Henderson v. Defense Contract Administration Services Region, NY Plaintiff's Memorandum in Opposition

    IN THE UNITED STATES DISTRICT COURT4.
FOR THE SOUTHERN DISTRICT OF NEW YORK 

CIVIL ACTION NO. 72 5420 (LWP)

RUDOLPH J. HENDERSON,
Plaintiff,

-vs - <
•

DEFENSE CONTRACT ADMINISTRATION 
SERVICES REGION, NEW YORK, et al..

Defendants.

PLAINTIFF'S MEMORANDUM IN OPPOSITION TO 
DEFENDANTS' MOTION FOR JUDGMENT

ON THE PLEADINGS___  ___

DALE L. MATSCHULLAT
1 Chase Manhattan Plaza 
New York, New York 10G05 
212 HA 2-3400

JACK GREENE ERG 
WILLIAM L. ROBINSON

10 Columbus Circle 
Suite 2030
New York, New York 10019 
212 586-8397

Attorneys for Plaintiff



I N D E X

Page

I. Introduction .................................  1
II. THE COURT HAS JURISDICTION OVER THIS ACTION

AGAINST THE FEDERAL AGENCY CLAIMING RACIAL 
DISCRIMINATION IN EMPLOYMENT IN VIOLATION OF 
42 U.S.C. §1981 AND THE CIVIL RIGHTS ACT OF 
1964, TITLE VII, AS AMENDED..................  2
A. District of Columbia v. Carter and other 

Supreme Court Decisions Indicate that 
Racial Discrimination in Employment by 
the Federal Government is Covered Under
42 U.S.C. §1981..........................  3

B. Decisions of Other Circuits Establish
that 1981 Provides a Remedy for Racial 
Discrimination in Employment ............  9

III. THE COURT ALSO HAS JURISDICTION OF THIS
ACTION UNDER TITLE VII OF THE CIVIL RIGHTS
ACT OF 1964, AS AMENDED, §717................. 11
A. Section 717 of the 1972 Amendments to 

Title VII Apply to Cases Pending When
the Statute Was Adopted.................  11

Language of the Act.................. 11
Legislative History.................. 12
Case L a w ............................  13

B. Plaintiff's Cause of Action Accrued
After March 24, 1972 .................... 17

IV. PLAINTIFF FILED SUIT WITHIN 30 DAYS OF THE
CIVIL SERVICE COMMISSION'S LAST ORDER AND 
NOTICE OF FINAL ACTION WAS NEVER GIVEN . . . .  20
A. Plaintiff's Complaint Was Timely Filed . . 20

i -



V.

B. Plaintiff Has Never Received a "Notice
of Final Action"..........................  21

PLAINTIFF IS ENTITLED TO A TRIAL DE NOVO AND 
IS NOT LIMITED TO A MERE REVIEW TO DETERMINE 
WHETHER THE COMMISSION'S DECISION WAS
ARBITRARY......................................  23
A. The Absence of Special Language in the

Statute Limiting the Court's Power Demon­
strates a Lack of Congressional Intent 
to Limit the Scope of Review,.............  24

•
B. The Statutory Language Clearly Gives Federal

Employees the Same Remedy as Victims of 
Discrimination in Private Industry: A 
De Novo Trial......................  25

C. The Legislative History Fully Supports
Plaintiff's Contention That She Is Entitled 
to a Trial De N o v o .........................  26

D. Cases Cited by Defendants in Support of
Their Contention of Limited Judicial Review 
Are Inapposite . . .    28

E. Members of the Civil Service Commission Are
Not Indispensable Parties to This Action . . 29

CONCLUSION..............................................  30
CERTIFICATE OF SERVJCE

Page

n  -



IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF NEW YORK 

CIVIL ACTION NO. 72 542 0 (LWP)

RUDOLPH J. HENDERSON,
Plaintiff,

- vs -
DEFENSE CONTRACT ADMINISTRATION 
SERVICES REGION, NEW YORK, et al..

Defendants.

PLAINTIFF'S MEMORANDUM IN OPPOSITION TO 
DEFENDANTS' MOTION FOR JUDGMENT 

___________ON THE PLEADINGS____________
I.

Introduction. (
. . <*'This action seeks to enjoin allegedly racially discrimi­

natory employment practices of defendant Defense Contract Ad­
ministration Services Region (DCASR), New York, to redress the 
alleged failure of DCASR to establish racially neutral employ-vr
ment and office procedures which will assure its employees mean 
ingful opportunities for promotion and career development and 
for a declaratory judgment. The original complaint was filed 
on December 27, 1972, principally under 28 U.S.C. §1343 and the 
Civil Rights Act of 1972, Title VII, P.L. 92-261, 86 Stat. 103, 
and the Civil Rights Act of 1866, 42 U.S.C. §1981. Plaintiff 
also seeks a declaratory judgment pursuant to 28 U.S.C. §§2201
and 2202.



Plaintiff, a Contract Relations Specialist in the Office 
of Contract Compliance, Defense Contract Administration Services 
Region, New York, New York, alleges that defendants have en­
gaged in discriminatory employment practices against him in the 
assignment of duties; using their supervisory powers and duties 
to improperly denigrate his abilities and harass plaintiff. 
Plaintiff also alleges that defendants.have retaliated against 
him for filing a previous charge of discrimination.

On July 22, 1973, defendants moved the court for judg­
ment on the pleadings on the grounds that the court lacks juris­
diction over the subject matter and that the complaint fails to 
name an indispensable party. For the reasons stated below, 
plaintiff submits that defendants' motion is without merit and 
should be denied.

II.
THE COURT HAS JURISDICTION OVER THIS ACTION 
AGAINST THE FEDERAL AGENCY CLAIMING RACIAL 
DISCRIMINATION IN EMPLOYMENT IN VIOLATION OF 
42 U.S.C. §1981 AND THE CIVIL RIGHTS ACT OF 
1964, TITLE VII. AS AMENDED.______________

Section 1343(4) of 28 U.S.C. grants the district court 
jurisdiction "0f any civil action authorized by law" to re- 
Y5̂ Yer damages or to secure equitable relief under any act of 
Congress for the protection of civil rights. Passed as a 
"technical amendment" in 1957, this statute gives a federal 
court jurisdiction over claims based on civil rights statutes. 
Plaintiff alleges violations of two civil rights statutes —
42 U.S.C. §1981 and the Civil Rights Act of 1964, Title VII,

2



as amended and can clearly rely on §1343(4) to invoke these
statutes. Thus the only question is whether the civil rights
acts authorize suits seeking to eliminate racial discrimination

1/
m  federal government employment. The following points demon­
strate that these Acts of Congress authorize suit against the 
federal government for employment discrimination on the grounds 
of race. * ,

A. District of Columbia v. Carter and other Supreme 
Court Decisions Indicate that Racial Pis- 
crimination in Employment by the Federal Govern­
ment is Covered Under 42 U.S.C. §1981.

The Civil Rights Act of 1866 was enacted as "appropriate
■̂e9i-s3-a'tion to enforce the mandate of the Thirteenth Amendment,
Jones v. Mayer, 392 U.S. 409, 423 (1968). In its original form,
section 1 of the 1866 Act declared and enumerated the basic
civil rights of racial minorities. After passage of the
Fourteenth Amendment, the 1866 Act was reenacted and section 1
was split into ^wo sections, now sections 1981 and 1982 of
Title 42 of the United States Code.

Section 1981 provides that:

All persons within the jurisdiction of the 
United States shall have the same right in

1/ _ Plaintiff concedes that the original complaint improperly 
relied on 39 U.S.C. §§401 (c) (1) and 409(a) . The original com­
plaint also relies on 28 U.S.C. §1343 (3) and (4) for juris­
dictional purposes. Because 1343(4) so clearly provides a 
jurisdictional basis for this suit, we need not respond to 
arguments concerning the inapplicability of 1343(3). Plaintiff 
will file an amended complaint excising 39 U.S.C. §§401 (c) (1)
and 409(a) and more explicitly basing jurisdiction on 28 U.S.C. § 1343 (4) .

3



every State and Territory to make and enforce 
contracts, to sue, be parties, give evidence, 
and to the full and equal benefit of all laws 
and 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 no other.

Section 1982 provides that: ,
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.

The language of these statutes appears, in plain and 
unambiguous terms, to prohibit all violations of the enumerated 
rights regardless of the status of the offending party, be it 
the federal or state government or a private individual. This 
construction is eminently reasonable in light of the derivation 
of these sections from the enforcement powe-r of the Thirteenth 
Amendment, a constitutional provision which contains no language 
limiting the persons or bodies politic subject to its mandate.

The scope of section 1 has been elucidated by the Supreme 
Court in a series of landmark cases involving or citing §1982.
But as the Fifth Circuit asserted in Sanders v. Dobbs House, Inc. 
431 F.2d 1097, 1101 (5th Cir.1970), cert. denied, 401 U.S. 948 
(1971), "since §1981 and §1982 are both derived from §1 of the 
Civil Rights Act of 1866, they must be construed consistently". 
See also, the Supreme Court's recent decision in Tillman v. 
Wheaton-Haven Recreation Ass'n, Inc. , _____U.S. ______, 93 S.Ct.
1090 (1973):



The operative language of both §1981 and 
§1982 is traceable to the Act of April 9,
1856, c. 31, §1, 14 Stat. 27, Hurd v.
Hodge, 334 U.S. 24 (1948). In light of the 
historical interrelationship between §1981 
and §1982, we see no reason to construe 
these sections differently when applied, on 
these facts, to the claim of Wheaton-Haven 
that it is a private club. (Id_. at 10 95.)

In Hurd v. Hodge, 334 U.S. 24 (1948), black citizens of 
the District of Columbia who had purchased property encumbered 
by racially restrictive covenants were divested of title by 
a federal district court. The Supreme Court relied upon sec­
tion 1 of the Civil Rights Act of 1866 in holding that the 
federal judiciary was prohibited from participating in the 
deprivation of rights protected by the Act. The Court stated, 
334 U.S. at 33-34:

"Moveover, the explicit language employed by 
Congress to effectuate its purposes, leaves 
no doubt that judicial enforcement of the 
restrictive covenants by the courts of the 
District of Columbia is prohibited by the 
Civil Rights Act. . . .  We hold that the 
action of its District Court directed 
against the Negro purchasers and the white 
sellers denies rights intended by Congress 
to be protected by the Civil Rights Act 
and that, consequently, the action cannot 
stand."

Indeed, the Supreme Court later distinguished that case
from the purely private discrimination encountered in Jones
v. Mayer, supra, on the basis of the federal involvement in
Hurd. As Jones v. Mayer indicated, Hurd:

"did not present the question whether 
purely private discriminations, unaided 
by any action on the part of the government, 
would violate §1982." 392 U.S. at 419.

5



Thus, the clear import of Hurd was that the federal
government, in that case the federal judiciary, was subject 
to the mandate of section 1 of the Civil Rights Act of 1866, 
that none of the rights enumerated in that section be invaded.

While, as indicated above, Jones v. Mayer dealt with 
purely private discrimination in the sale of property, the 
Supreme Court in that case further elaborated upon the scope 
of the Civil Rights Act of 1866. The clear emphasis of that 
opinion rested upon the Court's conviction that §1982 covered 
the entire breadth of the Thirteenth Amendment and, as such, 
proscribed all discrimination within the enumerated categories, 
no matter who was the discriminating party. Thus early in its 
opinion the Court asserted that "§1982 bars all racial dis­
crimination, private as well as public, in the sale or rental 
of property, and that the statute, thus construed, is a valid 
exercise of the power of Congress to enforce the Thirteenth 
Amendment." Id., at 413. Replying to the contention that 
§1982 should be more narrowly limited, the Court said:

-t On its face, therefore, §1982 appears to
prohibit all discrimination against Negroes 
in the sale or rental of property-discrimi­
nation by public authorities. Indeed, even 
the respondents seem to concede that, if 
§1982 'means what it says' . . . then it
must encompass every racially motivated 
refusal to sell or rent and cannot be 
confined to officially sanctioned segrega­
tion in housing. Stressing what they consider 
to be the revolutionary implications of so 
literal a reading of §1982, the respondents

6



argue that Congress cannot possibly have 
intended such a result. Our examination of 
the relevant history, however, persuades us 
that Congress meant exactly what it said."
Id., at 421-22.

The Supreme Court repeatedly emphasized in the Jones
decision that section 1 of the Civil Rights Act of 1866 applied
to all violations of its provisions, regardless of the status
of the offending party:

Thus, when Congress provided in §1 of the 
Civil Rights Act that the right to purchase 
and lease property was to be enjoyed equally 
throughout the United States by Negro and 
white citizens alike, it plainly meant to 
secure that right against interference from 
any source whatever, whether governmental 
or private. Id_. , at 42 3-24.

Finally, after an examination of the legislative history 
of the Act, the Court concluded:

In light of the concerns that led Congress 
to adopt it and the contents-of the debates 
that preceded its passage, it is clear that 
t#ie Act was designed to do just what its 
terms suggest: to prohibit all racial dis­
crimination whether or not under color of 
law, with respect to the rights enumerated 
therein. . ." Id_., at 435.

The Court's most recent articulation of the coverage of
w*

section 1 of the Act and its progeny 42 U.S.C. §§1981 and 1982 
is found in its decision in District of Columbia v. Carter,
____ U.S. _____, 93 S.Ct. 602 (1973). In that case, the Court
differentiated the historical basis of 42 U.S.C. §1983 from 
that of §§1981 and 1982, and found that, unlike the latter two 
sections which involve a "constitutional provision and related

7



statute of universal applicability" (Id_., at 606), §1983
finds its origins in the Ku Klux Klan Act of 1871 and the
Fourteenth Amendment and is, thus, limited to "state action."
Citing Jones, supra, as authority, the Court asserted that:

Like the Amendment upon which it is based,
§1982 is not a 'mere prohibition of state 
laws establishing or upholding1 racial dis­
crimination in the sale or rental of pro­
perty but, rather, an 'absolute' bar to 
all such discrimination, private as well 
as public, federal as well as state." Id.•, at 
605 (Emphasis on "federal" added.)

The Court added that:
The same considerations which led Congress 
to extend the prohibitions of §1982 to 
the Federal Government apply with equal 
force to the District [of Columbia], which 
is a mere instrumentality of that Govern­
ment." Id.. , at 605 (Emphasis supplied.)

Bearing in mind "the mutual genesis of §§1981 and 1982" 
and the conclusion of the Fifth Circuit Court of Appeals in 
Sanders, supra, and the Supreme Court in Tillman, supra, that 
they should be "construed consistently," it appears clear from 
the Supreme Court's decisions in Hurd, Jones and, especially, 
Carter that Congress intended the Civil Rights Act of 1866 to 
cover all violations of the enumerated rights whether the vio-

iT-

lator was a private individual, a state or the federal govern­
ment. Nor can the careful analysis in Carter be dismissed as 
a mere empty rhetorical exercise by the Supreme Court, implying 
an abstract right to sue under §1981 and §1982 while preserving 
the power of the government to render that right meaningless

8



through assertion of sovereign immunity. We must assume that 
the court intends its statements to be taken seriously. More­
over, while denying a cause of action under §1983, the Court

took pains to add (93 S.Ct. at 610):
This is not to say, of course, that a claim, 
such as a possible claim against officer 
Carter, of alleged deprivation of consti­
tutional rights is not litigable in the 
federal courts of the District.

Thus, in the light of Carter's explicit assertion that 
Congress "[extended] the prohibitions of §1982 to the Federal 
Government" (Id., at 605), and the nature of the proscribed 
activity, it can no longer be seriously contended that the 
Congress was, at the same time, withholding its consent to be 
sued under that provision and its companion §1981.

B of Other Circuits Establish that 1981
Provides a Remedy for Racial Discrimination in 
Employment.

Decisions' of other circuits have established beyond 
question that 42 U.S.C. §1981 confers a cause of action to 
remedy private acts of racial discrimination in employment. 
Hackett v. McGuire Brothers, Inc., 445 F.2d 442 (3rd Cir. 1971); 
Young v. International Tel. & Tel. Co_. , 438 F.2d 737 (3rd Cir. 
1971); Brown v. Gaston County Dyeing Machine Co., 457 F.2d 
1377 (4th Cir. 1972); cert, denied, 93 S.Ct. 319 (1972); Sanders 
v. Dobbs House, Inc., 431 F.2d 1097 (5th Cir. 1970), cert, denied 
401 U.S. 948 (1971); Boudreaux v. Baton Rouge Marine Con­
tracting Co., 437 F .2 d 1011 (5th Cir. 1971); Caldwell jr.

9



National Brewing Co., 443 F.2d 1044 (5th Cir. 1971), cert. 
denied. 404 U.S. 998 (1971); Waters v. Wisconsin Steel Works,
427 F .2d 476 (7th Cir. 1970), cert, denied. 400 U.S. 911 (1970); 
Brady v. Bristol Myers, 459 F.2d 621 (8th Cir. 1972).

As the Seventh Circuit asserted in Waters, section 1 of 
the Civil Rights Act of 1866, from which §1981 is derived, 
"demonstrates that Congress contemplated a prohibition of racial 
discrimination in employment which would extend beyond state 
action." 427 F.2d at 482. Furthermore, in recent cases §1981 
has been utilized to grant the relief sought by the appellant. 
Thus, decisions such as Sanders and Boudreaux, supra, have 
established the proposition that the 1866 Act provides such 
general remedies as injunction, back pay and job reinstatement. 
Clearly, then, in the light of the Supreme Court's indication 
in Carter, supra, that section 1 of the Civil Rights Act of 
1866 prohibits deprivation by the federal government of the 
enumerated civil rights, this Court has jurisdiction to grant 
the relief sought by Henderson.

10



III.
THE COURT ALSO HAS JURISDICTION OF THIS ACTION 
UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964,
AS AMENDED. S 717._______________________________

Defendants contend that § 717 is not applicable because 

the acts of racial discrimination alleged in the complaint 

occurred prior to March 24, 1972, the effective date of the 

1972 amendments, and that plaintiff failed to demonstrate 

that the procedural requirements of § 717 have been met. As 

we show below, the language of the 1972 amendments, the legis­

lative history and applicable cases, require rejection of 

defendants' motion.
A. Section 717 of the 1972 Amendments to Title VII 

Apply to Cases Pending When the Statute Was 
Adopted.

Language of the Act
HfTitle VII of the Civil Rights Act of 1964, 

as amended by the Equal Employment Opportunities Act of 

1972, 42 U.S.C. § 2000e et seq., grants jurisdiction to this 

Court over this action. The 1972 amendments contain language 

manifesting Congress' intent that civil actions initiated by 

federal employees shall be the same as civil actions initiated 

by employees in private industry. Section 717 of the amended 

act which authorizes suit by federal employees provides in 

§ 717(c) that a federal employee "aggrieved by the final

11



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. . Section 717(d) (42 U.S.C. §2000e-16(d)) states
that "the provisions of Section 706(f) through (k), as applicable, 
shall govern civil actions brought hereunder." it is clear by 
these basic operative provisions that the right to bring civil 
actions by private employees have been extended to apply equally 
to civil actions commenced by federal employees.

Legislative History

Federal employees have long had the right not to be 
discriminated against on the grounds of race by their federal 
employer. As Senate Report on S. 2515, which bill contained 
§ 717, as adopted, stated: "The prohibition against dis­
crimination 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 (see 
Bolling v. Sharpe, 347 U.S. 497 (1954) and cases cited therein."
S. Rep. No. 92-415, Legislative History of the Equal Employment 
Opportunity Act of 1972, Subcommittee on Labor of the Senate 
Committee on Labor and Public Welfare, 92 Cong. 2d Sess. 410,
421-22 and n.8 (Comm. Print 1972).

The Senate Report further states that "the provision in 
Section 717(b) for applying 'appropriate remedies' is intended

12



to strengthen the enforcement powers of the Civil Service

Commission" (id. at 424 [emphasis supplied]) and that an

"important adjunct to the strengthened Civil Service Commission

responsibilities is the statutory provision of a private right

of action in the courts. . ." (id., at 425). The 1972 amendment,

therefore, is only a remedial statute "which afford[s] a
«

remedy or improve[s] a remedy or facilitate[s] remedies already 

existing for the enforcement of rights and the redress of 

injuries." Sutherland, Statutory Construction (ed ed. 1943), 

vol. 2, § 3302 at pp. 234-35.

Case Law

The law is settled that where statutory changes 

relate "only to procedure or remedy," they are "held immediately 

applicable to pending cases, including those on appeal from 

a lower court.'1 Turner v. United States, 410 F.2d 837, 842 

(5th Cir. 1969). See also Thorpe v. Housing Authority of 

City of Durham, 393 U.S. 268, 281-82 (1969); Hollowell v.

Commons, 239 U.S. 506, 508 (1916); Standard Accident Insurance 

Co. v. Miller, 170 F.2d 495, 497 (7th Cir. 1948); Nelson v. 

Westland Oil Co., 181 F.2d 371, 374 (8th Cir. 1950); Basarian 

v. Parker Metal Co., 282 F. Supp. 766, 769 (E.D. Ohio 1968); 

Ohlinger v. United States, 135 F. Supp. 40, 42 (D. Idaho 1955).

13



The 1972 amendment simply changed the forum or tribunal 

in which federal employees may redress their right not to be 

discriminated against in employment. In Hollowell v. Commons, 

supra, the Congress transferred jurisdiction over the deter­

mination of an Indian heirship issue from the federal court 

to the Secretary of the Interior. The new statute was held 

applicable to a pending controversy in federal court because 

"the reference of the matter to the Secretary . . .  takes away 

no substantive right, but simply changes the tribunal that is 

to hear the case. In doing so, it evinces a policy, and an 

opinion that the riahts of the Indians can be better preserved 

by the quasi paternal supervision of the general head of 

Indian Affairs." JId. , 239 U.S. at 508.

Similarly, the 1972 amendments evince a Congressional 

policy that the right of federal employees against dis- 

crimination will be better protected if the employees are 

able to file suit in federal court where the agency forum 

proves inadequate. Since Congress has provided only a new 

remedy to a long existing substantive right, the above 

settled law requires that the 1972 statute be held appli­

cable to any charge of racial discrimination pending at the 

time Of its enactment. This position was adopted in Walker v.

14



Kleindienst, _____ F. Supp. ______, 5 EPD 5 8594 (D.D.C.

1973), where the court stated:

Its [1972 Amendment] applicability to 
pending cases is also supported by the 
fact that the 1972 Act is amendatory, 
affecting procedural remedies, and should, 
therefore, apply to all cases pending at the 
time of its enactment unless some vested 
right would be impaired as a result.
1A Southerland, Secs. 22.01, 22.36. The 
federal government has no license to 
discriminate and, consequently, no vested 
right is affected. JEd. at p. 7743.

The canon of construction relied upon by defendants, that

a statute creating new substantive rights cannot be presumed

to operate retroactively, has no application to a statute

where Congress merely provides a new remedy for a long

existing right.

A recent decision of the Supreme Court provides the

strongest authority for this conclusion, Thorpe v. Housing 
#*

Authority of City of Durham, 393 U.S. 268 (1969). The peti­

tioner there contested an eviction because of the absence of 

an opportunity to learn the reasons for the eviction. Long 

after the eviction proceeding began and while the case was 

pending before the Supreme Court, the Department of Housing 

and Urban Development promulgated a regulation which required 

the very hearing which petitioner sought. In applying the 

newly promulgated HUD regulation to the pending case, the

15



Supreme Court declared that it is "the general rule . . .

that an appellate court must apply the law in effect at the

time it renders its decision" (id., 393 U.S. at 281). Quoting

Chief Justice Marshall, the Court stated:

[I]f subsequent to the judgment and 
before the decision of the appellate 
court, a law intervenes and positively 
changes the rule which governs, the law 
must be obeyed, or its obligation denied.
If the law be constitutional.. . . I know
of no court which can contest its obliga­
tion. It is true that in mere private 
cases between individuals, a court will and 
ought to struggle hard against the con­
struction which will, by a retrospective 
operation, affect the rights of the parties, 
but in great national concerns. . . the
court must decide according to existing laws, 
and if it be necessary to set aside a 
judgment, rightful when rendered but which 
cannot be affirmed but in violation of law, 
the judgment must be set aside.

Id. at 282, quoting from United States v. Schooner Peggy,

5 U.S. (1 Cranch) 103, 110 (1801). Section 717 of the 1972
if

Civil Rights law does not affect "mere private cases between 

individuals." It involves the "great national concern" of 

providing an effective remedy against race discrimination by 

the Government against its employees. If the HUD regulation 

in Thorpe was applied to a case after the completion of the 

lower court proceedings, the 1972 amendment applies, â fortiori, 

to the instant case which is still pending decision in the

16



trial court. Under Thorpe and its progeny plaintiffs' right 

to bring this action under the 1972 amendment must be sustained.

B. Plaintiff's Cause of Action Accrued After 
March 24, 1972

The 1972 amendment was approved March 24, 1972. The

only reference to the effectiveness of Public Law 92-261 is

in section 14, which reads:

Sec. 14. The amendment made by the Act 
to section 706 of the Civil Rights Act 
of 1964 shall be applicable with respect 
to charges pending with the Commission 
on the date of enactment of this Act and 
all charges filed thereafter.

Defendants contend that since the racially discriminatory 

acts occurred prior to March 24, 1972, section 14 precludes 

plaintiff from pursuing his cause of action under the 1972 

amendment. Efowever, defendants offer no evidence in support 

of this contention. It was necessary to legislate the effec­

tive date of the amended section 706 in order to assure that 

its provisions such as the extended 90-day time period 

governing a charging party's right to institute a lawsuit 

after receipt of a notice of right to sue would apply to 

pending charges. Obviously, no such provision would be 

appropriate with respect to section 717> since prior to the 

enactment of section 717, Title VII did not provide for 

a cause of action for federal employees.

17



Section 717(d) (42 U.S.C. § 2000e-16 (d)) states that

the operative provisions governing civil actions by private 

employees also govern civil actions brought by government 

employees. In addition, the Senate Report states: "Aggrieved

[federal] employees or applicants will also have the full 

rights available in the courts as are granted to individuals 

in the private sector under Title VII." Legislative History, 

supra, at 425. In short, Congress, having expressly provided 

that the Act shall apply to pending discrimination charges 

by private employees and having indicated that public employees 

shall enjoy all of the rights of private employees, the 1972 

amendment must be construed to apply to pending charges of 

public employees as well. Since no conceivable difference 

exists on this score, any other reading would be completely 

arbitrary and yould fly in the face of Congress' intent to 

treat public and private employees alike.

Defendants present no evidence of Congressional intent 

that this section not apply to pending cases. If Congress 

intended to allow for a delay in the operation of section 717, 

it easily could have provided, as it did when Title VII was 

first enacted, that it would not become operational for one 

year after its passage, jL.ê. , July 2, 1965. The failure of

18



Congress to provide for such delay in the operation of 

section 717, a provision which was not contained in Title 

VII before amended in March 1972, obviously means that it is 

to apply upon enactment. The question presented is, when 

did plaintiff's cause of action under Title VII accrue? The 

answer to that question is, only after plaintiff Henderson 

exhausted administrative remedies as provided by section 717.t
Upon exhaustion, section 717 had been enacted and plaintiff 

therefore contends alternatively that there would be no 

retroactive application. Plaintiff only asks the Court to 

apply the law as it existed when his cause of action accrued.

19



IV.
PLAINTIFF FILED SUIT WITHIN 30 DAYS OF THE 
CIVIL SERVICE COMMISSION'S LAST ORDER AND 
NOTICE OF FINAL ACTION WAS NEVER GIVEN.

A . Plaintiff's Complaint Was Timely Filed.
Section 717(c) of the 1972 amendment provides for an 

aggrieved party to file a civil action within 30 days after 
"receipt of notice of final action" taken by the Civil Service 
Commission on appeal. Plaintiff filed his complaint within that 
30-day statute of limitations. A brief review of the procedural 
history of this matter establishes beyond cavil plaintiff's as­

sertion of timeliness.
On December 3, 1971, plaintiff contacted an Equal Employment 

Opportunity counselor and complained of racial discrimination by 
defendant. After making inquiry into the matter, the counselor 
was unable to resolve the complaint. Consequently, on December 9, 
1971, plaintiff filed a formal complaint. After an investigation 
the Assistant Equal Employment Opportunity Officer issued a find- 
ing of no "overt discrimination." Plaintiff, though dissatisfied 
with the finding, waived his right to a hearing. Thereafter, on 
May 20, 1972, the Deputy Director of defendant agency issued a 
decision in which he made a finding of no discrimination. Notice 
of this decision reached plaintiff on or after June 6, 1972. An 
appeal was then filed with the civil Service Commission Board of
Appeals and Review on June 21, 1972.

On November 20, 1972, the Commission issued a decision affirm­
ing the Deputy Director's finding of no discrimination. Notice of 
this decision reached plaintiff on November 27, 1972.-2V Thereafter,

2 / This decision was probably delayed in reaching plaintiff 
because of the holidays. We are, of course, prepared to present

20



plaintiff commenced this action by filing a complaint in this 
court on December 27, 1972 within 30 days of receiving the Com- 

mission's decision.
B. Plaintiff Has Never Received a ''Notice of Final Action. "
Defendants,in questioning plaintiffs' failure to allege 

facts showing suit was timely filed.apparently assume that a 
notice of final action has been issued. we submit that this 
assumption is erroneous because it fails to give proper accord to

the basic requirements of notice.
Plaintiff's only communication from the Civil Service Com­

mission following his appeal was the receipt by mail of a copy 
of the commission's decision and opinion which contained a two- 
line statement that under Civil Service Regulations the Board's 
decision is final and there was no further administrative appeal 
available. This form of notice does not inform one of his right to 
file a civil actipn, or his right to apply for court-appointed 
counsel in such an action, or, more importantly, that these rights 
may be lost if he does not file his action within thirty days.

Due process under the Constitution requires that plaintiff 
be effectively informed of his rights under the law. This funda­
mental principle was recently reiterated by the United States 

Supreme Court as follows:

2 / (Cont'd) , , . _testimony as to the date of
"return receipt" is in defendants
from the Commission.

receiving the decision; but the 
possession or available to it

21



For more than a century the central meaning of 
procedural due process has been clear: 'Parties
whose rights are to be affected are entitled to 
be heard; and in order that they may enjoy that 
right they must first be notified'.... It is 
equally fundamental that the right to notice and 
an opportunity to be heard 'must be granted at a 
meaningful time and in a meaningful manner. 407 
U.S. at 80 (citations omitted)

The cryptic references to its finality contained in the
«

decision by the Board of Appeals and review are wholly inadequate 
to give plaintiff the kin! of "notice of final action" contem­
plated by the statute and enable him to fully protect his rights.

The legislative history of the 1972 Equal Employment 
Opportunity Act clearly indicates the kind of notice envisioned

by Congress:
Provisions of present law requiring that the 

person aggrieved be notified of his rights have 
been retained. Especially in light of the further 
safeguards in this bill, the Commission is expected, 
at the commencement and at other appropriate stages 
of the proceedings, to fully notify the aggrieved 
person in clear and understandable fashion of the 
various procedural rights and steps open to him.
Too often a person files a charge but then blunders 
along lost in the bureaucratic process. The com­
mittee believes that further steps should be taken, 
including perhaps followup notification, to ensure 
that an aggrieved person knows at appropriate times 
the status of the case and his rights under the law.

The EEOC in discharging its responsibilities under §706 
has properly recognized the need to give clear and effective 
notice. It forwards complaining parties a "notice of right to 
sue" which clearly states that they have a right to file suit 
in the United States District Court and that such suit mus_t be 
filed within 90 days after receiving the notice. EEOC also in­
forms complaining parties of their right to seek court appointed

22



counsel and leave to proceed without payment of costs. §706(f) (1).
The purported "notice of final action" involved in this case

stands in sharp contrast to the careful practices of the EEOC
based on its eight (8) years experience under the Act. If
construed as satisfying the requirements of the Act and the
Constitution, this meager form of notice will undoubtedly result

* . . 3 /in many persons failing to file within the prescribed 30 days.
Thus, they will forfeit all rights under the Act. This court 
should hold that the terse statements in the Board's decision 
are not adequate "notice of final action." The court should 
suggest the adoption of practices similar to EEOC's.

V.

PLAINTIFF IS ENTITLED TO A TRIAL DE NOVO AND 
IS NOT LIMITED TO A MERE REVIEW TO DETERMINE 
WHETHER THE COMMISSION'S DECISION WAS ARBITRARY.

Defendants contend that this action is limited to a mere 
review of the civil Service Commission's decision to determine 
whether the decision was arbitrary and capricious. But, the 
1972 Amendments grant jurisdiction to this Court over this action 
without limitation on its normal duty to hold evidentiary hearings

The requirement to file suit within 30 days originally con 
tained in §706 has produced a considerable number of decisions con­
cerning the steps necessary to satisfy the requirement. E.g.: 
Harris v. Walgreen's Distribution Center, 456 F.2d 588 (6th Cir. 
1972) and cases cited therein. Clear and effective requirements 
for "notice of final action" will greatly reduce the number of 
similar cases under the 1972 Amendments.

23



and make findings of fact. The intent of Congress to permit 
an aggrieved employee to initiate a de novo action in federal 
court is clearly demonstrated by the following points.

A. The Absence of Special Language in the Statute Limit­
ing the Court's Power Demonstrates a Lack of Congress­
ional Intent to Limit the Scope of Review.

Congress has traditionally used special language limiting
the court's jurisdiction where it intended the court to exer-

4 /cise only a limited "substantial evidence" review.—  The
lack of such special language calls for rejection of defendants' 
contention that there is a limitation on this Court's power to 
grant plaintiff a trial de novo.

Under the 1972 amendments an aggrieved federal employee 
may initiate a civil action in one of two ways: (1) after 
receipt of a final decision upon a complaint of discrimination 
by the appropriate government agency or by.the Civil Service Com­
mission upon an^appeal from a decision of such agency, or (2) 
where a final administrative decision has not been rendered 
after 180 days from the filing of the initial charge with the 
agency or with the Civil Service Commission on appeal from a 
decision of such agency. It is clear that in the latter case, 
where no final administrative decision has been made, the only 
jurisdiction a court could have would be that of holding a 
trial de novo. Thus, it would seem that if Congress intended

4/ See, e.g., Section 10(a) of the National Labor Relations 
Act (29 U.S.C. § 160(e)).

24



that the court's jurisdiction be different or more restricted 
under the first method of getting into court than in the case 
where an aggrieved party has received no final administrative 
decision, special language delimiting the court's power would 
have been included in the legislation. The absence of such 
special language indicates the absence of Congressional intent 
to limit the court's power.

B. The Statutory Language Clearly Gives Federal Employees 
the Same Remedy as Victims of Discrimination in Private 
Industry: A De Novo Trial.

The 1972 amendments contain language manifesting Congress’
intent that civil actions initiated by federal employees shall
be the same as civil actions initiated by employees in private
industry. Section 717 of the amended act whicii authorizes suit
by federal employees provides in § 717 (c) that a federal employee
"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 ..." Section 717(d) (42 U.S.C.
§ 2000e-16(d)) states that "the provisions of Section 706 (f)
through (k), as applicable, shall govern civil actions brought
hereunder." It is clear by this language that the basic
operative provisions concerning civil actions by private <•*
employees have been extended to apply equally to civil 
actions commenced by federal employees. And the law is settled 
that private employees are entitled to a trial de novo in
federal court. McDonnell Douglas Corp. v. Green, ___ U.S. ___,
41 L.W. 4651 (May 14, 1973); Robinson v. Lorillard Corp., 444 
F.2d 791, 800 (4th Cir. 1971); Beverly v. Lone Star Lead

25



Construction Corp., 437 F.2d 1136, 1141 (5th Cir. 1971); Flowers
v. Local 6, Laborers Int'l Union of North America, 431 F.2d
205, 208 (7th Cir. 1970); Fekete v. United States Steel Corp.,
424 F.2d 331, 336 (4th Cir. 1970).

Furthermore, the cases have established that a private
employee is entitled to a trial de novo in federal court even

«when the Equal Employment Opportunity Commission has found no
reasonable cause to believe that discrimination has occurred.
Beverly, supra. Just as the EEOC finding of "no reasonable
cause" fails to bar a trial de novo in federal court for private
employees, the Defense Contract Administration Region finding
of no discrimination, affirmed by the Civil Service Commission,

5 /cannot bar a trial de novo for plaintiff.
C. The Legislative History Fully Supports Plaintiff's 

Contention That She Is Entitled to a Trial De Novo.
The legislative history fully supports plaintiff's conten­

tion that she is entitled to a trial de novo. Both the com­
mittee reports and the floor debates leave no doubt that it 
was Congress' intent to give to public employees the same 
means of redress enjoyed by private employees, a trial de novo

Much of the reasoning of the courts in support of their 
holding that a no reasonable cause finding by the EEOC will 
not bar a private employee's de novo action in federal court is 
applicable where a finding of no discrimination is made in the 
course of the administrative procedures established by the 
Civil Service Commission. The CSC procedures suffer from many 
of the same, if not even more, inadequacies of the EEOC pro­
cedures. Particularly, its investigative process suffers from

26



in federal court. An example of such intent is contained in the 
following excerpts from the Committee Report:

An important adjunct to the strengthened Civil Service 
Commission responsibilities is the statutory provision of 
a private right of action in the courts by federal employees 
who are not satisfied with the agency or Commission decision.

* * *

Aggrieved employees or applicants will also have the 
full rights available in the courts as are granted to in—  ̂
dividuals in the private sector under Title VII. (Emphasis 
added.)6 /

During the course of debate, Senator Williams', Chairman of the
Committee, further underscored the intent to extend the full right to
sue enjoyed by private employees to public employees when he stated:

There is no reason why a federal employee should not have 
the same private right of action enioyed by individuals— in 
the private sector, and I believe that the committee has 
acted wisely in this regard. (Emphasis added. )1__/

5 / (Cont'd)
the same problems as that of the EEOC, which has been cited by the 
courts for its lack of depth and ex parte nature, bereft of the advantages 
stemming from an adversary proceeding in a court of law. Robinson, 
supra, Beverly, supra, and, in addition, the ex parte deficiencies of^the 
CSC proceedings are further compounded by the fact that the agency und r 
investigation decides*the lawfulness of its own practices.
6 _/ Report of Senate Committee on Labor and Public Welfare, No. 92-415,
92nd Cong., 1st Sess., October 28, 1971, as reported in Legislative 
History of the Equal Employment Opportunity Act of 1972 (Wash., D.C.:
U.S. Gov't Printing Office), 1972, p. 16 (hereafter Legislative His ory) • 
This Committee drafted the language adopted in the 1972 Act dealing with 
federal employment.

— ^  Legislative History, p. 1727. It should be noted that remarks of 
Senator Cranston were inaccurately reported in the Congressional Recor 
but were later corrected. They were initially reported: As with^
other cases brought under Title VII ... Federal District Court Review ... 
would not be a trial de novo." Legislative History, p. 1744. Senator 
Cranston's corrected statement was that "Federal District Court review ... 
would be a trial de novo."

27



The Conference Report on the final bill clearly indicates 
that in matters dealing with equal employment, contrary to 
defendants' contention, it was not the intent of Congress to 
leave intact complete discretionary authority in the agency 

heads:
__In providing the statutory, basis for such

appeal or court access it is not the intent of 
the Committee to subordinate any discretionary 
authority or final judgment now reposed in agency 
heads by, or under, statute for national security 
reasons in the interests of the United States. Q /

The conference Report makes it patently clear that the 
Act was not meant to interfere with an agency head s discretionary 
authority only insofar as national security was concerned. An 
agency head cannot shield from judicial scrutiny conduct made 
unlawful by Title VII under the cloak of his "discretion."

D. Cases Cited by Defendants in Support of Their Contention 
of Limited Judicial Review Are Inapposite^

if

Defendants cite two cases, McTiernan v. Gronouski, 337 F.2d 
31 (2d Cir. 1964); Taylor v. United States Civil Service Com­
mission, 374 F.2d 466 (9th Cir. 1967), in support of their 
proposition that the scope of review of this Court is limited to

issue of whether or not the administrative decision was 
arbitrary and capricious. Both cases involved challenges to 
employee dismissals brought under the Veterans Preference Act,
5 U.S.C. § 851 _et seq. That statute grants qualifying veterans 
certain procedural rights in administrative proceedings in­
volving disciplinary action against federally employed veterans.

.?./ Conference Report, Senate No. 92-681, 92nd Cong., 2nd Sess., 
March 2, 1972, as reported in the Legislative History, p. 21.

28



«

Thus, the court in McTiernan recognized the limitations on its
scope of review imposed by Congress when it stated:

The taking of disciplinary action against 
governmental employees . . .  is a matter 
of executive discretion, and is subject to 
judicial supervision only to the extent 
required to insure substantial compliance 
with the pertinent statutory procedures 
provided by Congress . . . and to guard
against arbitrary and capricious action.
374 F.2d at 469.

Plaintiff submits that in the 1972 Amendments to Title VII 
Congress has specifically provided for a judicial determination 
of cases alleging racial discrimination in federal employment.

E. Members of the Civil Service Commission Are Not 
Indispensable Parties to This Action.

Defendant contends that since it is the Civil Service 
Commission's actions that are to be reviewed, then the members 
of the Commission are indispensable parties. This argument 
fails for the reasons stated above showing that a trial de novo 
is required.

Moreover, Section 717(c) of the 1972 Act permits a federal 
employee aggrieved by the decision of the civil Service Com­
mission, upon an appeal from a decision of the employee's agency 
to file a civil action "in which civil action the head of the 
department, agency or unit, as appropriate, shall be defendant." 
Plaintiff submits that since "department, agency, or unit" is 
used earlier in the same subsection as a means of describing 
the employing branch, it does not include the members of the 
Civil Service Commission, even though the Commission's decision

29



on appeal may trigger the litigation.

Conclusion

For the foregoing reasons, this Court should deny 
defendants' motion for judgment on the pleadings.

Respectfully submitted,

DALE L. MATSCHULLAT
One Chase Manhattan Plaza
New York, New York 10005 
212 HA 2-3400

JACK GREENBERG 
WILLIAM L. ROBINSON 

10 Columbus Circle 
New York, New York 10019 
212 586-8397

Attorneys for Plaintiff

30



CERTIFICATE OF SERVICE

I hereby certify that on the day of September, 1973
two copies of Plaintiff's Memorandum In Opposition To Defendants' 
Motion For Judgment On The Pleadings were served on Paul J. 
Curran, United States Attorney, and Joel B. Harris, Assistant 
United States Attorney, Southern District of New York, United 
States Courthouse, Foley Square, New York, N.Y. 10007, attorneys 
for defendants, by U.S. mail, postage prepaid.

William L. Robinson