Chandler v. Roudebush Reply Brief for Petitioner

    IN THE

Supreme GImtrt af thp Mmtpfc States
O ctober  T e r m , 1975

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

R ic h a r d  L . R o u d e b u sh , e t  a l ., Respondents,

REPLY BRIEF FOR PETITIONER

P a u l  R . D im o n d  
J oel L . S elig

L a w y e r s ’ C o m m it t e e  F or C iv il  
R ig h t s  U n d er  L a w  

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

S t u a r t  P .  H e r m a n  
9601 Wilshire Boulevard 
Suite 632
Beverly Hills, California 90210 

Attorneys for Petitioner

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



INDEX

Page
Introduction ..........................................................................  4

A. The Statutory Language....................................  2
B. The Legislative H istory ....................................  5
C. The A dministrative Process................................  8

Conclusion ..............................................................................  14

TABLE OF AUTHORITIES

Cases:

Alexander v. Gardner-Dcnver Co., 415 U.S. 36 (1974) 8,10 
Barrett v. U.S. Civil Service Comm’n, 10 EPD ft 10,586,

11 F.E.P. Cases 1089 (D.D.C. 1975) ........................ 11
Butz v. Glover Livestock Commission Co., 411 U.S.

182 (1973) ......................................................................
Camp v. Pitts, 411 U.S. 138 (1973) ................................
Caro v. Schultz, 521 F.2d 10S4 (7th Cir. 1975), pet. for

cert, pending, No. 75-784 ............................................. 5
Citizens to Preserve Overton Park v. Volpe, 401 U S

402 (1971) ......................................................................  5
Consolo v. Federal Maritime Comm’n, 3S3 U.S. 607

(1966)   4
Early v. Klassen, 10 EPD ft 10,507 (D.D.C. 1975) ___  1
Ellis v. Naval Air Rework Facility, 10 EPD ft 10,532

(N.D. Cal. 1975) .............................................................  1
Hockley v. Roudebusli, 520 F.2d 108 (D.C. Cir. 1975)

2 3 7 9 11
Haire v. Calloway, 526 F.2d 246 (8th Cir. 1975) ______  1
Jones v. Brennan, 401 F.Supp. 622 (N.D. Ga. 1975) . .  1
Mathews v. Weber, 44 U.S.L.W. 4065 (U.S., Jan. 14,

1976) ..................................................................................  2
McHoney v. Callaway, 10 EPD ft 10,521 (E.D. N.Y.

1975) ................................................................................... 1
Richardson v. Perales, 402 U.S. 389 (1971) ...................... 5
Rios v. Reynolds Metals Co., 467 F.2d 54 (5th Cir 

1972) 10

CD
 C

T



11 Index Continued
Page

United States v. Carlo Bianchi $  Co., Inc., 373 U.S.
709 (1963) ...........................................................  4

United States v. City of Chicago, 385 F.Supp. 543 (X.
1). 111. 1974); 11 EPD H 10,597 (X.D. 111. 1976) .. 11

United States v. United States Steel Corp., 5 EPD 
118619, 5 F.E.P. Cases 1253 (X.D. Ala. 1973); 6 
EPD If 8790, 7 F.E.P. Cases 320 (X.D. Ala. 1973); 
371 F.Supp. 1045 (X.D. Ala. 1973), vacated and 
remanded, 520 F.2d 1043 (5th Cir. 1975), reh’g
denied,-----  F.2d------, 11 EPD IT 10,616 (5th Cir.
1976) ......................................................................  11

W.E.B. DuBois Clubs of America v. Clark, 389 U.S.
309 (1967)   5

Weinberger v. Salfi, 422 U.S. 749 (1975) .................... 2
Williams v. Tennessee Valley Authority, 10 EPD 1f 

10,531 (M.D. Tenn. 1975) ...................................... 1

Statutes:

5 U.S.C. § 1032(c) (1964 ed.) ......................................  4
5 U.S.C. § 1037(a) (1964 ed.) ......................................  4
5 U.S.C. § 1037(b) (1964 ed.) ....................................... 4
5 U.S.C. § 1037(c) (1964 ed.) ......................................  4
28 U.S.C. § 2342(2) ..........................................................  5
42 U.S.C. § 405(g) ..............................................................  5
42 U.S.C. § 2000e-16(b) . . .
42 U.S.C. § 2000e-16(c) . . .
42 U.S.C. § 2000e-16(e) . . .
50 U.S.C. § 793 (1964 ed.) ............................................. 5

Regulations :

5 C.F.R. § 713.217(b) ....................................................  2
5 C.F.R. § 713.221(b) .......................................................  2

L egislative H istory:

118 Cong. Rec. 7169 (1972) .........................................  10

<D
 <

D 
ID

Index Continued m

Page
118 Cong. Rec. 7566 (1972) .........................................
II.R. Rep. Xo. 92-238, 92d Cong., 1st Sess. (1971) [cited 

as House Report] .........................................  0̂ -q
S. Rep. Xo. 92-415, 92d Cong., 1st Sess. (1971) [cited 

as Senate Report] .........................................  jq
Senate Committee on Labor and Public Welfare, Leg­

islative History of the Equal Employment Oppor­
tunity Act of_ 1972, 92d Cong., 2d Sess. (Commit­
tee Print, 1972) [cited as History] ....................10, 11

M iscellaneous :

Brief for the United States as Amicus Curiae, Alex­
ander v. Gardner-Denver Co., Xo. 72-5847, October 
Term, 1973 ............................................... -̂ 2

U.S. Commission on Civil Rights, The Federal Civil 
Rights Enforcement Effort—1974, Vol. V, “ To 
Eliminate Employment Discrimination”  (July 
1975) ........................................................  2,11



IN THE

Supreme GImtrt nf %  Ihxxttb Butts
O ctober 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

REPLY BRIEF FOR PETITIONER

INTRODUCTION 1

Respondents contend that “ judicial review in the 
ordinary federal Title V II  case should be limited to

The following cases which were cited in petitioner’s principal 
brief only by district court civil action number and date of opinion 
are now reported as follows: Early v. Klassen, 10 EPD Tf 10 507 • 
■Jones v. Brennan, 401 F.Supp. 622; Mclloney v. Callaway, 10 
EPD If 10,521; Williams v. Tennessee Valley Authority, 10 EPD 
if 10,531. The third opinion in Ellis v. Naval Air Rework Facility, 
also cited only by civil action number and date, is now reported 
at 10 EPD H 10,532. llairc v. Calloway is now reported at 596 
F.2d 246.



9

the administrative record.” 2 (Resp. Br. 71-2). In this 
reply brief, petitioner wishes to point out some of the 
fundamental misconceptions upon which the govern­
ment’s argument is constructed.

R. The Siatutcry Language

The government argues that the language of the 
1972 amendments is “ silent”  as to the nature of judi­
cial proceedings, and that petitioner must therefore 
overcome a “ presumption”  against “ de novo review” . 
(Resp. Br. 11, 50). There are at least three reasons why 
this argument is wholly without merit.

1. As petitioner has demonstrated in her principal 
brief (Pet. Br. 21-29), the statute is emphatically not 
silent on the issne at bar. The federal sector provisions 
are expressly cross-referenced to the private sector 
provisions, under which, it is settled, plenary judicial

2 It is possible to draw from the government’s brief the erroneous 
inference that the “ ordinary”  case will be one in which an admin­
istrative evidentiary hearing has been held. In fact, “ Hearings were 
held in 643 [or 24% ] of the 2,650 cases which received final
[agency] dispositions during fiscal year 1974.”  U.S. Comm hi on 
Civil Rights, The Federal Civil Fights Enforcement Effort— 1974, 
Yol. V, “ To Eliminate Employment Discrimination”  (July, 1975), 
at p. 76 n. 257.

The statute does not require that an administrative hearing be 
held in any case, and the Civil Service Commission has made the 
hearing an entirely optional part of the administrative procedure.
5 C.F.R. §§ 713.217(b), 713.221(b); Resp. Br. 34a-35a, 41a. Cf., 
e.g., Weinberger v. Salfi, 422 U.S. 749 (1975) ; Mathews v. 11 eber, 
44 U.S.LAY. 4065 (U.S., Jan. 14, 1976). In these circumstances, 
a complainant’s election to receive an agency decision without a 
hearing cannot subsequently operate to deprive him of the right to 
a plenary judicial hearing. Contrary to the government’s sugges­
tion (Resp. Br. 24 n.9), the District of Columbia Circuit has not 
decided otherwise. Compare Hackley v. Foudcbush, 520 F.2d 108, 
158 n.201 (D.C. Cir. 1975) with id., at 139-140 n.130; see also, 
Amicus Br. 15-16 n.14.

3

proceedings are afforded. I f  it were necessary to re­
sort to any presumptions in this context, the natural 
presumption would be that in the absence of any lan­
guage indicating otherwise, federal sector cases are to 
be conducted in the same manner as all other civil 
actions which are governed by the same statutory pro­
visions.

2. Even if one were to assume arguendo that the lan­
guage of the federal sector provisions is silent on the 
issue at bar, silence in the present context would itself 
point to the conclusion that plenary judicial proceed­
ings were intended. This is so because Congress con­
sidered (and ultimately rejected) draft legislation pro­
viding for substantial evidence review on the record 
in the private sector. This draft legislation contained 
specific and unambiguous language providing, in terms, 
for “ review”  on the administrative record in the 
Courts of Appeals pursuant to prescribed procedures 
and a “ substantial evidence”  standard.3 Thus the Con­
gress which ultimately rejected this draft legislation 
and adopted the 1972 amendments knew full well how 
to provide explicitly for substantial evidence review 
on the record, and chose not to do so.4 5

3. The government’s argument against udc novo re­
view”  is circular in its application to the case at bar,

3 See sources cited at Pet. Br. 35 n.17, 36 n.22.

4 For a more detailed analysis in support of this conclusion, see 
JIackley v. Foudcbush, supra, 520 F.2d at 145-G. It should be 
noted that the draft legislation which specifically provided for 
Court of Appeals review on the record in the private sector also 
specifically provided for plenary civil actions in the District Courts 
in the federal sector. Even under this draft legislation, therefore, 
it was clear that federal sector actions were not to be conducted 
as reviews on the agency record. See pp. 6-7, infra.



4

because it assumes precisely wlnt fi , •
seeking to prove - t in t  f V> , * the government is 
„11Q • ? ' 6 ' t ]at fe^eral sector Title V II  cases
oppoTed to” ! ™ " '  “ rr ie" S” 01 action, asfers’s rs  oThe cr
are completely inapposite, because they eitherTa) in”  

olved statutes whose explicit terms made clear tl f 
they were providing for review on the re ord- or b)

v o t v r f “P; n S ^ f t “ 'V r r » v e 83fu a  607 (i96f,>-in-
Administrative Orders Review W  - 7- 0 n gf  appeals under tlie 
383 U.S. at 611-10 T" at t AV ,  d ' § 1032(c) <i m  ed.). 
upon tlie record of the nT«V P“ lfiC?!,y provided for “ review . . . 
ings before the agency where 3ddlleed’ and Proceed-
• • • "*  D.S.C. 5 I r a n , )  1964c d T  j f P  “  **>  * "earing
to the agency or a transfer tr, r * 3 S0 provided for a remand
circumstances t « e  “  “ rlai'' •**•»««
5 U.S.C. § 1037(b) (1964 , as A l T T ’P V  hel<i'
agency where the reception of lit 1 remand to the
be necessary, 5 U S C § 1037fet n o r T 3 I. evidenee lvas shown to 
specified by the «  ™  ^
of appeals was to review a , that.the function of the court 
court*^if a p p ^ s ^ d S r d l v ^ d i S T 3 
m this context that the Court nhen 1 v di 111 any e,sent-) It was 
do not read the opi on I, l l  ° f  dietum «>at “ We
peals, iii a direct review n r t  tI,at tlle Court of Ap-
of the equities of a reparation1̂ ’-"IT  <'° nd” ct a de novo review 
Shipping Act, the Hobbs Act o r ' C  ' ^  notbing in the 
Act that would authorize e rh> * . ° .Ad,amistrative Procedure
and in the absence of specific statutor?''" U these circumstances, 
review is generally not to be presumed ’ > m u S ^  t ™ 0

i n ^ e f  U.S, 7 0 ^ 6 3 ) ,

r t5-^ u t e fc lt V o f  a
a departmental d e ^ ' "  “ S t  

or so Sr„ss,y J o Z f ™  Z jifS Z
supported by substantial evidence ” 3 7 1  n  <5 7 1  n ?  ’ °r ls not
»o«ed (lie statute is » »

arose in the absence of any statutory authorization for 
any kind of judicial proceedings whatsoever apart 
from review pursuant to the Administrative Proce­
dure A ctG. In the case at bar, by way of contrast, the 
statute itself independently authorizes and provides 
for the judicial proceedings in question, and contains 
no reference whatsoever to review on the record or its 
concomitants.

B. The Legislative History

The government has constructed an elaborate mis­
interpretation of the expressions of congressional in­
tent to provide the same rigilts in the courts to federal 
sector and private sector litigants. It was not intended,

and that the reviewing function is one ordinarily limited to con­
sideration of the decision of the agency or court below and of the 
evidence on which it was based.”  373 U.S. at 714-15. The Court 
further observed that “ the standards of review adopted in tlie 
Wunderlich Act— ‘ arbitrary,’ ‘ capricious,’ and ‘ not supported by 
substantial evidence’— have frequently been used by Congress and 
have consistently been associated with a review limited to the ad­
ministrative record. The term ‘ substantial evidence’ in particular 
has become a term of art to describe the basis on which an admin­
istrative record is to be judged by a reviewing court.”  373 U.S. at 
715 (footnote omitted).

Accord, Butz v. Glover Livestock Commission Co., 411 U.S. 1S2 
(1973) (28 U.S.C. § 2342(2)); Richardson v. rcralcs, 402 U.S. 
389 (1971) (42 U.S.C. § 4 0 5 (g )); IF. E. B. DuBois Clubs of 
America v. Clark, 389 U.S. 309 (1967) (50 U.S.C. §793) (1964 ed.).

6 Camp v. Pitts, 411 U.S. 138 (1973); Citizens to Preserve Over- 
ton Park v. Volpc, 401 U.S. 402 (1971).

In its decision upholding the right to plenary judicial proceed­
ings in federal sector Title VII cases, the Seventh Circuit noted 
that: “ The Tenth Circuit rested its [contrary] holding on the 
Administrative Procedure Act (5 U.S.C. § 701), but the Equal 
Employment Opportunity Act provides that Section 706 of that 
Act is to govern civil actions of this nature.”  Caro v. Schultz, 521 
F.2d 1084, 1088 n.4 (7th Cir. 1975), pet. for cert, pending, No. 
75-784.



6

the government argues, that plenary judicial proceed­
ings be afforded in both sectors; rather, it was in­
tended that substantial evidence review on the record 
be afforded in both sectors. This is so, the government 
contends, because the draft legislation discussed in 
section A (2), supra, provided for review on the record 
in the private sector. (Sec Resp. Br. 11-12, 37-43). This 
argument—the central underpinning of the govern­
ment s analysis of the legislative history—is premised 
upon two basic misapprehensions.

1. As explained in detail in petitioner’s principal 
brief (Pet. Br. 29-38), the draft legislation upon which 
the government relies clearly and explicitly distin­
guished between private sector reviews on the record 
and federal sector plenary judicial proceedings. The 
government’s argument completely ignores the impli­
cations of this fact. Close scrutiny of the draft legisla­
tion will confirm the correctness of petitioner’s analy­
sis of this aspect of the legislative history:

“ Both the Hawkins Bill in the House and the 
Committee Bill in the Senate sought to accord the 
EEOC cease and desist authority, and to limit ju ­
dicial action on final EEOC orders in the private 
sector to substantial evidence review in the appro­
priate Courts of Appeals. However, both bills pre­
served the preexisting private sector employee 
ci\il action’ in the District Courts in certain 

enumerated situations; these actions, like those un­
der the unamended Act, would of necessity be trials 
de novo. Despite the fact that each bill, with re­
spect to private sector employees, contained pro­
visions requiring substantial evidence review in 
the Courts of Appeals in some situations but trials 
de novo in the District Courts in other situations 
the section of the bills pertaining to federal em­
ployee civil actions ahvays referenced the private

7

sector provisions requiring trial de novo as the 
provisions which would govern a federal employ­
ee’s civil action. The Senate Report, in its analysis 
of the provisions which, without relevant modifi­
cation, became Section 717, made tins equality of 
federal employee ‘ civil actions’ and the de novo 
private sector ‘ civil actions’ unmistakable:

Aggrieved [Federal] employees or applicants 
will [in addition to rights before the CSC] 
also have the full rights available in the courts 
as are granted to individuals in the private 
sector under title VII.

* * *
The provisions of sections 706(q) through 
(w) concerning private civil actions by ag­
grieved employees are made applicable to ag­
grieved Federal employees or applicants.

Never was there any hint that provisions pertain­
ing to substantial evidence review of final EEOC 
orders should apply to federal employees; nor was 
there any suggestion, as contended by appellees, 
that the various provisions of those bills dealing 
with the standard of review or judicial remand of 
the case to the agency for further fact-finding 
were intended to govern federal employee civil 
actions (although in the District Courts rather 
than in the Courts of Appeals). Indeed, the very 
fact that Congress, when considering review pro­
visions for EEOC cease and desist oi : rs for over 
40 million private sector employees 'hat were to 
be covered, placed jurisdiction in C Courts of 
Appeals, indicates the absurdity of suggesting that 
it intended to create analogous ‘ review’ provisions 
for the mere 2.6 million covered federal employees 
in the District Courts.”  Ilackley v. Roudebush, 
supra, 520 F.2d at 142-4 (footnotes omitted).

2. Wholly apart from the foregoing, the private sec­
tor provisions for substantial evidence review on the



8

record are, o f course, not included in the legislation as 
final } enacted. Ordinarily one would assume that the 
final y enacted legislation, rather than draft legislation 
which was not adopted, would be the ultimate focal 
point in the search for Congress’ intent. The 1972 
amendments as enacted make no distinction whatso­
ever between federal sector Title V II  actions and all 
other Title \ I I  actions. This central fact—unlike the 
government’s suppositions—is in harmony with the 
repeatedly expressed and fundamental congressional 
purpose to accord to federal sector Title Y U  plaintiffs 
the same rights and remedies which all other Title V II  
plaintiffs enjoy. In truth, the government is asking the 
Court to write into the federal sector provisions of the 
statute the precise language that Congress considered 
and declined to include in the private sector provisions 
to which the federal sector provisions are explicitly 
cross-referenced.

C. The Administrative Process

Petitioner has argued that any rule other than one 
providing for plenary judicial proceedings would re- 
^  a rcgime of judicial deference to agency and 
CoO decisions, and that this would be inconsistent with 
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). 
( le t . Br. 13-14, 58-9, 63-4). The government appar- 
ently concedes the first part of petitioner’s argument. 
It seeks to avoid the second, however, by contending 
that judicial deference to the results o f administrative 
proceedings is both appropriate and desirable in fed­
eral sector cases. (Resp. Br. 37).

. L The government argues that the Executive Branch 
is entrusted with “ primary responsibility”  in these 
matters, and that the courts are not intended to play

9

a central role in federal sector Title V II  enforcement. 
(Resp. Br. 12, 37). This argument has two aspects. 
First, the government seeks to denigrate the role of 
the courts in federal sector Title V II  enforcement by 
contending that subsection 717(b) of Title V II, 42 
U.S.C. § 2000e-16(b), “ assigns primary enforcement 
responsibilities . . .  to the Civil Service Commission. 
. . . ”  (Resp. Br. 16). But if this characterization had 
any meaning in the present context, then why would 
subsection 717(c), 42 U.S.C. § 2000e-16(c), permit fed­
eral sector plaintiffs to bypass the Commission entirely 
and file suit in federal court within 30 days of a final 
agency decision?7 Second, the government relies on 
subsection 717(e), 42 U.S.C. § 2000e-16(e).s (Resp. Br. 
37 n.19 and accompanying text). But it is obvious that 
this subsection is in no way intended to detract from 
the responsibilities assigned to the courts in civil ac­
tions brought pursuant to subsection 717(c).9

7 See also, Hockley v. Iloudcbu.sk, supra, 520 F.2d at 154-5. 
‘ ‘ [T]he relevant comparison is not between federal judges and 
the members of the CSC, but between federal judges and the 
complaints examiners who conduct agency hearings or the self- 
interested agency heads who are vested with the power of making 
the final agency determination on their employees’ complaints.”  
Id., at 155.

8 “ Nothing contained in this Act shall relieve any Government 
agency or official of its or his primary responsibility to assure 
nondiscrimination in employment as required by the Constitution 
and statutes or of its or his responsibilities under Executive Order 
11478 relating to equal employment opportunity in the Federal 
Government. ’ ’

9 “ Section 717(c)— This subsection provides that nothing in this 
Act relieves any Government agency or official of his or its existing 
equal employment opportunity obligations under the Constitution, 
other statutes, or under any Executive Order relating to equal 
employment opportunity in the Federal Government.”  Section-by- 
Section Analysis of H.R. 1746, The Equal Employment Oppor-



10

2. The government also contends that judicial defer­
ence to an administrative process is appropriate unless 
“ the fact-finding mechanism that precedes court re­
view is structured!y incapable of building an adequate 
record or awarding effective relief.”  (Resp. Br. 55) 
(emphasis added). But so far as Title V II  is con­
cerned, this argument is in irreconcileable conflict with 
this Court’s rejection of the concept of judicial “ re­
view”  * 10 of and “ deferral” 11 to a private sector arbitra­
tion proceeding even in those instances where a defend­
ant proves that the particular arbitration proceeding 
did in fact build an adequate record and was in fact 
capable of awarding effective relief. Alexander v. 
Gardner-JJenver Co., 415 U.S. 36, 58-9, 58 n.20 (1974).

3. It is important to recognize the nature of the sit­
uation in which the government’s rule of judicial de­
ference is advocated. AYhen the Executive Branch sits 
in judgment on its own employment practices, it is not 
in the same position as when it regulates interstate com­
merce, distributes domestic welfare benefits, or con­
ducts foreign policy. The conflict o f interest in the 
present case is clear, was recognized by Congress12, and 
was one of the central reasons why Title V II  was 
amended to provide for federal sector court actions. 
The Executive Branch qua employer-defendant has no 
more expertise or neutrality when it comes to eval­
uating its own employment practices than does, for

tunity Act of 1972, 118 Cong. Ree. 7169 (Mar. 6, 1972), 118 Cong. 
Rec. 7566 (Mar. 8,1972), History at 1851.

10Rios v. Reynolds Metals Co., 467 F.2d 54, 58 (5th Cir. 1972).

11 Id.

12 See, House Report at 24, History at 84, quoted at Pet. Br. 34;
Senate Report at 15, History at 424, quoted at Pet. Br. 44-5.

11

example, the City of Chicago13 or the United States 
Steel Corporation14 qua employer-defendant. Indeed, 
the CSC’s continuing and inherent bias, unwillingness 
to deal with systemic discrimination, and lack of ex­
pertise15 are well illustrated by the fact that its rules 
have “ effectively prohibited administrative class ac­
tions”  for four years after the enactment of the 1972 
amendments (Resp. Br. 65)—and that a court order 
(not to mention the pendency of the case at bar) has 
been necessary to induce it to address this problem. 
Barrett v. U.S. Civil Service Comm’n, 10 EPD H 10,586, 
11 F.E.P. Cases 10S9 (D.D.C. 1975); Resp. Br. 65
II. 40.

4. The government’s response to the extensively doc­
umented criticisms of the CSC-devised administrative 
process16 is somewhat ambivalent. On the one hand, 
the process is described as “ an effective administrative 
remedy . . . under an elaborate and fair procedure.
. . .”  (Resp. Br. 51). But the basis for this description 
consists primarily of a recitation of the terms of the 
CSC regulations; apart from a few quibbling and un­
persuasive footnotes, the manifold inadequacies of the

13 See, United States v. City of Chicago, 385 F.Supp. 543 (X.D.
III. 1974) ; 11 EPD II 10,597 (X.D. 111. 1976).

14 Sec, United States v. United States Steel Corp., 5 EPD if 8619,
5 F.E.P. Cases 1253 (X.D. Ala. 1973); 6 EPD if 8790, 7 F.E.P. 
Cases 320 (X.D. Ala. 1973); 371 F.Supp. 1045 (X.D. Ala. 1973), 
vacated and remanded, 520 F.2d 1043 (5th Cir. 1975), rch’g 
denied, .------F.2d ------ , 11 EPD tf 10,616 (5th Cir. 1976).

15 Sec, House Report at 24, History at 84, quoted at Pet. Br. 33.

16 Pet. Br. 61-3; Amicus Br. 16-30, la-91a; Hackley y. Roude- 
bush, supra, 520 F.2d at 137-141 (opinion of Wright, J .), 171 
(opinion of Leventhal, J-) ; U.S. Comm n on Cicil Rights, T’/ze 
Federal Civil Rights Enforcement Effort— 1974, Vol. V, “ To Elimi­
nate Employment Discrimination”  (July, 1975), at pp. 61-86.



12

process as it operates in practice are not even con­
fronted, let alone contradicted, by the government’s 
argument. (Resp. Br. 56-64). On the other hand, resort 
is had to a posture of confession and avoidance: “ the 
short answer . . .  is that if these alleged deficiencies 
[in the CSC’s procedures] in fact exist and produce an 
unfair result in a given case, the courts have full power 
to reverse the administrative decision and to require 
adjustment and correction of the improper practice.”  
(Resp. Br. 64). But this short and sanguine answer 
is really no answer at all. For example,

“ Racial discrimination is rarely practiced openly 
and therefore must frequently be proved by de­
tailed comparison of the treatment of the class 
protected by Title V II  with that afforded other 
individuals. Extensive discovery may be essential, 
yet discovery in arbitration is limited and com­
pulsory process is probably not available.”  Brief 
for the United States as Amicus Curiae, Alexan­
der v. Gardner-Denvcr Co., No. 72-5847, October 
Term, 1973, at p. 19 (footnote omitted).

The very same structural deficiency is present in the 
CSC-designed administrative process. There is simply 
no way for a complainant to compel discovery at the 
administrative level. And the government’s substantial 
evidence review on the record position is designed to 
enable it to prohibit any discovery pursuant to the 
Federal Rules of Civil Procedure in virtually every 
federal sector Title V II  action. This is, of course, 
exactly what happened in the case at bar. Similarly, 
in the case at bar the hearing examiner refused to call 
I d of the 24 witnesses whom petitioner had requested. 
(Pet. Br. 82-3). It is difficult to understand how it can 
seriously be contended in this context that “ the com­
plainant has complete authority over the way his com­

13

plaint is presented”  in the administrative process. 
(Resp. Br. 64 n.38).

5. Finally, the government argues that recognition 
of the right to plenary judicial proceedings “ would 
impair the integrity and retard efforts at improvement 
of the administrative process.”  (Resp. Br. 14, 67-8). 
Petitioner submits that exactly the opposite is the 
case. So long as the federal government’s employment 
practices are not subject to plenary judicial scrutiny, 
there will be little real incentive for the government to 
begin to set its own house in order. To believe that a 
regime of plenary judicial scrutiny “ would severely 
erode efforts to strengthen [the] administrative proc­
ess”  (Resp. Br. 67-8), it is necessary to suppose that 
federal agencies and the CSC would respond to an ad­
verse decision in the case at bar with petulance. Sim­
ilarly, it is both wrong and cynical to suppose that 
complaints examiners, agency heads, and the CSC 
“ will not be as likely to proceed with the same care”  
(Resp. Br. 68) if  their findings and decisions in some 
cases are followed by plenary judicial proceedings. Nor 
is it realistic to assume that the rule which petitioner 
advocates would render the administrative process 
“ little more than an inconsequential dress rehearsal 
for a subsequent court action.”  (Resp. Br. 15). In the 
great majority of cases, after all, there is no subsequent 
court action. And in those cases where suit is filed, the 
administrative record will be admissible, subject only 
to the limitations of the Federal Rules of Civil Proce­
dure and the Federal Rules of Evidence. To afford 
plenary judicial proceedings in such cases will in no 
way undercut the complainant’s natural incentive 
(Resp. Br. 14, 68) to resolve his or he]- complaint infor­
mally if this is possible, and to avoid the tangible and 
intangible costs of litigation. To afford less than pie-



14

nary judicial proceedings, on the other hand, will plain­
ly encourage the federal employer-defendant to persist 
in the very same patterns which the 1972 amendments 
were intended to rectify.

CONCLUSION

For the foregoing reasons, as well as those set forth 
in the principal brief for petitioner, the judgment of 
the court of appeals should be reversed and the case 
remanded for plenary judicial proceedings.

Respectfully submitted,

P a u l  R . D im o x d

J oel L . S elig

L a w y e r s ’ C o m m it t e e  F or C iv il  
R ig h t s  U nder  L a w

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

S t u a r t  P .  H e r m a n

9601 Wilshire Boulevard
Suite 632
Beverly Hills, California 90210

Attorneys for Petitioner
February 1976.