Milliken v. Bradley Petition for a Writ of Certiorari to the US Court of Appeals for the Sixth Circuit

    IN THE

(tort nt %  Mmtpft Btatva
October Term, 1975

No. 74-1599

J ewell D. Chandler, Petitioner, 
v.

B ichard L. R oudebttsh, et al., Respondents.

On Writ Of Certiorari To The United States Court Of Appeals 
For The Ninth Circuit

BRIEF FOR PETITIONER

P aul R. D imond 
J. H arold F lannery 
J oel L. Selig

L awyers’ Committee F or Civil 
R ights Under L aw 

733 Fifteenth Street, N.W.
Suite 520
Washington, D.C. 20005

Stuart P. H erman 
9601 Wilshire Boulevard 
Suite 632
Beverly Hills, California 90210 

Attorneys for Petitioner

P ress of B yron  S. A d a m s  P r in t in g , In c ., W a s h in g t o n , d . C.



INDEX
Page

Opinions B e lo w .................................................................... 1

Jurisdiction ...........................    2

Question Presented.....................................    2

Statute In volved .................................................................  2

Statement .......................................................    3

Summary of Argum ent...........................     8

Argument .................................................................   16

I. Petitioner Was Entitled to Have This Title V II 
Action Against Federal Agency Defendants Ad­
judicated Pursuant to the Same Procedures, In­
cluding Discovery and a Plenary Judicial Trial, 
As Are Applicable to Title V II Actions Against 
All Other Kinds of Defendants; and the Courts 
Below Erred in Granting Summary Judgment in 
Favor of Respondents Pursuant to a Review of
the Administrative R e co rd ..................................... 16

A. In Context the Issue Is Whether the 1972
Amendments to Title V II Are to Be Impaired 
by the Application of a Double Standard 
Favoring Federal Defendants over All Other 
Defendants.............................................................  16

B. The Express Language of Amended Title VII
Provides for the Same Plenary Judicial Pro­
ceedings in Federal Sector Gases As in All 
Other Cases .......................................................... 21
1. The Unitary and Interrelated Statutory

Structure...........................................................  21
2. The Provision of the Same Civil Action in

Significantly Different Circumstances.........  25



Index Continued

Page

C. The Legislative History of Amended Title Y II
Compels the Conclusion That Federal Sector 
Cases Are to Be Conducted in the Same Man­
ner As All Other C a ses ...................................... 29
1. The Evolution of the Final 1972 Legislation,

and the Structure of Other Proposals That 
Were Considered.............................    31

2. The Authoritative Statements of Legislative
In ten t.................................................................  38

3. The Consistent Logic of the Final Legisla­
tive P rod u ct......................................................

D. The Lower Court Decisions under Amended
Title Y II Have Adopted Rules Which May Be 
Analyzed in Terms of Three Basic Categories . 47
1. Overview of the C ases.................................... 47
2. The Three Different Rules Which Have

Been Adopted .................................................. 50
a. Plenary Judicial Proceedings..................  50
b. Review Strictly Limited to the Admin­

istrative R e co rd .......................................... 52
c. Hybrid A pproaches.................................... 53
d. The Government’s P o s it io n ....................  55

E. This Court Should Adopt a Rule Providing for
Plenary Judicial Proceedings in Federal 
Sector Cases, Because of the Express Lan­
guage and Legislative History of the 1972 
Amendments, As Well As Sound Policy Con­
siderations .............................................................  56

F. The Issue in the Case at Bar Has Important
Implications for Other Issues, Which Also 
Counsel in Favor of a Rule Providing for Plen­
ary Judicial Proceedings.................................... 69

G. The Posture of the Case at Bar Requires That
the Judgment Below Be R eversed ..................  72

Conclusion .........    85



I l l

TABLE OF AUTHORITIES 
Cases : Page
Adams v. Brinegar, 521 F.2d 129 (7tli Cir. 1975) ..........  47
Albemarle Paper Co. v. Moody, 95 S.Ct. 2362 (1975)

15, 70, 71, 72, 82
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)

9,14, 16, 17, 18, 19, 21, 24, 31, 63, 64 
Anderson v. Roudebush, 10 [CCH] EPD ft 10,328 (S.D.

Gra. 1975) .....................................................................  50
Archuleta v. Callaway, 385 F.Snpp. 385 (D. Colo. 1974) 50
Barnett v. W. T. Grant Co., 518 F.2d 543 (4th Cir. 1975) 71
Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir.

1969) '   71
Bowers v. Campbell, 505 F.2d 1155 (9th Cir. 1974)

47,55, 58
Brown v. General Services Administration, 507 F.2d 

1300 (2d Cir. 1974), cert, granted, 421 U.S. 987
(1975), No. 74-768 . _......................   58

Burns v. Thiohol Chemical Corp., 483 F.2d 300 (5th
Cir. 1973) ....................................................................65,80

Caro v. Schultz, 521 F.2d 1084 (7th Cir. 1975) . . .  .13, 22, 47,
51, 52, 65

Carr v. Conoco Plastics, Inc., 423 F,2d 57 (5th Cir.
197 0 ) ...................... ............................. ; ................. . 71

Chandler v. Johnson, 515 F.2d 251 (9th Cir. 1975), cert.
granted sub nom Chandler v. Roudebush, 44
U.S.L.W. 3200 (U.S., Oct. 6, 1975) .........1,47,53,55,61

Chandler v. Johnson, 7 [BNA] F.E.P. Cases 266 (C.D.
Cal. 1973), aff’d, 515 F.2d 251 (9th Cir. 1975), cert, 
granted sub nom Chandler v. Roudebush, 44
U.S.L.W. 3200 (U.S., Oct. 6, 1975) .......................... 1

Chisholm v. U.S. Postal Service, 9 EPD ft 10,212, 11 
F.E.P. Cases 457 (W.D. N.C. 1975), appeal pend­
ing, 4th Cir. Nos. 75-2068, 75-2069 ...........................49,69

Davis v. Dept, of H.E.W., 10 EPD ft 10,341 (E.D. La.
1975) .............................................................................  49

Douglas v. Hampton, 512 F.2d 976 (D.C. Cir. 1975) _.. 82
Drew v. Liberty Mutual Ins. Co., 480 F.2d 69 (5th Cir.

1973) .......................................    48
Early v. Klassen, 10 EPD ft , 11 F.E.P. Cases ,

D.D.C., C.A. No. 75-153, Oct. 30, 1975 ........................  49
Eastland v. Tennessee Valley Authority, 9 EPD ft 9927 

(N.D. Ala. 1975), appeal pending, 5th Cir. No. 
75-1855 ...........................................................................  70



IV Table of Authorities Continued

Page
Ellis v. Naval Air Rework Facility, 10 EPD If 10,257,

11 F.E.P. Cases 317 (N.D. Cal. 1975), 10 EPD 
If 10,422, 11 F.E.P. Cases (N.D. Cal. 1975), 10 
EPD , 11 F.E.P. Cases , N.D. Cal., No.
C-73-1794 WHO, Nov. 4, 1975 ................................49,70

Espinosa v. Farah Mfg. Co., 414 U.S. 86 (1973) ..........  17
Ettinger v. Johnson, 518 F.2d 648 (3rd Cir. 1 97 5 )........  47
Fisher v. Brennan, 517 F.2d 1404 (6th Cir. 1975), aff’g 

without published opinion 384 F.Snpp. 174 (E.D.
Tenn. 1974) .................................................................  48

Gamble v. Birmingham Southern Railroad Co., 514
_ F.2d 678 (5th Cir. 1975) .......................................... 71

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ..........70, 82
Grubbs v. Buts, 514 F.2d 1323 (D.C. Cir. 1975) ............  47
Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C. 1973), 

rev’d sub nom Hackley v. Roudebush, 520 F.2d
108 (D.C. Cir. 1975) ..................................7, 51, 53, 67, 68

Hackley v. Roudebush, 520 F.2d 108 (D.C. Cir. 1975)
13,17, 22, 24, 29, 31, 32, 34, 35, 
36, 37, 40, 41, 43, 47, 51, 52, 57, 

58, 60, 62, 63, 65, 67, 69, 77
IIaire v. Calloway, F.2d , 10 EPD if , 11 F.E.P.

Cases 769, 8th Cir. Nos. 74-2004, 75-1050, Nov. 17,
1975 ................................................................. 47,54,61,68

Hammond v. Bolzano, 10 EPD if 10,333 (D. D.C. 1975) 59
Harris v. TJlanich, 10 EPD if 10,262 (E.D. Va. 1974) . . 49
Jackson v. U.S. Civil Service Comm’n, 379 F.Supp.

589 (S.D. Tex. 1973) .............................................   59
Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir

1968) .............................................................................  71
Jewell v. Middendorf, 10 F.E.P. Cases 1110 (C.D. Cal.

1975)...............................................................................  50
Johnson v. Clotworthy, 10 EPD if 10,315 (D. D.C. 1975) 50
Johnson v. Georgia Highway Express, Inc., 417 F.2d

1122 (5th Cir. 1969) .................................................... 71
Johnson v. Goodyear Tire S Rubber Co., 491 F.2d 1364

(5th Cir. 1974) ...........................................................  71
Johnson v. U.S. Postal Service, 364 F.Supp. 37 (N.D.

Fla. 1973), aff’d per curiam, 497 F.2d 128 (5th Cir.
1974) ...........................................    48

Jones v. Brennan, F.Supp. , 10 EPD if , 11 
F.E.P. Cases , N.D. G-a., Atl. Div., Civ. No. 
19139, Sept. 30, 1975 .................................................. 49



Table of Authorities Continued v

Page

Keeler v. Hills, 10 EPD U , 11 F.E.P. Cases ,
N.D. Ga., Atl. Div., C.A. Nos. C74-2152A, C74-
2309A, Nov. 12, 1975 .................................................  49

Roger v. Ball, 497 F.2d 702 (4th Cir. 1974) ........... 49
McCreesh v. Berude, 385 F.Supp. 1365 (E.D. Pa. 1974) 49 
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

9,10,16, 24,28, 31, 
65, 70, 76, 77, 79, 83

McHoney v. Callaway, 10 EPD H , 11 F.E.P. Cases
, E.D. N.Y., No. 74-C-1729, Oct. 10, 1975 . . . . .  49

Miller v. International Paper Co., 408 F.2d 283 (5th
Cir. 1969) ........................       71

Morton v. Mancari, 417 II. S. 535 (1974) . . .  .9,17,18, 32, 33 
Newman v. Piggie Park Enterprises, 390 U.S. 400

(1968) ...............................................................  70
Oatis v. Crown-Zellerbach Corp., 398 F.2d 496 (5th Cir.

1968) .....................................................................   71
Oubichon v. North American Rockwell Corp., 482 F .2d

569 (9th Cir. 1973) .............................    71
Palmer v. Rogers, 10 EPD IT 10,265 (D. D.C. 1975) . . . .  59
Parks v. Dunlop, 517 F.2d 785 (5th Cir. 1975) .............. 48
Pendleton v. Schlesinger, 8 EPD TT 9598, 8 F.E.P. Cases 

853 (D. D.C. 1974), appeal pending, D.C. Cir. No.
74-1929 ........................................................................   70

Pennv. Schlesinger, 490 F.2d 700 (5th Cir. 1973), rev’d 
on exhaustion of remedies issue, 497 F.2d 970 (5th 
Cir. 1974) (en banc), pet. for cert, pending, No.
74-476 ............................................. _.............. ............ ;  58

Petterway v. Veterans Administration Hospital, 495
F.2d 1223 (5th Cir. 1974) . . .̂ .................................... 58

Pettwai/ v. American Cast Iron Pipe Co., 494 F.2d 211
(5th Cir. 1974) .............................................................  71

Rogers v. E.E.O.C., 10 EPD If 10,416, 11 F.E.P. Cases
337 (D. D.C. 1975) .......................................................... 59

Salone v. United States, 511 F.2d 902 (10th Cir. 1975),
pet. for cert, pending, No. 74-1600 ........................47, 52

Sanches v. Standard Brands, Inc., 431 F.2d 455 (5th
Cir. 1970) ...................................................................... 71

Smith v. Fletcher, 10 EPD TT 10,329 (S.D. Tex. 1975) .. 59
Spencer v. Schlesinger, 374 F.Supp. 840 (D. D.C. 1974),

appeal pending, D.C. Cir. No. 74-1787 . .............. 70
Sperling v. United States, 515 F.2d 465 (3rd Cir. 1975), 

pet. for cert, pending, No. 75-247 . . .  .13, 22, 41, 43, 47,
51, 52, 57, 58, 65,67, 69



V I Table of Authorities Continued

Page
Sylvester v. U.S. Postal Service, 393 F.Supp. 1334

(S.D. Tex. 1975) ........................................................ 49,69
Warren v. Veterans Hospital, 382 F.Supp. 303 (E.D.

Pa. 1974) ........................................................................ 49
Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239 (3rd

Cir. 1975), cert, denied, 421 U.S. 1011 (1 9 7 5 )........  71
Williams v. Tennessee Valley Authority, 10 EPD 

if , 11 F.E.P. Cases , M.D. Tenn., C.A. No.
_75-186-NA-CV, Nov. 21, 1975 .................................... 49

Wright v. Nat’l Archives and Records Service, 388 
F.Supp. 1205 (D. Md. 1975), appeal pending, 4th 
Cir. No. 75-1378 .......................................................... 49

Statutes :
5 U.S.C. § 7151 32
28 U.S.C. § 1254(1) ............................................................ 2
28 U.S.C. §§ 1291, 1292 ............................................ .. 23
42 U.S.C. § 1981 .............................................................. 47, 55
Title V II of the Civil Rights Act of 1964 as amended 

by the Equal Employment Opportunity Act of 
1972, 42 U.S.C. § 2000e, et seq.............................passim
42 U.S.C. § 2000e(a) .. 
42 U.S.C. § 2000e-5(f) . 
42 U.S.C. § 2000e-5(g) 
42 U.S.C. § 2000e-5(i) 
42 U.S.C. § 2000e-5(j) 
42 U.S.C. § 2000e-5(k) 
42 U.S.C. § 2000e-16(a) 
42 U.S.C. § 2000e-16(b) 
42 U.S.C. § 2000e-16(c) 
42 U.S.C. § 2000e-16(d)

.............................................. 16

. . . 16, 22, 23, 24, 37, 46, 62, 84

.............................................. 23
.............................................. 24
..............................................  23
....................  16, 23, 37, 62, 84
............................................ 2, 4
.................................. 37, 44, 81
........................ 3, 5, 21, 25, 26
..................  3 ,22,24,27,37,46

Obdees and R egulations :
5 C.F.R. Part 713, 34 Fed. Reg. 5467 (Mar. 19, 1969), 

as amended at 34 Fed. Reg. 14023 (Sept. 4, 1969) . 32
5 C.F.R. Part 713, 37 Fed. Reg. 25699 (Dec. 2, 1972) . .  32
5 C.F.R. Part 713 (1973) .............................................. 25, 61



Table of Authorities Continued vii

5 C.F.R. § 713.203 
5 C.F.R. §713.214 
5 C.F.R. § 713.215 
5 C.F.R. §713.216 
5 C.F.R. §713.217 
5 C.F.R. §713.218 
5 C.F.R, §713.221 
5 C.F.R, § 713.231 
5 C.F.R. § 713.281 
5 C.F.R. §713.302

Page
.. 81
. . 4

on
26, 29
4, 26
5, 26 
5, 26 
5, 26

25, 26 
. .  81

Executive Order 11246 (1965) .......................................  32

Executive Order 11478 (1969)

Legislative H istoby :

118 Cong. Rec. S 1219 (daily ed., Jan. 23, 1973) ........  41

H. R. Rep. No. 92-238, 92d Cong., 1st Sess. (1971)
[cited as House Report] ......................33,34,38,44,45

S. Rep. No. 92-415, 92d Cong., 1st Sess. (1971)........30,38,
43, 45

Senate Committee on Labor and Public Welfare, Legis­
lative History of the Equal Employment Oppor­
tunity Act of 1972, 92d Cong., 2d Sess. (Commit­
tee Print, 1972) [cited as History] [Congressional 
Record citations also included in b r ie f]-----30, passim

Miscellaneous :

Brief for Appellees, Swain v. Calloway, 5th Cir. No. 
75-2002 .........................................................................  20

Brief for N A A (TP Legal Defense and Educational 
Fund, Inc. as Amicus Curiae, Chandler v. Roude- 
bush, No. 74-1599, October Term, 1975 ..................62, 69

Brief for the United States as Amicus Curiae, Alex­
ander v. Gardner-Denver Co., No. 72-5847, Octo­
ber Term, 1973 ...........................................................  20



vm Table of Authorities Continued

Page
Brief for the United States and the Equal Employ­

ment Opportunity Commission as Amicus Curiae, 
Albemarle Paper Co. v. Moody, Nos. 74-389, 74-428, 
October Term, 1974 .......... ......................... ...............  20

Fed.B.Civ.P. 23 ...................................................    69
Fed.B.Civ.P. 2 6 .....................................    66
Fed.B.Civ.P. 56 .................................................................. 52,75
Justice Department Memorandum in Response to Court 

Request, Oringel v. Mathews, 5th Cir. No. 74-3971 
(Oct. 23, 1975) .......................................................... 54,55

Letter from Acting Assistant Attorney General Irving 
Jaffe to Senator John Y. Tunney, May 6, 1975, 
published in CCH Employment Practices Guide,
New Developments K 5327 ........................................ 25

Memorandum in Response to Petition for Rehearing, 
Place v. Weinberger, No. 74-116, October Term,
1974 ..............................................................................49,55

U.S. Civil Service Commission, Discrimination Com­
plaint Examiner’s Handbook (April, 1973)........ 62,77

U.S. Commission on Civil Rights, The Federal Civil 
Rights Enforcement Effort—1974, Vol. V, “ To 
Eliminate Employment Discrimination”  (July, 
197 5 )............................................................................. 29,62



IN THE

B n p t m t  (tart of X \ \ t  Ittttrii M u U b
O ctobeb T e r m , 1975

No. 74-1599

J e w e l l  D. C h a n d l e r , Petitioner, 
v.

R ic h a r d  L. R o u d ebu sh , et  a l ., Respondents.

On Writ Of Certiorari To The United States Court Of Appeals 
For The Ninth Circuit

BRIEF FOR PETITIONEE

OPINIONS BELOW

The opinion of the court of appeals is reported at 
515 E.2d 251, and is reproduced in the appendix to 
the petition for certiorari (Pet. App. 34a-41a).

The opinion of the district court is not officially re­
ported. It is unofficially reported at 7 [CCTI] EPD 
19139, and at 7[BN A] E. E. P. Cases 266. The dis­
trict court’s opinion is reproduced in the appendix 
to the petition for certiorari (Pet. App. 30a-33a).

Also reproduced in the appendix to the petition 
are the findings and recommended decision of the



2

hearing examiner (Pet. App. la-17a), the decision of 
the Veterans Administration (Pet. App. 18a-21a), 
and the decision of the Civil Service Commission (Pet. 
App. 21a-29a).

JURISDICTION

The judgment of the court of appeals was entered 
on April 25, 1975. The petition for certiorari was 
filed on June 19, 1975 and granted on October 6, 1975. 
Jurisdiction is invoked under 28 U.S.C. §1251(1).

QUESTION PRESENTED

Whether petitioner, who alleged unlawful discrimi­
nation in employment by a federal agency in a suit 
under the 1972 amendments to Title V II  of the Civil 
Rights Act of 1964, was entitled to plenary judicial 
proceedings in the district court, as opposed to a re­
view of the administrative record?

STATUTE INVOLVED

Section 717 of Title V II  of the Civil Rights Act of 
1964 as amended by the Equal Employment Oppor­
tunity Act of 1972, 42 U.S.C. § 2000e-16, provides in 
pertinent part as follows:

(a) All personnel actions affecting employees or 
applicants for employment (except with regard 
to aliens employed outside the limits of the 
United States) in military departments as de­
fined in section 102 of Title 5, in executive agen­
cies (other than the General Accounting Office) 
as defined in section 105 of Title 5 (including em­
ployees and applicants for employment who are 
paid from nonappropriated funds), in the United 
States Postal Service and the Postal Rate Com­
mission, in those units of the Government of the



3

District of Columbia having positions in the com­
petitive service, and in those units of the legis­
lative and judicial branches of the Federal Gov­
ernment having positions in the competitive 
service, and in the Library of Congress shall be 
made free from any discrimination based on race, 
color, religion, sex, or national origin.

# * *
(c) Within thirty days of receipt of notice of 
final action taken by a department, agency, or 
unit referred to in subsection (a) of this section, 
or by the Civil Service Commission upon an ap­
peal from a decision or order of such department, 
agency, or unit on a complaint of discrimination 
based on race, color, religion, sex or national ori­
gin, brought pursuant to subsection (a) of this 
section, Executive Order 11478 or any succeed­
ing Executive orders, or after one hundred and 
eighty days from the filing of the initial charge 
with the department, agency, or unit or with the 
Civil Service Commission on appeal from a de­
cision or order of such department, agency, or unit 
until such time as final action may be taken by a 
department, agency, or unit, an employee or appli­
cant for employment, if aggrieved by the final dis­
position of his complaint, or by the failure to take 
final action on his complaint, may file a civil action 
as provided in section 2000e-5 of this title, in which 
civil action the head of the department, agency, or 
unit, as appropriate, shall be the defendant.
(d) the provisions of section 20Q0e-5(f) through 
(k) of this title, as applicable, shall govern civil 
actions brought hereunder.

* * *
STATEMENT

Petitioner, Jewell D. Chandler, is a black female 
employee of the Veterans Administration. In 1972 
Ms. Chandler applied for a GS-13 Supervisory Claims 
Examiner (Section Chief) position in the Division



4

of tiie Los Angeles Region in which she was employed. 
As of October 1972, there were 16 positions above the 
G-S-12 level in that Division, of which two were held 
by white females, and fourteen were held by non­
black males. Of all Division employees, 38 percent 
were female and 25 percent were black. (A.R. 18-19; 
Pet. App. 3a-4a) -1

Petitioner was designated as “ highly qualified”  for 
the position in question, and was referred, with other 
candidates, to the selecting official for his considera­
tion. A  non-black male was selected for the position. 
(A.R. 19-21; Pet. App. 4a-5a).

Petitioner then filed a timely administrative com­
plaint pursuant to 42 U.S.C. § 2000e-16(a) and 5 
C.P.R. § 713.214, alleging, inter alia, that her non-se­
lection for the position in question was due to unlawful 
discrimination on the basis of her race (black) and sex 
(female). (A.R. 269-276). Petitioner subsequently re­
quested a hearing on her complaint.2 An administrative

1 Pursuant to Rule 36(4), the deferred appendix procedure is 
being utilized in this case. (Stipulation, Oct. 21, 1975). Citations 
herein are to the original record.

The record consists of four separately paginated volumes plus 
one paginated exhibit volume. Volume 1 contains the pleadings, 
orders, etc., in the district court and the court of appeals, and is
cited as ‘ R. ------ ’. Volumes 2-4 consist of the transcripts of three
motion hearings in the district court, and are cited as, e.g., ‘ Tr. 
------ -----  Oct. 29, 1973’.

The certified administrative record of proceedings before the 
Veterans Administration and the Civil Service Commission con­
stitutes the exhibit volume, and is cited as ‘ A .R .------This exhibit
was part of the record before the lower courts. (R. 121-2).

Portions of the record which are reproduced in the appendix to 
the petition for certiorari are also cited as ‘ Pet. App. —■—

2 Such a hearing is not reqiured, but is available at the com­
plainant’s option. 5 C.P.R. § 713.217(b).



5

hearing was accordingly held, at which Ms. Chandler, 
who is not an attorney, represented herself. The hear­
ing examiner refused to call 15 of the 24 witnesses 
whom petitioner had requested, including the individ­
ual who had been selected over petitioner for the 
job in question. (A.R. 118, 140-145). After the hear­
ing, the examiner submitted findings and recommen­
dations pursuant to 5 C.E.R. § 713.218(g), to the effect 
that petitioner had not been discriminated against 
on the basis of her race with respect to the non-selec­
tion in question, but that she had been discriminated 
against on the basis of her sex. In light of the find­
ing of sex discrimination, the examiner recommended 
that petitioner be promoted immediately and retro­
actively to the position in question. (A.R. 16-35; Pet. 
App. la-17a).

Upon receipt of the hearing examiner’s findings and 
recommended decision, a final decision was issued by 
the Veterans Administration. This decision rejected 
the examiner’s finding of sex discrimination, accepted 
the finding of no race discrimination, and according­
ly granted no relief. (A.R. 36-9; Pet. App. 18a-21a). 
Petitioner then filed a timely appeal to the Civil Serv­
ice Commission. (A.R. 13-15).3 The Commission 
affirmed the Veterans Administration’s decision. (A. 
R. 3-8; Pet. App. 21a-29a). Petitioner then filed this 
suit pursuant to subsection 717(c) of Title V II  of 
the Civil Rights Act of 1964, as amended by the Equal 
Employment Opportunity Act of 1972, 42 U.S.C. 
§ 2000e-16(c). (R. 1-7).

3 Such an appeal is not required, but is available at the com­
plainant ’s option. 5 C.F.R. §§ 713.221(d), 713.231(a).



6

In the district court, petitioner first moved for sum­
mary judgment on the ground that the official who 
entered the Veterans Administration decision reject­
ing the hearing examiner’s decision in petitioner’s 
favor was, as a technical matter of delegation of au­
thority, without authority to act in the matter. (R. 17- 
30). This motion was denied. (R. 143-4). Petitioner 
then promptly initiated discovery, filing notice of two 
depositions and a request for production of documents. 
(R . 146-150). The respondents moved for a protective 
order prohibiting the discovery, on the ground that 
discovery was impermissible because the judicial pro­
ceedings should be limited to a review of the admini­
strative record. (R. 151-7). Petitioner opposed the 
motion for a protective order, asserting her right to 
discovery and to a plenary judicial trial de novo. (R. 
158-171).

In order to avoid deciding the issues presented in 
a piecemeal fashion, the district court determined that 
it would hold the question of discovery in abeyance 
pending (1) the filing of cross-motions for summary 
judgment on the basis of the administrative record, 
and (2) a determination by the court of the proper 
scope of the judicial proceedings. (Tr. 3-10, Nov. 26, 
1973). Pursuant to the court’s request, the parties 
then filed cross-motions for summary judgment on 
the basis of the administrative record. (R. 172-180; 
R. 181-194). It was clearly understood by the parties 
and the district court that petitioner’s cross-motion 
for summary judgment was filed without prejudice 
to her position that she had a right to discovery and 
a trial de novo. (Tr. 3-10, Nov. 26, 1973).

After the cross-motions for summary judgment 
were filed, the district court granted respondents’ mo­



7

tion for summary judgment on the basis of the admin­
istrative record, without any pre-trial discovery and 
without any judicial evidentiary proceedings. The 
district court adopted the legal position of Hockley v. 
Johnson, 360 F.Supp. 1247 (DJD.C. 1973), rev’d sub 
nom Hackley v. Roudebush, 520 F.2d 108 (D.C. Cir. 
1975), concerning the nature and scope of judicial pro­
ceedings in Title V II  cases against federal defendants. 
It then found “ that the absence of discrimination is 
firmly established by the clear weight of the admin­
istrative record and hence plaintiff is not entitled to 
any relief.”  Apart from thus paraphasing the Hack- 
ley district court’s standard for granting summary 
judgment in the government’s favor on the basis of 
the administrative record, the opinion of the district 
court in the case at bar did not explain or state any 
reasons for its finding against petitioner. (R. 252-9; 
Pet. App. 30a-33a).

The court of appeals affirmed the district court’s 
denial of petitioner’s motion for summary judgment 
on the ground of improper delegation of reviewing 
authority, and affirmed the district court’s denial of 
petitioner’s cross-motion for summary judgment on 
the administrative record. (515 F.2d at 253-4; Pet. 
App. 36a-38a). The petition for certiorari did not seek 
review of these holdings. (Pet. 6).

The court of appeals also affirmed the district court’s 
grant of summary judgment in respondents’ favor on 
the basis of the administrative record and its denial 
of a plenary judicial trial de novo. (515 P .2d at 254- 
5; Pet. App. 38a-41a). This is the issue on which 
certiorari was sought and granted. (Pet. 6). The 
court of appeals held that the district court correctly 
“ adopted and applied the intermediate scope of in­



8

quiry expounded in Hackley v. Johnson [supra],”  and 
that summary judgment in the government’s favor was 
appropriate on the basis of the administrative rec­
ord. (515 F.2d at 254-5; Pet. App. 38a-41a). In ruling 
that petitioner was not entitled to a trial de novo as 
a matter of right, the court of appeals held that a 
federal sector Title V II  plaintiff must make a show­
ing of necessity in his or her particular ease before 
supplementation of the administrative record or a trial 
de novo is considered. The court then concluded that 
petitioner had not made such a showing of necessity. 
(515 F.2d at 255; Pet. App. 40a-41a).4

SUMMARY OF ARGUMENT

Civil actions under Title V II  against federal gov­
ernment defendants should be adjudicated pursuant to 
the same procedures that are utilized in all other civil 
actions under Title V II. These procedures include dis­
covery pursuant to the Federal Rules of Civil Proce­
dure, and a plenary judicial trial. The courts below 
followed an erroneous procedure in granting summary 
judgment against petitioner pursuant to a review of 
the administrative record.

A. It is settled that Title V II  actions against pri­
vate sector defendants are plenary judicial proceed­

4 This conclusion by the court of appeals ignored the fact that 
petitioner had attempted to conduct discovery and had presented 
reasons why the discovery requested was necessary. In addition, 
while the court of appeals’ opinion implies that petitioner was 
somehow remiss in her obligation to apprise the district court of 
the reasons why supplementation of the record or a trial de novo 
was necessary, in fact petitioner made her position and the reasons 
for it quite clear, and the procedure by which the issues were 
presented to the district court was the procedure which the district 
court itself requested. (R. 146-150,158-171; Tr. 3-10, Nov. 26,1973).



9

ings, and that prior administrative or arbitral deter­
minations cannot override the plaintiff’s right to a 
plenary judicial trial. McDonnell Douglas Corp. v. 
Green, 411 U.S. 792 (1973) ; Alexander v. Gardner- 
Denver Co., 415 U.S. 36 (1974). The question in this 
ease, therefore, is whether a double standard is to be 
applied which places the federal government in a 
favored position in comparison to other Title Y II  de­
fendants. Such a double standard would be incompat­
ible with the central purpose of the 1972 amendments 
extending Title V I I ’s coverage to the federal sector. 
That purpose was to place federal employees and ap­
plicants on a par with employees and applicants in the 
private sector. Morton v. Mancari, 417 U.S. 535, 546-7 
(1974).

Unless plenary judicial proceedings are provided in 
federal sector Title V II  cases, the effectiveness of the 
1972 amendments will be drastically impaired. The 
substantive Title V II  law developed in private sector 
cases is now to be applied to the federal government. 
Morton v. Mancari, supra, 417 U.S. at 547. Plenary 
judicial proceedings are essential to the accomplish­
ment of this objective, because under Title V II  the 
forum of trial “  inevitably affects the scope of the 
substantive right to be vindicated.”  Alexander v. Gard- 
ner-Denver Co., supra, 415 U.S. at 56. The reasoning 
of the Court in the Alexander case is fully applicable 
by analogy in the case at bar.

B. 1. The plain language of amended Title V II  
provides for the same plenary judicial proceedings in 
federal sector cases as in all other cases. The statutory 
structure is unitary and interrelated; the section of 
the statute which creates and describes a civil action in



10

the federal sector is expressly cross-referenced to the 
provisions which govern private sector cases. It is 
settled that those latter provisions require plenary 
judicial proceedings.

2. Petitioner’s analysis of the statutory language 
is buttressed by a review of the various stages in the 
administrative enforcement procedure at which a civil 
action may be filed. In some of the circumstances 
where the judicial process may be invoked, such as 
when no administrative record has been timely com­
piled, plenary judicial proceedings are obviously re­
quired. Yet the statute in no way distinguishes this 
circumstance from others. Nor does the statute dis­
tinguish cases in which an administrative evidentiary 
hearing has been held from those in which there has 
been no such hearing. Since no distinctions are made 
between significantly different circumstances, the ju­
dicial procedures contemplated must be the same in 
all cases, namely, those which are available in any 
plenary civil action. Moreover, since no explicit restric­
tion on the judicial process is stated in the statute, the 
process is impliedly unrestricted. The courts may not 
engraft restrictions onto Title Y II  which the statute 
itself does not impose. McDonnell Douglas Corp. v. 
Green, supra, 411 U.S. at 798-9.

C. The legislative history of amended Title V II  
compels the conclusion that federal sector cases are to 
be adjudicated in the same manner as all other cases. 
The purpose of the 1972 amendments was to grant the 
same treatment in the courts to all Title Y II  litigants, 
in the private sector, the state and local government 
sector, and the federal sector.



11

1. The federal sector 1972 amendments were in­
tended to rectify a situation in which enforcement of 
equal employment opportunity in the federal govern­
ment was dependent upon an administrative procedure 
that had impeded rather than advanced the goal of 
eliminating discrimination. The congressionally man­
dated recourse for the federal sector complainant who 
is dissatisfied with the result obtained in the admin­
istrative process is a plenary civil action in district 
court. Some of the draft legislation considered in the 
92d Congress provided for an administrative cease 
and desist procedure and court of appeals review on 
the administrative record in the private sector, and 
this was a major source of controversy. However, in 
these drafts, which also extended Title Y I I ’s coverage 
to the federal government, federal sector cases wTere 
always governed by the section of the proposed statute 
providing for a civil action in district court; they were 
never governed by the section providing for a review 
on the record in the court of appeals. In the statute as 
enacted, cease and desist and court of appeals reviewT 
were dropped in the private sector, and all cases were 
governed by the plenary civil action provisions that 
governed federal sector cases in the antecedent draft 
legislation.

2. The unitary structure of the finally enacted 
legislation fully implements the basic congressional 
purpose with respect to the federal sector: to provide 
the same rights and remedies to federal employees and 
applicants as were provided in the private sector. The 
authoritative statements of legislative intent empha­
size the concept of equality of treatment in all sectors 
of the economy, and among all plaintiffs and all de­
fendants. The relevant House and Senate Committee



1 2

reports, and numerous statements of Senator Dominick 
(who played a pivotal role in the evolution of the stat­
ute as enacted), are especially authoritative. The con­
troversy over certain remarks of Senator Cranston and 
Senator Williams is not of controlling significance in 
view of the clear thrust of the legislative history taken 
as a whole.

3. The congressional intent to afford plenary ju ­
dicial proceedings in federal sector cases is in no way 
inconsistent with the simultaneous determination to 
retain the Civil Service Commission, rather than the 
Equal Employment Opportunity Commission, as the 
administrative agency with authority in the federal 
sector. The federal sector civil action in district court 
was intended to provide a judicial check on the pro­
defendant bias of the CSC, just as the private sector 
civil action would provide a judicial check on the pro­
plaintiff bias of the EEOC. In both sectors, the district 
court’s authority is exerted through a de novo judicial 
proceeding. The plenary civil action in the federal 
sector is also consistent with the purpose of maintain­
ing the mechanism for possible internal complaint res­
olution and possible agency self-correction which the 
administrative procedure provides.

D. The decisions of the lower courts which have 
considered the issue in the case at bar fall into three 
basic categories. The Third, Seventh and District 
of Columbia Circuits have ruled in favor of petition­
er’s position that federal sector Title VIX cases are 
to be conducted as plenary judicial proceedings. The 
Tenth Circuit has held that the judicial function in 
federal sector Title Y II  cases is strictly limited to a 
renew of the administrative record pursuant to a



13

“ substantial evidence”  standard. The Eighth and 
Ninth Circuits have adopted a hybrid approach, pur­
suant to which the plaintiff must make a showing of 
necessity to justify any effort to go beyond the ad­
ministrative record. The decisions of the courts which 
have held in favor of plenary judicial proceedings are 
far more persuasively reasoned than the decisions to 
the contrary. Hack,ley v. Roudebush, 520 E.2d 108 
(D.C. Cir. 1975) ; Sperling v. United States, 515 F.2d 
465 (3rd Cir. 1975), pet. for cert, pending, No. 75-247; 
Caro v. Schultz, 521 F.2d 1084 (7th Cir. 1975).

E. The only rule which is consistent with the lan­
guage and legislative history of the 1972 amendments 
is one which provides for plenary judicial proceedings. 
This case does not present a policy issue for the 
Court’s review, because the policy decision has already 
been made by Congress. But even if this were not so, 
sound policy considerations would also counsel in 
favor of the rule which petitioner advocates.

Any rule which fails to recognize the right to ple­
nary judicial proceedings wrould drastically impair 
the effectiveness of the 1972 amendments by making 
judicial deference to agency and CSC decisions the 
easy path of least resistance. Moreover, federal sector 
plaintiffs would be placed at a unique and wholly un­
justified disadvantage if  they were required to make 
an affirmative showing persuading the district court 
that there is a “ need”  before they could exercise pro­
cedures routinely accorded to other civil litigants.

A  double standard providing for a restrictive ap­
proach only in federal sector cases is not justified by 
considerations of judicial economy. Whatever view one 
takes as to the efficacy of the CSC-designed adminis­



14

trative process, it is not—and is not intended to be— 
either the equivalent or an approximation of an ad­
versary judicial proceeding. Title V I I ’s judicial reme­
dy would be of dubious value if  it did not include the 
right to conduct discovery and have the court evaluate 
the credibility of witnesses by observing their testi­
mony.

In federal sector Title V II  cases as in any civil 
litigation, the district courts may take informal steps 
to avoid unnecessary duplication of evidence which is 
already of record. The administrative record is ad­
missible in the district court, subject to the limitations 
of the Federal Rules o f Civil Procedure and the Fed­
eral Rules of Evidence. But it is admissible only for 
whatever light it, as one item of evidence, sheds on 
the facts at issue. It cannot justly be utilized as a 
weapon for limiting the scope of otherwise proper dis­
covery or for impairing the plaintiff’s access to the 
normal mechanisms of judicial factfinding. To focus 
the attention of the parties and the court on the ad­
ministrative record by limiting the scope of judicial 
proceedings would have the same stultifying effect as 
a regime of “ deferral” , which this Court has specifi­
cally rejected in the private sector. Alexander v. Gard- 
ner-Denver Co., supra, 415 U.S. at 55-9.

F. The issue in the case at bar has important im­
plications for other issues. Foremost among these is 
the question of the availability of class actions in fed­
eral sector cases. Any rule providing for less than 
plenary judicial proceedings would raise very serious 
questions as to the applicability of private sector class 
action law in the federal sector. Such a result would 
be inconsistent with Title V I I ’s broad remedial pur­



15

pose, and contrary to the express will of Congress. See, 
Albemarle Paper Co. v. Moody, 95 S.Ct. 2362, 2370 
n.8 (1975).

G-. In the case at bar, petitioner was deprived of 
the right to conduct any discovery and the right to 
present any testimonial evidence to the district court 
as trier of fact. A  reversal of the judgment below fol­
lows as a matter of course if petitioner had the right to 
plenary judicial proceedings. Moreover, even if the 
Court were to adopt an approach requiring a showing 
of necessity to go beyond the administrative record, 
the judgment in the case at bar should still be reversed. 
The courts below ignored crucial deficiencies in the 
administrative record in holding that there was no 
need for discovery and judicial evidentiary proceed­
ings in the case at bar.



16

ARGUMENT

L
PETITIONER WAS ENTITLED TO HAVE THIS TITLE VII ACTION AGAINST FED­

ERAL AGENCY DEFENDANTS ADJUDICATED PURSUANT TO THE SAME 
PROCEDURES, INCLUDING DISCOVERY AND A PLENARY JUDICIAL TRIAL, 

AS ARE APPLICABLE TO TITLE VII ACTIONS AGAINST ALL OTHER KINDS 
OF DEFENDANTS; AND THE COURTS BELOW ERRED IN GRANTING SUM­
MARY JUDGMENT IN FAVOR OF RESPONDENTS PURSUANT TO A REVIEW 

OF THE ADMINISTRATIVE RECORD.

A. In Context the Issue Is Whether the 1972 Amendments to 
Title VII Are to Be Impaired by  the Application of a Double 
Standard Favoring Federal Defendants Over All Other 
Defendants.

I f  the defendant in the case at bar were a private 
company rather than a federal agency, and the court 
of appeals had held that plenary judicial proceedings 
were not a matter of right and that the district court 
could, in its discretion, simply review the record of 
administrative or arbitral proceedings, then the deci­
sion below would he plainly inconsistent with the deci­
sions of this Court. For it is settled that Title V II  ac­
tions against private sector defendants are de novo 
judicial proceedings, and that prior administrative or 
arbitral determinations cannot override the plaintiff’s 
right to a plenary judicial trial. McDonnell Douglas 
Corp. v. Green, 411 U.S. 792 (1973) ; Alexander v. 
Gardner-Denver Go., 415 U.S. 36 (1974). Under the 
1972 extension of Title V I I ’s coverage, this is clearly 
the law not only with respect to private companies, 
unions and employment agencies, but with respect to 
state, county, and municipal governments as well.5

This case therefore raises the fundamental question 
o f whether the federal government is to be subjected

5 See, 42 U.S.C. §§2000e(a), 2000e-5(f)-(k).



17

to different and less demanding legal standards and 
procedures under Title Y II  than those to which all 
other classes of defendants are subjected. It seems ob­
vious that a legislative intention to enshrine such a 
double standard could be inferred only from the most 
compelling evidence. Compare, Espinoza v. Farah Mfg. 
Co., 414 U.S. 86, 89-91 (1973). As is shown in Argu­
ments 1 (B ) and 1(C ), infra, the language and legis­
lative history of the 1972 amendments provide no sup­
port for any such inference. On the contrary, the cen­
tral purpose of the federal sector 1972 amendments 
was to place federal employees and applicants on a par 
with employees and applicants in the private sector. 
Morton v. Mancari, 417 U.S. 535, 546-7 (1974). This 
purpose was informed by the ideal of fundamental 
fairness in the exercise of the power and authority of 
the federal government. 11 Equality is the touchstone of 
a democratic government, and Congress in 1972 finally 
perceived the injustice and hypocrisy of a system that 
demanded more from private employers than it was 
willing to give itself. . . . ”  Hackley v. Roudebush, 520 
E.2d 108, 136 (D.C. Cir. 1975).

The effectiveness of the 1972 federal sector amend­
ments largely depends upon the proper resolution of 
the issue which this case presents. As this Court has 
recognized, in Title Y II  actions the forum of trial “ in­
evitably affects the scope of the substantive right to 
be vindicated.”  Alexander v. Gardner-Denver Co., 
supra, 415 U.S. at 56. For that reason, the following 
recent statements by the Court provide substantial 
guidance on the issue here presented, even though they 
are addressed to the question of substantive legal 
standards rather than to any question of procedure:



18

. . the mechanism for enforcing longstanding 
Executive Orders forbidding Government discrim­
ination had proved ineffective for the most part. 
[Footnote omitted.] In order to remedy this, Con­
gress, by the 1972 Act, amended the 1964 Act and 
proscribed discrimination in most areas of federal 
employment. [Citation omitted.] In general, it 
may be said that the substantive anti-discrimina­
tion law embraced in Title V II  was carried over 
and applied to the Federal Government. As stated 
in the House Report,
“  ‘ To correct this entrenched discrimination in the 
Federal service, it is necessary to insure the effec­
tive application of uniform, fair and strongly en­
forced policies. The present law and the proposed 
statute do not permit industry and labor organisa­
tions to be the judges of their own conduct in the 
area of employment discrimination. There is no 
reason why government agencies should not be 
treated similarly. . . .’ H.R. Rep. No. 92-238, on 
H.R. 1746, pp. 24-25 (1971).”  Morton v. Mancari, 
supra, 417 TJ.S. at 546-7 (emphasis added).

In addition, the following language of this Court’s 
opinion in Alexander v. Gardner-Denver Go., supra, 
is in substantial part applicable by analogy to federal 
sector Title Y II  actions such as the case at bar:

“ [Title Y II ]  does, however, vest federal courts 
with plenary power to enforce the statutory re­
quirements. . . . * * *
“ . . . legislative enactments in this area have long 
evinced a general intent to accord parallel or over­
lapping remedies against discrimination. . . . Title 
Y II  provides for consideration of employment- 
discrimination claims in several forums. [Cita­
tions omitted.] And, in general, submission of a 
claim to one forum does not preclude a later sub­
mission to another.

* * *



19

“ The purpose and procedures of Title V II  indi­
cate that Congress intended federal courts to ex­
ercise final responsibility for enforcement of Title 
V I I ; deferral to arbitral decisions [here substitute 
‘ federal agency or Civil Service Commission deci­
sions’ ] would be inconsistent with that goal. Fur­
thermore, we have long recognized that ‘ the choice 
of forums inevitably affects the scope of the sub­
stantive right to be vindicated. ’

* * *
. . the resolution of statutory or constitutional 

issues is a primary responsibility of courts, and 
judicial construction has proven especially neces­
sary with respect to Title V II, whose broad lan­
guage frequently can be given meaning only by 
reference to public law concepts.

* * *
. . a [deferral] standard that adequately in­

sured effectuation of Title V II  rights in the arbi­
tral [here substitute ‘ administrative’] forum 
would tend to make arbitration [here substitute 
‘ the administrative process’] a procedurally com­
plex, expensive, and time-consuming process. And 
judicial enforcement of such a standard would 
almost require courts to make de novo determina­
tions of the employees’ claims. It is uncertain 
whether any minimal savings in judicial time and 
expense would justify the risk to vindication of 
Title V II  rights. * * *
“ The federal court should consider the employ­
ee’s claim de novo. The arbitral decision may be 
admitted as evidence and accorded such weight as 
the court deems appropriate.”  415 U.S. at 47-8, 
56-7, 59-60 (footnotes omitted).

The procedural issue presented in the case at bar 
should be considered in the context of the established 
general principles set forth above. The substantive law



20

developed in private sector Title V II  cases is now fully 
applicable in the federal sector. The procedures fol­
lowed in adjudicating federal sector cases must, there­
fore, be attuned to the full effectuation of the substan­
tive rights which are involved. There is no justification 
for applying a double standard under Title V II  and 
favoring federal agency defendants over all other types 
of defendants. The anomaly of such a double stand­
ard is especially striking in the present context, where 
the government opposes plenary judicial trials in fed­
eral sector Title V II  cases, while the Solicitor General 
has successfully argued to this Court that a private 
sector plaintiff must receive a plenary judicial trial 
de novo regardless of prior adverse administrative and 
arbitral determinations.6

The decision below sanctions a procedure for adjudi­
cating federal sector Title V II  cases that is wholly at 
odds with the procedure that is applicable in the pri­
vate sector. Yet, in the federal sector no less than in 
the private sector, it cannot be gainsaid that “  Con­
gress, in enacting Title V II, thought it necessary to 
provide a judicial forum for the ultimate resolution 
of discriminary employment claims. It is the duty of 
the courts to assure the full availability of this forum.”

6 Brief for the United States as Amicus Curiae, Alexander v. 
Gardner-Denver Go., No. 72-5847, October Term, 1973. Similarly, 
the government takes the position that class actions and class-wide 
relief are unavailable as a matter of law in federal sector Title 
VII cases (e.g., Brief for Appellees, at pp. 49-64, Swain v. Callo­
way, 5th Cir. No. 75-2002), while the Solicitor General has suc­
cessfully argued to this Court for a diametrically opposite result 
in the private sector (Brief for the United States and the Equal 
Employment Opportunity Commission as Amicus Curiae, at pp. 
17-33, Albemarle Paper Co. v. Moody, Nos. 74-389, 74-428, October 
Term, 1974).



21

Alexander v. Gardner-Denver Go., supra, 415 U.S. at 
60 n.21.

B. The Express Language of Amended Title VII Provides for the 
Same Plenary Judicial Proceedings in Federal Sector Cases 
As in All Other Cases.

Prior to March 24, 1972, Title Y II  of the Civil 
Rights Act of 1964 did not provide for suits against 
federal government defendants. Title Y II  as amended 
by the Equal Employment Opportunity Act of 1972 
now provides a right to file a civil action against fed­
eral sector defendants, and explicitly states that the 
civil action is governed by the same judicial proce­
dures as those which control civil actions against pri­
vate sector and state and local government defendants. 
This statutory language and structure is of crucial 
importance to the issue presented in the case at bar.

1. The Unitary and Interrelated Statutory Structure

The portion of amended Title Y II  which creates and 
describes a right to sue federal government defendants 
—subsection 717(c), 42 U.S.C. § 2000e-16(c)—provides 
that at certain specified stages in the administrative 
enforcement procedure (to be discussed infra), a com­
plainant

“ . . . if aggrieved by the final disposition of his 
complaint, or by the failure to take final action 
on his complaint, may file a civil action as pro­
vided in section 706. . . . ”

Section 706 is the portion of Title Y II  which details 
the procedures to be followed in civil actions against 
private sector (and state and local government) de­
fendants. In addition, subsection 717 (d ) of Title Y II,



22

42 U.S.C. § 2000e-16(d), which further describes the 
judicial procedures that are to control civil actions 
brought against federal agencies, reads as follows:

“ The provisions of section 706(f) through (k ), as 
applicable, shall govern actions brought hereun­
der. ’ ’

As will now be shown, a review of the portions of the 
statute to which subsections 717(c) and 717(d) 
are specifically cross-referenced—subsections 706(f) 
through (k )—provides compelling support for the con­
clusion that civil actions against federal government 
defendants are to proceed in the same manner as civil 
actions against all other kinds of defendants, and are 
to include a plenary judicial trial of the plaintiff’s 
allegations. All three courts of appeals which have 
embarked upon a reasoned analysis of the statutory 
language have arrived at this conclusion. Sperling v. 
United States, 515 F.2d 465, 474-7 (3rd Cir. 1975), 
pet for cert, pending, No. 75-247; Caro v. Schultz, 521 
F.2d 1084, 1087-8 (7th Cir. 1975) ; Hockley v. Roude- 
bush, 520 F.2d 108,118-122 (D.C. Cir. 1975). The Third 
Circuit has justly observed that the statutory language 
“ hardly admits of any other interpretation.”  Sperling 
v. United States, supra, 515 F.2d at 475.

Subsection 70 6 (f)(3 ), 42 U.S.C. § 2000e-5(f) (3), 
provides for district court jurisdiction of “ actions 
brought under this title.”  Subsection 70 6 (f)(4 ), 42 
U.S.C. § 2000e-5(f) (4), provides that when such an 
action is filed

‘ ‘ It shall be the duty of the chief judge of the dis­
trict . . .  in which the ease is pending immediately 
to designate a judge in such district to hear and 
determine the case. In the event that no judge in



23

the district is available to hear and determine the 
case, the chief judge . . . shall certify this fact to 
the chief judge of the circuit . . . who shall then 
designate a district judge or circuit judge of the 
circuit to hear and determine the case.”  (Empha­
sis added.)

Subsection 70 6 (f)(5 ), 42 U.S.C. § 2000e-5(f) (5), goes 
on to provide that

“ It shall be the duty of the judge designated pur­
suant to this subsection to assign the case for 
hearing at the earliest practicable date and to 
cause the case to be in every way expedited. I f  
such judge has not scheduled the case for trial 
within one hundred and twenty days after issue 
has been joined, that judge may appoint a master 
. . . .”  (Emphasis added.)

Subsection 706(g), 42 U.S.C. §2000e-5(g), which au­
thorizes the awarding of certain types of relief, pro­
vides that

“ 1 / the court finds that the respondent has inten­
tionally engaged in or is intentionally engaging 
in an unlawful employment practice . . . the court 
may enjoin the respondent . . . and order such 
affirmative action as may be appropriate . . . .”  
(Emphasis added.)

Subsection 706(j), 42 U.S.C. §2000e-5(j), makes the 
district court’s disposition of the action appealable to 
the appropriate court of appeals under 28 U.S.C. 
§§ 1291, 1292. And finally, subsection 706(k), 42 U.S.C. 
§ 2000e-5 (k ) , provides that

“ In any action or proceeding under this title the 
court, in its discretion, may allow the prevailing 
party, other than the Commission or the United 
States, a reasonable attorney’s fee as part of the 
costs, and the Commission and the United States



24

shall be liable for costs the same as a private per­
so n ”  (Emphasis added.)

The language of these sections—which, under sub­
section 717(d), “ shall govern”  federal sector civil 
actions—clearly indicates that the plaintiff in a Title 
V II  action against a federal agency is generally en­
titled to a plenary judicial proceeding, including dis­
covery and a full evidentiary hearing, regardless of 
the status of the administrative record. This is, of 
course, the law with respect to Title Y II  actions 
against private sector defendants, which are de novo 
proceedings, regardless of the scope or outcome of 
prior administrative or arbitral proceedings. McDon­
nell Douglas Corp. v. Green, 411 U.S. 792 (1973) ; 
Alexander v. Garnder-Denver Go., 415 U.S. 36 (1974).7

7 It is true, of course, that subsection 717(d) says that subsec­
tions 706(f) through (k) shall govern “ as applicable.”  But as a 
review of these subsections makes clear, that phrase merely covers 
the fact that portions of certain subsections such as those dealing 
with the Equal Employment Opportunity Commission (EEOC) 
and the Attorney General— e.g., subsections 706 (f)(1 ), 706( i ) , 42 
U.S.C. §§ 2000e-5(f) (1), 2000e-5(i)— are obviously not applicable 
to actions against the federal government. To read more than this 
into the phrase “ as applicable”  would render subsection 717(d) 
meaningless.

While the government has in the past placed great reliance on 
the phrase “ as applicable”  in relation to the present issue, this 
does not alter the fact that such reliance is, for the reason just 
stated, wholly lacking in plausibility. For an extended discussion 
of the “ as applicable”  argument which the government has ad­
vanced in the past, see, Hackley v. Roudebush, supra, 520 F.2d at 
119-122; see also, id., 520 F.2d at 170 (Leventhal, J., concurring).

It is relevant here to note that for more than three years after 
the effective date of the 1972 amendments, the government took 
the position that the amendments do not authorize recovery of 
attorneys’ fees by successful plaintiffs in federal sector Title VII 
cases. This position was based on the “ as applicable”  argument. 
The government has, however, now abandoned this position, and



25

2. The Provision of the Some Civil Action in Significantly 
Different Circumstances

The foregoing analysis is further buttressed by a 
review of the various stages in the administrative en­
forcement procedure at which the statute gives the 
complainant the option to file a civil action. Subsec­
tion 717(c) of Title V II, 42 U.S.C. §2000e-16(c), and 
the Civil Service Commission’s implementing regu­
lations, 5 C.F.R. §§713.201, et seq., provide that an 
employee or applicant for employment who has filed 
an administrative complaint with his agency may file a 
civil action in federal district court in any of the fol­
lowing six basic circumstances:

1. i f  180 days have elapsed since the filing o f the 
administrative complaint and the agency has 
not taken final action on the complaint (whe­
ther or not a hearing has been held) ; 42 U.S.C. 
§ 2000e-16(c); 5 C.F.R. § 713.281(b);

2. within 30 days of a rejection or cancellation 
of the complaint; 42 U.S.C. § 2000e-16(c) ; 5 
C.F.R. §713.215;

3. within 30 days of receipt o f notice of final 
agency action on the complaint without a hear­
ing; 42 U.S.C. § 2000e-16(e) ; 5 C.F.R. §§713.-

has acknowledged that subsection 706 (k) is applicable in civil 
actions under subsection 717(e). This change of position was ex­
plained in part as follows: “ The application of § 2000e-5(k) to 
the 1972 amendments requires inferences and implications to be 
drawn to confer upon it the specificity that the law requires. At 
the same time, however, I recognize that unless such clearly in­
tended inferences be drawn, the inclusion of subsection 5(k) within 
the ambit of § 2000e-16(d), might render such inclusion without 
purpose or effect. These considerations have weighed heavily in 
my decision.”  Letter from Acting Assistant Attorney General 
Irving Jaffe to Senator John V. Tunney, May 6, 1975, published 
in CCH Employment Practices Guide, New Developments ft 5327.



26

217(b)(3 ), 217(c), 221(b)(1), 221(b)(3),
281 (a );

4. within 30 days of receipt of notice of final 
agency action on the complaint following a 
hearing; 42 U.S.C. § 2000e-16(c); 5 C.F.R, 
§§713.217(b)(2), 221(b)(2 ), 281(a);

5. i f  180 days have elapsed since the filing of an 
appeal from the final agency action (with or 
without a hearing) to the Civil Service Com­
mission and the Commission has not taken final 
action on the appeal; 42 U.S.C. §2000e-16(c) ; 
5 C.F.R. §§ 713.231(a), 281(d) ; or

6. within 30 days of receipt of notice of final Civil 
Service Commission action on an appeal from 
the final agencv action (with or without a hear­
ing) ; 42 U.S.C. § 200Qe-16(c) ; 5 C.F.R. §§ 713.- 
231(a), 281(c).

It should be noted that even the above categorization 
is in fact an oversimplification, since circumstances 1, 
5 and 6 can be subdivided into two different categories 
depending on whether an administrative evidentiary 
hearing has been held; and it should be noted that in 
all cases the question of whether such a hearing is held 
is completely at the option of the complainant. 5 
C.F.R. §§ 713.217(b), 713.221(b). It should also be 
noted that the scope and nature of the agency’s in­
vestigation of a complainant’s allegations wdiere no 
administrative hearing is held is completely controlled 
by the agency; and that even where the complainant 
elects to proceed to an administrative hearing, he has 
no rights to discovery comparable to those provided 
by the Federal Rules of Civil Procedure. 5 C.F.R. 
§§ 713.216, 713.218.8

8 In the case at bar, petitioner is in the procedural posture repre­
sented by the first subdivision of circumstance 6: she invoked the



27

It is immediately apparent from the six-category 
analysis set forth above that the only statutory pre­
requisite to maintaining a civil action common to all 
of the six circumstances listed is the filing of an ad­
ministrative complaint; neither an agency or CSC de­
cision, nor an administrative hearing, is a precondi­
tion to invocation of the judicial process. The language 
of Section 717 gives the federal employee or applicant 
for employment the right to invoke the judicial process 
in each of circumstances 1-6 and their subdivisions. 
It is highly significant that the statute and the CSC 
regulations make absolutely no distinction between 
the nature of the judicial proceedings afforded in the 
different circumstances. In each circumstance the civil 
action is simply “ governed”  by subsections 706(f) 
through (k ). 42 U.S.C. § 2000e-16(d). Since no dis­
tinctions are made among the rights of plaintiffs who 
are in different circumstances, the judicial process 
contemplated must be the same in all eases. And since 
no explicit restriction on the judicial process is stated 
in the statute, the process is impliedly unrestricted.

In some of the circumstances enumerated anything 
less than a plenary judicial trial would be plainly un­
thinkable. For example, in circumstance 1 the plaintiff 
files his civil action after 180 days have elapsed with 
no final agency action on the initial administrative 
charge. It may be that the agency’s investigation has 
not even been commenced; or there may have been 
an investigation but no CSC-appointed examiner’s 
hearing; or there may have been a hearing but no 
examiner’s findings; or there may have been a hearing

district court’s jurisdiction after a decision by the Civil Service 
Commission on her appeal from a final agency decision with a 
hearing.



28

with findings hut no final agency decision. In the first 
two eases, due process would clearly require the dis­
trict court to hold an evidentiary hearing. In the third 
case, the absence of any findings by the officer who 
heard testimony would also dictate a new hearing 
before a judge who would make his own findings. In 
the fourth ease there would at least be a record and 
findings for the judge to review. But regardless of 
the fact that each of these four cases could potentially 
arise within the confines of circumstance number 1, 
the statute draws no distinctions concerning the treat­
ment to be accorded “ civil actions”  filed in the various 
cases described. Since a plenary trial is obviously re­
quired in the first three cases, it follows that it is 
required in the fourth and in other cases as well. In­
deed, if  Congress had intended that judicial proceed­
ings under the 1972 amendments be limited to a “ re­
view of the record,”  it would certainly not have au­
thorized suits in cases where there is no record to 
review.

As previously noted, the statute also contemplates 
situations other than those just described, i . e suit 
after final agency action, after final CSC action, and 
after the CSC has failed to render a decision within one 
hundred eighty (180) days. Each situation may or may 
not have involved an evidentiary hearing with findings. 
Yet despite the obvious differences among these situa­
tions, the statute makes no distinctions and the scope 
of the employee’s “ civil action”  is not restricted under 
any of the various circumstances. Title Y II  is a rem­
edial statute and the courts may not engraft upon it 
restrictions which it does not itself impose. McDonnell 
Douglas Gorp. v. Green, supra, 411 II.S. at 798-9. It 
follows that the “ civil action”  to which a plaintiff is



29

entitled is, as the statutory language so clearly indi­
cates, a plenary judicial proceeding, including presen­
tation of the case to a district judge, who will hear and 
determine the case after discovery and a trial on the 
merits, and grant whatever relief is appropriate in 
light of his findings.9
G. The Legislative History of Amended Title ¥11 Compels the 

Conclusion That Federal Sector Cases Are to Be Conducted 
in the Same Manner As All Other Cases.

The legislative history of the 1972 amendments to 
Title V II  affirmatively indicates that Congress did not 
intend to limit the judicial function in federal sector 
Title Y II  litigation to review of an administrative 
record, but intended to grant federal sector plaintiffs 
the same rights as private sector litigants, including 
the right to a full evidentiary hearing in district court.

9 Where no administrative evidentiary hearing has been held 
and the administrative decision is based on an “ investigative file”  
(5 C.F.R. § 713.216), the very term “ trial de novo”  is an obvious 
misnomer for the result here advocated. In such cases, a plenary 
judicial trial will be the first “ live” , non-paper proceeding to 
occur. It is interesting to note, therefore, that in the majority of 
complaints that are administratively processed, no hearing is held. 
U.S. Comm’n on Civil Rights, The Federal Civil Bights Enforce­
ment Effort—1974, Yol. V, “  To Eliminate Employment Discrimi­
nation”  (July, 1975), at p. 76 n.257.

This is not to suggest, of course, that the term “ trial de novo”  
is appropriate even where, as in the case at bar, an administrative 
hearing has been held. For such a hearing is by no means the 
equivalent of a judicial trial. See, Hackley v. Roudebush, supra 
520 F.2d at 137-141. But the point here is that the statute makes 
no distinctions between cases where an administrative hearing has 
been held and those where no administrative hearing has been held; 
and that, ultimately, the question presented by the ease at bar is 
controlled by considerations far broader than whether an admin­
istrative hearing has been held, or whether the administrative pro­
cedure is or is not efficaciously designed. See, Hackley v. Roude­
bush, supra, 520 F.2d at 169-172 (Leventhal, J., concurring).



30

Indeed, as will be shown infra, at many points in the 
legislative history of the 1972 amendments the draft 
legislation granted federal sector litigants not less, but 
more extensive judicial rights than private sector liti­
gants, who were in certain circumstances to be limited 
to review in a court of appeals of an EEOC record. In 
the legislation as finally enacted, however, all differ­
ences in judicial procedures were eliminated, and pri­
vate sector and federal sector litigants were, as shown 
in Argument 1 (B ), supra, covered by the same civil 
action procedures in all circumstances. The 1972 
amendments as finally enacted thus implement the 
clear purpose evinced by the legislative history taken 
as a whole: to grant the same treatment in the courts 
to all Title V II  litigants, in the private sector, the 
state and local government sector, and the federal 
sector.

The Senate Committee Report on the new subsec­
tion 717(c) authoritatively states the legislative pur­
pose behind the creation of a right of action under 
Title V II  in the federal sector:

“ Aggrieved employees or applicants will also have 
the full rights available in the courts as are 
granted to individuals in the private sector under 
Title V II .”  S. Rep. No. 92-415, 92d Cong., 1st 
Sess. at 16 (1971); Subcommittee on Labor, 
Senate Committee on Labor and Public Welfare, 
Legislative History of the Equal Employment Op­
portunity Act of 1972, 92d Cong.,_ 2d Sess. (Com­
mittee Print, 1972) [hereinafter cited as History], 
at 425 (emphasis added).

This congressional equation of the rights of federal 
and private sector plaintiffs is crucial, since private 
sector plaintiffs who have met the jurisdictional pre­



31

requisites to maintenance of a civil action are entitled 
to a full evidentiary hearing in district court, regard­
less of the outcome of prior administrative or arbitral 
proceedings. McDonnell Douglas Corp. v. Green, 411 
TJ.S. 792 (1973) ; Alexander v. Gardner-Denver Co., 
415 TJ.S. 36 (1974).

In what follows, petitioner sets forth her analysis of 
the legislative history of the 1972 federal sector amend­
ments. In addition, petitioner respectfully requests 
that the Court refer to the exhaustive analysis of the 
District of Columbia Circuit in Hackley v. Roudebusk, 
520 F.2d 108,122-148 (D.C. Cir. 1975), where the legis­
lative history is “ set out at length in Judge W right’s 
opinion in order to present the full picture Id.,
520 F.2d at 170 (Leventhal, J., concurring).10 The 
Hackley opinion is worthy of the Court’s attention 
both because it explores all details of the legislative 
history with meticulous care, and because it discusses 
the various arguments that the government has in the 
past advanced in support of its contrary interpretation.

1. The Evolution of the Final 1972 Legislation, and the Structure 
of the Other Proposals That Were Considered

Prior to the 1972 amendments, Title Y I I  did not 
apply to federal employees. Congress had however 
previously declared it to be “ the policy of the United 
States to insure equal employment opportunities for

“ The Hackley court unanimously endorsed Judge W right’s 
analysis of the legislative history. Judges Leventhal and Davis 
deemed it unnecessary to discuss the empirical question of the 
recent performance of the Civil Service Commission, and did not, 
therefore, join in the portion of Judge Wright s opinion which 
dealt with that question. Id., 520 F.2d at 169-172.



32

Federal employees without discrimination because of 
race, color, religion, sex, or national origin. . . . ”  5 
TJ.S.C. § 7151. The primary responsibility for imple­
menting this policy prior to the 1972 amendments to 
Title Y II  lay with the Civil Service Commission 
(CSC) under Executive Order 11246 (1965), later 
superseded by Executive Order 11478 (1969).

The CSC’s efforts had proven to be utterly inade­
quate. “  [T]he mechanism for enforcing longstanding 
Executive Orders forbidding Government discrimina­
tion had proved ineffective for the most part.”  Morton 
v. Mancari, 417 TT.S. 535, 546 (1974) (footnote omit­
ted). Minorities and women continued to be vastly 
underrepresented or underemployed in many federal 
agencies. As the House Committee on Education and 
Labor reported in June 1971, the CSC was responsible 
for a “ critical defect”  in the federal government’s 
efforts to implement a policy of equal employment 
opportunity. The administrative process for investi­
gating and resolving discrimination complaints—a 
process which was, then as now, devised and overseen 
by the CSC11—actually “ impeded rather than ad­
vanced”  the goal of eliminating discrimination, and

11 Detailed CSC regulations for processing complaints of dis­
crimination which were quite similar to the regulations now in 
effect were already in existence three years prior to the 1972 amend­
ments. The regulations were expanded somewhat after the amend­
ments, to include, for example, provisions concerning the right to 
sue provided by the amendments, clarifying the authority to award 
certain types of relief, and allowing third party allegations (but 
recognizing no right to sue on the basis of such allegations). In 
most other respects, the regulations are basically unchanged. Com­
pare 5 C.F.R. Part 713, 34 Fed. Reg. 5367 (Mar. 19, 1969), as 
amended at 34 Fed. Reg. 14023 (Sept. 4, 1969) with 5 C.F.R. 
Part 713, 37 Fed. Reg. 25669 (Dec. 2, 1972). See also, Hackley v. 
Boudebush, supra, 520 F.2d at 137-142.



33

led to “  a general lack of confidence in the effectiveness 
of the complaint procedure on the part of Federal 
employees.” 12 Under the CSC regulations—then as 
now—the supposedly independent hearing examiner’s 
findings and decision on a discrimination complaint 
were merely recommendations to the offending agency, 
which in turn would render the final decision itself. 
Thus, the agency acted as both defendant and judge.13

Successful appeals to the CSC’s Board of Appeals 
and Review were understandably rare.14 * The House 
Committee found that

“ . . . the Civil Service Commission has been 
plagued by a general lack of expertise in recogniz­
ing and isolating the various forms of discrimina­
tion which exist in the system.. . .  The Civil Service 
Commission seems to assume that employment dis­
crimination is primarily a problem of malicious 
intent on the part of individuals. It apparently has 
not recognized that the general rules and proce­
dures it has promulgated may actually operate to 
the disadvantage of minorities and women in sys­
temic fashion.”  House Report at 24; History at 84.

Lack of expertise was not the only explanation for the 
CSC’s failures, for, as the Committee aptly noted:

12 H.R. Rep. No. 92-238, 92d Cong., 1st Sess. at 23-4 (1971) 
(hereinafter cited as House Report) ;  History at 83-4; cited in 
part in Morton v. Mancari, supra, 417 U.S. at 546 n.22.

13 The continued workings of this process are vividly illustrated 
by the case at bar, in which the hearing examiner found that peti­
tioner had been discriminated against, and the defendant agency 
simply rejected the examiner’s adverse findings. (Pet. App. la- 
17a, 18a-21a).

14 In the case at bar, the Board of Appeals and Review affirmed
the defendant agency’s decision against petitioner. (Pet. App. 
21a-29a).



34

“ The system, which permits the Civil Service 
Commission to sit in judgment over its own prac­
tices and procedures which themselves may raise 
questions of systemic discrimination, creates a 
built-in conflict-of-interest.”  Rouse Report at 24, 
History at 84.

In the face of these findings, the House Committee 
favorably reported the “ Hawkins B ill”  (named after 
its chief sponsor, Representative Hawkins), which pro­
hibited discrimination in federal hiring and promotion, 
and authorized the Equal Employment Opportunity 
Commission (EEOC), rather than the CSC, to enforce 
that prohibition.15

The Hawkins Bill also granted the EEOC power to 
issue cease and desist orders in private sector actions, 
as well as “ authority to enforce”  by rule, regulation, 
and order, the federal sector anti-discrimination pro­
visions of Title V II .16 Federal and private sector par­
ties aggrieved by any order of the EEOC were entitled 
to bring actions in federal court. Hoivever, the scope of 
the judicial proceedings after an EEOC hearing was 
much more limited in private sector cases than in fed­
eral sector cases.

In private sector cases, under the Hawkins Bill, 
judicial review after an EEOC hearing was governed 
by amended Section 706. Such review was in a United 
States Court of Appeals; and the findings of the Com­
mission were conclusive if  supported by substantial

15 H.R. 1746, 92d Cong., 1st Sess. (1971); History at 32-60; 
excerpted in Hackley v. Boudebush, supra, 520 F.2d at 159-163.

16 H.R. 1746, § 11, 92d Cong., 1st Sess. (1971), proposing to add 
new subsection 717(b) to the Civil Rights Act of 1964; History 
at 59; Hackley v. Boudebush, supra, 520 F.2d at 163.



35

evidence.17 This would have represented a change in 
the existing law, which clearly granted all private sec­
tor employees the right to a plenary judicial hearing. 
Under the Hawkins Bill the judicial process could also 
be invoked in private sector cases without an EEOC 
hearing: for example, when the EEOC dismissed a 
complaint without a hearing for lack of reasonable 
cause, or when the EEOC failed to take action on a 
complaint within 180 days of its filing. Private sector 
actions in these circumstances were governed by a new 
Section 715, which provided for a civil action in federal 
district court. Since there would be no administrative 
record to review in these cases, the judicial process in 
these circumstances was not limited to review of an 
administrative record.18

In federal sector cases, under the Hawkins Bill, all 
judicial proceedings, whether or not there had been an 
EEOC hearing, were governed by Section 715, the 
section applicable to private sector actions in which 
there had been no EEOC hearing.19 Under the Hawkins 
Bill, therefore, federal sector actions were not limited 
to a review of the administrative proceedings in any 
circumstances. All federal sector actions were plenary 
judicial proceedings in the district court.

17 H.R. 1746, §4, 92d Cong., 1st Sess. (1971), proposing to 
amend Section 706 of the Civil Eights Act of 1964; History at 
33-44; excerpted in Hackley v. Roudebush, supra, 520 F.2d at 
159-161.

18 H.E. 1746, § 8 ( j) ,  92d Cong., 1st Sess. (1971), proposing to 
add new Section 715 to the Civil Eights Act of 1964; History at 
54-8; excerpted in Hackley v. Roudebush, supra, 520 F.2d at 162-3.

10 H.E. 1746, §11, 92d Cong., 1st Sess. (1971), proposing to 
add new subsection 717(d) to the Civil Eights Act of 1964; His­
tory at 59; Hackley v. Roudebush, supra, 520 F.2d at 163.



36

In the House, the provision of the Hawkins Bill 
granting the EEOC cease and desist powers met con­
siderable resistance. The House adopted the “ Erlen- 
born B ill”  (sponsored by Representative Erlenborn) 
as an amendment to the Hawkins Bill in the nature of 
a complete substitute. The Erlenborn substitute did 
not provide EEOC with cease and desist powers, and 
did not cover federal employees at all.20

On the Senate side, the “ Williams B ill”  (named 
after Senator Williams, its chief sponsor) was the 
equivalent of the Hawkins Bill.21 The amended version 
of the Williams Bill which emerged from the Senate 
Committee on Labor and Public Welfare (the “ Com­
mittee B ill” ) 22 * contained essentially the same provi­
sions— and the same dichotomies— regarding federal 
sector and private sector actions which had been con­
tained in the Hawkins Bill. Under the Committee Bill, 
however, the CSC was substituted for the EEOC as the 
administrative agency with enforcement authority in 
the federal sector. Under the Committee Bill, the 
powers of the CSC were the same as those of the EEOC 
in the federal sector under the Hawkins Bill, and the 
provisions for judicial review of CSC action were the 
same as those for review of EEOC federal sector ac­
tion under the Hawkins Bill. Federal sector plaintiffs 
had the option to enter court after final agency or CSC 
action. All federal sector actions were plenary judicial

20 H.R. 9247, 92d Cong., 1st Sess. (1971); History at 141-7; 
amendment in nature of substitute agreed to, History at 311-314; 
see, House Bill as referred to Senate, H.R. 1746, 92d Cong., 1st 
Sess. (1971); History at 326-332.

21 S. 2515, 92d Cong., 1st Sess. (1971) ; History at 157-187.
22 S. 2515, 92d Cong., 1st Sess. (1971); History at 344-409; ex­

cerpted in Hackley v. Roudebush, supra, 520 F.2d at 163-8.



37

proceedings in the district court, governed by the same 
provisions that governed private sector actions without 
an EEOC hearing; federal sector actions, unlike pri­
vate sector actions, were not limited to a review of the 
administrative proceedings in any circumstances.23

Since the Committee Bill gave the EEOC cease and 
desist powers in the private sector, it, like the Hawkins 
Bill in the House, encountered a stiff floor fight, and 
also a filibuster which was eventually terminated by 
cloture. Ultimately, the EEOC private sector cease 
and desist authority was dropped, but the Committee 
B ill’s federal sector provisions were retained. Under 
the finally enacted legislation24—as under the Hawkins 
Bill and the Committee Bill—the scope of judicial pro­
ceedings in federal sector cases was not restricted, and 
was governed bĵ  the private sector civil action provi­
sions affording a plenary judicial trial.25 26 Thus the con­
tinuation of responsibility for the administrative en­
forcement of federal sector Title Y II  policy in the 
CSC rather than the EEOC—under the Committee Bill 
and the legislation as finally enacted28—in no way 
limited judicial review of federal agency action. The 
CSC under the Committee Bill had the same respon­
sibilities and powers as the EEOC had in the federal 
sector under the Hawkins and Williams bills; and as 
noted above, federal sector actions tvere governed by

23 S. 2515, §§ 4, 11, 92d Cong., 1st Sess. (1971), proposing to 
amend the Civil Rights Act of 1964 by renumbered subsections 
706(q)-(w ) and new subsection 717 (d ); History at 390-393, 408; 
Hackley v. Eoudebush, supra, 520 F.2d at 166-8.

24 Pub. L. 92-261 (Mar. 24, 1972); History at 1911-1921. [See 
also, Title V II as amended, History at 1892-1910.]

25 42 U.S.C. §§ 2000e-5(f)-(k), 2000e-16(d).
26 42 U.S.C. § 2000e-16(b).



38

exactly the same provisions under all three hills, 
namely, the district court civil action provisions which 
did not limit the court to revie-w of the administrative 
record. Again, as explained in detail in Argument 
1 (B ), supra, it is these same provisions which govern 
federal sector actions—as well as private sector and 
state and local government sector actions—under the 
1972 amendments as finally enacted.

2. The Authoritative Statements of Legislative Intent

Turning now from the foregoing technical analysis 
to the larger perspective, it is clear that the unitary 
structure of amended Title Y II—under which all civil 
actions are governed by the same judicial procedures 
—fully implements the basic congressional purpose 
with respect to the federal sector. That purpose, con­
sistently articulated throughout the hearings, reports, 
and debates on the 1972 amendments, was to place fed­
eral employees and applicants on a par with employees 
and applicants in the private sector.

Thus the House Committee stated that
“ . . . there can exist no justification for anything 
but a vigorous effort to accord Federal employees 
the same rights and impartial treatment which the 
law seeks to afford employees in the private sec­
tor.”  House Report at 23; History at 83 (empha­
sis added).

The Senate Committee report was to the same effect:
“ Aggrieved [Federal] employees or applicants 
will also have the full rights available in the courts 
as are granted, to individuals in the private sector 
under title V II .”  S.Rep. Ho. 92-415, 92d Cong.,



39

1st Sess. at 16 (1971) ; History at 425 (emphasis 
added).

Senator Dominick and Senator Cranston were chiefly 
responsible for the Committee compromise which gave 
administrative enforcement responsibility to the CSC 
rather than the EEOC while guaranteeing the federal 
employee the right to a judicial determination of his 
complaint. Senator Dominick supported Title Y II  
protection for federal employees, but opposed (ulti­
mately with success) giving the EEOC cease and de­
sist powers in the private sector because he felt that 
the courts would provide a fairer and more efficient 
forum than an administrative agency. He stated his 
view of the proper relationship between private sector 
cases and eases against federal, state and local govern­
ment defendants as follows:

“ [X]t strikes me that one of the first things we 
have to do is at least to put employees holding their 
jobs, he they government or private employees, on 
the same plane so that they have the same rights, 
so that they have the same opportunities, and so 
that they have the same equality within their jobs, 
to make sure that they are not being discriminated 
against and have the enforcement, investigatory 
procedure carried out the same way.”  118 Cong. 
Rec. 594 (Jan. 20, 1972) ; History at 680-681 (em­
phasis added).

And in the following passage, Senator Dominick suc­
cessfully urged defeat of cease and desist and limited 
judicial review in the private sector, and discussed the 
effect of the Committee compromise in the federal 
sector:

“ [Under Section 717 and other provisions of the 
Committee compromise] every governmental



40

agency and every employee of a governmental 
agency, State, local, or Federal, has Ms rights in 
the Federal courts. Under [S. 2515, granting 
EEOC cease and desist power and limiting review 
in private civil actions] . . . you do not have that 
right if  you are a private employee or a private 
employer. I, for the life of me, cannot see why we 
should discriminate against that one group. It 
seems to me that where we are dealing with job 
discrimination, it makes no difference what type 
of job you have, you should he entitled to the same 
remedies as anyone else in that situation has, and 
this is the right to have the Federal court deter­
mine whether or not you have been discriminated 
against.'’ ’’ 118 Cong. Rec. 3967 (Eeb. 15, 1972); 
History at 1527 (emphasis added).

The record of Senate debate is permeated with Senator 
Dominick’s restatement of this need for identical treat­
ment of all employees.27

The House Committee and Senate Committee state­
ments, and remarks by Senator Dominick, are the most 
authoritative expressions of the basic congressional 
intent with respect to the 1972 amendments. In view of 
the pivotal role played by Senator Dominick 28 with 
respect to the matters relevant here, and the fact that 
the amendments as enacted clearly constitute an adop­
tion of the viewpoint which he advocated on these mat­
ters, Senator Dominick’s comments are plainly to be 
accorded considerable weight.

The weight to be attached to certain statements by 
Senator Cranston and Senator Williams, on the other

27118 Cong. Rec. 595 (Jan. 20, 1972), 698 (Jan. 21, 1972), 942, 
943 (Jan. 24, 1972), 3389 (Feb. 9, 1972), 3809 (Feb. 14, 1972); 
History at 683, 695, 833, 835, 1440-1441, 1482.

28 See, HacTcley v. Boudehush, supra, 520 F.2d at 129-131, 144-6.



41

hand, has been the subject of controversy. While this 
controversy is understandable, it is, in petitioner’s 
view, not of controlling significance, because of the 
overwhelming weight of the authoritative legislative 
history already described.

Senator Cranston made the following statement, 
which supports petitioner’s position in the case at bar, 
with respect to the precise legal effect of the Commit­
tee compromise in the federal sector that he and Sen­
ator Dominick co-authored:

“ As with other cases brought under Title Y II  of 
the Civil Rights Act of 1964, Federal district court 
review would not be based on the agency and/or 
CSC record and would be a trial de novo. ”  t lS -  
Cong. Rec. 4929 (Feb. 22,1972) (emphasis added).

The question of the weight that may be attached to 
this remark in view of the manner in which it was 
originally reported in the Congressional Record is 
discussed in the margin.29

29 Senator Cranston’s remark as originally reported in the daily 
edition of the Congressional Record [118 Cong. Rec. S 2287 (daily 
ed., Feb. 22, 1972); History at 1744] was, due to a transposition 
of the word ‘ not’, to the opposite effect from the remark as quoted 
in the text, supra. Senator Cranston spoke to this matter, and 
corrected the Record, ten months after the 1972 amendments be­
came effective. 119 Cong. Rec. S 1219 (daily ed., Jan. 23, 1973). 
The Third Circuit and the District of Columbia Circuit, while 
agreeing with the corrected version of Senator Cranston’s com­
ment, have not relied upon it. Sperling v. United States, 515 F.2d 
465, 480-481 n.72 (3rd Cir. 1975), pet. for cert, pending, No. 75- 
247; IlacMey v. Roudebush, supra, 520 F.2d at 133-4, 147-8. Peti­
tioner submits, however, that the corrected version of the comment 
is not wholly neutralized by its surrounding circumstances. First, 
the uncorrected version of the comment is plainly inconsistent on 
its face because it wrongly portrays the law under the Civil Rights 
Act of 1964. Thus, Senator Cranston’s assertion that the Record,



42

Senator Williams made a number of statements 
which are inconsistent with one another and even, in 
the case of the following statement, internally incon­
sistent :

“ Finally, written expressly into the law is a pro­
vision enabling an aggrieved Federal employee to 
file an action in TT.S. District Court for a review 
of the administrative proceeding record after a 
final order by his agency or by the Civil Service 
Commission, if  he is dissatisfied with that decision. 
Previously, there have been unrealistically high 
barriers which prevented or discouraged a Federal 
employee from taking a case to court. This will no 
longer be the case. There is no reason why a Fed­
eral employee should not have the same private 
right of action enjoyed by individuals in the pri­
vate sector • and I  believe that the committee has 
acted wisely in this regard.”  118 Cong. Rec. 4922 
(Feb. 22, 1972); History at 1727 (emphasis 
added).

The reasons why no weight should be attached to this 
and certain other comments by Senator Williams are 
discussed in the margin.30

and not lie, was in error is the most plausible explanation of the 
matter. Second, it appears to petitioner that the uncorrected ver­
sion printed in the daily edition of the Record could not have 
influenced the Senate vote on the federal sector amendments. That 
vote took place on February 22, 1972— the same day that Senator 
Cranston’s comments were made, and, it seems fair to assume, 
before the daily edition of the Record for that date was printed 
and available. 118 Cong. Rec. 4944 (Feb. 22, 1972) ; History at 
1779.

30 The statement quoted in the text is internally inconsistent both 
because the Committee Bill, as noted above, provided that all fed­
eral sector actions were to be civil actions in the district court 
rather than actions for review of administrative determinations in 
the court of appeals; and because the Dominick amendment, elimi­
nating cease and desist and court of appeals review in the private



43

Petitioner believes that Senator Cranston’s state­
ment is an additional item which may properly be con­
sidered to support her position, and that Senator W il­
liams’ statements are so self--contradictory that they 
may not properly be considered to detract from her 
position. More importantly, however, the controversy 
over the Cranston and Williams statements simply can­
not obscure the clear thrust of the legislative history 
taken as a whole and set forth supra. That legislative 
history lends itself to only one fair interpretation: the 
1972 amendments to Title V II  were intended to give 
federal victims of employment discrimination the same 
civil action rights as private employees possess, includ­
ing the right to a plenary judicial trial. This has been 
the conclusion of the two courts of appeals which have 
engaged in a detailed analysis of the legislative history. 
HacJcley v. Roudebush, supra; Sperling v. United 
States, supra. The opinion of the court of appeals in 
the case at bar is devoid of any analysis in support of 
its contrary conclusion.

sector and substituting plenary judicial proceedings in district 
court, had already been adopted. Similarly, the reference to “ re­
view of the agency proceedings”  in one analysis of S. 2515 which 
Senator Williams inserted into the record [118 Cong. Ree. 4923 
(Feb. 22, 1972) ; History at 1730] is inconsistent in this respect 
with the Williams Committee’s own report on Section 717 [S. Rep. 
No. 92-415, 92d Cong., 1st Sess. at 16-17, 45-6 (1971); History at 
425, 454-5], as well as with a section-by-section analysis of the 
1972 amendments as finally enacted which Senator Williams in­
serted into the record: “ The provisions of sections 706(f) through 
(k), concerning private civil actions by aggrieved persons, are made 
applicable to aggrieved Federal employees or applicants for em­
ployment.”  118 Cong. Ree. 7169 (Mar. 6, 1972) ; History at 1851. 
The Third Circuit and the District of Columbia Circuit have each 
analyzed in detail, and properly rejected, Senator Williams ’ refer­
ences to “ review of agency proceedings.”  Sperling v. United States, 
supra, 515 F.2d at 479-481, 480 n.71; Hackley v. Roudebush, 
supra, 520 F.2d at 132-5, 146-7.



44

3. The Consistent Logic of the Final Legislative Product

The congressional intent to afford plenary judicial 
proceedings in federal sector cases is perfectly consist­
ent with the contemporaneous determination to main­
tain the Civil Service Commission’s administrative role 
in the federal sector. (See, 42 U.S.C. § 2000e-16(b)). 
Congress intended that the courts would provide fed­
eral sector litigants a full evidentiary hearing as a 
check on the Civil Service Commission, just as it in­
tended that the courts would provide private sector 
litigants a full evidentiary hearing as a check on the 
Equal Employment Opportunity Commission. The op­
portunity for a full judicial hearing was provided in 
both federal and private sector cases in part because 
Congress expressly recognized that both CSC and 
EEOC were inherently partisans, though partisans of 
different standards. CSC was viewed as a partisan of 
the federal employer, since it is responsible for the ap­
proval of the very agency employment standards whose 
lawfulness many Title Y I I  complainants call into ques­
tion. EEOC was viewed as a partisan of the private 
employee, since it is the prosecutor of his case.

Thus the Senate Committee report on Section 717 
states: 31

“ The Civil Service Commission’s primary respon­
sibility over all personnel matters in the Govern­
ment does create a built-in conflict of interest for

31 For further remarks regarding Civil Service Commission bias, 
see Remarks of Rep. Fauntroy, 117 Cong. Rec. 32094-5 (Sept. 16, 
1971), History at 269-271; and Remarks of Rep. Mink, 117 Cong. 
Rec. 32105 (Sept. 16, 1971), History at 299. The “ built-in conflict 
of interest”  characterization is also contained in the House Report 
at 24, History at 84, quoted supra, text at p. 34.



45

examining the Government’s equal employment 
program for structural defects which may result 
in a lack of true equal employment opportunity. 

* * *
“ An important adjunct to the strengthened Civil 
Service Commission responsibilities is the statu­
tory provision of a private right of action in the 
courts by Federal employees who are not satisfied 
with the agency or Commission decision.”  S. Rep. 
No. 92-415, 92d Cong., 1st Sess. at 15-16 (1971); 
History at 424-5.

This passage concerning the federal sector is pre­
cisely analogous to a statement of Senator Dominick, 
who described the difference between committing the 
evidentiary proceeding in private sector Title V II  liti­
gation to EEOC and committing this function to a 
federal court (which could appoint a special master) 
in these terms: 32

“ [T]he latter preserves the impartiality of the 
court, the jurisdiction of the court, and the integ­
rity of the referees and examiners who have been 
trained in that field. But if  we assign [evidentiary 
determinations] to the Commission, . . . the Com­
mission is going to prosecute, investigate, and 
hear the case, and then say to the court, ‘ OK, these 
are our recommendations, which have the substan­
tial force of evidence; you enforce them.’ ”  118 
Cong. Rec. 3389 (Feb. 9, 1972) ; History at 1441.

Congress responded to concerns such as those ex­
pressed by Senator Dominick and applied its response 
to both private and federal sector actions: EEOC cease

32 For further remarks regarding EEOC partisanship, see Minor­
ity Views on H.R. 1746, House Report at 58-9, History at 118-119; 
Remarks of Senator Dominick, 118 Cong. Rec. 3966-7 (Feb. 15. 
1972), History at 1524-1527.



46

and desist power was rejected, and amended Title Y II  
provides for plenary court hearings (and the possible 
appointment by the court of a special master) in both 
federal and private sector proceedings. 42 IT.S.O. 
§§ 200Ge-16(d) and 2000e-5(f) (5 ).33

The conclusion that Congress granted federal sector 
litigants the right to a full evidentiary hearing in court 
is also fully consistent with the purpose o f maintaining 
an internal grievance procedure within the federal 
government. Congress carefully provided in subsection 
717(c) that prior to filing suit under Title Y II  a fed­
eral sector complainant must first file a formal com­
plaint with his agency, and await an agency decision, 
so that the agency will have an opportunity to put its 
own house in order. As soon as the agency reaches a 
decision, however, or permits 180 days to pass without 
taking final action, this policy has been fulfilled, and 
the complainant may proceed directly to court. I f  the 
complainant prefers first to proceed to further stages 
in the internal grievance procedure, he is free to do 
so; but no penalty attaches to such an election (so as 
not to deter further resort to administrative proce­
dures), and subsequent timely resort to a court action 
still results in a plenary judicial trial. These conelu-

33 while the EEOC has never had enforcement powers, the CSC’s 
enforcement powers pre-dated the 1972 amendments. The proposed 
substitution of EEOC for CSC in the federal scetor was rejected. 
The fact that no opposition was then raised to continued CSC en­
forcement powers is fully consistent with the foregoing analysis. 
The initial proponents of the 1972 amendments would have had no 
occasion to object at this point to CSC enforcement powers, since 
the legislation provided plenary judicial proceedings in federal 
sector cases. The CSC, of course, wished to retain its powers; and 
its pro-defendant bias would have precluded any fears that a 
federal defendant would suffer from any lack of due process at 
its hands.



47

sions are perfectly consistent with the dual policy of 
preserving the internal grievance procedure but also 
providing a judicial remedy.

D. The Lower Court Decisions under Amended Title VII May Be 
Analyzed in Terms of Three Basic Categories.

I. Overview of the Cases

When the petition for certiorari was filed herein, 
the rule advocated by petitioner was a minority posi­
tion in the lower courts. At this writing, the lower 
courts are evenly divided on the issue.

Three courts of appeals—the Third, Seventh, and 
District of Columbia Circuits—have ruled that fed­
eral sector Title Y II  cases are, like all other Title V II  
cases, to be conducted as plenary judicial proceedings. 
Sperling v. United States, 515 F.2d 465 (3rd Cir. 
1975), pet. for  cert, pending, Ho. 7 5 - 2 4 7 ;Caro v. 
Schultz, 521 F.2d 1084 (7th Cir. 1975) 35; Hackley v. 
Ron debush, 520 F.2d 108 (D.C. Cir. 1975)36.

Three other courts of appeals—the Eight, Ninth, 
and Tenth Circuits-—have rejected this approach, 
and provided for less than plenary judicial proceed­
ings. Salone v. United States, 511 F.2d 902 (10th Cir. 
1975), pet. for cert, pending, No. 74-1600; Chandler v. 
Johnson, 515 F.2d 251 (9th Cir. 1975), cert, granted 
sub nom Chandler v. Roudebush, 44 U.S.L.W. 3200 
(U.S., Oct. 6, 1975) (the case at bar)37; 11 aire v. Cal-

34 Accord, Ettinger v. Johnson, 518 F.2d 648 (3rd Cir. 1975).
35 See also, Adams v. Brinegar, 521 F.2d 129, 132-3 (7th Cir. 

1975).
36 See also, Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir. 1975).
37 Cf., Bowers v. Campbell, 505 F.2d 1155 (9th Cir. 1974) (de­

cided under 42 U.S.C. § 1981).



48

loway, ------  F.24 ------ , 10 [CCII] EPD I ------ , 11
F.E.P. Cases 769, 8tb Cir. Nos. 74-2004, 75-1050, Nov. 
17, 1975.

The other circuits have not yet ruled on the issue.38 
However, a decision o f the Fifth Circuit on a related 
issue39 strongly suggests agreement with petitioner’s 
position on the issue in the case at bar:

“ . . . the instant federal employee suit is brought 
under Title V II. The intent of Congress in enact­
ing the 1972 amendments to that Act extending 
its coverage to federal employment was to give 
those public employees the same rights as private 
employees enjoy.”  Parks v. Dunlop, 517 F.2d 785, 
787 (5th Cir. 1975) (footnotes omitted).40

38 In Fisher v. Brennan, 517 F.2d 1404 (6th Cir. 1975), the 
court o£ appeals affirmed, without published opinion, the district 
court decision in 384 F.Supp. 174 (E.D. Tenn. 1974). Petitioner 
has examined the unpublished order of affirmance and the briefs 
of the parties in this case. It is clear that the scope of review issue 
was not raised in the court of appeals, and that the summary 
affirmance does not constitute a ruling on the issue. Petitioner 
assumes that respondents will not contend otherwise.

Similarly, it seems clear from the court of appeals’ opinion in 
Johnson v. U.S. Postal Service, 364 F.Supp. 37 (N.D. Fla. 1973), 
aff’d per curiam, 497 F.2d 128 (5th Cir. 1974), that the scope of 
review issue was not raised in that appeal.

39 The availability in the federal sector of preliminary injunctive 
relief under Drew v. Liberty Mutual Ins. Go., 480 F.2d 69 (5th 
Cir. 1973).

40 In addition, it is noteworthy that the Fourth Circuit, in 
ruling on another issue under the federal sector Title VII provi­
sions, made reference to the 1972 amendments’ “ transfer of juris­
diction from the executive to the judiciary” ; to “ a congressional 
policy to make the courts the final tribunal for the resolution of 
controversies over charges in discrimination”  in federal employ­
ment; and to the portion of the legislative history to the effect 
that the amendments provide to federal sector plainiffs “ the full 
rights available in the courts as are granted to individuals in the



Most of the published district court decisions are 
cited in the petition for certiorari, and are not re­
cited here. (Pet. 10 n.6, 10-12 n.7). Additional pub­
lished district court cases holding in favor o f * 41 and 
against42 plenary judicial proceedings are set forth in

private sector under Title V II .”  Koger v. Ball, 497 F.2d 702, 706, 
708-9 n.33 (4th Cir. 1974). The Solicitor General seems to have 
expressed agreement with the Fourth Circuit’s analysis on the 
issue which Koger addressed. Memorandum in Response to Petition 
for Rehearing, at p. 4, Place v. Weinberger, No. 74-116 (October 
Term, 1974).

41 Second Circuit: McHoney v. CaJJaway, 10 EPD If------ •, 11
F.E.P. Cases------ , E.D. N.Y., No. 74V-C-1729, Oct. 10, 1975.

Fourth, Circuit: Harris v. Ulanich, 10 EPD f[ 10,262 (E.D. Va. 
1974); Chisholm v. U.S. Postal Service, 9 JtfPD ff 10,212, 11 F.E.P. 
Cases 457 (W.D. N.C. 1975), appeal pending, 4th Cir. Nos. 75-2068, 
75-2069.

Fifth Circuit: Jones v. Brennan, ------  F.Supp. ------ •, 10 EPD
ff------ , 11 F.E.P. Cases -------, N.D. Ga, Atl. Div., Civ. No. 19139,
Sept. 30, 1975; Keeler v. Hills, 10 EPD ff— — , 11 F.E.P. Cases
------ , N.D. Ga., Atl. Div., C l i  Nos. C74-2152A, C74-2309A, Nov.
12, 1975. [Sylvester v. U.$  Postal Service, cited at Pet. 10 n.6, 
is also reported at 393 F.Supp. 1334.]

Sixth Circuit: Williams v. fpmnessee Valley Authority, 10 EPD
if------ , 11 F.E.P. Cases — M.D.  Tenn., C.A. No. 75-186-NA-CV,
Nov. 21, 1975. v  ...

Ninth Circuit: Ellis v. Naval Aip^Rework Facility, 10 EPD 
ffl0,257, 11 F.E.P. Cases 317 (N^T Cal. 1975), 10 EPD If 10.422,
11 F.E.P. Cases------  (N.D. CkcL 1975), 10 EPD If------ , 11 F.E.P.
Cases------ , N.D. Cal, No. C-73-1794-WHO, Nov. 4,-1975.

District of Columbia CircuityEarly v. Klassen, 10 EPD If------ ,
11 F.E.P. Cases-------, D.DMVC.A. N o. 75-153, Oct. 30, 1975.

42 Third Circuit: Warren v. Veterans Hospital, 382 F.Supp. 303
(E.D. Pa. 1974); McCreesh v. BePud/, 385 F.Supp. 1365 (E.D. 
Pa. 1974). V

Fourth Circuit: Wright v. Nat’ l Archives and Records Service. 
388 F.Supp. 1205 (D. Md. 1975^, cjtffpeal pending, 4th Cir. No. 
75-1378.



50

the margin. In the five circuits where the courts of 
api^eals have not yet ruled on the issue, the cases are 
close to evenly divided.

2. The Three Different Rules Which Have Been Adopted

The cases in the lower courts may be analyzed in 
terms of three basic categories. First, three courts of 
appeals hold, with petitioner, that federal sector Title 
Y I I  cases are, like all other cases, to be conducted 
as plenary judicial proceedings. Second,, one court of 
appeals holds that such cases are to be conducted as 
reviews of the administrative record pursuant to a 
substantial evidence standard. Third, two courts of 
appeals hold for a hybrid approach, in which the pri­
mary focus is on review of the administrative record, 
but in which the plaintiff may supplement the admin­
istrative record upon a showing of necessity.

a. Plenary Judicial Proceedings

In the first court of appeals decision to hold for 
plenary judicial proceedings, the Third Circuit con­
cluded that

“ . . . it was Congress’ intent to provide an ag­
grieved federal employee with as full a panoply 
of remedies in the district court as those afforded 
a private sector litigant. . . .  W e hold therefore

La. 1975); Anderson v. Roudebush, 1(3 EfPD If 10,328 (S.D. Gfa. 
1975).

Ninth Circuit: Jewell v. Middendorf JJKP.E.P. Cases 1110 (CD . 
Cal. 1975). /

Tenth Circuit: Archuleta v. C alla w ay38YF.Supp. 385 (D. 
Colo. 1974). " V

District of Columbia Circuit: Johnson v. Clot worthy, 10 EPD 
ff 10,315 (D.D.C. 1975). X



51

that the statutory language of the Act, as well 
as its legislative history, indicates a right to a 
trial de novo in the district court when suit is 
brought by an aggrieved federal employee pur­
suant to § 717(e).”  Sperling v. United States, 
supra, 515 F.2d at 481.

Sperling was followed by the Seventh Circuit, which 
noted that its conclusion was “ in accord with the 
special regard that Congress has shown for those who 
suffer discrimination in employment.”  Caro v. Schultz, 
supra, 521 F.2d at 1Q88.43 The Third and Seventh Cir­
cuits were then joined by the District of Columbia 
Circuit, which, in an encyclopedic opinion, unanimous­
ly and resoundingly reversed the seminal district court 
decision which had led numerous other courts astray on 
this issue.44 The District of Columbia Circuit concluded

“ . . . that Congress intended to bestow on federal 
employees the same rights in District Court— 
including the right to a trial de novo—which it 
had previously mandated for private sector em­
ployees, and that the Federal Rules of Civil Pro­
cedure are flexible enough to enable trial judges 
to prevent such de novo trials from unduly 
burdening the courts or substantially duplicating 
agency proceedings.”  Hackley v. RoudebusJi, 
supra, 520 F.2d at 113 (footnote omitted).

It should be noted that none of the cases providing 
for plenary judicial proceedings excludes the possi­

43 The Seventh Circuit’s opinion noted that “ Because we are 
choosing one of the views on which there is a conflict between 
circuits, this opinion was circulated, before filing, to all judges of 
this Court in regular active service. There has been no request for 
a vote on a hearing en banc on this issue.”  Icl., at 1088 n.6.

44Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C. 1973), rev’d 
sub nom Hackley v. Roudebush, supra.



52

bility of summary judgment being entered in some 
eases. But only a real summary judgment, within 
the ordinary and accepted meaning o f Fed.R.Civ.P. 
56(c), would be possible, i.e., summary judgment in 
a situation where “ there is no genuine issue as to any 
material fact and . . .  the moving party is entitled 
to a judgment as a matter of law.”  Sperling v. United 
States, supra, 515 F.2d at 481-4; Caro v. Schultz, supra, 
521 F.2d at 1089; 1Hockley v. Roudebush, supra, 520 
F.2d at 157-8.45

b. Review Strictly Limited to the Administrative Record

The first court of appeals decision to reject plenary 
judicial proceedings was also the first appellate de­
cision on the issue. The Tenth Circuit held that

“ The complaints of the nature here considered 
should be "handled as others [under the Civil 
Service system], and if  they reach the courts, 
the procedure should be consistent with those 
under 5 U.S.C. § 701 et seq.”  Salone v. United 
States, supra, 511 F.2d at 904.

Salone represents the second category of decisions re­
ferred to above, under which the standard of the pre-

45 In some situations the administrative record might itself pro­
vide a basis for summary judgment. If, for example, uncontroverted 
evidence established that the plaintiff was never employed by and 
never applied for employment with the defendant agency, there 
would obviously be no genuine issue of material fact and the court 
could dispose of the plaintiff’s fraudulent claim by summary 
judgment. Or, of course, the parties might agree to have the 
district court decide the case on the administrative record. But in 
most eases discovery would, if desired, have to be permitted before 
a motion for summary judgment could even be considered. More­
over, it must be recognized that summary judgments are rarely 
encountered in Title VII cases when the facts are contested.



53

Title V II  adverse action cases is applied, and the 
decision of the agency or the Civil Service Commission 
is to be upheld if  it is supported by “ substantial evi­
dence”  in the administrative record.

c. Hybrid Approaches

The first court of appeals to adopt a hybrid ap­
proach—representing the third category of decisions 
referred to above—was the Ninth Circuit, in the case 
at bar. Here the court of appeals referred with ap­
proval to the district court decision in Hackley v. 
Roudebush, supra (hereinafter ‘Hackley I ’ ), which 
held that

“ The trial de novo is not required in all cases. 
The District Court is required by the Act to ex­
amine the administrative record with utmost care. 
I f  it determines that an absence of discrimina­
tion is affirmatively established by the clear 
weight of the evidence in the record, no new trial 
is required. I f  this exacting standard is not met, 
the Court shall, in its discretion, as appropriate, 
remand, take testimony to supplement the ad­
ministrative record, or grant the plaintiff relief 
on the administrative record.”  Hackley v. John­
son, 360 E.Supp. 1247, 1252 (D.D.C. 1973), rev’d 
sub nom Hackley v. Roudebush, supra.

While the court referred to Hackley I  with approval, 
it is not clear whether it fully adopted the standard 
quoted above. See, Chandler v. Johnson, supra, 515 
F.2d at 255. What is clear is that the Ninth Circuit 
held that a plaintiff who desires that the judicial pro­
ceedings extend beyond a review of the administrative 
record must make a specific showing—in the case at 
bar without any prior discovery—that more than a re­



54

view of the record is necessary in the circumstances 
of his or her particular case. Id., at 255.

In a recent case the Eighth Circuit joined the Ninth 
as an exemplar of the category of decisions which 
adopt a hybrid approach. The Eight Circuit articu­
lated its holding as follows:

“ . . . while we generally agree with the District 
of Columbia, Third, and Seventh Circuits that a 
federal employee is entitled to a judicial deter­
mination of the merits of his claim, we think 
district courts posses the power to make that 
decision summarily upon an administrative record 
that is fairly made and that completely discloses 
the relevant facts upon which the plaintiff relies.
“ As a corollary, the district court, on a showing 
of need, should exercise its discretion to re-open 
the record and hear additional evidence or per­
mit the plaintiff to proceed to develop additional 
relevant evidence through discovery procedures. 
This discretion should be liberally exercised in 
order to assure that the federal employee-plain­
tiff is given a full and fair opportunity to de­
velop all the facts bearing upon his claim.
“ However, where there is no sound basis for re­
opening the record, the district court, without 
more, may proceed to a decision on the merits.”
Haire v. Galloway, supra, 10 EPD at p. ------ , 11
F.E.P. Cases at 772 (footnote omitted).

Thus, under Haire as under the Ninth Circuit’s deci­
sion in the case at bar, the focus of the judicial pro­
ceedings is on the administrative record, which may 
be “ re-opened”  and “ supplemented”  only upon a 
showing of necessity. However, the language in Haire 
concerning the circumstances under which the plain­
tiff may be permitted to conduct discovery is perhaps



55

more generous in tone than the language that the 
Ninth Circuit employed, which requires the plaintiff 
to show “ that without judicial discovery, a case could 
not he made.”  515 F.2d at 255.46

d. The Government's Position

It is not possible for petitioner to know at this point 
what position the respondents will adopt in this Court 
on the issue presented in the case at bar. It seems un­
likely that error will be confessed.47 As recently as 
October 23, 1975, the Department of Justice stated its 
position as follows in the Fifth Circuit:

“ This memorandum is filed in response to the Oc­
tober 8, 1975, request of this Court for a statement 
of the position of the Department of Justice on 
the availability to federal employees of a trial de 
novo in suits alleging discrimination in violation 
of Title Y II  of the Civil Rights Act.
“ The Department’s position is that federal em­
ployees bringing discrimination suits under 42 48

48 Cf., Bowers v. Campbell, supra, 505 F.2d at 1160-1161. In 
Bowers, decided under 42 U.S.C. § 1981, the Ninth Circuit pro­
vided for “ a de novo decision by the district court based primarily 
on the administrative record (if it is determined to be fair and 
adequate) with provision for the admission of additional evidence. 
. . . ”  Id., at 1161. “ Both the employee and the employer shall 
have the right to adduce additional evidence to supplement the 
administrative record.”  Id. (emphasis added). Bowers thus appears 
to go beyond Hackley I, Chandler and Haire, since it provides a 
right to adduce additional evidence, and also since it would seem 
to imply a right to conduct discovery. (Bowers also clearly con­
templates that any additional evidence is to be offered in the 
district court, thereby excluding the possibility, which under 
Hackley I  is within the district court’s discretion, of a “ remand”  
to the administrative agency for further proceedings.)

47 But cf., Memorandum in Response to Petition for Rehearing, 
Place v. Weinberger, No, 74-116, October Term, 1974.



56

U.S.C. § 2000e-16_(c) are not entitled to a trial de 
novo in the district court. Since the statute does 
not define the scope of judicial review or contain 
any requirement of a trial de novo, the scope of 
judicial review is that provided under the Admin­
istrative Procedure Act, i.e., the administrative 
decision should be upheld unless 'unsupported by 
substantial evidence,’ or ‘ arbitrary, capricious, an 
abuse of discretion, or otherwise not in accordance 
with law.’ 5 U.S.C. § 706(2).

*  *  *

“ The Government’s position on the de novo issue 
is presented, e.g., in our brief in [Swain v. Gallo­
way, 5th Cir. No. 75-2002] at pp. 32-38.”  Justice 
Department Memorandum in Response to Court 
Request, Oringel v. Mathews, 5th Cir. No. 74-3971 
(Oct. 23, 1975).

The Department of Justice has thus recently confirmed 
its adherence to the second category of decisions de­
scribed above, represented by the Tenth Circuit’s de­
cision in the Salone case. This is the position which the 
government has generally advocated in the lower 
courts, and was its position in the Ninth Circuit in the 
case at bar.48

E. This Court Should Adopt a Rule Providing for Plenary Judicial
Proceedings in Federal Sector Cases, Because of the Express
Language and Legislative History of the 1972 Amendments,
As Well As Sound Policy Considerations.

Petitioner submits that the only rule which is con­
sistent with the language, legislative history and pur­
pose of the 1972 Title Y II  amendments is one which 48

48 Notwithstanding the government’s restatement of its position 
in the Fifth Circuit and the fact that said restatement was made 
after the grant of certiorari herein, it seems unlikely to petitioner 
that the government will assert this position in this Court.



57

provides for plenary judicial proceedings. There are a 
number of policy reasons why this is so, and these will 
presently be discussed. However, it cannot be over­
emphasized that, in petitioner’s view, the controlling 
policy decision on this issue has already been made: 
Congress has determined that federal employees should 
have the same rights available in the courts as their 
private sector counterparts. As has been shown in 
Arguments 1 (B ) and 1(C ), supra, and in Hackley v. 
Roudebush and Sperling v. United States, supra, to 
afford less than plenary judicial proceedings in federal 
sector Title Y II  cases would be to override the express 
will of Congress. The lower courts which have held 
otherwise do not even begin to explain how the plain 
import of the language and legislative history of the 
1972 amendments can be avoided. While the Eighth, 
Ninth and Tenth Circuits assert that the language and 
legislative history are not decisive of the present issue, 
they offer virtually no reasoning in support of that 
conclusion. Petitioner believes that the contrary con­
clusion is inescapable.

The case at bar should not, therefore, be viewed as 
one in which the Court must choose between, or accom­
modate, conflicting policy considerations. But even if 
it were so viewed, a proper analysis of such considera­
tions also-compels the conclusion that federal sector 
Title Y II  actions should be conducted as plenary judi­
cial proceedings.

1. Many of the cases declining to afford a plenary 
scope to federal sector civil actions proceed on the 
untenable assumption that no real change in the role 
of the judiciary was intended to be accomplished by 
the 1972 amendments. Sperling v. United Staes, supra,,



58

515 F.2d at 474, 476-7. Tims the Salone line of cases— 
providing for review of the record under a “ substan­
tial evidence”  test, the same standard as that enunci­
ated in pre-Title Y II  adverse action cases—would 
limit the effect of the 1972 amendments to an explicit 
waiver of sovereign immunity and a removal of certain 
procedural problems which existed in pre-Title Y II  
attempts to bring discrimination suits against the fed­
eral government.49 It is plain that the 1972 amendments 
cannot be afforded such a narrow interpretation.50

While the Hackley I, Chandler and Haire cases the­
oretically go beyond the Salone approach, as a practical 
matter there is more similarity than difference between 
the two approaches. Indeed, many of the district court 
decisions which cite and purport to follow Hackley I , 
for example, in fact apply a “ substantial evidence”  
test or an even less demanding standard.51 Ah this writ­
ing, almost four__years since the 1972 federal sector 
provision's "4^ame-.££ecTWe7JEEefmare.only nine pub­
lished decisions entering judgment on the merits in
a plaintiff’s .favor.-agninst---a...fe.deraLdefend.ant. In
three of thesemirial tie.novo was conducted; in two of 
the others evidence beyond the administrative record

49 Compare Brown v. General Services Administration, 507 F.2d 
1300 (2d Cir. 1974), cert, granted, 421 U.S. 987 (1975), No. 74-768 
ivith Bowers v. Campbell, 505 F.2d 1155 (9th Cir. 1974) ; Penn v. 
ScMesinger, 490 F.2d 700 (5th Cir. 1973), rev’d on exhaustion of 
remedies issue, 497 F.2d 970 (5th Cir. 1974) (en banc), pet. for 
cert, pending, No. 74-476; Petterway v. V.A. Hospital, 49o F.2d 
1223 (5th Cir. 1974).

50 With respect to the argument that the 1972 amendments’ sole 
or primary purpose was to provide “ access”  to judicial review in 
the face of the defense of sovereign immunity, see, Hackley v. 
Boudebush, supra, 520 F.2d at 142, 142 n.138; see also, Sperling v. 
United States, supra, 515 F.2d at 476-7.

51 See, e.g., cases cited at Pet. 14 n.8.



59

was received; and in two of the others a finding of 
discrimination had been made at the administrative 
leveP^UF course it is possible that in all of the numer­
ous other cases where summary judgment has been en­
tered in the government’s favor on the basis of the 
administrative record, the claim of discrimination was 
not meritorious. A  more reasonable inference, however, 
is that the effectiveness of the 1972 amendments has 
been drastically impaired by both approaches which 
insulate the federal government’s employment prac­
tices from plenary judicial scrutiny. As a prescient 
district court warned in 1973:

. . it is simply too easy for a federal judge op­
erating under Hackley [I ]  to lapse, in his discre­
tion, into a review of the record using the substan­
tial evidence test or the test set forth in Ckiriaco v. 
United States [procedural due process and ab­
sence of arbitrary or capricious agency action].
. . . Only if  a trial de novo is mandatory will the 
federal employee be assured of the congressional 
intent and that is a full, impartial review of the 
ease in an adversary context.”  Jackson v. U.S. 
Civil Service Comm’n, 379 F.Supp. 589, 594 (S.D. 
Tex. 1973) (emphasis added).

2. There is another reason why anything less than 
a right to plenary judicial proceedings places the fed­
eral sector plaintiff at a unique and wholly unjustified 
disadvantage. Under the Chandler and Haire approach

53 Cases cited at Pet. 15 n.9; Rogers v. E.E.O.C., 10 EPD ft 10,416, 
11 F.E.P. Cases 337 (D.D.C. 1975) (trial de novo) ;  Smith v. 
Fletcher, 10 EPD 10,329 (S.D. Tex. 1975) (supplemental evi­
dence received); Palmer v. Rogers, 10 EPD |f 10,265 (D.D.C. 
1975) (discrimination found at administrative level) ; Davis v. 
Dept, of H.E.W., 10 EPD 10,341 (E.D. La. 1975) (discrimination 
found at administrative level); Hammond v. Bolzano, 10 EPD 
f  10,333 (D.D.C. 1975).



60

no less than under the Salone approach, the initial and 
primary focus of the district court is on the adminis­
trative record, and the plaintiff is saddled with the 
burden of demonstrating that it is necessary for the 
court to go beyond a review of that record. In such a 
situation—and without any prior access to discovery 
or compulsory process—the plaintiff is immediately 
placed in a defensive posture because of the existence 
of an administrative record compiled under the direc­
tion and control of the government. Rather than being 
permitted to develop his case through the normal proc­
ess of discovery and present his case to the court 
through the normal process of a plenary trial, the 
plaintiff is instead required to show a persuasive justi­
fication for discovering and offering any evidence be­
yond the administrative record, and for presenting any 
live testimony to the district court as trier of fact. Yet 
there is simply no good reason why a federal sector 
Title Y II  plaintiff should not be able to “ proceed in 
court like any other litigant, subject to informal steps 
to avoid what is shown to be an unnecessary duplica­
tion of the administrative record, rather than be re­
quired to make an affirmative showing persuading the 
judge that there is a ‘need’ before he can exercise 
procedures routinely accorded to civil litigants.”  
Hockley v. Roudebush, supra, 520 F.2d at 171 (Leven- 
thal, J., concurring). And it should be re-emphasized in 
this connection that the procedures which are “ rou­
tinely accorded to civil litigants”  are fully available 
to plaintiffs in Title V II  actions against private com­
panies, unions, and employment agencies, as well as in 
Title V II  actions against state, county and muncipal 
governments. As noted in Argument 1 (A ), supra, the 
basic purpose of the 1972 amendments would be under­
mined by the manifest injustice of a double standard



6 1

which operates to the unique advantage of one partic­
ular kind of Title V II  defendant.

3. The argument most frequently advanced in 
support of such a double standard and in favor of a 
more restrictive approach in federal sector cases is 
that it would be a waste of judicial resources to permit 
plenary proceedings in district court when an admin­
istrative proceeding record is available. This argument 
assumes that the “ equivalent”  of the plenary judicial 
proceedings which are available in all other Title Y II  
cases may be provided in the federal sector by a review 
of the administrative record, as supplemented upon a 
showing of necessity.53 This argument, like the assump­
tion behind it, is faulty for a number of compelling 
reasons.

In the first place, it is difficult to imagine how a 
judicial remedy which does not include the right to 
conduct discovery and the right to have the court eval­
uate the credibility of witnesses by observing their 
testimony could possibly be deemed “ equivalent”  to the 
de novo judicial proceeding which Congress and this 
Court have mandated in private sector Title Y II  cases. 
The administrative procedure provided by the Civil 
Service Commission’s regulations (5 C.F.R. §§ 713.201, 
et seq.) is certainly not equivalent to a judicial pro­
ceeding. Consideration of a few key deficiencies will 
highlight the obvious shortcomings of this administra­
tive procedure. Typically, as in the case at bar, the 
complainant is not represented by an attorney at the 
administrative level; in any event, there is no provision

53 jE.g., Chandler v. Johnson, supra, 515 F.2d at 255; Haire v. 
Calloway, supra, 10 EPD at p . ------ , 11 F.E.P. Cases at 771-2.



6 2

for court appointment of an attorney for the complain­
ant, or for an award of attorneys ’ fees if  the complain­
ant prevails.54 The investigation which is conducted is 
produced under the direction of, and entirely controlled 
by, the agency which is the defendant in any subsequent 
judicial proceedings. Only if the complainant so elects 
is an administrative evidentiary hearing held, and 
even then there is no subpoena power available to the 
complainant, and no right to discovery comparable to 
that provided by the Federal Rules of Civil Procedure. 
And the CSC’s own handbook for complaints exam­
iners explains that “  [t]he hearing is an adjunct to the 
investigation. It is not an adversary proceeding but is 
an administrative proceeding designed to provide addi­
tional evidence.” 55

Beyond this, a detailed review of the administrative 
procedure convincingly demonstrates that the inher­
ent bias and inadequacies which were so severely crit­
icized prior to the 1972 amendments remain intact to 
this date, notwithstanding the CSC’s post-Act revisions 
in the procedure. See, Hackley v. Roiulelush, supra, 
520 F.2d at 137-141 (opinion of Wright, J .), concluding 
after extensive analysis that “ the CSC’s nonadver- 
sarial fact-finding procedures and inherent structural 
defects i:>ersist essentially unchanged, and do not guar­
antee federal employees a full and fair hearing on 
their claims of employment discrimination. . . .”  56 See

M Compare, 42 U.S.C. §§ 2000e-5(f) (1), 2000e-5(k).
55 U.S. Civil Service Commission, Discrimination Complaint Ex­

aminer’ s Handbook (April, 1973), at p. 5.
66 Accord, U.S. Comm’n on Civil Eights, The Federal Civil 

Eights Enforcement Effort— 1974, Yol. V, “ To Eliminate Em­
ployment Discrimination”  (July, 1975), at pp. 61-86; Brief for 
N A A CP Legal Defense and Educational Fund, Inc. as Amicus 
Curiae.



63

also, Hackley v. Roudebush, supra, 520 F.2d at 171 
(Leventhal, J., concurring): “ the complaint hearing 
falls short of a Title Y I I  action in certain of the cru­
cial respects stressed in Alexander v. Gardner-Denver 
■—the lack of compulsory process, except as to govern­
ment employees: the dispensation with usual rules of 
evidence; and particularly the lack of discovery pro­
cedures. Significantly, the agency complaint hearing 
has been structured to avoid an ‘ adversary’ quality.
. . . And the Manual virtually instructs the Examiner 
in terms that equate a finding of discrimination with a 
situation in which there is no reasonable doubt to the 
contrary. [Footnote omitted.]”

But even if the administrative process were better 
than it is, the proper result on the issue at bar would 
be the same. In that sense, the empirical question of 
the post-1972 performance of the Civil Service Com­
mission is simply not the issue in the case at bar. See, 
Hackley v. Roudebush, supra, 520 E.2d at 172 (Leven­
thal and Davis, JJ., concurring). For in the closely 
analogous case of Alexander v. Gardner-Denver Co., 
415 U.S. 36 (1974), this Court squarely rejected any 
concept of “ deferral”  to the results of an arbitration 
process, however well-designed. In Alexander the re­
spondent’s proposed deferral rule 57 was rejected be­
cause :

“ [t]he rule’s obvious consequence . . . would be to 
deprive the petitioner of his statutory right to at­
tempt to establish his claim in a federal court . . . 
The purpose and procedures of Title V II  indicate 
that Congress intended federal courts to_ exercise 
final responsibility for enforcement of Title V I I ;

67 415 U.S. at 55-6.



64

deferral to arbitral decisions would be inconsistent 
with that goal.”  415 U.S. at 55-6.

A  more stringent deferral standard was also rejected 
in Alexander:

“ Nor are we convinced that the solution lies in 
applying a more demanding deferral standard, 
such as that adopted by the Fifth Circuit in Rios 
v. Reynolds Metals Co., 467 F.2d 54 (1972). [Foot­
note omitted.] As respondent points out, a stand­
ard that adequately insured effectuation of Title 
V II  rights in the arbitral forum would tend to 
make arbitration a procedurally complex, expen­
sive, and time-consuming process. And judicial en­
forcement of such a standard would almost require 
courts to make de novo determinations of the em­
ployees’ claims. It is uncertain whether any mini­
mal savings in judicial time and expense would 
justify the risk to vindication of Title V II  rights.”  
415 U.S. at 58-9 (emphasis added).

The very same reasoning applies to the CSC-devised 
administrative procedure in the federal sector. That 
procedure certainly is not an adequate substitute for 
plenary judicial proceedings; and to try to make it so 
would probably destroy its utility as a vehicle for pos­
sible informal resolution of complaints without resort 
to the judicial process.

4. At the same time, it has never been disputed 
that the administrative decisions in federal sector Title 
Y II  cases may, like arbitral decisions in private sector 
cases, be admitted into evidence and accorded such 
weight as the court deems appropriate. Cf., Alexander 
v. Gardner-Denver Co., supra, 415 U.S. at 60. More­
over, the rest of the administrative record would also 
be admissible, subject only to the limitations of the 
Federal Rules of Civil Procedure and the Federal



65

Rules of Evidence. Hackley v. Roudebush, supra, 520 
E.2d at 156-7; Sperling v. United States, supra, 515 
E.2d at 484; Caro v. Schultz, supra, 521 E.2d at 1089. 
The essential point, however, is that the administra­
tive record must not be the narrow focus of the judicial 
proceeding. It may be considered for whatever light it 
sheds on the facts at issue; but it may not be utilized 
as a weapon for limiting the scope of otherwise proper 
discovery or impairing the plaintiff’s access to the 
normal mechanisms of judicial factfinding. Hackley v. 
Roudebush, supra, 520 F.2d at 151.

Nor is there any ground for believing that it is neces­
sary or desirable to deny federal sector plaintiffs the 
rights available to their private sector counterparts in 
order to assure that these cases are efficiently con­
ducted :

“ The informal means available to a judge to shape 
the course of a trial would ordinarily suffice to 
obviate duplication without a purpose, just as a 
judge routinely takes steps to avoid cumulative 
testimony. Rut that does not warrant omission of 
the testimony of crucial witnesses, whose de­
meanor is of manifest importance to the factfind­
ing function. And the significant discovery right 
should not be impaired.”  Hackley v. Roudebush, 
supra, 520 F.2d at 171 (Leventhal, J., concurring).

Discovery is a crucial element of any Title V II  ac­
tion—even of a single-plaintiff, individual case. E.g., 
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804- 
5 (1973) ; Burns v. Thiokol Chemical Corp., 483 F.2d 
300 (5th Cir. 1973). It is obviously unacceptable to 
place upon the federal sector plaintiff a burden to 
justify the invocation of this fundamental right, which 
is fully available as a matter of course to all other Title



6 6

Y II  litigants. Of course it is always open to any de­
fendant to move for a protective order in appropriate 
circumstances; but it is the defendant’s burden to show 
that such an order is necessary within the meaning of 
Fed.R.Civ.P. 26(c) as normally applied in Title Y I I  
cases. The mere fact that an administrative investiga­
tion has occurred provides no justification for depriv­
ing the plaintiff of the right to discovery.

Similarly, there is no warrant for assuming that the 
parties in a federal sector Title Y II  case will attempt 
without reason to present truly duplicative testimony, 
any more than the parties in any other case will seek 
unnecessarily to call witnesses whose live testimony 
would be truly duplicative of their deposition testi­
mony. To the extent that any testimony offered is in 
fact unnecessarily duplicative, a district court can con­
trol it in the same way it controls testimony in any 
other plenary judicial proceeding. On the other hand, 
to the extent that testimony or cross-examination at 
an administrative hearing is honestly felt by a party to 
be inadequate, federal sector Title Y II  litigants should 
certainly have the same right to call witnesses as is 
enjoyed by parties in any civil litigation in which 
witnesses’ depositions have previously been taken. It 
is also important to recall that even in those cases 
where an administrative evidentiary hearing has been 
held, the complainant has frequently not been repre­
sented by an attorney. Moreover,

. . merely because an individual testified at the 
agency level does not mean that he would not be 
required to testify at the trial in District Court. 
The decision as to whether a particular witness 
should be called remains with counsel; although a 
trial judge has discretion to limit cumulative testi­
mony, a witness’ trial testimony is not cumulative



67

merely because it repeats his testimony before the 
agency.”  IlacMey v. Boudebush, supra, 520 F.2d 
at 158-0.

5. A  frequently unarticulated58 policy considera­
tion behind those decisions which have denied a right 
to plenary judicial proceedings is the belief that fed­
eral sector Title V II  cases will, unless their scope is 
carefully restricted, place unacceptable burdens on the 
judiciary. Petitioner submits that this kind of consid­
eration is simply foreclosed by the legislative decision 
which Congress made in 1972 when it extended Title 
V I I ’s judicial remedy to the federal sector:

“ . . .it  should be remembered that the parts of the 
1972 amendments involved in this case extended 
coverage to only approximately 2.6 million federal 
employees. They also extended coverage to an esti­
mated 10.1 million state and local government em­
ployees and millions of additional private sector 
employees. Congress explicitly decided that the 
time and expense of de novo judicial fact-finding 
procedures for the latter were clearly worth the 
expected increase in fairness and accuracy of such 
fact-finding over administrative fact-finding, and 
the increase in respect which such decisions would 
be accorded. There is no indication that Congress 
believed that any burden created by federal em­
ployee litigation would, to the contrary, be unde­
sirable in light of the similar laudable purposes 
which it serves.”  IlacMey v. Boudebush, supra, 
520 F.2d at 154 (footnotes omitted).

Accord, Sperling v. United States, supra, 515 F.2d at 
483-4: “ Those concerns, while real, are matters prop­
erly within the sphere of the legislature.”

58 But see, Hackley I, supra, 360 F.Supp. at 1249 n.2 and text 
at n.2.



6 8

6. Finally, another argument which has some­
times been advanced as a reason for denying plenary 
judicial proceedings is that the savings in time 
afforded by a more restricted procedure would actual­
ly benefit federal sector plaintiffs because their com­
plaints would be more expeditiously adjudicated.59 
But there is, of course, nothing to prevent the parties 
in a federal sector Title V II  action from agreeing to 
submit the case for decision on the administrative 
record if  they deem it appropriate to do so. Nor does 
the availability of plenary judicial proceedings in any 
kind of case relieve counsel o f their obligation, once 
discovery has been conducted, to make a conscientious 
effort to stipulate as many facts as possible. Such an 
effort is always required both to simplify the court’s 
process of decision, and to avoid burdening either the 
parties or the court with formal proof of facts which 
are clearly established by documentary or other evi­
dence. In the final analysis, however, the response to 
arguments regarding the time that may be consumed 
in plenary judicial proceedings must be as follows:

“ Surely Congress intended that Title V II  cases 
be expedited both in the agencies and in the courts. 
But more important, it wanted all vestiges of dis­
crimination eradicated. To tell an aggrieved fed­
eral employee whose discrimination claim was 
rejected in an administrative proceeding that, 
since Congress wanted his claim expeditiously 
processed, he should be expeditiously denied the 
opportunity to present all relevant evidence per­
taining to that claim is, to say the least, incon­

59 Hacldey I, supra, 360 F.Supp. at 1252; Haire v. Calloway, 
supra, 10 EPD at p. ------, 11 F.E.P. Cases at 771-2.



69

gruous. Indeed, it is particularly incongruous to 
suggest that ‘ reasonable’ discovery . . .  is actually 
an evil to be avoided.

#  #  #

“ . . .w e  simply fail to perceive what substantive 
policies of the Act, from the perspective of the 
federal employee who is aggrieved by his agen­
cy ’s or the CSC’s treatment of his complaint, are 
defeated rather than advanced through a trial 
de novo. Avoidance of ‘ substantial delays’ is no 
panacea if  the product of speed is a hasty denial 
of justice. . . .”  llackley v. Roudebush, supra, 
520 F.2d at 155-6 (footnote omitted).

F. The Issue in the Case at Bar Has Important Implications for 
Other Issues, Which Also Counsel in Favor of a Rule 
Providing for Plenary Judicial Proceedings.

No discussion of the issue of the nature and scope 
of judicial proceedings would be complete if  it did 
not advert to other issues whose outcome will be 
strongly influenced if  not directly controlled by this 
Court’s decision in the case at bar. Foremost among 
these related issues is the question of the availability 
of class actions in federal sector Title V II  cases.60

I f  “ it was Congress’ intent to provide an aggrieved 
federal employee with as full a panoply of procedural 
remedies in the district court as those afforded a pri­
vate sector litigant, ’ ’ 61 then class actions should be 
fully available in federal sector Title V II  cases where 
the requirements of Fed.R.Civ.P. 23 are met.62 On the

60 For a discussion of some other related issues, see Brief for 
NAACP Legal Defense and Educational Fund, Inc. as Amicus 
Curiae.

61 Sperling v. United States, supra, 515 F.2d at 481.
62 Hackley v. Roudebush, supra, 520 F.2d at 151-3 n.177; see 

also, e.g., Sylvester v. U.S. Postal Service, 393 F.Supp. 1334 (S.D. 
Tex. 1975); Chisholm v. U.S. Postal Service, 9 EPD Jf 10,212,



70

other hand, if  federal sector Title Y I I  case are not de 
novo proceedings, then there are very substantial 
grounds for doubting that class action treatment will 
be available in these cases. Thus it has been held that 
“ federal employees cannot maintain class actions 
under Title Y I I ”  because “ a class action . . . would 
require exploration of factual issues obviously beyond 
the record of a single employee”  63; and that “  [w]here 
there is review on the record and no trial de novo, 
there is no class action.” 64

The class action has been the backbone of Title 
Y I I ’s effectiveness in the private sector.65 Individual, 
single-plaintiff cases such as the case at bar66 are, of 
course, important to the parties involved, and they 
are also affected with a public interest.67 But the major

11 F.E.P. Cases 457 (W.D. N.C. 1975), appeal pending, 4th Cir. 
Nos. 75-2068, 75-2069; Ellis v. Naval Air Rework Facility, 10 EPD 
^  10,257, 10,422 (N.D. Cal. 1975).

63 Pendleton v. Schlesinger, 8 EPD If 9598, at p. 5569, 8 F.E.P. 
Cases 853 (D.D.C. 1974), appeal pending, D.C. Cir. No. 74-1929.

64 Spencer v. Schlesinger, 374 F.Supp. 840, 844 n.6 (D.D.C. 
1974), appeal pending, D.C. Cir. No. 74-1787; see also, e.g., East- 
land v. Tennessee Valley■ Authority, 9 EPD ff 9927, at p. 6882 (N.D. 
Ala. 1975), appeal pending, 5th Cir. No. 75-1855.

e5E.g., Albemarle Paper Co. v. Moody, 95 S.Ct. 2362 (1975); 
Griggs v. Duke Power Co., 401 U.S. 424 (1971).

66 See also, e.g., McDonnell Douglas Corp. v. Green, 411 U.S, 
792 (1973).

67 Albemarle Paper Co. v. Moody, supra, 95 S.Ct. at 2370; see 
also, Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968). 
It should be noted that unlike in the private sector, where the 
EEOC and the Attorney General have authority to bring court 
actions to enforce Title Y II—and unlike in the state and local 
government sector, where the Attorney General has such author­
ity— in the federal sector, the private plaintiff is the only party



71

impact of Title Y II  in terms of systematic reform of 
unlawfully discriminatory employment practices lias 
been felt in class action eases. In such cases, the 
courts have held that a single plaintiff who has ex­
hausted his administrative remedies may maintain an 
across-the-board class action on behalf of other mem­
bers of Ms class who have not exhausted or even 
initiated the administrative process; that such a 
plaintiff may raise in his judicial complaint, on his 
own behalf and on behalf of the class he represents, 
any matters “ like or related to”  the allegations of 
his administrative charge; and that other members 
of the class who do not themselves have independent 
standing may properly be named as co-plaintiffs in 
the action, or receive relief as unnamed parties.68 This 
Court has approved this general line of authority, and 
has held that backpay may be awarded on a class 
basis in such cases.69

who can bring such an action, and the government’s only involve­
ment is as a defendant.

™E.g., Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239 (3rd 
Cir. 1975), cert, denied, 421 U.S. 1011 (1975); Barnett v. W. T. 
Grant Co., 518 F.2d 543 (4th Cir. 1975); Oatis v. Crown-Zellerbach 
Corp., 398 F.2d 496 (5th Cir. 1968) ; Jenkins v. United Gas Corp.. 
400 F.2d 28 (5th Cir. 1968); Miller v. International Paper Co.. 
408 F.2d 283 (5th Cir. 1969) ; Johnson v. Georgia Highway E x­
press, Inc., 417 F.2d 1122 (5th Cir. 1969) ; Carr v. Conoco Plastics, 
Inc., 423 F.2d 57 (5th Cir. 1970); Sanchez v. Standard Brands, 
In c ’, 431 F.2d 455 (5th Cir. 1970); Johnson v. Goodyear Tire & 
Rubber Co., 491 F.2d 1364 (5th Cir. 1974) ; Pettway v. American 
Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974); Gamble v. 
Birmingham Southern Railroad Co., 514 F.2d 678 (5th Cir. 197o) ; 
Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969) ; 
Oubichon v. North American Rockwell Corp., 482 F.2d 569 (9th 
Cir. 1973).

69 Albemarle Paper Co. v. Moody, supra, 95 S.Ct. at 2370 n.8.



72

These decisions have been informed by, and are 
consistent with the broad remedial purpose of Title 
V II. Their applicability to federal sector cases would 
be very seriously in question if  this Court were to 
hold that such cases are not plenary judicial proceed­
ings, but are instead intended to focus on the admin­
istrative record of the individual plaintiff’s complaint. 
Only a ruling by this Court upholding the unitary 
structure of Title V II  as it applies to federal defend­
ants as well as all other defendants will preserve the 
vitality of the class action device in the federal sector. 
And on this question, as on the question presented in 
the case at bar, Congress has made its will known with 
clarity.70

G. The Posture of the Case at Ear Requires That the Judgment 
Below Be Reversed.

In the case at bar the examiner who conducted the 
administrative hearing on petitioner’s complaint con­
cluded that

70 Albemarle Paper Co. v. Moody, supra, 95 S.Ct. at 2370 n.8; 
Seetion-by-Section Analysis of TI.R. 1746, The Equal Employment 
Opportunity Act of 1972, 118 Cong. Rec. 7565 (Mar. 8, 1972), 
History at 1847: “ In establishing the enforcement provisions under 
this subsection [706 (f)(1 )] and subsection 706(f) generally, it 
is not intended that any of the provisions contained therein shall 
affect the present use of class action lawsuits under Title Y II 
id., 118 Cong. Rec. 7564, History at 1844: “ In any area where the 
new law does not address itself, or in any areas where a specific 
contrary intention is not indicated, it was assumed that the present 
case law as developed by the courts would continue to govern the 
applicability and construction of Title V I I ” ; id., 118 Cong. Rec. 
7566, History at 1851: “ Section 717(c) and (d )— The provisions 
of sections 706(f) through (k), concerning private civil actions by 
aggrieved persons, are made applicable to aggrieved Federal em­
ployees or applicants for employment. ’ ’



73

. . a preponderance of the overall evidence 
justifies a conclusion that the selecting official dis­
criminated against Complainant because of her 
sex in not selecting her for the GS-13 Section 
Chief position. The evidence does not indicate that 
Complainant’s race influenced the decision not to 
select her for the position.”  (A.R. 34-5; Pet App. 
16a).

The examiner recommended that petitioner be pro­
moted immediately and retroactively to the position 
in question. (A.R. 19; Pet. App. 16a).

However, the Veterans Administration rejected the 
examiner’s finding of discrimination, and stated that

“ The selecting official is entitled to make his se­
lection from any of the candidates on a promo­
tion certificate, whether or not the candidates are 
presented in rank order, based on his judgment 
of how well the candidates will perform in the 
particular job being filled, and, when relative, 
what their potential is for future advancement. 
Authority: Federal Personnel Manual, Chapter 
335, subchapter 3, paragraph 3.7c. The record is 
absolutely void of any evidence or testimony in 
reference to any acts, words, or innuendos, dis­
criminatory in nature, by the selecting official, re­
lating to his selection from the certificate of eligi- 
bles furnished him.”  (A.R. 38; Pet. App. 20a).

The agency’s decision was affirmed by the Civil Service 
Commission, which added reasons of its own to those 
given by the agency in support of its decision. (A.R. 
3-8; Pet. App. 21a-29a).71

71 Two of the reasons cited by the Commission cannot be con­
sidered to suport the agency’s decision.

First, the Commission observed that the person selected over



74

The district court’s decision in the government’s 
favor contained no discussion of the facts of the case, 
no indication of why it had concluded that petitioner 
had not been discriminated against, and no explana­
tion of why it had decided in this particular case to 
limit the judicial proceedings to a review of the ad­
ministrative record. (R. 252-9; Pet. App. 30a-33a). 
The court of appeals did state its reasons for conclud­
ing that petitioner had not been discriminated against. 
(515 F.2d at 254; Pet. App. 38a-39a).72 But it, like

petitioner had a “ total score on the examination (167) [which] 
exceeded [petitioner’s] by two points.”  (A.R. 3; Pet. App. 22a). 
In fact, there was no “ examination”  given. A rating of applicants 
was performed by an evaluation panel, in order to determine which 
applicants were to be designated as “ highly qualified.”  (A.R. 159). 
Petitioner was one of the applicants so designated. (A.R. 19; Pet. 
App. 4a). There was no evidence that the interview panel or the 
adjudication officer (the selecting official) was made aware of the 
actual numerical ratings assigned by the evaluation panel, and 
there was affirmative evidence to the contrary. (See, A.R. 158-9, 
177, 187, 224; 94-5, 99-100). Neither the Veterans Administration 
nor the selecting official cited the two-point difference in ratings 
as a justification for failure to select petitioner. (A.R. 36-9; Pet. 
App. 18a-21a; A.R. 56-69, 177-186).

Second, the Commission stated that “ the selectee received a more 
favorable rating than the complainant with respect to ability to 
‘ motivate, train, develop, and guide employees of varied back­
grounds and skill levels effectively.’ ”  (A.R. 6; Pet. App. 25a-26a). 
In fact, petitioner on two occasions received a one-point higher 
score than the selectee on this characteristic. (Compare A.R. 124 
point 1(h) with A.R. 132, point 1 (h ) ;  and compare A.R. 126. 
point 1(h) with A.R. 136, point 1(h)) .  The Commission seemed, 
inconsistently, to recognize this at a later point in its decision, 
where it stated that the selecting official “ had previously concurred 
in assigning complainant a higher rating on ability to motivate 
employees.”  (A.R. 8; Pet. App. 28a).

72 Included among these reasons was that the selectee had “ a 
numerical score two points higher than [petitioner’s] on a grading 
system that was not shown to have been discriminatory.”  (515



75

the district court, based its decision solely on a review 
of the administrative record. No testimony was beard 
in the district court; and petitioner was not permitted 
to engage in any discovery.

In the preceding portions of this argument, peti­
tioner bas set forth her reasons for believing that fed­
eral sector Title V II  plaintiffs are entitled to engage 
in discovery pursuant to the Federal Rules of Civil 
Procedure, and to present testimonial and documen­
tary evidence in a plenary judicial trial. I f  this argu­
ment is accepted, then a reversal of the decision below 
follows as a matter of course, since petitioner was de­
prived of the right to discovery and the right to pre­
sent evidence beyond the administrative record. The 
summary judgment affirmed by the court of appeals 
cannot stand under ordinary Rule 56 standards as ap­
plied in cases where plenary judicial proceedings are 
afforded, because no discovery was permitted, and be­
cause even in the absence of discovery, triable issues 
of fact were manifest.

While a reversal follows, therefore, as a matter of 
law from the foregoing analysis, it is instructive to 
consider by way of illustration some of the more ap­
parent defects in the review of the record which the 
court of appeals affirmed. A  critical examination of the 
procedure followed at the administrative level and in 
the courts below reveals examples of a number of the 
inadequacies of any rule providing for less than 
plenary judicial proceedings. Beyond this, such an 
examination demonstrates that the judgment in re­
spondents ’ favor in the case at bar does not withstand

F.2d at 254; Pet. App. 38a). As previously noted, this provides 
no support for a decision in respondents’ favor. See, n.71, supra.



76

scrutiny even under a legal standard affording less 
than plenary judicial proceedings. Indeed, the judg­
ment below is even unsupportable under the legal 
standard which the decision of the court of appeals 
itself set forth. That standard placed on petitioner— 
who had sought but been denied discovery, and who 
had prevailed before the only officer to hear oral testi­
mony—the burden of demonstrating a need to present 
evidence beyond the administrative record. (515 F.2d 
at 255; Pet. App. 40a-41a). Even assuming arguendo 
the correctness of placing such a burden on petitioner, 
the court of appeals ignored crucial deficiencies in the 
administrative record in holding that there was no 
need for discovery and judicial evidentiary proceed­
ings.

1. As the court of appeals recognized, there can 
be no dispute that petitioner established the four ele­
ments of a prima facie case of discrimination as set 
forth in this Court’s decision in McDonnell Douglas 
Gorp. v. Green, 411 U.S. 792, 802 (1973).73 Since this 
showing shifted the burden to the respondents to artic­
ulate a legitimate, nondiscriminatory reason for peti­
tioner’s rejection, it is interesting to note that the 
agency did not call any witnesses or offer any docu­
mentary evidence at the administrative hearing, but 
simply rested on the investigative file which had been 
prepared at a prior stage in the administrative proc­
ess. (A.R. 18; Pet. App. 3a; A.R. 46-7, 117). The 
agency’s approach is perhaps understandable in light 
of the fact that the Civil Service Commission instructs 
its examiners that the concept of burden of proof does 
not apply to the discrimination complaint hearing

73 See, 515 F.2d at 254; Pet. App. 37a: “ Appellant is correct in 
asserting that she was entitled to an affirmative statement of non­
discriminatory reasons for the selection of another applicant.”



77

process.74 However, while this may explain the agen­
cy ’s casual attitude concerning its obligation to re­
spond to petitioner’s prima facie case, it also provides 
a striking illustration of the degree to which the ad­
ministrative procedure fails to implement the order 
and allocation of proof to which this Court addressed 
itself in the McDonnell Douglas case.

2. Assuming arguendo that the respondents dis­
charged their burden to present sufficient evidence of 
a “ legitimate, nondiscriminatory reason”  for peti­
tioner’s non-selection, petitioner was still to “ be af­
forded a fair opportunity to show that [respondents’ ] 
stated reason for [her] rejection was in fact pretext.”  
McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 
802, 804. In this connection, one of petitioner’s first 
acts after suit was filed in the district court was to 
notice the deposition of, and request production of 
documents by, the selecting official; and to notice the 
deposition of the person selected in preference to pe­
titioner for the job in question. (R. 146-150). Since 
petitioner had represented herself at the administra­
tive hearing, the selecting official had never been ques­
tioned by an attorney acting in her behalf. And the 
complaints examiner had denied petitioner’s request 
to call as a witness at the administrative hearing the 
person selected for the job in question. (A.R. 118, 141, 
144).

It was undisputed that petitioner was “ highly quali­
fied”  for the position involved in the case at bar. 
Agency officials stated that it was very difficult to de-

74 U.S. Civil Service Commission, Discrimination Complaint E x­
aminer’s Handbook (April, 1973), at pp. 53-4; Hackley v. Boude- 
bush, 520 F.2d 108, 138 n.129 (D.C. Cir. 1975) (opinion of Wright, 
J.).



78

cide between petitioner and the selectee, that the inter­
view panel was divided 2-1 on the question, and that 
petitioner would have been selected if  the ultimate 
selectee had not been chosen. (E . g A.R. 65-6, 95, 159- 
160). The attorney who represented the government in 
the lower courts took the position that “ here we have 
a situation where we have two people that had out­
standing records, very worthy of being considered for 
promotion. . . . the affidavits and the testimony in the 
administrative record demonstrate it is a close ques­
tion [as to who should have been selected].”  (Tr. 13, 
Dec. 21, 1973). In these circumstances, the credibility 
of the selecting official’s testimony concerning his rea­
sons for failing to select petitioner was of central im­
portance. The complaints examiner—the only officer 
to hear and observe the selecting official’s testimony— 
found that the selecting official had discriminated 
against petitioner. The Civil Service Commission, in 
affirming the agency’s rejection of this finding, relied 
heavily on the selecting official’s testimony. (A.R. 5-8; 
Pet. App. 24a-28a). It seems particularly inconsistent 
with the district court’s role as ultimate factfinder for 
it to have proceeded to decision without permitting the 
selecting official to be questioned by petitioner’s attor­
ney, and without observing the selecting official’s testi­
mony and making an independent judgment concern­
ing his credibility.

Similarly, the fact that the hearing officer refused 
to call as a witness the person selected over petitioner 
for the job in question makes it particularly inex­
plicable that the district court proceeded to decision 
without at least granting petitioner’s request to take 
the selectee’s disposition. Central to the issue in this 
case were the relative qualifications of petitioner and



79

the selectee, and the validity or pretextuality o f the as­
serted reasons for failing to select petitioner. One 
of petitioner’s contentions—on which the hearing 
examiner, the agency, and the Civil Service Commis­
sion each expressed no opinion because of lack of suf­
ficient evidence (A.R. 6, 30-31, 38; Pet. App. 13a, 20a, 
26a)—was that the selectee did not prossess the neces­
sary ability to read and interpret computer printouts. 
In addition, petitioner contended—and, according to 
the agency and CSC decisions, failed to prove (A.R. 
5, 37-8; Pet. App. 19a, 24a-25a)—that the selectee was 
inferior to her in technical proficiency. It seems incon­
gruous that petitioner—who had already made out 
a prima facie case o f discrimination—could be 
charged with failure to prove that the selectee was 
less qualified than she. Rot only was it more properly 
the respondents’ burden to show that the selectee was 
more qualified than petitioner; in addition, petitioner 
was deprived of the opportunity to take the selectee’s 
deposition or call him as a witness, so that she was 
unable to inquire directly into certain aspects of his 
qualifications. Moreover, the inability to question the 
selectee hampered petitioner’s opportunity to explore 
whether any of his contacts with his superiors might 
give rise to an inference that he had been “ prese­
lected”  for the position in question. (Cf., A.R. 62,178).

3. As this Court held in McDonnell Douglas Corp. 
v. Green, supra, 411 U.S. at 804-5:

“ Other evidence that may be relevant to any 
showing of pretext includes . . . [the defendant’s] 
general policy and practice with respect to minori­
ty employment. [Footnote omitted.] On the latter 
point, statistics as to [the defendant’s] employ­
ment policy and practice may be helpful to a de­
termination of whether [the defendant’s action]



80

in this case conformed to a general pattern of 
discrimination. . . . ”

In the case at bar, “ review on the record”  operated 
to impair substantially petitioner’s ability to adduce 
the kind of evidence to which the above passage from 
McDonnell Douglas refers.

At the administrative hearing, no documentary ex­
hibits (other than the investigative file) were offered 
by the parties. (A.R. 18). The hearing examiner took 
some initiative to obtain additional documents; but 
information from the personnel files so obtained was 
sanitized for purposes of the examiner’s decision, and 
the actual personnel files were not available to peti­
tioner or the district court. (A.R. 18). Of course peti­
tioner, not being an attorney, could not have been 
expected to attempt at the administrative level to en­
gage in the kind of discovery which is typical in Title 
V II  litigation.75 * But in any case, the administrative 
process does not generally provide for anything com­
parable to discovery under the Federal Rules o f Civil 
Procedure, and nothing comparable to such discovery 
occurred at the administrative level in the case at bar.

I f  discovery had been permitted by the district court, 
a number of possible avenues of inquiry would have 
been open. For example, detailed exploration of rele­
vant employment statistics could have been undertaken. 
In this connection, it is ironic that the court of appeals, 
which held that there was no need to go beyond the 
administrative record, simultaneously held as follows:

“ Three persons, all male, were promoted from 
grade 12 to grade 13 during the 18 months in which

75 See, e.g., Burns v. Thiokol Chemical Corp., 483 F.2d 300 (5th
Cir. 1973).



8 1

the supervisor whose decision was challenged had 
the principal responsibility in such promotions. 
There was no evidence, however, to rebut the su­
pervisor’s statement that those promoted were the 
best qualified. There was no evidence that quali­
fied women even competed for these promotions, 
much less that any qualified woman was rejected 
in favor of a less qualified man.”  515 F.2d at 254; 
Pet. App. 38a.

It seems inexplicable that the court of appeals failed 
to note that if  petitioner had been permitted to engage 
in discovery, the kind of evidence which it felt was 
missing may well have been forthcoming. Even the 
Civil Service Commission considered it relevant to 
observe in its decision that “  [statistically, it is clear 
that as a black, and even more so as a female, com­
plainant was in a category least likely to be promoted 
to a position at grade OS-9 or above.”  (A.R. 7; Pet. 
App. 27a). Discovery would have enabled petitioner, 
consistently with McDonnell Douglas, to have explored 
whether a general policy or practice of discrimination 
was lurking behind these statistics.

One starting point for such discovery might have 
been the analyses contained in the agency’s equal em­
ployment opportunity plan, which is required by stat­
ute and regulation,76 but which was not a part of the 
administrative record. Other avenues that would have 
been worthy of detailed exploration include (a) the 
circumstances surrounding a prior racial discrimina­
tion complaint involving the same selecting official, in 
which a clerk complained about a promotion and 
“  [w]e were later advised to promote her”  (A.R. 185); 
(b) the reasons why “ [w]hen we hire outside, we go 78

78 42 U.S.C. § 2000e-16(b); 5 C.F.E. §§ 713.203, 713.302.



82

to the register and I  do not recall interviewing any 
non-Caucasians. The minority people just aren’t ap­
pearing on the register”  (A.R. 1 8 5 )" ; and (c) the 
circumstances surrounding petitioner’s allegations of 
a general pattern or practice of discrimination (e.g., 
A.R. 41, 106-109, 116, 161, 163, 165, 174-5, 275-6).78

The foregoing is intended only to suggest some pos­
sible lines of inquiry. Moreover, it may be that evi­
dence uncovered by discovery would not have per­
suaded the district court to find in petitioner’s favor. 
The point is, however, that petitioner was deprived 
of the right to conduct discovery and to attempt to 
make an important kind of showing which this Court’s 
opinion in McDonnell Douglas contemplates.

4. The hearing examiner found that petitioner 
had been discriminated against on the basis of her sex, 
but that no racial discrimination had been shown. The 
exclusion of certain requested witnesses at the admin­
istrative hearing would not have been of great signifi­
cance had the agency accepted the examiner’s decision 
based on sex discrimination. But since it did not, and

77 See, Griggs v. Duke Power Co., 401 U.S. 424 (1971); Albe­
marle Paper Co. v. Moody, 95 S.Ct. 2362 (1975); Douglas v. 
Hampton, 512 F.2d 976 (D.C. Cir. 1975). 78

78 In this connection, it should be noted that it was the hearing 
examiner—not petitioner—who reduced the scope of the inquiry 
to six numbered allegations. (A.R. 20-21; Pet. App. 4a-5a). The 
agency and the CSC then adopted the examiner’s narrow definition 
of petitioner’s contentions. (A.R. 4-5, 36-7; Pet. App. 18a-19a, 
23a-24a). A  review of the record citations in the text will show 
that petitioner’s allegations included claims of an across-the-board 
pattern or practice of discrimination against blacks as a class and 
females as a class. As noted in McDonnell Douglas, facts bearing 
on such allegations are also probative in an individual, single- 
plaintiff case.



83

since the lower court’s confined themselves to a review 
of the administrative record, it is of central impor­
tance that the hearing examiner refused to call 15 
of the 24 witnesses whom petitioner had requested. 
(A.R. 118, 141-5). Some of these witnesses would have 
testified to the existence of a pattern of race or sex 
discrimination within the agency, or to instances of 
race or sex discrimination which they themselves had 
suffered. (A.R. 143-5, 189-190, 191-3, 194-6, 197-9, 204- 
5). Some others had been requested by petitioner to 
show how non-minority employees were treated more 
favorably than blacks and females. (A.R. 143-5). The 
examiner’s basis for excluding all of these witnesses— 
that “ they do not appear to have direct knowledge re­
lated to [petitioner’s] non-selection for the position of 
Section Chief”  (A.R. 141; see also, A.R. 118)—was 
plainly inconsistent with the broad standard of rele­
vancy which this Court recognized in the McDonnell 
Douglas case.

Moreover, i f  the kind of discovery suggested above 
had been permitted, it might well have led petitioner 
to additional witnesses beyond those whom she had at­
tempted to call at the administrative hearing. Thus in 
two crucial respects—the examiner’s exclusion of wit­
nesses, and the lack of discovery and compulsory proc­
ess—the procedure followed at the administrative level 
and in the district court was highly prejudicial to peti­
tioner’s right to “ a full and fair opportunity”  to ad­
duce all competent evidence. McDonnell Douglas Gorp. 
v. Green, supra, 411 U.S. at 805.

5. Finally, it is no reflection on petitioner, a lay 
person, to suggest that her examination of some of the 
witnesses who did testify at the administrative hearing



84

was not as thorough or effective as the kind of exam­
ination that an experienced attorney armed with doc­
umentary evidence might he able to conduct. (E.g 
A.R. 56-62, 67, 69-73). This does not, of course, neces­
sarily mean that all or even most of the witnesses who 
testified at the administrative hearing would need to 
be recalled in plenary judicial proceedings. But peti­
tioner was deprived of all opportunity to have her at­
torney examine witnesses either by deposition or at a 
trial. While petitioner had the right to be represented 
by an attorney at the administrative level if  she had 
been prepared to bear the expense involved, there is no 
provision for appointment of an attorney at the ad­
ministrative level, and no provision for recovery of 
attorneys’ fees by a complainant who prevails at the 
administrative level and does not need to file a court 
action. Of course, once a civil action is filed under Title 
V II, appointment of an attorney, and recovery of at­
torneys’ fees, are provided for by the statute. 42 U.S.C. 
§§ 20G0e-5(f) (1 ), 2000e-5(k). That important aspect 
of the statutory scheme, however, provides little com­
fort if  the attorney’s hands are tied by a rule of law 
which denies the right to plenary judicial proceedings, 
and which rivets the attention of the parties and the 
court to the administrative record.



85

CONCLUSION

For the foregoing reasons, the judgment of the court 
of appeals should be reversed and the case remanded 
for plenary judicial proceedings.

Respectfully submitted,

P atjl R. D imond 
J. H arold F lannery 
J oel L. Selig

L awyers’ Committee F or Civil 
R ights U nder L aw 

733 Fifteenth Street, N.W.
Suite 520
Washington, D.C. 20005

Stuart P . H erman 
9601 Wilshire Boulevard 
Suite 632
Beverly Hills, California 90210 

Attorneys for Petitioner

December, 1975.



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