te in the proceeding on the com plaint as a
party in in t e r e s t .
(5 ) While s t r i c t ru les o f ev iden ce should not be ap p lied so
as to handicap complainants u n sk illed in the law, n ev erth e le ss , a l l evidence
which would be adm issib le in a cou rt o f law con sid er in g a T i t le VII case
should be adm itted in the ad m in istra tive hearin g .
(6 ) Substantive T i t l e VII law, as d e fin ed by the F ederal c o u r ts ,
should be requ ired to be fo llow ed .
h . D ecisions o f hearing examiners should be b inding on the
accused agency unless reversed by the Appeals Review Board.
i . The Appeals Review Board should apply T i t l e VII precedents in
review ing appeals.
j . The Commission should recommend to the Department o f J u s tice
that the Federal Government as defendant in T i t le VII a ction s take the
p o s it io n that p la in t i f f s are e n t it le d to a t r i a l de novo.
3 . The Commission should adopt a ffirm a tiv e a c t io n reg u la tion s modeled
a f te r Revised Order No. 4 o f the O ff ic e o f Federal C ontract Compliance (OFCC)
o f the Department o f Labor so that Federal agen cies are requ ired to adhere
to a ffirm a tiv e a ct io n standards equ iva lent t o those expected o f Federal
c o n tr a c to r s .
a . Agencies should be requ ired annually to conduct thorough analyses
o f th e ir work fo r c e s to id e n t ify d is p a r it ie s between the employment o f women
and m in o r itie s in each agency jo b t i t l e and the a v a i la b i l i t y o f these groups
in the labor market w ith jo b -r e la t e d q u a l i f ic a t io n s . Such analyses should
con sid er each major m in ority group ( f o r example, b la ck s , Mexican Americans,
Puerto R icans, A sians, and N ative Americans) sep arate ly and by sex , as w e ll
as nonm inority women.
3 Baa
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b . Agencies should be requ ired to e s ta b lish u ltim ate g oa ls fo r
e lim in atin g any id e n t if ie d d is p a r it ie s and annual h ir in g and prom otion
o b je c t iv e s fo r obtain in g these g o a ls .
c . The Commission should requ ire agencies t o review annually th e ir
u ltim ate goa ls and to rep ort annually on the exten t to which annual numerical
o b je c t iv e s have been accom plished and whether u ltim ate goa ls have been re v is e d .
d . Other components o f agency a ffirm a tiv e a ct io n p lan s, such as
d e scr ip tio n s o f tra in in g or recru itm ent programs, should be submitted on ly
every two or three years unless the agency f a i l s s ig n i f ic a n t ly to meet i t s
num erical o b je c t iv e s .
4 . The Commission should su b sta n t ia lly in crease the frequency and
q u a lity o f i t s eva lu ation s o f agency employment p ra c t ic e s .
a . The Commission should conduct an evaluation o f more than 25
percent o f a l l Federal f a c i l i t i e s w ith more than 100 fu l l-t im e employees
to determine com pliance w ith the requirem ents o f T it le V II.
b . E valuation review s should Include a system atic in v e s t ig a t io n
to determ ine i f agency h ir in g , placem ent, or prom otion p ra ct ic e s have
a d isp ro p o rt io n a te ly adverse impact on m in or itie s and women.
c . Where such impact i s determ ined, the Commission should id e n t ify
a l l in d iv id u a l members o f the c la ss a f fe c te d and should order the agency to
provide r e l i e f t o these in d iv id u a ls in the form o f back pay and p re fe re n tia l
statu s fo r h ir in g , t ra n s fe r , or prom otion purposes.
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