Milliken v. Bradley Petition for a Writ of Certiorari to the US Court of Appeals for the Sixth Circuit
Public Court Documents
May 5, 1972

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Brief Collection, LDF Court Filings. Chandler v. Roudebush Brief for Petitioner, 1975. 1a1c1f37-ad9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d8eb1163-4ae3-4f87-b1f4-d3a953d70d12/chandler-v-roudebush-brief-for-petitioner. Accessed July 10, 2025.
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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. 1 3 0 7 8 - 1 2 -7 5