Brown v. General Services Administration Reply Brief

    I n  t h e

n p v m t  (£mtrt nf tljr Mniteb
O ctober T er m , 1975 

No. 74-768

Clarence  B ro w n ,
Petitioner,

v.

General  S ervices A d m in istration , et al.

REPLY BRIEF

J ack  G reenberg 
J ames M . N abrit , III 
C harles S teph en  R alston  
M elvyn  R . L eve n th a l  
B arry L . G oldstein 
B il l  L a n n  L ee 
E ric S ch napper

10 Columbus Circle 
New York, New York 10019

J eep G reenup

200 West 135th Street 
New York, New York 10030

Counsel for Petitioner



I N D E X

A r g u m e n t ...............    1

I. Section 717 Did Not Repeal Pre-Existing Statu­
tory Remedies ........ ............................. -.....................  1

II. Petitioner Should Not Be Required to Further
Exhaust Administrative Remedies .......................  9

III. Section 717 Requires a Trial De Novo .................  17

IV. The Inadequacy of the Administrative Procedure 22

Conclusion  .......................................................................................  26

Appendix A ............. ......... .............. ............... -...................  laa

Appendix B ....................    13aa

Appendix C ...........................................................................14aa

Appendix D ...........................................................................15aa

Appendix E ............................................................-........... ..17aa

Appendix F .................    25aa

T able of A uthorities  :

Cases:

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) 18,
20

PAGE

Bowers v. Campbell, 505 F.2d 1155 (9th Cir. 1974) 2



i i

Chandler v. Roudebush, No. 74-1599 ...........10,17,18,19, 20,
21, 22, 24

Communist Party v. S.A.C. Board, 361 U.S. 1 (1961) 24

Day v. Weinberger, 8 EPD fl 9771 (D.D.C. 1974) .......  21

Gnotta v. United States, 397 U.S. 934 (1970) ...............  3
Griffiths v. Hampton (D.D.C. No. 75-1509) ................ . 25
Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir. 1975) ,...........  12

Jones v. Alfred A. Mayer Co., 392 U.S. 409 (1968) .... 6

McGee v. United States, 402 U.S. 479 (1971) .............13,14
McKart v. United States, 393 U.S. 185 (1969) ..... ..... 13,14
Morton v. Mancari, 417 U.S. 535 (1974) .......................  4

Napper v. Schnipke, 393 F.Supp. 379 (E.D. Mich. 1975) 21

Penn v. Sehlesinger, No. 74-476 ......... ................. ...........  10
Petterway v. Veterans Administration Hospital, 495

F.2d 1223 (5th Cir. 1974) ........................................ .. . 2
Place v. Weinberger, No. 74-116.......... .................. .........  7

Robinson v. Warner, 8 EPD If 9452 (D.D.C. 1974) .....  22

Salone v. United States, No. 74-1600 .................... 3, 6,19, 20
Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) .... 5, 6

United States v. Borden Co., 308 U.S. 188 (1939) .......  4, 5
United States v. Mississippi, 380 U.S. 128 (1965) ------ 4
United States v. Testan, No. 74-753 ..... — ............... —  3

PAGE

Wood v. United States, 41 U.S. 342 (1842) 4



Ill

Statutes: PAGE

28 U.S.C. §1331 .................................................................. 8

28 U.S.C. §1391(e) ............................................................ 3

Administrative Procedure Act ........... -................ -..........  8

Civil Rights Act of 1866, 42 U.S.C. §1981 ......... -—2, 8, 9,12

Civil Rights Act of 1964, Title II .............................. - -  6

Civil Rights Act of 1964, Title VII
Section 703 .... - .......... -................................................ 6
Section 704 ............. ......................................... -..........  6
Section 705 .....   6
Section 706 .............................-.............. -.............. 5, 6, 7, 8
Section 717 .................... -............... -.... -----............ Passim

Mandamus Act ...........-...................... .................................  8

Tucker A c t ............................................................................  8

Regulations:

5 C.F.R. §713.213 _____ _____ -.......... -.... -........................  H

5 C.F.R. §713.217(a) ....................................................... -  U

5 C.F.R, §713.217(b) ..... ........ .................. -........................  11

5 C.F.R. §713.218(g) ............................................................. 19

5 C.F.R. §713.233 ..................................................................  11

5 C.F.R. §713.281 .... ......................................... -............ -..... 18

5 C.F.R. §713.283 ................................................ -..............  12

Other Authorities:
United States Commission on Civil Rights, The Fed­

eral Enforcement Effort—1974, Vol. V, To Elimi­
nate Employment Discrimination (1975) ....................... 18



IV

S. Conf. Rep. No. 92-681, 92nd Cong., 2d Sess. (1972).... 7

S. Conf. Rep. No. 92-899, 92nd Cong., 2d Sess. (1972).... 7

Oversight Hearings Before the Subcommittee on Equal 
Opportunities of the House Committee on Education

PAGE

and Labor, 94th Cong., 1st Sess............................. 15,18, 25

110 Cong. Rec. ...................... ...............................................  5

Federal Rules of Civil Procedure, Rule 25(d)...............  4



I n th e

Court of %  Itttlrft B U U b
O ctober T er m , 1975 

No. 74-768

Clarence B ro w n ,

v.

Petitioner,

General S ervices A dm inistration , et al.

REPLY BRIEF

Petitioner submits this Reply Brief in response to the 
brief of respondents in this action and in response to con­
tentions bearing on this case advanced by the government 
in Chandler v. Roudebush, No. 74-1599.

ARGUMENT

I.

Section 717 Did Not Repeal Pre-Existing Statntory 
Remedies.

The government suggests at the outset that in deciding 
whether section 717 repealed all, or most, pre-existing 
statutory remedies, the Court neither decide nor consider 
what those remedies might be or whether they exist at all. 
Brief for Respondents, p. 35, n.18. (“R.Br.” ). Such an 
approach would require the Court to construe section 717



2

without taking into account the nature of the independent 
judicial remedies which might be abolished or preserved by 
its decision. Petitioner believes it would be inappropriate 
for the Court to deliberately close its eyes to the conse­
quences of its decision. Whether federal employees had a 
judicial remedy prior to 1972 is fairly comprised within the 
question presented as articulated in the petition for writ 
of certiorari; the question of whether section 717 repealed 
pro tanto the 1866 Civil Rights Act, etc., can only be an­
swered in the affirmative if federal employees previously 
enjoyed rights under those acts.

It would be inappropriate to delay further a decision as 
to whether petitioner is entitled to a trial on the merits of 
his claims. If this Court remands the case to the Second 
Circuit and it rules that petitioner cannot sue under the 
pre-1972 statutes, certiorari will again be necessary be­
cause the circuits1 will be divided on the question. Such a 
remand will postpone for yet another two years the deci­
sion in this case, which arises out of events in 1971 and 
which was delayed by the government’s inexcused failure 
to promptly process petitioner’s administrative complaint.

The government, it should be noted, does not squarely 
assert that federal employees had no right to sue prior to 
1972. On the contrary, the Solicitor General apparently 
feels constrained not to advance such a contention in light 
of past representations made by the government to Con­
gress and this Court. In 1970 the Department of Justice 
advised Congress that the federal courts already had juris­
diction over claims that federal officials had acted in. viola­
tion of the law or constitution. In 1971 the Civil Service

1 See Bowers v. Campbell, 505 F.2d 1155 (9th Cir. 1974) ; Better- 
way v. Veterans Administration Hospital, 495 F.2d 1223 (5th 
Cir. 1974).



3

Commission advised Congress that federal employees ag­
grieved by employment discrimination had a right to sue 
under statutes then in existence.2 In opposing certiorari 
in Gnotta v. United, States, 397 U.S. 934 (1970), the Solicitor 
General maintained that sovereign immunity did not bar 
Mr. Gnotta from suing for injunctive relief if he had been 
denied a promotion because of his national origin. The 
government contended that the complaint in Gnotta was 
defective solely because Gnotta had named the wrong 
federal defendants, and that he was free to commence a new 
action against the right ones.3 In view7 of the Solicitor Gen­
eral’s position in Gnotta v. United States, and of the Civil 
Service Commission’s assertion to Congress that it was 
incorrectly decided, it is not surprising that the govern­
ment does not here rely on the court of appeals decision in 
this case. Nor does the government contend, as it did in 
Gnotta, that petitioner sued the wrong federal officials.4

2 Brief for Petitioner, pp. 11-13.
3 “ The proper parties defendant in this case, for the purposes of 

mandatory relief, were the individual Civil Service Commissioners, 
who could have been sued in their official capacity in the district 
court under 28 U.S.C. 1391(e). Nothing in the decision of the 
court of appeals would prevent petitioner now from suing the 
Commissioners in the district court under 28 U.S.C. §1391 (e ).” 
Memorandum For The Respondents In Opposition, Gnotta v. 
United States, No. 928, October Term, 1969, pp. 2-3. The Solicitor 
General declined to take a position as to whether Gnotta could sue 
for back pay. Id., p. 3. In United States v. Testan, No. 74-753, 
the. government appears to adhere to this position that sovereign 
immunity provides no protection for federal officials who act “ in 
a manner inconsistent with a specific constitutional prohibition or 
beyond their statutory powers.” Reply Brief for United States,
p. 10.

4 In Salone v. United States, No. 74-1600, the United States 
moved to dismiss the complaint for failure to join the Secretary 
of the Air Force, on the ground that he was an indispensable



4

The government maintains that section 717 must be con­
strued to have repealed all pre-existing remedies unless it 
is clear that Congress intended not to do so. E. Br. 19, 26. 
At least since Wood v. United States, 41 U.S. (16 Pet.) 
342, 363 (1842), the law has been exactly the opposite; 
such an implied repeal can be found only in the face of “a 
clearly expressed congressional intent”  to void the earlier 
law. Morton v. Mancari, 417 U.S. 535, 549 (1974). That 
principle is equally applicable where the asserted repeal is 
based on the fact that the two laws provide remedies for 
the same misconduct. “ The more natural, if not the neces­
sary inference in all such cases is, that the Legislature in­
tend the new laws to he auxiliary to and in aid of the pur­
poses of the old law, even when some of the cases provided 
for may equally be within the reach of each.” Wood v. 
United States, 41 U.S. (16 Pet.) at 363. In United States 
v. Borden Go,, 308 U.S. 188 (1939), expressly relied on by 
this Court in Morton v. Mancari, 417 U.S. at 551, the Court 
stressed that to establish a repeal “ [i]t is not sufficient . . . 
to establish that subsequent laws cover some or even all 
of the cases provided for by [the prior Act] ; for they may

party, and later moved to dismiss on the ground that the Secre­
tary, who had been so joined, was not a proper party at all. 
Petition for Writ of Certiorari, No. 74-1600, p. 7, N.13. Petitioner 
maintains that, except to the extent that a complainant seeks to 
establish personal monetary liability on the part of a defendant, 
all such government motions are frivolous. Regardless of which 
government official is the nominal defendant, all papers are served 
on the same government attorneys and the same attorneys defend 
the suit. Compare Rule 25(d), Federal Rules of Civil Procedure. 
With the exception noted, motions to dismiss, grounded on the 
contention that plaintiff has not named the correct federal defen­
dant, rests on a distinction of no practical significance, serve only 
to delay resolution of the merits of the ease, and should not be 
entertained by the lower courts. Compare United States v. Mis­
sissippi, 380 U.S. 128 (1965).



5

be merely affirmative, or cumulative, or auxiliary.” 308 
U.S. at 198-199.

The government property notes that the adoption of 
Title VII of the 1964 Civil Sights Act did not repeal the 
pre-existing rights of private employees. R. Br. 20-21, 25. 
Most of the contentions advanced by the government for its 
claim that section 717 repealed the rights of federal em­
ployees are in no way distinguishable from the facts ap­
plicable to private employees. The government stresses 
that Congress in 1972, when it adopted §717, was at best 
uncertain whether federal employees had any other judicial 
remedies, and therefore could not have intended to preserve 
those remedies; but in 1964, when it adopted Title VII, 
Congress was even more convinced that private employees 
had no such remedies.5 Petitioner maintains that, as the 
government contended in Sullivan v. Little Hunting Park, 
396 TJ.8. 229 (1969), the understanding of Congress as to 
whether there was a pre-existing statute is largely ir­
relevant.6

Section 1981 would, of course, give a cause of action to 
an employee who failed to sue within the time provided by 
section 717, but it also does so for private employees who 
do not act within the period set by section 706; the mere 
existence of such time limits does not warrant an inference 
that Congress attached such immense importance thereto

5 Congressman Rodino remarked, “Up to this moment the Con­
gress of the United States . . . has failed to act against discrimina­
tion in employment.”  110 Cong. Rec. 1539. Congressman Ryan 
described Title VII as “ an important first step in an area where 
the federal government previously has refused to intervene.” 110 
Cong. Rec. 1643. See also 110 Cong. Rec. 1540, 1592-95, 1599-1602, 
1626-31, 1638-39, 1645, 2601-02, 7207, 7218, 7242, 7712.

6 Brief for the United States as Amicus Curiae, No. 33, October 
Term, 1969, pp. 29, 31, n.14.



6

as to want to repeal all other statutes.7 * * * II Although the gov­
ernment characterizes section 717 as creating a “ compre­
hensive system” of judicial remedy, that section itself con­
tains only two sentences with regard to judicial relief; the 
details of that procedure are incorporated by reference to 
the provisions of Title V II applicable to private employees. 
See section 717(c) and (d). The delineation of the sub­
stantive conduct forbidden to private employers by sections 
703 and 704 is far more elaborate than the prohibition in 
section 717(a). Section 717(b) merely directs the Civil 
Service Commission to establish an effective procedure for 
handling complaints of employment discrimination; sec­
tions 705-714 specify in far greater detail the procedures 
to be followed by the EEOC in processing such complaints 
by private employees.

The government acknowledges that Congress expressly 
rejected a proposed amendment to section 706(f) to make 
Title V II an exclusive remedy, but contends this amend­
ment would not have applied to federal employees since 
the United States is not an employer within the meaningful 
section 701(b). But section 717(d) expressly makes ap-

7 Title II of the 1964 Civil Rights Act does not authorize
monetary relief, and is in this regard narrower than the 1866
Civil Rights Act. The government, in Sullivan v. Little Hunting 
Park, 396 U.S. 229 (1969), expressly rejected the contention that 
this difference compelled the conclusion that Title II had repealed
the earlier act sub silentio. “ It may be objected that our conclu­
sion is sound only insofar as it focuses on those provisions of Title
II which add substantive guarantees or remedial machinery and 
ignores the fact that the new law in some respects retrenches on 
the broad coverage of the 1866 Act. The answer is that, confronted 
with the same situation with respect to the 1968 housing law, the 
Court in Jones [v. Alfred A. Mayer Co., 392 U.S. 409 (1968)] did 
not on that account find a pro tanto repeal; the same result is 
compelled here.” Brief for the United States as Amicus Curiae, 
No. 33, October Term, 1969, p. 31,



7

706(f) through (k).8 In support of its contention that sec­
tion 717 was intended to be an exclusive remedy the govern­
ment quotes the House and Senate reports to describe 
section 717 as “providing the statutory basis for . . . appeal 
or court access . . E. Br. 25 (Italics added by govern­
ment.) The full quotation, however, has precisely the op­
posite meaning:

Each agency of the Federal Government would be re­
sponsible for establishing an internal grievance pro­
cedure and programs to train personnel so as to enable 
them to advance under the supervision of the Civil 
Service Commission. I f  final action had been taken by 
an agency or the Civil Service Commission, an ag­
grieved party could bring a civil action under the pro­
visions of section 706. The House bill did not cover 
Federal employees. The House receded. 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. 
(Emphasis added)9

The word “ such” , omitted from the government’s brief, 
clearly refers to the civil action under section 706 men­

8 The government appears to want the Court to apply to it from 
7Q6(f)-(k) only those provisions limiting the rights of employees. 
Thus, the government asserts that the two-year limitation on hack 
pay in section 706(a) should apply to it, Memorandum For Re­
spondents In Opposition, Place v. Weinberger, No. 74-116, p. 3, 
although that limit refers to the filing of a charge with the EEOC, 
but that, insofar as section 706 contemplates a trial de novo, that 
it should be held inapplicable.

9 H. Conf. Rep. No. 92-899, 92d Cong., 2d Sess. 21 (1972), Legis­
lative History 1841; S. Conf. Rep. No. 92-681, 92d Cong., 2d Sess., 
21 (1972), Legislative History 1819.



8

tioned two lines earlier. Section 717 is thus described, not 
as “ the” basis for all federal employment suits, but as the 
basis for such suits under the procedures of section 706.

Throughout the lengthy legislative history of the 1972 
Act, with the exception of the unsuccessful Senate amend­
ment, not a single Senator, Congressman, Report or wit­
ness urged repeal of any pre-existing remedy, and none ever 
stated that section 717 was intended to be an exclusive 
remedy, that cutting off all remedies from federal employees 
who did not sue within 30 days was an important congres­
sional policy, or that restricting judicial remedies would 
somehow improve the administrative process. From the 
bare bones of section 717 the government contends that this 
was the secret intent of Congress,10 and that what Congress 
did say, that federal employees were to have the same rights 
and remedies as private employees,11 was precisely the 
opposite of what it meant. On this foundation the govern­
ment would have this Court conclude that Congress in­
tended to repeal, in whole or part, the 1866 Civil Eights 
Act, the Mandamus Act, the Tucker Act, the Administrative 
Procedure Act, and 28 U.S.C. §1331. The government in­
vites the Court to construe section 717, not as expanding 
the rights of federal employees, but as the most sweeping 
repeal of anti-discrimination remedies since the end of 
Reconstruction. The invitation should be declined.

The government essentially concedes that, to the extent 
that petitioner seeks forms of relief not available under 
Title VII, he still has a remedy under the pre-1972 statutes. 
R. Br. 34, n.17. The government notes that among those 
unavailable remedies is damages against the allegedly dis­
criminatory officials in their individual capacities. The com­

10 R.Br. 18, 19, 21, 26, 31, 32, 33.
11 Brief for Petitioner ( “ P.Br.” ), 11-13.



9

plaint in this action names as defendants those officials, and 
asks the court for “ such relief as may be appropriate, in­
cluding injunctive orders, damages, costs, attorney’s fees 
and back pay.” A 14a. The prayer asks for literally any 
relief whatever which may be appropriate; the enumera­
tion is clearly not intended to be exclusive. The request 
for damages is broad enough to encompass both compensa­
tory and punitive damages as against both the government 
and the defendant individuals. Even if the form of the 
prayer were far more restricted, that request does not 
ordinarily limit the relief which can be granted. Thus even 
on the government’s view, petitioner’s right to maintain 
this action was not fully withdrawn by Title VII.12

II.

Petitioner Should Not Be Required to Further Ex- 
haust Administrative Remedies.

Petitioner maintains, for the reasons set out in his brief,13 
that it would be inappropriate to establish an exhaustion 
requirement for federal employees who wish to sue under 
statutes other than section 717. In the instant case, how­
ever, petitioner did in fact consume almost two years in the 
administrative process prior to filing suit. Petitioner main­
tains that he cannot be required to do more.

12 rppe government notes that the court of appeals opinion does 
not expressly consider this problem; the failure of the court of 
appeals to discuss this problem in its opinion cannot render un- 
reviewable an otherwise defective decision. The question of whether 
Title VII repealed the right of federal employees to sue individual 
supervisors for damages under the 1866 Civil Rights Act, etc., is 
clearly “ fairly comprised” within the question of whether Title 
VII repealed all rights of federal employees to sue under those 
statutes. R.Br. 34, n.18.

13 P.Br. 45-60.



10

In its brief in Chandler v. Roudebush, No. 74-1599, the 
government states with regard to the administrative pro­
cess for handling complaints of employment discrimination, 
“ The employee’s only burden is to file an administrative 
complaint and to furnish any information available to 
him.” 14 15 Petitioner maintains that that is all the govern­
ment can reasonably ask by way of exhaustion. As a prac­
tical matter virtually all the relevant evidence is in the 
hands of, or under the control of, the government itself; 
the employment records are official documents and almost 
all witnesses are federal employees.16 So long as an em­
ployee has notified the government of his grievance and 
answered any inquiries for additional information, he has 
given the government precisely what it asks for in this 
case— “an opportunity to correct its own errors.” R. Br. 42.

Both petitioner in this case, and the petitioners in Penn 
v. Schlesinger, No. 74-476, gave the government such notice. 
Indeed, as a result of the subsequent litigation, the facts of 
these cases are by now known to most attorneys and offi­
cials responsible for federal employment discrimination 
litigation in the Civil Service Commission and the Depart­
ment of Justice. No claim is made that these petitioners 
have withheld relevant information requested by the gov­
ernment. On the contrary, Brown fully cooperated in the 
investigation of his case and the government has never 
sought any information whatever from the petitioners in 
Penn.

The problem arises because the regulations require an 
employee to do far more. Section 717(b) contemplates 
that, once the government learns of a complaint, there will 
be a thorough investigation, and resolution on the merits,

14 Brief for the Respondents, No. 74-1599, p. 63, n.37 ( “ C.R.Br.” ).
15 Where they are not, of course, the employee is powerless to

compel their attendance.



11

of any instance of possible discrimination, and that the 
investigation will not end until the Commission either con­
cludes there is no discrimination or finds that there is and 
orders unappropriate remedy. But under part 713 even 
after an affected employee has brought the discrimination 
to the attention of his superiors, the employees must come 
forward at least 5 more times16 and affirmatively demand 
further processing. If at any point he fails to do so the 
regulations excuse, and may even forbid, the responsible of­
ficials from completing an inquiry as to whether section 
717 (a) has been violated. Because of this system, out of 
approximately 30,000 complaints of discrimination made 
each year to Federal EEO counsellors, only a few hundred 
are completely processed through a final decision on the 
merits.17

Petitioners maintain that to the extent that exhaustion 
is required, the government is entitled only to notice of 
the charge of discrimination and disclosure, on request, of 
information in the employees. Under the present system 
less than 2% of the federal employees who complain of dis­

16 (1) After notifying the EEO counsellor the employee must
indicate he is dissatisfied by any counseling received in order 
to obtain a “ right to complain” letter. §713.213(a). (2) After
receipt of that letter the employee must, within 15 days, file a 
written complaint. (3) After the investigation, the employee must 
indicate he is not “ satisfied” with any adjustment the agency has 
proposed. §713.217(a). (4) If he does so he must, within 15 days 
of an appropriate notice, indicate he wants a hearing. §713.217 (b ) . 
(5) After the agency makes its decision the employee must, within 
15 days, indicate he wants the Appeal Review Board to consider 
the matter. §713.233(a).

17 In petitioner’s case the government knows of Brown’s griev­
ance, but objects that it is “ unable” to do anything about it because 
§713.233 forbids the Appeals Review Board to act if there is no 
notice of appeal within 15 days of Final agency action. In Penn 
the government objects that it is “ unable” to do anything because 
§713.213-14 forbids any agency to even begin action on a well- 
known complaint except where six conditions are met.



12

crimination obstinately reassert their claims the five times 
necessary to assure processing through the Appeals Re­
view Board.18 At that rate adoption of the exhaustion rule 
sought by the government would render section 1981, etc., 
unavailable to the vast majority of federal employees; if, 
as a result of that rule, all federal employees who com­
plained to EEO counsellors processed their grievances 
through the Appeals Review Board in order to be able 
to sue under section 1981, the number of hearings would 
increase by a factor of 10, the number of appeals by a fac­
tor of 50. Under the former circumstance the government’s 
exhaustion rule would sanction a pattern of official refusal 
to look into most allegations of discrimination; under the 
latter it would so flood the system with complaints as to 
grind it to a halt—in neither would that rule, as the gov­
ernment implies, encourage reform of the system. R. Br. 54. 
If, after giving the government fair notice, the employee 
commences a lawsuit, that action in no way “aborts” the 
administrative proceeding. See R. Br. 32, 33. Nothing in 
the regulations permits an agency or the Commission to 
discontinue processing an administrative complaint because 
of pending litigation, and it is not the government s prac­
tice to do so. See Grubbs v. Buts, 514 F.2d 1323 (D.O.Cir. 
1975) ; 5 C.F.R, § 713.283.

The government urges that section 717 reflects an im­
portant congressional policy that the Civil Service Com­
mission, rather than the courts, should be “the foundation” 
of enforcing that ban on discrimination,19 that Congress 
determined “ to maintain the Commission as the expert

1S Of approximately 30,000 such charges in the last Fiscal year, 
the Appeals Review Board finally resolved only 570 on the merits. 
R. Br. 53a.

19 R. Br. 46.



13

agency in such matters,” 20 and that Congress intended to 
require federal employees to pursue all administrative 
procedures as a precondition of suit because it thought 
that this would lead to “ the development of effective ad­
ministrative remedies” .21 Nowhere in the legislative history 
of section 717, however, did any member of congress an­
nounce or intimate any such policy. The statements that 
are made were directly to the contrary—that the Commis­
sion had no expertise, that existing exhaustion require­
ments, if any, should be drastically reduced, and that the 
Commission’s enforcement activities had been so ineffective 
as to require a judicial remedy.22 The stated reason for 
leaving administrative jurisdiction in the hands of the 
Civil Service Commission was not that Congress thought 
the Commission competent or likely to become so, but solely 
because EEOC had too great a backlog to handle those 
additional responsibilities.23

The distinction between the limited exhaustion require­
ment suggested by the government in Chandler, and the 
more drastic requirement urged in this case, is well illus­
trated by the difference between McGee v. United States, 
402 U.S. 479 (1971) and McKart v. United States, 393 IJ.S. 
185 (1969). In McGee, a prosecution for failure to submit 
to induction, the defendant maintained that his I-A classi­
fication was improper, and that he should have been classi­
fied as a ministerial student. McGee “had never requested 
that classification nor had he submitted information which 
would have been pertinent to such a claim.” 402 U.S. at 
486. This Court concluded that McGee had attempted “ to 
sidestep the administrative process and make the first

20 R. Br. 46.
21 R. Br. 73.
22 P. Br. 49, 50, 51.
23 P. Br. 39, n.72.



14

serious case for an exemption” . 402 U.8. at 487. On these 
facts the Court concluded that McGee had failed to present 
his exemption claim to his draft hoard and so could not do 
so in Court. In McKart, also a draft prosecution, the defen­
dant had in fact sought a IV-A exemption and had provided 
his hoard with all necessary factual information in his 
possession. McKart, however, had not appealed the denial 
of that exemption to the appeal board, which would have 
considered such an appeal de novo, and had not submitted 
to a preinduction physical which, if failed, would have 
barred induction and obviated the need for judicial review 
of his exemption claim. This Court, however, held McKart 
had fairly notified his board of his exemption claim and 
could therefore litigate his classification in court, even 
though there were other steps he could have taken that 
might have prevented his induction order. 395 U.S. at 
197-203.

Any requirement of further exhaustion would be par­
ticularly unwarranted on the facts of this case. When peti­
tioner first filed his administrative complaint, the applicable 
regulations required the agency to render a decision within 
60 days. R. Br. 55. In fact, however, the agency did not 
decide the case for 617 days. P. Br. 63. The government 
now contends that he waived his right to invoke this delay 
to avoid further exhaustion by failing to exhaust his ad­
ministrative remedies against administrative delay by 
complaining to the Civil Service Commission. R. Br. 56. 
The government does not, however, contend such a com­
plaint to the Commission would have been fruitful; on the 
contrary, even though the deadline is 180 days, a majority 
of all administrative proceedings take longer than that.24 
Only last year the Chairman of the Civil Service Commis­
sion testified that, although it had the power to act if the

24 See p. 18, infra.



15

180-day rule were violated, “ [Q]uite frankly, we don’t have 
the resources to do this” .26

It is manifestly unfair to impose on petitioner exhaustion 
rules thought up by the government literally years after 
this suit was commenced. The notice which petitioner re­
ceived from the government in March, 1973, in no way 
intimated that he was obliged to file any further adminis­
trative appeal in order to perfect or protect his right to 
sue. A. 45a. Throughout the proceedings in the district 
court, and the appellate briefs, petitioner expressly as­
sumed and asserted, and the government did not deny, 
that petitioner had adequately exhausted his administrative 
remedies by obtaining a final agency decision. In June, 
1974, 13 months after the action was filed, the government 
at oral argument in the court of appeals advanced its first 
exhaustion standard, that, an employee must also obtain a 
decision by the Appeals Review Board. In March, 1975, 
22 months after the action was filed, the government in 
opposing certiorari suggested a second exhaustion standard, 
that an employee could sue after final agency action pro­
vided he did so within 30 days. Brief For the Respondents 
In Opposition, pp. 6-7. In October 1975, 29 months after 
the action was commenced, the government advanced its 
third exhaustion standard, that an employee who had ex­
perienced unreasonable delay could sue after final agency 
action provided he had complained about the delay to the 
Commission. R. Br. 55-56. Petitioners maintain that each 
of these standards is incorrect; equally important, there 
was no way he could have known in 1973 which of these

85 Oversight Hearings Before the Subcommittee on Equal Oppor­
tunities of the House Committee on Education and Labor, 94th 
Cong., 1st Se'ss.,: p. 172. On November 26, 1975, petitioners asked 
the government to disclose the number of cases, if any, in which it 
had acted to remedy such agency delay. Pp. 19aa-20aa. On Febru­
ary 13, 1976, the government declined to disclose this number. P. 
27aa.



16

was the correct rule or which might years later be advo­
cated by the government. The government contends the 
regulations “ leave little room for doubt concerning ‘the 
“correct” way to exhaust’ R. Br. 53. But none of the 
three rules advanced by the government can be found any­
where in the regulations; it would be unconscionable to 
penalize a GS-7 clerk with a high school education because, 
in a brief period in 1973, he was unable to foresee the 
exhaustion rules that the best attorneys in the Civil Divi­
sion and the office of the Solicitor General would not “dis­
cover”  for several years thereafter.

The government concedes that, in cases such as peti­
tioner’s where the agency has found no discrimination, the 
Appeals Review Board overturns that finding in only 1 
case out of 50. R. Br. It appears that, among cases in 
which discrimination is found, back pay is awarded in 
perhaps 1 case out of 4.26 Thus, out of every 200 appeals 
taken in cases such as petitioner’s, only 1 employee would 
receive any back pay as a result. The efficient administra­
tion of justice does not require that 199 employees pursue 
such an unsuccessful appeal merely to relieve the courts of 
handling a single back pay claim. Even if petitioner had 
the good fortune to be that lucky employee, he still would 
have had to sue to get the other relief which he seeks and 
which is not available under any circumstances in the ad­
ministrative process—costs, attorneys’ fees, and damages 
other than back pay.

26 The statistics in n.28 of the government’s brief, whose accuracy 
is eoncededly in doubt, suggest there were only 40 awards of back 
pay among the 180 cases in which discrimination was found in 
1974,



17

III.

Section 717 Requires a Trial Be Novo.

In its brief in this case the government urges that repeal 
of all pre-1972 remedies and adoption of one of its exhaus­
tion standards are necessary to avoid interfering with what 
the Solicitor General maintains is a critical purpose of 
section 717—to deprive federal employees of trials de novo. 
R. Br. 32. Petitioner maintains that, even if section 717 
does not authorize a trial de novo in some or all circum­
stances, that is no reason to imply a repeal of the other 
statutes in question or to establish any of the exhaustion 
rules advanced by respondents. In light of this contention 
by the government, however, petitioner believes it appropri­
ate to offer certain comments on the arguments advanced 
by the government in Chandler v. Roudebush, No. 74-1599.

It is helpful to note what is, and is not, at issue in 
Chandler. The two practical consequences of whether there 
is a trial de novo are first, whether the court should con­
sider additional evidence not contained in the administra­
tive record, and, second, whether the court should make 
independent determinations of fact. Regardless of whether 
there is a trial de novo, there is no need to redo all that 
occurred in the agency proceedings; that record would, 
subject to the normal rules of evidence, be directly admis­
sible in court. On the other hand, as the government recog­
nizes, the court would be required to become fully familiar 
with all the facts of the case, at least so far as they can 
be determined by reading the administrative record, regard­
less of what standard it applied.

The government, while insisting that a trial de novo is 
not automatically required by section 717, recognizes a 
variety of circumstances when such a trial would be re­



18

quired. The government’s approach would require the 
sort of complex and time consuming case by case evalua­
tion of the prior non-judicial proceedings which led this 
Court to reject any deferral to the decisions of arbitrators 
in Alexander v. Gardner-Denver Co., 415 U.S. 36, 59 (1974).

(1) The government concedes that a trial de novo is re­
quired where the agency fails to reach a final decision 
within 180 days, as required by the regulations. 5 C.F.R. 
§ 713.281(b). The government asserts that such violations 
of the regulations are “ isolated” , “ rare” and “ infrequent.” 
Brief for Respondent in Chandler ( “ C. R. Br.” ) C. R. Br. 
15, 74. In fact, however, the average time for processing 
administrative complaints is 201 days.27 P. Br. 22a, Only 
last year the Chairman of the Civil Service Commission 
testified that it had been able to bring most agencies into 
compliance with the regulations.28 It is clear that a sub­
stantial majority of all federal employees would, under 
this exception, be entitled to a de novo hearing.

(2) The government recognizes that the court would be 
obligated to admit any relevant additional evidence which 
was not contained in a defective record. The Solicitor Gen­
eral stresses that the responsibility for seeking and pro­
ducing this evidence belongs to the agency; the aggrieved

27 United States Commission on Civil Rights, The Federal Civil 
Rights Enforcement Effort— 1974, Vol. V, To Eliminate Employ­
ment Discrimination, p. 80 (1975). The average period for process­
ing such complaints is 367 days in the Department of Health, 
Education and Welfare, 369 days in the Department of Housing 
and Urban Development, and 395 days in the Department of 
Transportation.

28 Referring to the problem of delay in processing these com­
plaints, Chairman Hampton stated, “ This issue was raised last 
year, and the year before, ever since the passage of the act, and I 
don’t think we have been very successful in getting down the 
number of days that it takes to process complaints.” Oversight 
Hearings Before the Subcommittee of the House Committee on 
Education and Labor, 94th Cong., 1st Sess., 1972 (1975),



19

employee need only complain and offer evidence in Ms 
personal possession. C. R. Br. 13, 19, 59, 63, 64-5, and notes 
thereto. In a part 713 proceeding, unlike for example, an 
I.C.C. rate hearing, virtually all the relevant evidence is 
in the hands of the agency; the documents are agency 
documents and the witnesses are agency employees. This 
“ exception” would be arguably applicable to every instance 
where an employee wanted the court to consider such ad­
ditional evidence. The administration of this exception 
would require the court to permit full discovery and then 
hold a special hearing to determine if there was any legiti­
mate reason why the agency had failed to produce new evi­
dence thus unearthed.

(3) Under part 713 the hearing is conducted by a com­
plaints examiner but the decision is rendered by the agency 
head, or his designee, in Washington 5 C.P.R. § 713.218(g). 
This means that demeanor evidence is never available to 
the agency official who actually makes the determination as 
to whether there was discrimination. In any case in which 
demeanor was important the agency proceeding would he 
inherently defective, since it would have been decided by an 
official who clearly would not consider all the relevant evi­
dence. This occurred in both Chandler and Salone v. United 
States, No. 74-1600. An aggrieved employee is entitled to 
have his case decided by someone who has seen the de­
meanor evidence. The court would thus be obligated to 
consider, in each ease, whether demeanor evidence was 
relevant, and if so to require the relevant witnesses to 
testify in court.

(4) The government justifies the substantial evidence 
rule by insisting that agency officials who decide these cases 
are in general, or at least under the regulations ought to he, 
both unbiased by their dual role as defendant and judge 
and expert in both personnel matters and Title VII law. If,



20

in this regard or others, there is a defect in the process as 
to any particular case, the government maintains that de­
fect is to be remedied in the subsequent judicial proceeding. 
C. R. Br. 64. But this can only mean that, prior to applying 
a substantial evidence rule based on assumptions as to the 
agency’s fairness and expertise, the court would be obli­
gated to conduct a detailed factual inquiry, at least if asked 
to do so by the employee, into whether those assumptions 
were indeed correct.

(5) The government properly concedes that any error 
of law in the administrative process can and must be over­
turned by the court. In all section 717 cases this exception 
would require that every non-factual decision that was or 
should have been made, including every inference and every 
decision refusing to admit evidence, would have to be re­
considered by the district court.

One or more of these exceptions to the government’s rule 
would be potentially applicable to virtually every case. The 
very process of deciding whether to afford a trial de novo 
would be complicated and time consuming, and inextricably 
interconnected with the merits of the case. In Alexander v. 
Gardner-Denver Co., 415 U.S. 36 (1974), the government 
opposed any deference to the decisions of arbitrators be­
cause “under such a procedure, ‘the district court would 
find itself holding a hearing to determine if [deference] 
was appropriate, which hearing could . . .  in length and 
complexity be similar to a Title VII trial’ 29 This is 
equally true with regard to hearings to decide whether to 
give a trial de novo. Were the Court to adopt the govern­
ment’s position, it would be necessary to remand Chandler 
and Salone to consider, inter alia, whether the defendants

29 Brief for the United States as Amicus Curiae, No 72-5847 
p. 29.



21

have any relevant evidence not contained in the record, 
whether there was any relevant demeanor evidence, whether 
the agency officials who decided the case were unbiased and 
expert in both personnel and Title VII matters, and whether 
any evidence was erroneously excluded. We submit it 
would be more expeditious, and more consistent with the 
purposes of section 717, to remand these cases for a simple 
trial.

In an amicus brief in Chandler we previously contended 
that, in the four years since section 717 was adopted, no 
federal employee had ever been able to win a case under 
the government’s standard, and that every court limiting it­
self to that standard had concluded that the agency deci- 
cision in dispute was supported by substantial evidence.30 31 
The government maintains this “ incorrect” , and cites six 
cases. C. R. Br. 71, n. 45. None of the six eases relied on by 
the government applied its substantial evidence rule; in 
each of them the court insisted, instead, on making an inde­
pendent determination of the relevant facts.81 Nor did the 
court in any of these cases restrict in any way the right of 
the plaintiff to discover and introduce, in addition to the

30 Brief of the N.A.A.C.P. Legal Defense & Educational Fund, 
Inc., as Amicus Curiae, No. 74-1599, pp. 11-12, n.10.

31 See, e.g., Bay v. Weinberger, 8 EPD If 9771 p. 6224 (D.D.C. 
1974) ( “ [T]he review of this Court is not limited to the test of 
whether there is substantial evidence in the record to support the 
decision of the administrator . . . this Court must make its own 
decision based upon all relevant evidence” ) ; Napper v. Schnipke, 
393 F.Supp. 379, 385 (E.D. Mich. 1975) ( “ [T]he court must 
determine, based on the same standards used in private discrimina­
tion suits, whether the complainant has come forward with proof 
suggestive of discrimination, and whether in such a case an em­
ployer has established an absence of discrimination by a prepon­
derance of the evidence.” )



22

administrative record, any other evidence he wished.32 To 
permit the discovery and introduction of such evidence, 
and to require an independent judicial determination of the 
facts, is the same thing as mandating a trial de novo; the 
cases relied on by the government are unusual only in that, 
in several of them, the court gave the plaintiff a trial de 
novo but declined to so label the proceeding.

IV.
The Inadequacy of the Administrative Procedure.

The House Committee on Education and Labor, the 
Senate Committee on Labor and Public Welfare and the 
United States Commission on Civil Rights have all con­
cluded that the administrative procedure for handling com­
plaints of employment discrimination is entirely ineffec­
tive, and in some cases actually impedes the elimination 
of such discrimination. The Solicitor General does not 
claim that Congress and the Commission on Civil Rights 
erred in their conclusions. Nor does the Solicitor General 
suggest that he has conducted an independent investigation 
into whether the administrative procedure is, in fact, effec­
tive in eliminating employment discrimination. In its brief 
in this case the government maintains that any defects in 
the procedure are the exclusive concern o f the Civil Service 
Commission and should not be considered by the courts, 
R. Br. 50; in Chandler the government contends that the 
courts can and should deal with such defects, not in formu­

82 See, e.g., Robinson v. Warner, 8 EPD j[ 9452, p. 5058 (D.U.C. 
1974) ( “At the District Court level, the full gambit of discovery 
tools can be utilized, including testimony in open court, to supple­
ment the administrative record . . . this procedure will ensure to 
federal employees that the Court will evaluate all the relevant 
evidence and at the Same time prevent an unnecessary duplication 
of effort.” )



23

lating any general rules for section 717 actions, but only 
on a case by case basis. C. R. Br. 64. In the instant case 
the government suggests it is reasonable to “ assume” that 
any defects which existed in 1972 have by now been cured, 
R. Br. 46; in Chandler the government argues that any 
failure of the Civil Service Commission to deal with those 
defects is irrelevant. C. R. Br. 37, n.18. The government 
stresses the existence of regulations authorizing the agen­
cies and Civil Service Commission to act in a salutary 
manner, R. Br. 36-43, but does not allege that these powers 
are often or ever exercised. Petitioner’s contentions o f fact 
regarding the administrative process are set out in an 
appendix, pp. laa-12aa; the Solicitor General has, in gen­
eral, declined to take a position on these specific factual 
issues.

The record in this case contains no facts that would 
support any contention that the findings of the Congress 
and Civil Rights Commission were in error. It was only 
at oral argument in the court of appeals that the govern­
ment first argued that petitioner had not adequately ex­
hausted the administrative remedies, and it was only in its 
brief in this Court that the government sought to justify 
such an exhaustion requirement by reference to the nature 
of the administrative procedure. In the interest of clarify­
ing the underlying factual situation, counsel for petitioner, 
on November 26,1975, wrote to the Solicitor General asking 
for specific statistics bearing on arguments in the govern­
ment’s brief regarding the administrative procedure. Pp. 
17aa, 24aa. On February 13, 1976, the Solicitor General 
declined to provide that information on the ground that 
the inquiries were “ in the nature of pretrial discovery re­
quests or call for legal conclusions or interpretations,” or, 
in some instances, because the information did not exist. 
Pp. 25aa-27aa. The fact that none of the material was



24

developed through, discovery in the district court is entirely 
the responsibility of the government, which did not put the 
matter in issue until it was on appeal. Under these cir­
cumstances the congressional findings regarding the de­
fects of the administrative process must be accepted by 
this Court. Communist Party v. 8.A.C. Board, 367 U.S. 1, 
94-95 (1961).

In this case and Chandler the government urges that 
federal employees should have fewer judicial remedies than 
private employees because the administrative process avail­
able to federal employees is more efficacious than the 
process of investigation and conciliation available to pri­
vate employees through E.E.O.C. E. Br. 52; C. R. Br. 61. 
It is true that the E.E.O.C., unlike the officials under part 
713, cannot directly order any relief, but in a part 713 
proceeding the officials with authority to direct a remedy 
are also, for all practical purposes, the defendants. Peti­
tioner maintains that the independence of the E.E.O.C., 
and the resulting vigor and expertise of its staff, are far 
more important than the nominal but unused powers of 
agency officials and the Civil Service Commission. This 
difference is well illustrated by comparing the results of 
the E.E.O.C. and part 713 proceedings. In the last fiscal 
year 26,627 federal employees complained to EEO coun­
sellors; out of this group back pay was awarded to less 
than 50. P. Br. 85; R. Br. 49. The E.E.O.C. received a 
total of 55,885 charges of discrimination, and obtained 
through conciliation back pay for 49,388 individuals. Pp. 
13aa-14aa.

There appears to be a problem of discrimination in the 
selection of the personnel who administer the administra­
tive procedure. Although 34% of all federal employees are 
women, only 2.2% of the Civil Service investigators and 
10.7% of the complaints examiners are women. While



25

minorities are 21 per cent of all federal employees, only 
4.3% of the Civil Service investigators and 10.7% of the 
complaints examiners are non-white. Pp. 16aa-17aa. In 
half of the 10 Civil Service regions all these investigators 
are white males.33 A  serious claim of racial discrimination 
in the selection of Appeals Review Board personnel is now 
the subject of litigation in the District Court for the Dis­
trict of Columbia.34 * The government concedes that, in cases 
decided on the merits, the Appeals Review Board affirms 
findings of discrimination in 98% of all cases. R. Br. 57. 
The government urges, however, that the affirmance rate of 
the courts of appeals is also high. R. Br. 58. But the sig­
nificance of the affirmance rate must take into account what 
occurred below. In the agency proceedings the agency finds 
itself innocent of discrimination in at least 87% of all cases 
decided on the merits;36 no such pattern exists among the 
district courts.

38 Atlanta, Denver, Chicago, Boston and Seattle.
34 Griffiths v. Hampton (D.D.C. No. 75-1509).
36 Oversight Hearings Before the Subcommittee on Equal Oppor­

tunities of the House Committee on Education and Labor, 94th 
Cong., 1st Sess., p. 169 (1975).



2 6

CONCLUSION

For the above reasons, the judgment and opinions of the 
Second Circuit should be reversed.

Respectfully submitted,

J ack  Greenberg 
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 an n  L ee 
E ric S ch n apper

10 Columbus Circle 
New York, New York 10019

J eep Greenup

200 West 135th Street 
New York, New York 10030

Counsel for Petitioner



APPENDICES



la a

F actu al  C ontentious  C onceening  W orking  of th e  
EEO P rocedures

Introductory Note: This appendix lists the various as­
sertions that have been made concerning the adequacy 
of the Civil Service Commission’s EEO procedures. The 
listing is done on a chronological basis, i.e., from the 
beginning of the process at the counseling stage through 
the appeal to the Appeals Review Board. Three addi­
tional sections cover corrective action, alternative proce­
dures, and matters generally applicable to the entire pro­
cedure. The sources for each statement are cited as 
follows: (1) United States Commission on Civil Rights, 
Report, The Federal Civil Rights Enforcement Effort, 
1974, Volume V, to Eliminate Employment Discrimina­
tion— e.g., “ C.R.C., p. 61 (p. 3aa)” ;* (2) Brief of the 
NAACP Legal Defense and Educational Fund, Inc., as 
Amicus Curiae, in Chandler v. Roudebush, No. 74-1599, 
e.g., “Chandler amicus, p. 7a” ; and (3) the Brief for 
Petitioner in the present case, e.g., “Brown, p. 63.”

In those instances where the government has responded 
to an allegation, the response is cited in a footnote, with 
references to either the government’s brief in Brown, e.g., 
“U.S.B., p. 50,” or Chandler, e.g., “U.S.C. p. 58, n. 33.”

I.

Counselling

1. The Civil Service Commission (CSC) refuses to 
recognize the concept of a continuing violation. 
(C.R.C., p. 65 (p. 7aa)); Chandler amicus, p. 12a).

# The page number in parenthesis is a citation to Appendix B 
to petitioner’s main brief in this case, which reproduces a portion 
of the Civil Rights Commission Report.

A p p e n d ix  A



2aa

2. Corrective action is not given for any act occurring 
before 30 days prior to the complainant going to 
a counselor (Chandler amicus, p. 12a).

3. The 30-day filing requirement is strictly enforced 
despite § 713.214(a) (4). (Chandler amicus, p. 13a).1

4. Counselors are not full-time EEC persons (Chan­
dler amicus, p. 14a).

5. Counselors can seek only an informal resolution. 
Corrective action cannot include back pay or a 
retroactive promotion; it is usually limited to 
“ training” or “consideration” for a position that 
often does not materialize (Chandler amicus, p. 14a, 
CRC, p. 67 (9aa)).

6. There is no accurate data as to what kind of cor­
rective action is provided through counseling (Chan­
dler amicus, p. 15a).2

7. Only 10% of complainants file formal complaints 
because many are misled, intimidated, or not en­
couraged to file. (Chandler amicus, p. 15a; CRC, 
p. 66 (8aa)).3

1 The government has not contested the accuracy of this state­
ment, but has only sought to justify the practice by drawing an 
analogy to the 30-day statute of limitation for filing suit (U.S.C. 
p. 56, n.30). The attempted analogy fails, however, since a com­
plainant is informed of the 30-day limitation period by a letter 
whose receipt begins the period’s running.

2 The government, in its letter to counsel for petitioner, acknowl­
edges that the CSC does not have reliable data as to corrective 
actions taken (App. B, infra, p. 26aa).

3 Although not directly denying that many complainants do not 
file because of improper actions by counselors, the government 
suggests that many do not because of adequate corrective actions 
(U.S.C., p. 57, n.31). As pointed out in n.2, however, the govern­
ment also acknowledges that there is no reliable data as to what 
kind of corrective actions are provided.

A ppen d ix  A



3aa

Appendix A

II.

Complaint Filing

8. The fifteen day rule for filing the formal complaint 
is rigidly enforced despite the language of § 713.214 
(a )(4 ). (Chandler amicus, p. 16a).

9. Complaints are rejected because they are sent to 
the wrong office (Ibid).

10. Some agencies do not consider the complaint filed 
until receipt is formally noted; this is delayed by 
EEO officers attempting to resolve the matter in­
formally (Ibid).

11. Complaints must name a specific “alleged discrim­
inatory official,” and are rejected as not being 
specific enough if they do not. (Chandler amicus, 
pp. 16a-17a).

12. Focus of the entire process is still on individual 
overt acts of discrimination despite congressional 
criticism. (CRC, pp. 65-66 (7aa-8aa); Chandler 
amicus, p. 17a).4

13. A  significant number of complaints are rejected as 
“not within the purview” of the Chapter 713 regula­
tions. (CRC, p. 68 (lOaa); Chandler amicus, p. 19a).

14. The Commission has refused to allow class com­
plaints to be raised as part of the individual com­
plaint process. (CRC, pp. 68-69) (lO aa-llaa); Chan­
dler amicus, p. 19a).

4 The government does not deny this, but rather defends this 
practice. (U.S.C., pp. 68-69, 75, n.48). Indeed, the thrust of the 
respondent’s brief in Chandler is based on the same misapprehen­
sion of a Title VII proceeding as has the CSC, viz., the inquiry is 
limited to whether a particular supervisor is prejudiced.



4aa

15. I f  a complainant follows a wrong procedure, his 
complaint is forever barred even if his initial at­
tempt is timely. (Chandler amicus, pp. 23a-24a).

16. A  complainant (and federal employees generally) 
are not given any explanation or guidance as to 
alternate procedures or the consequences of follow­
ing one procedure rather than another (CRC, pp. 
64-65 (6aa-7aa); Chandler amicus, pp. 29, 23a).

17. BEO officers are often part of the same division 
as are personnel officers who may be the target of 
EEO complaints (Chandler amicus, p. 28).

III.

The Investigation

18. EEO investigators are virtually always employees 
of the agencies. (CRC, p. 70 (p. 12aa); Chandler 
amicus, p. 24a).

19. Investigators lack expertise in Title V II law and 
need not have particular expertise in relevant per­
sonnel matters. (Chandler amicus, p. 20; CRC, p. 
70 (p. 12aa)).

20. Investigations are severely limited as to both time 
and scope in contrast to EEOC investigations (CRC, 
pp. 71-75 (13aa-18aa); Chandler amicus, p. 25a).5

21. The investigator is instructed not to enlarge the 
scope of the investigation beyond the specific issue 
complained of (Chandler amicus, p. 25a).

B The government does not deny that investigations are in fact 
so limited; it asserts that a “proper” investigation “should nor­
mally” be sufficient, without giving any data as to whether any 
such investigations are conducted. (U.S.C., p. 64, n.39).

A ppend ix  A



5aa

22. Complainant lias no way, such as discovery devices, 
to require the investigator to look into any partic­
ular matter, has no control over the scope of the 
investigation, and does not have the right to be 
present or have questions asked of witnesses (Chan­
dler amicus, pp. 25a-26a).

23. The investigator must rely on local agency per­
sonnel for information (Ibid).

24. Investigative reports commonly consist of a com­
pilation of eonclusory affidavits as to whether a 
particular person is discriminatory. (Chandler
amicus, p. 26a).

25. Proposed resolutions are limited; back pay cannot 
be given, and the typical relief is training or “con­
sideration” for future vacancies. (Chandler amicus, 
p. 27a).

IV.

Hearing

26. Complaints examiners do not have expertise in Title 
VII law. (CRC, p. 76 (18aa); Chandler amicus, 
p. 28a).

27. A  complainant has no right to conduct discovery 
through interrogatories, pre-hearing examination of 
witnesses or documents, or otherwise, and requests 
to do so are denied. (Chandler amicus, pp. 25, 28a).6

A ppend ix  A

6 The government asserts that denials of “ reasonable” requests 
for information can be corrected. It does not claim, however, that 
such requests can be other than for production of evidence at the 
hearing itself, nor does it give any indication as to the number of 
occasions on which any denials are reversed. (U.S.C., p. 64, n.39).



6aa

28. Non-government employee witnesses cannot be made 
to testify. (Chandler amicus, p. 26).

29. The agency has full access to documents and wit­
nesses before the hearing so as to be able to fully 
prepare its case. (Chandler amicus, p. 28a).

30. Complainants are generally represented by lay per­
sons, while agencies are usually represented by 
counsel. (Chandler amicus, p. 29a).7

31. The hearing is not adversary in nature (CEC, p. 77 
(19aa); Chandler amicus, p. 29a).

32. Although a complaints examiner has the respon­
sibility to elicit testimony and obtain witnesses and 
evidence, he often fails to do so. (Chandler amicus, 
pp. 29a-31a).

33. Complaints examiners refuse to obtain witnesses 
and documents requested by complainants, and rules 
restrictively as to the relevance of evidence. These 
evidentiary rulings are routinely upheld by the Ap­
peals Review Board. (CEC, p. 78 (20aa); Chandler 
amicus, pp. 27, 30a-31a).8

7 The government does not deny either assertion. It only states 
that complainants “ often have available . . . attorneys without 
charge,” without stating how often complainants are in fact repre­
sented. (U.S.C., p. 58, n.33). The government notes the Depart­
ment of Justice’s program of allowing its attorneys to represent 
employees from other agencies. To our knowledge, however, this 
authorization (as opposed to representing complainants within the 
Department of Justice) was only disseminated in November, 1975 
(Office of the Attorney General, Memorandum to All Employees, 
Subject: Representing Equal Employment Opportunity Complain­
ants, November 20, 1975).

8 The government asserts that “ the complainant has complete 
authority over the way his complaint is presented.” (U.S.C., 
p. 64, n.38), but does not deny that, as a fact, evidence the com­

A ppen d ix  A



7aa

34. Although a complainant purportedly does not have 
the burden of proof (U.S.C., p. 62, n. 37), in case 
after case if he does not prove Ms case he is ruled 
against and the decision is affirmed by CSC/AEB. 
(CRC, p. 78 (20aa); Chandler amicus, p. 30a).

35. The complainant does not have the right to see, 
review or comment upon the recommended decision 
or transcript prior to the final agency decision. 
(Chandler amicus, 31a).

36. The provision requiring that if an agency does not 
follow an examiner’s recommendation, it must give 
detailed reasons, is not effectively enforced. (CRC, 
p. 79 (21aa) ; Chandler amicus, pp. 28, 31a).8

37. In Fiscal Year 1974, agencies reversed and refused 
to adopt 26.6% of the recommended findings of dis­
crimination, but only 1.3% of the findings of no 
discrimination. (CRC, p. 79 (21aa); Chandler 
amicus, p. 32a).

38. Recommended and final agency decisions do not cite 
Title Y II law, and typically limit the inquiry to 
whether there is proof of overt discrimination by 
a particular person (Chandler amicus, pp. 20, 24). 9

' A ppend ix  A

plainant wishes to introduce is routinely rejected and such rejec­
tions are routinely affirmed. We believe that the government’s 
assertion is simply wrong; as recently as September 16, 1975, 
CSC/ARB again reaffirmed the Complaints Examiners’ power over 
the conduct of the hearing and what evidence would be introduced 
or even looked at. Their decisions would be reversed only if “arbi­
trary or capricious” (ARB decision RB 071360169 Digest 2, p. 31).

9 The government has asserted, without giving figures, that CSC/ 
ARB “has on occasion remanded cases” for failure to give reasons. 
(U.S.C., p. 60, n.34).



8aa

39. In the majority of cases there are not final agency 
decisions within 180 days from the date of filing 
the complaint. (CRC, p. 80 (22aa)).9a

40. Complainants are not informed that they waive any 
rights by choosing not to have a hearing. (Chandler 
amicus, p. 15, n. 14).

y .

Appeal To CSC/ARB

41. In the last three fiscal years, ARB reversed findings 
of no discrimination in only 3.32% of the cases de­
cided on the merits. (Chandler amicus, p. 33a; see 
also, CRC, p. 82 (24aa)).

42. Including decisions ordering further corrective ac­
tion there are favorable ARB decisions on other 
than procedural questions in less than 10% of the 
appeals. (Chandler amicus, p. 33a).

43. The requirement that agencies act in 180 days is 
not in fact enforced by the CSC (Brown, p. 63).

44. ARB members have no expertise in Title V II law 
or federal personnel matters (Brown, p. 65, n. 129; 
CSC, p. 81 (23aa)).

45. ARB has been sued under Title V II by its black, 
female member for racial and sex discrimination 
in promotions; ARB votes have split along racial 
lines. (Brown, p. 65).

46. ARB decisions are ad. hoc, do not cite or follow 
Title VII cases, and are not followed as precedent. 
(CRC, p. 83 (25aa); Brown, p. 65).

9a. rpjie g0vernment asserts that such cases are “ isolated” , but 
offers no specific statistics. (U.S.C., p. 24).

A p p en d ix  A



9aa

47. The volume of cases precludes adequate considera­
tion of records. (Brown, p. 65).10

48. ABB decisions are in reality written by a small 
number of unqualified appeals examiners. (Brown, 
p. 65; See, CBC, p. 81, n. 277 (23aa).

49. The Civil Service Commission itself has considered 
reopening AEB decisions only 8 times; only 6 cases 
were actually reopened. (Chandler amicus, p. 3a).

50. CSC does not issue opinions in the reopened cases; 
its orders are secret and explanatory documents 
difficult to obtain even though the orders establish 
precedent. (Chandler amicus, pp. 30, 3a-4a).

VI.

Corrective Action

51. Awards of back pay and retroactive promotions are 
rare. The standard relief given is “ training” . (CEC, 
pp. 83-85 (25aa-27aa), Chandler amicus, p. 24, 34a).

52. In contrast, the EEOC has obtained substantial 
back pay relief for large numbers of private em­
ployees (Chandler amicus, pp. 34a, 91a).11

53. Belief to the class or to any person other than the 
complainant is not given by complaints examiners, 
agencies, or AEB (Chandler amicus, pp. 24, 35a).12

A ppen d ix  A

10 rpjjg government asserts that ARB “reviews” the records in 
the cases it decides. (U.S.C., p. 60).

11 The government urges that the EEOC lacks power to enforce 
Title VII rights, whereas the CSC has such power (U.S.B., p. 52, 
n.34). The government does not deny, however, that the actual 
results achieved by the EEOC far outstrip the CSC.



lOaa

54. No back pay, either to a class or individuals has 
ever been awarded in a third-party complaint pro­
ceeding under §713.251 (Chandler amicus, p. 35a).

VII.

Alternative Procedures

55. Complainants have not obtained effective relief 
against harassment or reprisals for filing a dis­
crimination complaint under 713.262(b). (Chandler 
amicus, p. 36a).

56. I f discrimination claims are raised under an alter­
native procedure (e.g., adverse action or grievance), 
the discrimination claim is not reached if the ad­
verse action is reversed on a procedural ground, 
hence leaving the underlying discrimination claim 
unresolved (Chandler amicus, p. 37a, and see case 
cited at 7a, n.2 (now reported at 10 E.P.D. 
If 10,521)). 12

A ppen d ix  A

12 The government asserts that “ the Commission . . . possesses 
the power to remedy systemic or class-wide bias on the adminis­
trative level.” (U.S'.C., p. 65, n.40). As a legal proposition,, that 
is true; indeed we would go further and say that the Commission 
has not only the power but the duty to do so, and that is the 
basis of the action we successfully prosecuted in Barrett v. United 
States Civil Service Commission, 10 E.P.D. If 10,586 (D.D.C. 1975), 
now cited with approval in the government’s brief in Chandler, 
(p. 65, n.40). The issue is not whether the Civil Service Commission 
has the power to do what is required by law, but whether, as a 
matter of fact, it has permitted investigators, complaints exam­
iners, agencies, and ARB to remedy class discrimination by grant­
ing broad relief and back pay. As stated in Chandler amicus brief, 
and not denied by the government, the Commission has prohibited 
such relief.



llaa

57. A  complainant who opts to proceed under an alter­
native procedure is not informed by the CSC of 
his right to file under Title VII even if the merits 
of his discrimination claim are reached (Chandler 
amicus, pp. 37a-38a).

58. I f  a complainant files a complaint under part 713 
charging that a job qualification is discriminatory 
and if the qualification in question is one imposed 
by the CSC, his complaint is simply rejected as 
“not within the purview” of part 713 and he is not 
informed of the proper procedure under part 300 
(Chandler amicus, p. 23a).

VIII.

Criticisms Relating to the System Generally

59. The investigation hearing, and other significant pro­
visions of the 713 regulations were not changed in 
any meaningful way after the 1972 act was passed 
(CRC, pp. 61-62 (3aa-4aa); Chandler amicus, p. 19).

60. Manuals, ARB decisions, investigative reports, pro­
posed decisions and final agency decisions are devoid 
of citations to Title V II law and court decisions 
and do not comply with either (Chandler amicus, 
pp. 20-25; see also, CRC, pp. 77-78).13

A ppend ix  A

13 The government acknowledges that agencies and the CSC are 
bound to follow Title VII law, U.S.C., p. 62. In light of Morton v. 
Mancari, 417 U.S. 535 (1974), it could hardly do otherwise. The 
government does not deny, however, that in fact Title VII law is 
not followed. Indeed, the government’s brief shows the same lack 
of understanding of Title VII law that characterizes CSC regula­
tions and decisions in its discussion of the “but for” rule (U.S.C., 
p. 62, n.37). What is wrong with 5 C.F.B. § 713.271 is its reversal 
of the burden of proof in complete disregard of Title VII decisions 
of Courts of Appeals and this Court.



12aa

61. The Civil Service Commission reversal of the ARB 
decision described on pages 22-23 of the Chandler 
amicus brief resulted in the subsequent disregard­
ing of statistical evidence in violation of Title Y II 
law (Chandler amicus, p. 23, n.19).14

62. There are no enforced sanctions when agencies fail 
to comply with time requirements supposedly im­
posed on them by the regulations (Chandler amicus, 
pp. 29-30).15

63. Agency heads and those delegated to decide EEOC 
cases have no expertise in either EEO or personnel 
matters (Brown, pp. 49-50).

A ppend ix  A

14 The government asserts that “ the Commission has considered 
statistical evidence of discrimination in adjudicating complaints,” 
and cites the case of Evans v. Lynn, D.D.C. Civ. No. 630-73 (U.S.C., 
p. 65, n.40). What the government does not say is that statistical 
analyses are utilized to negate claims of race or sex discrimination, 
and that Evans v. Lynn is such a ease. Indeed, many investigative 
reports, agency and ARB decisions contain an exceedingly super­
ficial statistical analysis presented from management’s viewpoint 
(cf. Rich v. Martin-Marietta, 522 F.2d 333, 342-3 (10th Cir. 1975)) 
that purports to show no discrimination. Contrary to the govern­
ment’s position, the non- or mis-use of such data is highly relevant 
to the question of whether such administrative decisions should be 
given any weight whatsoever by a federal court charged with 
enforcing Title YII.

15 The government claims that petitioner here should have sought 
relief from the Commission for the failure by_the agency to com­
ply with the time requirements (U.S.B., pp. 55-56). No claim is 
made that the Commission in fact responds to such requests. For 
an account of the futility of attempting to get such action, see 
the case described on page 7a, n.2 of the Chandler amicus brief. 
As of the end of February, 1976, the CSC has still not even 
acknowledged receipt of the request to require processing of fhe 
complaint in that case.



13aa

A p p en d ix  B

[E m b le m ]

E qual E m plo ym en t  O ppo rtu n ity  C omm ission  
W ash in g to n , D.C. 20506

November 21, 1975

IN R E P L Y  REEER T O :

Mr. Eric Sebnapper
NAACP Legal Defense and Educational Fund
10 Columbus Circle
New York, New York 10019

Dear Mr. Sebnapper:

Tbis is in response to your telephone call of November 20, 
requesting data on tbe number of individuals wbo received 
back pay from EEOC conciliation agreements and tbe 
cumulative dollar figure of tbis back pay.

In FY 1975, the number of persons benefitted was 51,216; 
tbe dollar figure was $109,669,285; and tbe number of 
successful conciliations was 5,983.

In FY  1974, the number of persons benefitted was 49,388; 
the dollar figure was $56,266,827; and tbe number of suc­
cessful conciliations was 4,519.

I hope that tbis information is useful.

Sincerely yours,

/ s /  M arty R ogers 
Marty Rogers 
Special Assistant to tbe 

Executive Director



14aa

A p p en d ix  C

[ E m b le m ]

E qual E m plo ym en t  O ppo rtu n ity  C omm ission  
W ash in g to n , D.C. 20506

December 15, 1975

IN REPLY REFER TO:

Eric Sebnapper, Esquire 
Legal Defense Fund 
Boom 2030 
10 Columbus Circle 
New York, New York 10019

Dear Mr. Sebnapper:

Tbis is in response to your request for data on tbe total 
number of charges received by the Equal Employment 
Opportunity Commission in Fiscal Years 1974 and 1975.

In Fiscal Year 1974, tbe EEOC received 55,885 charges 
of discrimination. In Fiscal Year 1975, the total number 
of charges received was 64,542.

Sincerely,

/ s /  M arty  S late 
Marty Slate 
Supervisory Attorney 
Office of General Counsel



15aa

A p p e n d ix  D

[E m b le m ]

U nited  S tates C iv il  S ervice C ommission  
W ash in g to n , D.C. 20415

December 16, 1975

IN  R E P L Y  PLEASE R EFER TO 

Y O U R  REFERENCE

Ms. Phyllis McClure
Legal Defense Fund, NAACP
1028 Connecticut Avenue, N.W.
Suite 510
Washington, D. C. 20036 

Dear Ms. McClure:

The following information is provided in response to your 
request of December 2. I am able to provide data on the 
EEC investigators on a regional basis as requested, but 
our data on employees serving in the Federal Employee 
Appeals Authority is maintained on a composite basis.

As of December 8, 1975, the Federal Employee Appeals 
Authority had a nationwide professional staff of 103 per­
sons to adjudicate appeals and hold hearings for Federal 
agencies on discrimination complaints. By sex, 92 (89.3 
percent) were men and 11 (10.7 percent) were women. 
By minority-nonminority designations, 92 were non-minor­
ity and 11 were minority, with the following subdivisions 
by minority category: 9 Black, 1 American Indian, and 
1 Oriental-American.



16aa

We have a total of 517 investigators in onr 10 regions and 
Washington; of whom 184 have been trained to investigate 
EEO complaints, and of whom 52 are minority and women 
employees (28 White women, 1 Black woman, 8 Black men, 
11 Spanish-surnamed men, and 4 Oriental-American men). 
Within the body of 184 investigators who are trained to 
investigate EEO complaints, 12 are minority and women 
(4 White women, 2 Black men, 3 Spanish-surnamed men, 
and 3 Oriental-American men). By regions and the Wash­
ington investigations office, the numbers of minority and 
women investigators trained to conduct EEO investiga­
tions are as follows: Atlanta, none; Boston, none; Chi­
cago, none; Dallas, 1; Denver, none; New York, 2; Phila­
delphia, 1; Seattle, none; San Francisco, 4; St. Louis, 1; 
and Washington, 3.

A ppend ix  D

Sincerely yours,

/ s /  J oseph  E. O glesby 
Joseph E. Oglesby 
Director, Media Services 
Office of Public Affairs

T h e  M erit S ystem—
A  G ood I nvestm en t  I n G ood G overnm ent



17aa

A p p en d ix  E

November 26, 1975

Hon. Robert Bork 
Solicitor General 
Department of Justice 
Washington, D.C.

Re: Brown v. General Services Administration 

Dear Mr. Bork:

The government’s brief includes a number of statements 
concerning the administrative process for complaints of 
employment discrimination and statistics regarding the 
actual operation of that system. Because of the manner 
in which this case arose, there is nothing in the record with 
regard to these statements and statistics. We would be 
most grateful if you could provide the following informa­
tion to clarify the portions of the brief referred to so that 
we may respond in appropriate manner. Unless otherwise 
stated our request is for information for the most recent 
fiscal year available.

1. The government’s brief, at p. 49, states that 35 to 45 
percent of “ informal complaints”  are followed by “ some 
sort of corrective action.” Please state the total number of 
such complaints, and the number of instances in which 
each of the following types of corrective action is taken, 
i.e., (1) back pay awarded, (2) retroactive promotion, (3) 
immediate promotion, (4) promotion preference, (5) re­
instatement, (6) reassignment, (7) reduction of adverse 
action, (8) rescission of adverse action, (9) improvements 
in personnel practices (explain), (10) improvement in equal



18aa

employment opportunity practices (explain), (11) training 
for complainant, (12) training for person charged with dis­
crimination, (13) disciplinary action against person charged 
with discrimination, (14) upgrade complainant’s perfor­
mance rating, (15) other (specify).

2. The government’s brief states that the term “retro­
active relief” in the Civil Rights Commission report in­
cludes only back pay, not retroactive promotions. P. 49, 
n. 28. Please state the number of cases in which retroactive 
promotions were granted (a) at the informal counseling 
stage, prior to the filing of a formal complaint, (b) through 
counseling after the filing of a formal complaint, (c) as 
part of final agency action, (d) by the Commission (e) by 
the Appeals Review Board.

3. The government’s brief, at p. 49, n. 28, states that the 
22 cases of back pay excludes awards of back pay (a) at the 
informal counseling stage and (b) by the Commission on 
appeal. Please state the number of eases in which back 
pay was awarded (1) at the informal counseling stage prior 
to the filing of a formal complaint, (2) through counseling 
after the filing of a formal complaint, (3) by the Appeals 
Review Board on appeal, (4) by the Commission on appeal. 
State the number of persons to whom back pay was awarded 
at each stage, if different from the number 'of cases.

4. The government’s brief, p. 49, n. 28, states that of the 
985 cases of corrective action, 4% involved awards of back 
pay, 6% retroactive promotions, and 10% “prospective 
promotions.” Are the actual numbers 39, 58, and 157 re­
spectively? What is the total number of cases in which both 
back pay and retroactive promotion was awarded?

A ppen d ix  E



19aa

5. The government’s "brief, p. 49, n. 28, refers to a form 
of corrective action called “prospective promotion.” Does 
this mean (a) an immediate promotion, (b) guaranteed 
promotion into the nest vacancy, (c) priority consideration 
for promotion into the next vacancy, or (d) consideration 
for promotion into the next vacancy. To the extent “pro­
spective promotion” includes (b), (c), or (d), please state 
the number actually promoted within one year of the award 
of “prospective promotion.”

6. We would like to examine the agency decisions in the 
cases referred to in n. 28, p. 49, of the government’s brief, 
in which either back pay or retroactive promotion was 
awarded. Please advise us where and how this can be done.

7. The government’s brief, p. 50, n. 30 states that there 
was a finding of discrimination in 7 percent of all final dis­
positions. Since the total number of such dispositions wras 
2650, was the total number of findings of discrimination 
185? Among the cases in which discrimination was found, 
in how many cases did the corrective action ordered include 
(1) back pay, (2) retroactive promotion, (3) immediate 
promotion, (4) promotion preference, (5) reinstatement, 
(6) reassignment, (7) reduction of adverse action, (8) re­
scission of adverse action, (9) improvements in personnel 
practices (explain), (10) improvements in equal employ­
ment opportunity practices (explain), (11) training for 
complainant, (12) training for person charged with dis­
crimination, (13) disciplinary action against person charged 
with discrimination, (14) upgrade complainants perfor­
mance rating (15) other (specify).

8. The government’s brief, pp. 11 and 38, states that 
the processing of a complaint must be prompt. Please state,

A ppend ix  E



20aa

for the government as a whole and for each agency for 
which statistics are available (a) the number and percent­
age of complaints in, or at the end of, the latest fiscal year, 
which were over 180 days old and thus in violation of the 
180 day rule provided by 5 C.F.R. §713.220(a), (b) the 
average age of complaints in, or at the end of, the latest 
fiscal year, (c) with regard to the last fiscal year in which 
the 60 day rule was in effect, the number and percentage 
of complaints over 60 days old, and the average age of all 
complaints in, or at the end of, that year.

9. The government’s brief states that the complaints 
examiner may make recommendations regarding “ the gen­
eral environment out o,f which the complaint arose” p. 40, 
and that the regulations “ authorize broad remedial action 
by the agency or the Commission.” Please state (a) whether 
the examiner may recommend class-wide relief in a case 
under §§713.213-236, (b) whether he must do so in such a 
case under certain circumstances and if so what circum­
stances, (c) whether the agency, Appeals Review Board or 
Commission may order class-wide relief in a case under 
§§713.213-236, (d) whether they must do so in such a case 
under certain circumstances, and if so what circumstances,
(e) the number of cases in which class-wide discrimination 
was found (i) under §§713.213-236 and (ii) under §713.251,
(f) the number of cases in which class-wide retroactive 
promotion was ordered (i) under §§713.213-236 and (ii) 
under §713.251, and (g) the number of cases in which class­
wide back pay was ordered (i) under §§713.213-236 and (ii) 
under §713.251.

10. The government’s brief states that the complaints 
examiners must be “ impartial” and “qualified” , Pp. 11, 51,

A ppend ix  E



21aa

Please state, for each of the Civil Service regions, the num­
ber of complaints examiners (a) who are white-male, white- 
female, black-male, black-female, and (b) who have experi­
ence in civil rights matters acquired (i) as employees of 
E.E.O.C., (ii) as employees of the Commission on Civil 
Rights, (iii) as employees of the Civil Rights Division of 
the Department of Justice, (iv) in private practice as coun­
sel for civil rights litigants (v) other (specify).

11. The government’s brief states that each complainant 
has the right to be represented by “ a representative of his 
own choosing.” P. 41. Please state (1) the number and 
percentage of complainants represented by counsel at the 
hearing, and (2) the number and percentage of cases in 
which the defendant agency or its officials were represented 
by counsel paid for by the government at the hearing.

12. The government’s brief states that a recommended 
decision finding discrimination becomes binding within 30 
days if not overturned within that time. P. 42. State the 
number of instances in which such a finding actually be­
came binding for this reason.

13. The government’s brief states that, following final 
decision by the Board, the Commission “may reopen and 
reconsider any decision.” P. 40. State the number of oc­
casions when the Commission actually did so.

14. The government’s brief states that the Board may 
arrange for “additional investigation to be conducted by 
Commission personnel.” P. 40. State the number of times 
that this has actually occurred and the type of investiga­
tion conducted.

A ppend ix  E



22aa

15. The government’s brief states that the regulations 
“authorise broad remedial action by the agency” on a find­
ing of discrimination in a 5 C.F.R. §713 administrative 
proceeding. P. 41. Do these regulations limit the inherent 
authority of the agencies to remedy unlawful discrimina­
tion (i) to administrative proceedings under 5 C.F.R. §713, 
(ii) to the specific remedies and circumstances set out in 
5 C.F.R. §713, or (iii) in any other way (specify).

16. The government’s brief describes a number of dead­
lines which must be met by the complainant and the re­
spondent agency. I f  the complainant fails to act within the 
deadline, under what circumstances can or must the relief 
sought be denied for that reason! On how many occasions 
has this occurred! If the agency fails to act within the 
deadline, under what circumstances can or must the relief 
sought be granted for that reason! On how many occasions 
has this occurred?

17. The government’s brief states that the complaints 
examiner transmits his findings and recommendations to 
the agency head for a final decision. Pp. 39-40. Please state 
whether the complainant is provided with a copy of these 
recommendations and afforded an opportunity to comment 
thereon to the agency head before the latter makes his 
decision.

18. The government’s brief states that the investigation 
may require the giving of sworn testimony. P. 38. Please 
state the number and percentage of investigations in which 
this took the form of (a) oral answers to oral questions in 
a sworn and transcribed.proceeding, (b) execution of an af­
fidavit prepared solely by the affiant, (c) execution of an

A ppen d ix  E



23aa

A ppend ix  E

affidavit prepared by the investigator in consultation with 
the affiant, (d) other (explain). Please state the number 
and percentage of investigations in which the complainant 
or his representative was permitted to and did ask questions 
as part of this “ sworn testimony.”

19. The government states that the Board reviews “ The 
complaint file and all relevant written representations made 
to it.” P. 40; See also P. 51 n. 32. Please state (a) the total 
combined length of all complaint and similar files of all 
cases considered by the Board in the last complete year, and 
(b) the number and percentage of cases in which written 
representations were made to the Board by (i) the com­
plainant and (ii) the agency or its officials.

20. With regard to the government’s description of the 
informal counseling process and the resulting corrective 
action, we would like to examine the report filed by the 
E.E.O. counsellor with regard to the counseling provided 
to Mr. Brown in the fall of 1970 regarding his rejection for 
promotion. See Brief for Petitioner, p. 5.

21. The government’s brief states, p. 42, that in the event 
of undue delay the Commission “may” take certain action 
under 5 C.F.R. §713.220 (c). Please state the number of 
instances in which the Commission (a) required an agency 
to take special measures to insure prompt processing, and 
describe the measures required (b) assumed responsibility 
for processing the complaint, or (c) supplied an investi­
gator and required an agency to reimburse the Commission.

22. The government’s brief, p. 55, states that the version 
of 5 C.F.R. §713.220(a) in effect in 1971, provided that in 
the event of undue delay the Commission “may” take cer­



24UU

tain action. Please state, for the last full year in which 
this provision was in effect, the number of instances in 
which the Commission (a) required the agency to take 
special measures to insure prompt processing of the com­
plaint and describe the measures, (b) accepted an appeal 
pursuant to §713.220(a) under §713.234.

23. The government’s brief, at pp. 57 and 53a, states 
that, in the last three fiscal years the Board remanded a 
significant number of cases (111 in 1975) and reversed a 
number of others on technical grounds without reaching 
the merits (58 in 1975). We would like information as to 
the outcome of these sorts of cases in subsequent agency 
proceedings. Please state, for the eases heard in the most 
recent fiscal year as to which subsequent agency proceed­
ings are now reasonably complete, (a) the number of cases 
in which discrimination was found, (b) the number of cases 
in which back pay was awarded, and (c) the number of 
cases in which retroactive promotions were awarded.

Tours sincerely,

/ s /  E ric S ch napper  
E ric S ohnapper  
Counsel for Petitioner

A ppen d ix  E

ES :aa



25aa

[ s e a l ]

OFFICE OF THE SOLICITOR GENERAL 
Washington, D.C. 20530

February 13, 1976

Eric Schnapper, Esquire 
10 Columbus Circle 
New York, New York 10019

R e : Brown v. General Services Administration
(No. 74-768)

A p p en d ix  F

Dear Mr. Schnapper:

Your letter dated November 26, 1975, requests informa­
tion concerning certain statements contained in our brief 
for the respondents in this case. The statements to which 
your letter refers include some that reflect statistical infor­
mation furnished to us by the Civil Service Commission 
and some that describe the Commission’s published regu­
lations governing the administrative process for adjudicat­
ing equal employment opportunity complaints by federal 
employees. We address each of your questions below.

Question 1. The brief for the petitioner in this case, in 
arguing that a federal employee’s resort to the Civil Ser­
vice Commission’s administrative complaint procedure is 
futile, made reference (pp. 52-53) to certain statistics con­
tained in the report of the United States Commission on 
Civil Rights, The Federal Civil Rights Enforcement Effort 
— 1974, purportedly showing that only a few complainants 
are awarded retroactive relief in the administrative pro­
cess. Our brief noted that the same report contained other 
statistics showing that “ 35 to 45 percent of the informal



26aa.

complaints are followed by some form of corrective action, 
including promotion, reinstatement, reassignment, and re­
duction of rescission of adverse action” (Br. 49). As indi­
cated in our brief, this information appears at page 67 
and note 221 of the Civil Bights Commission’s report. The 
total number of complaints on which the percentage are 
based is apparently set forth in the table on page 67 under 
the column headed “Number of Persons Counseled.”

The Civil Service Commission has advised us that it 
does not have compiled data reflecting the number of in­
stances in which the various types of corrective action re­
ferred to in your question were taken. Even a review of 
the hundreds of individual agency monthly reports on dis­
crimination complaint processing would not permit an ac­
curate answer to your inquiry, in part because the monthly 
reports are made in categories different from those that 
your letter uses (see PPM Letter No. 713-19, Attachment 
2), and in part because it now appears that the various 
agencies have followed differing standards in computing 
and categorizing corrective actions.

Questions 2 through 6. Each of these questions relates 
to statistical information contained in footnote 28, pages 
48-49, of our brief. We have endeavored to obtain for you 
the additional data that you request. The General Coun­
sel of the Civil Service Commission has advised us, how­
ever, that the Commission’s Office of Federal Equal Em­
ployment Opportunity does not have reliable data from 
which to answer your questions. Because the various re­
porting agencies have apparently been following differing 
standards in computing and categorizing corrective ac­
tions, the accuracy of the Commission’s data cannot be 
assured. We have accordingly concluded that the entire 
footnote in our brief should be withdrawn. We enclose a

A ppend ix  F



27aa

copy of a letter to the Clerk of the Supreme Court re­
questing that the Court be asked to disregard footnote 28.

Question 7. The statement in our brief to which your 
question relates merely refers to the data that appears in 
the Civil Eights Commission’s report at page 79. The 
Civil Service Commission does not have compiled data re­
flecting the number of cases in which the various types of 
corrective action were taken.

Questions 8 through 22 (with the exception of 20). These 
questions relate not to any statistical information con­
tained in our brief but rather to the Civil Service Com­
mission’s published regulations, which we summarized in 
our brief. Tour inquiries either are in the nature of pre­
trial discovery requests or call for legal conclusions or 
interpretations. It would be inappropriate, in our view, 
for us to attempt to respond to them at the present stage 
of this litigation.

Question 20. You may arrange to examine the counsel­
or’s report by contacting Robert Rice, Assistant General 
Counsel for Claims and Litigation, General Services Ad­
ministration, Room 4101, 18th and F Streets, N.W., Wash­
ington, D.O. 20405.

Question 23. The Civil Service Commission has advised 
us that it does not have data reflecting the subsequent ad­
ministrative disposition of cases reversed or remanded by 
the Appeals Review Board.

Sincerely,

R obert H. B oric

by LYW
Robert H. Bork 
Solicitor General

A ppend ix F

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