Chandler v. Roudebush Reply Brief for Petitioner
Public Court Documents
February 1, 1976

11 pages
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Brief Collection, LDF Court Filings. Chandler v. Roudebush Reply Brief for Petitioner, 1976. 17253b3d-ad9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/480180ec-d141-400d-ba9f-7ab3fdc87c39/chandler-v-roudebush-reply-brief-for-petitioner. Accessed April 27, 2025.
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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.