Bell v. Schlesinger Brief for Appellant

    r

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 
No. 75-1378

BERNARD BELL,

vs.
Appellant,

JAMES R. SCHLESINGER,
Appellee.

On Appeal From The United States District Coxirt 
For The District Of Colxrrhia

BRIEF FOR APPELLANT

RONALD A. KARP
Chaikin & Karp 
Suite 306
1225 Connecticut Avenue, N.W. 
Washington, D. C. 20036

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
MELVYN R. LEVENTUAL 
BILL I ANN LEE 

Suite 2030 
10 Columbus Circle New York, New York 10019

Attorneys for Appellant



TABLE OF CONTENTS
Page

Statement Of Issues Presented .................... 1
References To Parties 7.nd Rulings..... ..........  2
Statement Of The Case .......................... . 2
Statement Of Facts  ...... . 4
ARGUMENT

Introduction  .............. ........  7
I. PLAINTIFF BLACK FEDERAL EMPLOYEE MET 

TIIE JURISDICTIONAL PREREQUISITES OF 
§ 717 OF TITLE VII BY FILING HIS COM­
PLAINT IN FEDERAL DISTRICT COURT WITHIN 
3 0 DAYS OF IIIS ACTUAL RECEIPT OF NOTICE 
OF FINAL CIVIL SERVICE COMMISSION 7\CTION. . 11
A. Statutory Language, Legislative History, 

Civil Service Commission Regulations 
And The Board Of /appeals And Review 
Decision ............................

B. Remedial Purpose Of The Statute .....
C. Delay, If Any, Was Excusable ........

II. ALTERNATIVE BASES OF FEDERAL JURISDICTION 
AND REMEDIES FOR CIVIL RIGHTS ACTIONS 
CHARGING RACIAL DISCRIMINATION IN FEDERAL 
AGENCY EMPLOYMENT PRACTICES ARE NOT REPEALED BY TITLE VII. .................

III. PLAINTIFF BLACK EMPLOYEE MAY BRING A 
CIVIL RIGHTS ACTION CHARGING RACIAL 
DISCRIMINATION IN FEDERAL AGENCY EMPLOY­
MENT PRACTICES UNDER 42 U.S.C. § 1981,
THE FIFTH AMENDMENT OR EXECUTIVE ORDER 114 78 .....................................

Conclusion ...................................
Addendum On Constitutional And StatutoryProvisions Involved ....................... .

11
15
22

25

30
31

Al



TABLE OF AUTHORITIES
PageCases:

★Alexander v. Gardner-Denver Co., 415 U.S. 36
(1973) ..................................  9,17,18,26,29

Baker v. F & F Investment Co., 489 F.2d
829 (7th Cir. 1973) ...............................  29

★Bivens v. Six Unknown Named Agents Of Federal
Bureau of Narcotics, 403 U.S. 388 (1971) .........  30

★Bolling v. Sharpe, 347 U.S. 497 (1954) ..............  30
★Bowers v. Campbell, 505 F.2d 1155 (9th Cir. 1974) ... 28
Brown v. General Service Administration, 507 F.2d 

1300 (2d Cir. 1974), cert, granted 43 LW 3625 
(May 27, 1975) ...................................  10,25

★Chambers v. United States, 451 F.2d 1045 (Ct.
Cl. 1971) ......................................... 30

Congress of Racial Equality v. Commission, 270
F. Supp 537 (D. Md. 1967) ........................ 9

Copeland v. Brennan, 9 EPD 5110,12 7 (DDC 1975) .... 7,21,23
Day v. Weinberger, 8 EPD 519646 (DDC 1974) .......... 21
★Franks v. Bowman Transportation Co., 495 F.2d 398

(5th Cir. 1974) ...1 .......................  19,20,21,24
Gnotta v. United States, 415 F.2d 1271 (8th Cir.

1969), cert. denied, 397 U.S. 934 (1970) ........ 9
Hackley v. Johnson, D.C. No. 73-2072, npncal pending.. 8
Hunt v. Schlesingcr, 9 EPD 5:10,024 (W.D. Tenn.

1974) ............................................ 7,24
★Johnson v. Railway Express Agency, 43 LW 4623

decided May 17, 1975 ......................  9,18,27,29
Love v. Pullman Co., 404 U.S. 522 (1972) .......... 17,24
★Macklin v. Spector Freight System, Inc., __U.S. App.

D.C. __, 478 T.2d 979 (D.C. Cir. 1973) ........... 29

ii



Page

Marbury v. Madison, 1 Cranch 137 (1803) .............  30
McMullen v. Warner, D.D.C.C.A. No. 1363-73,

decided June 6, 1974 ..............................
*McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).. 16
Miller v. Saxbe, 9 EPD 510,005 (DDC 1975) ........... 29
Morton v. Mancari, 41 L.Ed 2d 290 (1974) ........... 18,26
*Penn v. Schlesinger, 490 F.2d 700 (5tb Cir. 1973), 

rev'd cn banc on other grounds, 497 F.2d 970 
(5th Cir. 1974) ..................................  28

*Petterway v. Veterans Administration Hosp., 495
F.2d 1223 (5th Cir. 1974) ................. ...... 28

Plunkett v. Roadway Express Inc., 504 F.2d 417
(10th Cir. 1974) .................................  21

Sanders v. Dobbs Houses, Inc., 431 F.2d 1097
(5th Cir. 1970)   28

Sperling v. U.S.A.  F.2d , 9 EPD 510,100
(3rd Cir. 1975), p. 7492-93 .....................  8

Watkins v. Washington, 3 EPD 58291 (DDC 1971), affirmed, U.S. App. D.C. __, 472 F.2d
1373 (D.C. xri 1972) ..............................  30

Williams v. Mumford, 6 EPD 58758 (D.D.C. 1973),
appeal dismissed for lack of jurisdiction,
__U.S. App. DC__, 9 EPD 59955 (D.C. Cir. 1975),
rch'g and reh1q cn banc denied,  U .S . App.
DC__, 10 FEP Cas. 487 (D.C. Cir. 1975) ........... 8

Womack v. Lynn, _U.S. App. DC__, 504 F.2d (D.C.
Cir. 1974) . .*.....................................  8

Young v. International Telephone & Telegraph Co.,
438 F.2d 757 (3d Cir. 1971) ...................... 28

iii



Page
Statutes;

28 U.S.C. § 1331 ...................................  1,3,30
28 U.S.C. § 1343 (4) ................................ 1,3,30
28 U.S.C. § 2201 ................................... 1,3,30
42 U.S.C. § 1981 ................................... 1,2,30
42 U.S.C. § 2000(e)- 1 6 ............  1,2,4,7,9,10,21,25,26

Regulations:
5 C.F.R. § 713.218(c)(2) ..........................  14
5 C.F.R. § 713.234 ................................. 13
5 C.F.R. § 713.271 ................................. 14
5 C.F.R. § 713.281 ................................. 12
5 C.F.R. § 713.282 ................................  13

Other Authorities:
Brief for the U.S. as Amicus Curiae in

Johnson v. Railway Express Agency, No. 73-1543 .. 30
CCH Employment Practice Guide ^[5327 ........ . 8
Hearings Before the Senate Committee on Labor 

and Public Welfare, 91st Cong., 1st Sess.
(1971) .......................................... 27

Hearings Before the Subcomm. On Labor of the 
House Committee On Education And Labor,
92d Cong., 1st Sess. (1971) .....................  9

Hearings Before the Subcommittee of the Senate 
Committee on Labor & Public Welfare, 92dCong., 1st Sess. (1971) ........................ 9,12

Solicitor General Memorandum In Response To
Petition For Rehearing in Place v. Weinberger,
Oct. Term!, 1974, No. 714-116, Petition for
rehearing pending ...........    8

iv



Pago

Staff of Subcoram. On Labor of the Senate 
Comm. On Labor And Public Welfare,
92d Cong., 2d Sess. (Comm. Print 1972) .....  9,18,28

•^Authorities chiefly relied upon are marked by asterisk:

v



r

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 
NO. 75-1378

BERNARD BELL,
Appellant,

vs.
JAMES R. SCHLESLNGER,

Appellee.

On Appeal From The United States District Court 
For The District Of Columbia

BRIEF FOR APPELLANT

Statement Of Issues Presented

In a civil rights action charging racial discrimination 
in federal agency employment practices brought by a black 
employee, after exhausting administrative remedies, under 
§ 717 of Title VII of the Civil Rights Act of 1964, as amended, 
42 U.S.C. § 2000 (e)-16; § 1 of the civil Rights Act of 1866,
42 U.S.C. § 1981; the Fifth Amendment; and Executive Order 
11478 pursuant to jurisdiction conferred by Title VII, 28 U.S.C.
§§ 1331, 1343(4) and 2201:

1. Whether plaintiff black federal employee met 
the jurisdictional prerequisites of § 717 of



Title VII by filing his complaint in federal 
district court within 30 days of his actual 
receipt of notice of final Civil Service 
Commission action?

2. Whether Title VII repeals alternative bases
of federal jurisdiction and remedies for civil 
rights actions charging racial discrimination 
in federal agency employment practices?

3. Whether plaintiff black employee may bring a 
civil rights action charging racial' discrimination 
in federal agency employment practices under
42 U.S.C. § 1981, the Fifth Amendment or 
Executive Order 11478?

This case was not previously before this Court under the same 
or similar title.

References To Parties And Rulings 
The ruling below is an Order signed by United States 

District Judge John H. Pratt on July 13, 1973 and is set 
forth in the Appellant's Appendix at p. 31. The names of
all parties to the litigation are identified by the caption 
on appeal.

i/Statement Of The case
On October 1, 1974, this employment discrimination action 

was brought pro se to protect rights guaranteed by § 717 of 
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 
§ 2000(e)-16; § 1 of the Civil Rights Act of 1866, 42 U.S.C.
§ 1981; the Fifth Amendment; and Executive Order 11478 under

1/ Citations are to Appellant's Appendix, hereinafter "App."



jurisdiction conferred by Title VII, 28 U.S.C. §§ 1331, 1343(4)
and 2201 by Bernard Bell, a black employee of the Defense Supply
Agency, against James R. Schlesinger, Secretary of Defense
(App. 3-8). The complaint states that the Defense Supply Agency
did discriminate against Mr. Bell with respect to a range of
employment practices solely because of his race.

After obtaining extensions until January 3, 1975 (App. 9-11),
defense moved to dismiss the whole lawsuit for lack of subject
matter jurisdiction under Title VII because plaintiff did not
commence the action within 30 days after receipt of notice of
final Civil Service Commission action pursuant to § 717 (App. 12).
In support, defendant submitted the affidavit of 'William P.
Berzak, Chairman of the Board of Appeals and Review of the
Civil Service commission, and several other documents (App.

2/
13-24). On February 17, 1975, plaintiff opposed defendant's 
motion to dismiss for the reason that the district court had 
subject matter jurisdiction of the action (App. 28). In 
support, plaintiff submitted the affidavits of Mr. Bell and 
Peter D. Bewley, an attorney and one of Mr. Bell's representatives 
in the administrative proceedings (App. 29—30). This action

2/ Plaintiff was able to obtain counsel to represent him in 
D i e  lawsuit only o:i January 15, 1975 through a referral _ service 
of the D. C. Bar and, the next day, moved for an extension until 
February 17th for counsel to file an opposition to the motion to 
dismiss (App. 25-26). On January 21st, the district court 
granted the extension until February 3, 1975 (App. 27).



was dismissed for lack of subject matter jurisdiction two 
days thereafter on February 5, 1975 (App. 31). The district 
court's order states that (1) this action was filed beyond the 
statutory period authorized by § 717 of Title VII, and (2)
§ 717 preempts any other basis of federal jurisdiction for 
civil rights actions alleging racial discrimination in federal 
employment practices. 1

Notice of Appeal was filed on March 5, 1975 (App. 32).

Statement Of Facts
Mr. Bell filed an administrative complaint charging 

Defense Supply Agency management with discrimination in work 
assignments, working conditions and promotion on November 14, 
1972 (App. 7-8). On October 2, 1973, during the hearing 
phase of the administrative process, Mr. Richard W. Cass, an 
attorney, stated in a letter to the hearing examiner that he 
and Mr. Peter D. Bewley would be representing Mr. Bell and 
another employee of the Defense Supply Agency, Johnnie Green, 
at the upcoming hearing (App. 23-24). Attached to the letter 
was Mr. Green's completed Designation of Representative form. 
Because Mr. Bell had not received such a form, Mr. Cass informed 
the hearing examiner that Mr. Bell would designate Mr. Cass 
and Mr. Bewley as his representatives in a separate letter.
Such a letter was never written.

After adverse agency decision on the complaints of Messrs. 
Bell and Green on April 17, 1974, an administrative appeal was

4



taken to the Board of Appeals and Review of the Civil Service 
Commission (App. 18). On or about August 15th, Mr. Bell 
was informed by Mr. Cass that he, Mr. Cass, would be leaving 
the country for an extended period of time beginning in late 
August or early September (App. 29-30). From that date, Mr.
Bell no longer considered Mr. Cass his representative and 
began to seek new counsel.

The Board of Appeals and Review affirmed the agency 
decision on August 27, 1974 (App. 16-22). The Board's decision 
states:

Civil Service Commission regulations provide 
thath [sic] the Board's decision is final and that 
there is no further right to administrative appeal. 
However, if the complainants are not satisfied with 
this decision, they are authorized by Section 717 (c) 
of the Civil Rights Act of 1964, as amended on 
March 24, 1972 to file a civil action in an appropriate 
U. S. District Court within thirty (30) calendar 
days of his receipt of this decision (App. 22).

Copies of the Board's decision, with a short cover letter 
to Mr. Cass, were sent to both Mr. Cass at his office and 
Mr. Bell at his home (App. 15). The copy of the Board's 
decision sent to Mr. Cass was delivered to his office August 30th 
and accepted for Mr. Cass by a person whose signature appears 
in the "addressee's agent" space of the postal receipt (App. 14). 
The record does not show that Mr. Cass actually received the 
Board's decision. Mr. Bell, in any event, never heard from 
Mr. Cass concerning receipt of the Board's decision (App. 29).
The copy of the Board's decision sent to Mr. Bell's home was 
not received until September 3rd because Mr. Bell and his

5



family wore away during the labor Day weekend from 
August 30th to September 3rd (App. 29). Mr. Bell filed 
this action 28 days after September 3rd. On a motion to 
dismiss for lack of subject matter jurisdiction, all uncon­
troverted factual allegations must be accepted as true.

6



ARGUMENT
Introduction

This case concerns federal jurisdiction to hear and decide 
claims of racial discrimination in employment against federal 
agencies under §717, added to Title VII in 1972, a statute 
specifically designed for federal employment discrimination 
actions, and under general alternative bases of jurisdiction 
and remedies for civil rights actions. The position adopted by 
government lawyers on §717 and the other remedies are both 
somewhat surprising in light of positions adopted by the Justice 
Department and Civil Service Commission during Congressional 
consideration of §717.

This is one of a series of §717 employment discrimination 
cases brought by employees of federal agencies in which government 
lawyers seek to forestall judicial consideration of the merits by 
raising narrow and technical objections to subject matter jurisdiction 
purportedly premised on deminimus and unprejudical untimely filing, see, 
Copeland v. Brennan, 9 EPD 5 10,127 (DDC 1975) and Hunt v. Schlesinger, 
9 EPD ^10,024 (W.D. Tenn. 1974). This device, however, is but one 
of several jurisdictional and procedural contentions the government 
raises in its concerted effort at defending employment discrimination 
actions. Other devices employed by government lawyers to avoid 
reaching the merits or to restrict the scope of the case to 
make it impossible for the federal courts to 
review agency employment policies and to grant the kind of

7



relief the United States itself has consistently maintained
should be afforded against private employers and state or
local government are (a) denying employees' right to bring
Title VTI actions for discrimination occurring prior to the
effective date of the statute; (b) seeking remend to

-1./agency proceedings; (c) denying employees' right to bring
5 /

class actions; and (d) denying employees' right to have
A /a trial de novo before a federal judge.

The common purpose of these devices is judicial nullifi­
cation of the §717 civil action provision whose enactment the 
spokesman for federal agencies, the Civil Service Commission, 
unsuccessfully opposed in Congress. Government lawyers are 
seeking from the courts the immunity for federal employment 
discrimination under Title VII Congress in 1972 expressly 
rejected.

3/ See, e .g . , Womack v. Lynn, ___U.S. App. DC___, 504 F.2d
(D.C. Cir. 1974). The Solicitor General recently conceded error on this issue in his Memorandum In Response To Petition 
For Rehearing in Place v. Weinberger, October Terra, 1974,
No. 714-116, petition for rehearing pending.
4 / See, e. g . , Sperling v. U.S.A., ____F.2d ____ , 9 EPD

510,100 (3rd Cir. 1975) at p. 7492-93.
5 / See, e.g., Williams v. Mumford,6 EPD 58756 (D.D.C. 1973),
annual di smi ssed for lack nf jnrisdirtion. ___ U.S. App. DC___,
9 EPD 5995 5 (D.C.Cir.1975), reh'a and rch1 a en banc denied,
____U.S. App. DC, 10 FEP Cas. 487 (D.C. Cir. 1975).
6 / See,e.g., Hackley v. Johnson, D.C. No. 73-2072, appeal 
pending. In addition, the Civil Division of the Justice Depart­
ment has just recently reversed its opposition to attorneys’ 
fees for successful plaintiffs are under the 1972 Title VII 
amendments, CCH Employment Practices Guide 55327.
7 / The Senate Committee report stated, "the testimony of the 
Civil Service Commission notwithstanding, the committee found



The case also concerns the relationship between §717 
of Title VII and preexisting remedies for suits against racial 
discrimination in agency employment policies and practices.
At issue is the fundamental principle that, "Legislative 
enactments in [the civil rights] area have long evinced a 
general intent to accord parallel or overlapping remedies 
against discrimination." Alexander v. Gardner-Denver Co.,
415 U.S. 36, 47 (1973); Johnson v. Railway Express Agency,

7/ (contd)
that an aggrieved Federal employee does not have access to 
the courts. In many cases, the employee must overcome a 
U.S. Government defense of sovereign immunity or failure 
to exhaust administrative remedies with no certainty as to the 
steps required to exhaust such remedies." Staff of Subcomm.
On Labor of the Senate Comm. On Labor And Public Welfare.
92d Cong., 2d Sess. at p.425 (Comm. Print 1972)(hereinafter 
"Legislative History")). The Civil Service Commission had 
argued that §717 was unnecessary because there were pre­
existing rights to sue. "There is also little question in 
our mind that a Federal employee who believes he has been 
discriminated against may take his case to the Federal courts 
after exhausting all of the administrative remedies." Remarks of Irving Kator, Executive Director, United States Civil 
Service Commission, Hearings Before a Subcommittee of the 
Senate Committee on Labor & Public Welfare, 92 Cong., 1st 
Sess. 301 (1971) p. 296. "We believe Federal Employees 
now have the opportunity for court review of allegations 
of discrimination, and believe they should have such a right." 
Id. p.310, written statement on behalf of the United Stater. 
Civil Service Commission. The Commission specifically argued 
that adverse decisions such as Gnotta v. United States, 415 
F .2d 1271 (8th Cir. 1969), cert, denied, 397 U.S. 934 (1970)
and Congress of Racial Equality v. Commission,270 F.Supp 
537 (D.Md. 1967) did not preclude federal employment dis­
crimination actions since they had failed to consider 
applicable provisions of the Constitution and 5 U.S.C.
§7151. Hearings Before the Subcomm. On Labor of the House 
Committee On Education And Labor, 92d Cong., 1st Sess. at p. 
386 (1971).

9



43 LV? 4623, 4625, decided May 19, 1975. This important 
question is now before the Supreme Court in Brown v .— General 
Service Administration, 507 F.2d 1300 (2d Cir. 1974), cert. 
granted, 43 LW 3625 (May 27, 1975) and will be resolved in 
the upcoming Term. Brown was the principal case relied on 
by the government in urging the district court to decide, as 
it did,that §717 of Title VII preempts any other avenue of 
judicial review for civil rights actions against racially 
discriminatory federal agency employment practices. The 
position adopted by government lawyers in the instant case 
and Brown is exactly the position the Justice Department 
successfully opposed in Congress in 1972, infra, at p. 27.
If the government has changed its mind about the statute, 
the appropriate forum is Congress, not the courts.

In this case, appellant asserts that the district 
court erred because the complaint was timely filed as a 
matter of law under §717 so subject matter jurisdiction exists 
to hear and decide this case under Title VII. This Court 
need go no further if it so decides. However, if the Court 
decides otherwise the issues before the Supreme Court in 
Brown v. General Services Administration, supra, would have 
to be resolved. In Parts II and III of the Argument, 
appellant asserts that, assuming the absence of Title VII 
jurisdiction, Title VII does not preclude preexisting bases 
of jurisdiction and remedies for civil rights actions against 
federal agencies in the employment area.

10



I.
PLAINTIFF BLACK FEDERAL EMPLOYEE MET 
THE JURISDICTIONAL PREREQUISITES OF 
§ 717 OF TITLE VII BY FILING HIS COM­
PLAINT IN FEDERAL DISTRICT COURT WITHIN 
30 DAYS OF HIS ACTUAL RECEIPT OF NOTICE 
OF FINAL CIVIL SERVICE COMMISSION ACTION.

The government below did not contest that Mr. Bell filed 
suit within 30 days of his actual personal receipt of notice 
of final Civil Service Commission Action. Instead, the govern­
ment contended that the action was not timely brought pursuant 
to Title VII because it was filed 32 days after notice of 
final administrative action was sent to the office of Mr.
Bell's former administrative hearing representative, notwith­
standing that Mr. Bell had no knowledge of such receipt. The 
court below ruled against Title VII subject matter jurisdiction 
solely on this constructive receipt notion. The district 
court's decision was erroneous because (1) it is inconsistent 
with statutory language, legislative history, civil Service 
Commission regulations and the notice in fact received;
(2) it violates the remedial purpose of the statute and

%(3) assuming arguendo that there was delay, it was excusable.

A . Statutory Language, Legislative History, Civil Service 
Commission Regulations And The Board Of Appeals And 
Review Decision
§ 717(c) of Title VII provides that, "Within thirty days 

of receipt of notice of final action taken . . .  an employee . . .
if aggrieved bv the final disposition of his comDlaint . . .  may

11



file a civil action as provided in Section 706." (Emphasis8 /
added). On its face, the statute requires as a jurisdictional 
prerequisite, when there has been full exhaustion of administra­
tive remedies, that the employee file a civil action within no 
less than 30 days of his receipt of notice of final administrative

_9_/action. Legislative history is to the same effect. Civil
Service Commission regulations speak only of the limitations

1 0 /period commencing with the employee's notice and specifically

8 / § 717(d) provides that, "The provisions of Section 706(f)
through (k), as applicable, shall govern civil actions brought 
hereunder." § 706(f)(1) provides, in pertinent part, that when 
administrative resolution has been concluded, . . .  "the [EEOC] 
or the Attorney General in a case involving a government, 
governmental agency, or political subdivision, shall so notify 
the person, aggrieved and within ninety days after the "givino of 
such notice a civil action may be brought . I “  (Emphasis added)
9 / Hie legislative history of the 1972 amendments to Title VII
is set forth in Staff of Subcomm. on Labor of the Senate Comm. On 
Labor And Public Welfare, 92d Cong., 2d Scss., Legislative History 
of the Equal Employment Opportunity Act of 1972 (Comm. Print 1971) 
(hereinafter, "Legislative History"). For pertinent Section-By- 
Section Analysis (1) after House Committee consideration, see 
Legislative History at 91 and 92; (2) after Senate Committee
consideration, see Legislative History at 449 and 454; (3) after
Senate passage, see Legislative History at 1773 and 1777; and
(4) after the Conference, see Legislative History at 1847, 1851 and 1856.
10/ 5 C.F.R. § 713.281 provides:

An employee is authorized by Section 717(c) 
of the Civil Rights Act . . .  to file a civil 
action in an appropriate U. S. District Court:★ ★ ★

(c) within thirty (30) calendar days 
of his receipt of final action taken 
by the Commission on his complaint.(Emphasis added)

12



of giving notice of right to sue to the employee himself even
when copies of the document containing the notice is required

11/
to be sent to both the employee and his representative. 
Moreover, the Board of Appeals and Review decision which in 
fact contained the notice in Mr. Bell's case spoke only of the 
complainants rights "to file a civil action in an approprite 
U. S. District Court within thirty (30) calendar days of his 
fi.e., Mr. Bell's] receipt of this decision," supra, at p. 5.

There is simply no basis in the statute, regulations, or 
the notice given by the Board decision to suppose that the 
§ 717 statute of limitations period began running with the 
actual personal receipt of notice of final administrative 
action by anyone other than the employee himself. The statute 
itself does not even speak of representatives. civil Service 
regulations which permit representation of employees in the 
administrative hearing nevertheless require that, "The [Board

H  / 5 C.F.R. § 713.234 provides, in pertinent part, that:
The [Board of Appeals and Review] shall issue 

a written decision setting forth its reasons for 
the decision and shall send copies thereof to the 
complainant, his designated representative, and the 
acrencv . . .  The decision of the board is final, 
but shall contain a notice of the right to file a 
civil action in accordance with Section 713.282.

5 C.F.R. § 713.282 provides:
An agency shall notify an employee or applicant 

of his right to file a civil action, and of the 
30-day time limit for filing, in any final action 
on a complaint under §§ 713.215, 713.217, 713.220, 
or § 713.221. The Commission shall notify an 
employee or applicant oi his right to file a civil 
action, and of the 3Q-dnv time limit for filing, 
in any decision under 5 713.234. (Emphasis added)

13



of Appeals and Review] shall issue a written decision 
setting forth its reasons for the decision and shall send 
copies thereof to the complainant [and] his designated repre­
sentative." See, supra, at p. 13 n . 11 . There is no
reason for the regulations to consider the employee’s repre­
sentative an agent for receiving notice of final administrative 
for purposes of a civil action statute of limitations since a
hearing representative need not be an attorney nor is there

12/provision for attorney's fees. Even if the employee's
representative for the administrative hearings were a lawyer,
as a practical matter, it cannot be assumed that an employee's
hearing representative will necessarily serve as his counsel in
any lawsuit. In the "Designation of Representative" form that
Mr. Green signed, supra, at p. 4 , there is nothing concerning
delegation to the representative to receive notice of final13 /
Civil Service Commission action. Indeed, the form expressly
concludes, "I understand that I continue to be responsible for 
taking all necessary action in connection with my complaint of

12/ see, 5 C.F.R. §§ 713.218(c)(2) and 713.271 generally.
13/ The form states, in pertinent part, that:

I hereby appoint the following named individual 
or organization as my Representative:*  *  *
3. To receive any information concerning my complaint 
of discrimination from the appeals examiner or olfrce 
assigned to conduct the hearing on my complaint, 
including copies of any communications addressed to 
me, copies of documents, reports of investigation, or- reports of hearings to which I am entitled under 
Civil Service Commission regulations (App. 24)
(Emphasis added)

14



discrimination." Mr. Bell, who did not sign such a form nor 
otherwise formally designate a representative, cannot of course 
be held to any greater informal delegation of authority.
Finally, the notice that Mr. Bell did receive, i.e., the Board 
of Appeals and Review decision, mentioned only actual notice 
to him triggering the running of the limit actions period and 
failed to mention the limitations period running from notice to 
any representative. In short, the government's constructive 
notice theory finds no support in the governing law, regulations 
or practice in the instant case.

B . Remedial Purpose Of The Statute
Mr. Bell satisfied the plainly stated jurisdictional pre­

requisite of filing within 30 days of his receipt of notice of 
final administrative action. The district court, however, 
declined jurisdiction essentially by construing the limitations 
period as either "filing within 30 days of receipt of notice of 
final administrative action by the employee or his hearing 
representative, whichever receipt occurs first," or "filing 
within 30 days of receipt of notice by the employee's hearing 
representative." Under either construction, there are two 
classes of employees: First, employees without such a 
representative whose 30-day limitations period begins to run 
from the receipt of their notice of final action and, second, 
employees with a hearing representative whose limitations period

15



begins to run from the earliest receipt of notice sent to 
both. The latter class of employees obviously can end up with 
an actual limitations period of less than 30 days if the repre­
sentative receives notice first and delays or fails to inform 
him of the receipt. The problems that can arise are exemplified 
in Mr. Bell's case: Mr. Bell's hearing representative indicated 
to him that he could no longer represent him in any further 
proceedings, so Mr. Bell no longer considered him his repre­
sentative; Mr. Bell never heard from his former representative 
about receipt of notice of final administrative action; and 
Mr. Bell had no reason to know the 30-day period started 
earlier than his own receipt of notice. In effect, Mr. Bell 
was penalized for having had a hearing representative by having 
his limitations period shortened. More, importantly, the 
bifurcated statute of limitations applied by the district court 
has nothing to do with the plain language of the statute.

The decision of the district court to heed such a non- 
statutory jurisdictional prerequisite is contrary to unanimous 
Supreme Court decisions expressly warning against technical 
construction of Title VII statutory requirements that frustrate 
the right to bring private civil actions. In McDonnell i>ouq.l an 
Corp. v.  Green, 411 U.S. 792 (1973), the Court refused to
modify the plainly specified jurisdictional prerequisites of 
(1) filing an administrative charge and (2) receiving and acting 
upon notice of the right to sue by reading in an additional 
requirement that the EEOC make a prior finding of reasonable

16



cause. The Court declared, "we will not engraft on the 
statute a requirement which may inhibit the review of claims 
of employment discrimination in the federal courts." 411 U.S. 
at 798-99. Similarly, in Alexander v . Gardner-Denver Co.,
415 U.S. 36 (1974), the Court refused to limit the scope of 
trial de novo because of prior arbitral proceedings. The 
Court there declared, "courts should ever be mindful that 
Congress, in enacting Title VII, throught it necessary to provide 
a judicial forum for the ultimate resolution of discriminatory 
employment claims. It is the duty of courts to assure the full 
availability of this forum." 415 U.S. at 60 n. 21. Along 
the same lines, the Court in Love v . Pullman Co., 404 U.S. 522 
(1972), a case involving defendant's non-statutorv argument 
that EEOC referral to state agency must be in writing rather 
than merely oral, stated that, "Such technicalities are particularly 
inappropriate in a statutory scheme in which laymen, unassisted 
by trained lawyers, initiate the process." 404 U.S. at 527.

A primary purpose of Title VII is to safeguard the private 
right of action for employment discrimination.

In addition to reposing ultimate authority 
in federal courts, Conqress crave private 
individuals a significant role in the enforce­
ment process of Title VII. Individual grievants 
usually initiate the Commission’s investigatory 
and conciliatory procedures. And although the 
1972 amendment to Title VII empowers the Com­
mission to bring its own actions, the private right 
of action remains an essential means of obtaining 
judicial enforcement of Title VII. 42 USC § 2000e-5 
(f)(1) (1970 ed. Supp II). In such cases, the

17



private litigant not only redresses his own 
injury but also vindicates the important 
congressional policy against discriminatory 
employment practices. Hutchings v. United 
States Industries, 428 F2d 303, 310 (CA5 1970);
Bowe v. Colgate-Palmolive Co., 416 F2d 711, 715
(CA7 1969); Jenkins v. United Gas Corp. 400 
F2d 28, 33 (CAS 1968). See also Newman v. Piggie 
Part Enterprises, 390 US 400, 402, 19 L Ed 2d 
1263, 88 S Ct 964 (1968).
Alexander v. Gardncr-Dcnver Co., supra, 415 
U.S. at 45.

Legislative history reveals that efforts to undermine the 
independent civil action right were voted down during both the 
1964 and 1972 debates. See, e.g., citations in Alexander v . 
Gardner-Denver Co., supra, 415 U.S. 36 n. 9 and Johnson v. 
Railway Express Agency, 43 LW 4623, 4625, decided May 19, 1975. 
The private civil action is particularly significant with 
respect to employment practices of federal agencies. The 
Senate Committee report stated, "An important adjunct to the 
strengtened Civil Service Commission responsibilities is the 
statutory provision of a private right of action in the courts 
by Federal employees who are not satisfied with the agency or

14/Commission decision." As the Supreme Court in Morton v .
Mancari, 41 L.Ed 2d 290, 298 (1974) put it, "the mechanism for 
enforcing long—outstanding Executive Orders forbidding govern­
ment discrimination had proved ineffective for the most part." 
flnncari expressly quoted the House report to the effect, that

14/ Legislative History at 425.

18



“A critical defect of the Federal equal employment program 
has been the failure of the complaint process. That process 
has impeded rather than advanced the goal of the elimination 
of discrimination in Federal employment." Furthermore, the 
private civil action is the only court enforcement mechanism 
available to federal employees; suits by the EEOC or the 
•Department of Justice are not authorized (indeed the Department 
of Justice must defend such suits). Only through such litigation 
can the courts safeguard the substantive rights of employees 
and police the administrative process. Plaintiff federal 
employees are not merely "private attorneys' general," as are 
employees in the private sector, they are the only attorneys' 
general.

In Franks v. Bowman Transportation Co., 495 F.2d 398 
(5th Cir. 1974), the Fifth Circuit looked to the primary purpose 
of Title VII to provide for private civil actions in order to 
decide a § 706 case essentially on all fours with the instant 
case. In Franks, the individual plaintiff employee requested 
a right-to-sue letter from the EEOC and such a letter was sent 
to employee's mailing address by certified mail, return receipt 
requested. The employee's nephew received the letter and signed 
the postal receipt as "addressee's agent," but lost the letter. 
The employee did not know that the right to sue letter had been 
received or ever saw it. upon learning a year later that his 
nephew had received the letter, the employee averred that he

19



had not actually personally received it. Franks is different
from the instant case in no way that permits it to be distinguished
indeed Franks is a harder case since delivery was to the employee's

15/
mailing address itself. The Fifth Circuit gave the appli­
cable § 706 provision a practical rather than technical con­
struction to require actual notice. The reasoning of the Fifth 
Circuit was that:

We do not deal with the service of 
process or receipt of an offer or acceptance 
to make a contract, but with the interpretation 
of Title VII. The courts have consistently 
construed the Act liberally to effectuate its 
remedial purpose, and we think this purpose would 
be poorly served by the application of a "con­
structive receipt" doctrine to the notification 
procedure. More narrowly, the purpose of the 
statutory notification, which is 'to provide a 
formal notification to the claimant that his 
administrative remedies with the Commission have 
been exhausted,' Beverly v. Lone Star Lead 
Construction Corp., 5th Cir. 1971, 437 F.2d 
1136, and to inform him that the thirty-day 
period has begun to run, has not been accomplished 
unless the claimant is actually aware of the suit 
letter. In terms of the policy behind limitations 
periods generally, the claimant can hardly be said 
to have slept on his rights if he allows the 
thirty-day period to expire in ignorance of his 
right to sue.
495 F.2d at 404.

15/ The Fifth circuit noted that:
As an evidentiary matter, a district court 

might properly consider the mailing of a suit 
letter and the receipt showing proper delivery 
as prima facie evidence that the notice had 
reached the addressee. Where, however, it is 
shown that the claimant through no fault of his 
own has failed to receive the suit letter, and 
the district court has so found, as in this case, 
the delivery of the letter to the mailing address 
cannot be considered to constitute statutory 
notification. 495 F.2d at 405.

The instant case is governed, a fortiori, by Franks v. Bowman Transportation Co.
20



The Court continued, “Congress did not intend to condition 
a claimant's right to sue under Title VII on fortuitous 
circumstances or events beyond his control which are not spelled 
out in the statute." Moreover, the time during which Mr. Bell 
is supposed to have unknowingly slept on his rights was but 
two days, not one year as in Franks.

In Copeland v. Brennan, 9 EPD 5(10,127 (DDC 1975), Judge 
Gesell faced a kind of mirror-image of the instant case. in 
Copeland, the federal employee received actual personal notice 
but her attorney representative, whom she had specifically 
and repeatedly designated to receive agency communications, 
did not, in violation of a civil Service Commission regulation. 
Judge Gesell, citing Franks as to the ambiguous precise attributes 
of "receipt of notice" for a limitations period held, "that a 
party is not in 'receipt of notice' for purposes of calculating 
the thirty-day period prescribed by 42 U.S.C. § 2000e-16(c) 
until his or her representative has also been served with 
notice in accordance with the regulations." 9 EPD at p. 7572.
The rule of Franks that Title VII limitations periods are 
triggered by actual notice was also followed in Plunkett v.
Koadway Express Inc., 504 I’.2d 417, 418-19 (10th Cir. 1974). 
"Plunkett was unaware of the Commission's suit letter until he 
received it, he cannot be said to have impermissibly slept on 
his rights so long as he filed, as he did, within 90 days of 
his receipt of the letter." See also, Day v. Weinberger,
8 EPD 5;9646 (DDC 1974) at p. 5744.

21



c. Delay, If Any, Was Excusable.
Assuming arguendo that the limitations period was triggered 

by receipt of notice of final civil Service Commission action, 
idle filing of the civil action by Mr. Bell 32 days thereafter 
is excusable in light of the Title VII policy favoring unimpeded 
private civil actions, supra, and the following equitable 
considerations: First, Mr. Bell was ignorant of the commencement
of the limitations period. He was not told by his administrative 
hearing representative that notice of final action had been 
received and so he filed his complaint, without delay, within 
30 days of actual personal notice. Second, Mr. Bell was mis­
informed by the Commission as to finding out when his former 
representative received notice in order to calculate the limi­
tations period since the Board decision spoke only of the period 
commencing "within thirty (30) calendar days of his receipt 
of this decision (emphasis added)," supra, at p. 4 . Third,
because he was misinformed in this manner he had no reason to 
contact his former representative and learn of the earlier 
receipt. In any event, his former representative had previously 
told him that he would be unavailable. Fourth, the former 
representative may not even have received his notice of final 
decision since the Board of Appeals and Review failed to send 
its decision with the return receipt marked "Deliver ONLY to 
addressee." See App. 14. It would have taken the Board no 
additional effort at no additional expense to thus assure

22



delivery to the former representative. A clause in the 
brief and unilluminating cover letter indicating that receipt 
by the representative triggered the limitations period would 
of course have taken minimal additional effort at minimal 
additional expense and unmistakably informed all parties of 
the right to sue. Compare App. 15. Fifth, the two-day delay 
resulted in prejudice to no interest of the government. The 
complaint was filed October 1, 1974. Three months later the 
government moved to dismiss because of the two-day untimely

A month later the lawsuit was dismissed. At no time 
did the government raise any issue of prejudice.

Judge Gesell in Copeland v. Brennan. 9 EPD ^[10,127 
(DDC 1975) held that a federal employee's complaint filed 31 
days after receipt of final agency action was not to be con­
sidered untimely filed even though the employee received actual16 /
personal notice. Her only excuse was that notice was never
sent to her attorney as required by 5 C.F.R. 713.221(b)(1).
In holding "receipt of notice" did not occur until both the 
employee and his representative were served, Judge Gesell 
noted, "it is also a practical necessity if the thirty-day

16/ The case concerns a notice dated November 7, 1974 of riaht 
to sue within 30 days upon the waiver of an administrative hearing.

Plaintiff s counsel received no notice of the 
final disposition until December 11, 1974, when 
Ms. Copeland sent counsel the November 7 letter 
along with a packet of other papers. Ms. Copeland 
then incorrectly informed her lawyers she had 
received the notice November 13, rather than 
November 12, as the receipt now discloses, so counsel did not file the complaint in this action until December 13. 9 EPD at 7572.

23



t
filing requirement is not to become an unintended procedural 
booby-trap." The same considerations were taken into account 
by the district court in Hunt v. Schlesinger, 9 EPD §10,024 
(W.D. Tenn. 1974) which concerned the untimely filing of an 
administrative complaint by a federal employee who sent his 
complaint to the wholly separate EEOC in Washington, D. C. 
rather than an agency EEO officer with the result that the 
complaint was received by the agency beyond the limitations 
period and rejected. The district court in Hunt rested its 
decision that the jurisdictional prerequisite of filing a com­
plaint with the agency was met on a construction of the applicable 
regulations and agency letter. Compare Love v. Pullman Co.. 
supra. 404 U.S. at 527. Copeland and Hunt, like Franks v.
Bowman Transportation Co., supra, in which there was delivery 
to the employee's mailing address and a delay of one year, 
are harder cases to decide on their facts in the employee's 
favor than the instant case. In terms of statutory purpose 
and equity, the district court thus erred in arbitrarily 
permitting the limitations period "to become an unintended 
procedural booby-trap."

24



II.
ALTERNATIVE BASES OF FEDERAL JURISDICTION 
AND REMEDIES FOR CIVIL RIGHTS ACTIONS 
CHARGING RACIAL DISCRIMINATION IN FEDERAL 
AGENCY EMPLOYMENT PRACTICES ARE NOT 
REPEALED BY TITLE VII.

As noted in the Introduction, the existence of subject 
matter jurisdiction under Title VII is sufficient to require 
reversal of the dismissal and continuation of the lawsuit below.
In this and the next part of the brief, appellant discusses 
other reasons for reversal that this Court need not reach unless 
Title VII subject matter is found to be absent. Because these 
issues are before the Supreme Court in Brown v. General Service 
Administration, supra, appellants will briefly outline the 
arguments and reserve the right to file a supplemental brief 
in light of the Supreme Court’s eventual resolution of the 
issues.

The district court held that, "it appearing to the Court that 
this action was filed beyond the statutory period authorized by 
42 U.S.C. § 2000e-16(c) which provision preempts any other basis 
of federal jurisdiciton . . . this Court lacks subject matter
jurisdiction" (App. 31). preemption by § 717 of alternative 
bases of jurisdiction and remedies, however, finds no support in 
statutory language, legislative history or the broad purpose of 
the Act.

Even Brown v. General Service Administration concedes 
that, "Neither the Act itself nor its legislative history con-

25



clusively demonstrates that such preemption was intended."
Indeed, statutory language and legislative history clearly
demonstrate intent not to repeal alternative jurisdicitiona1
bases and remedies. § 717(e) expressly states:

Nothing contained in this Act shall relieve 
any government agency or official of its or 
his primary responsibility to assure non­
discrimination in employment as required by 
the Constitution and statutes or of its or 
his responsibilities under Executive Order 
11478 relating to equal employment opportu­
nity in the Federal Government.

In Alexander v. Gardner-Denver, supra, 415 U.S. at 47, the
Supreme Court explained,

. . . the legislative history of Title VII
manifests a Congressional intent to allow an 
individual to pursue his rights under both 
Title VII and other applicable state and 
federal statutes. The clear rnfcrcncc is 
that Title VII was designed to supplement, 
rather than supplant, existing laws and 
institutions relating to employment 
discrimination.

In Morton v. Mancari, supra, the Court had before it a similar
issue involving repeal by § 717. In Morton the appellant argued 
that § 717 had tacitly repealed earlier enacted statutory pre­
ferences in favor of Indian applicants for jobs at the Bureau of 
Indian Affairs. This Court unanimously rejected that contention

Appellees encounter head-on the "cardinal rule 
. . . that repeals by implication are not
favored." . . . They and the District Court read
the congressional silence as effectuating a 
repeal by implication. There is nothing in the legislative history, however, that indicates 
affirmatively any congressional intent to repeal 
the 1934 preference . . . .  The courts are not 
at liberty to pick and choose among congressional 
enactments, and when two statutes are capable of

26



co-existence, it is the duty of the courts, 
absent a clearly expressed congressional 
intent to the contrary, to regard each as 
effective.

41 L.Ed. at 300-01. See also Johnson v. Railway Express Agency, 
in which the Court was of the opinion, "We generally conclude . . .
that the remedies available under Title VII and under § 1981, 
although related, and although directed to most of the same ends, 
are separate, distinct and independent." 43 LW at 4626.

Moreover, Congress has repeatedly rejected proposals to 
make Title VII the exclusive remedy for claims of racial dis­
crimination in employment. In 1964 Senator Tower proposed 
an amendment to the pending Civil Rights Act to make Title VII 
the exclusive remedy for discrimination in employment. The 
amendment was defeated on the floor of the Senate. 110 Cong.
Rec. 13650-52. In 1972 Senator Hruska proposed an amendment 
which would have made Title VII the exclusive remedy for claims 
of employment discrimination. The amendment was opposed by the 
Department of Justice. The chief of the Civil Rights Division 
testified,

[W]e are concerned that at this point in time 
there be no elimination of any of the remedies 
which have achieved some success in the effort 
to end employment discrimination. In the field 
of civil rights, the Congress has regularly in­
sured that there be a variety of enforcement 
devices to insure that all available resources 
are brought to bear on problems of discrimina­
tion . . . . (I]t would, in our judgment, be
unwise to diminish in any way the variety of 
enforcement means available to deal with 
discrimination in employment. 17/

17/ Hearings Before the Senate Committee on Labor and Public 
Welfare, 91st Cong. 1st Sess., 162-163 (1971). This testimony was
quoted by Senators Javits and Williams in opposing the amendment. 
Legislative History at 1399-1400, 1404.

27



In opposing the Hruska Amendment, Senator Javits argued:
There are other remedies, but those other 
remedies are not surplusage. Those other 
remedies are needed to implement the promise 
we make under the Constitution to prevent 
discrimination in employment. The laws of 
1866, 1871, as well as the law of 1964 are
to implement that promise . . . .  Mr. Presi­
dent, the key to the proposition which we 
laid before the Senate— incidentally, this 
has now been the law for the last 8 years 
— is that what this amendment would seek to 
do is cancel away much of that law. It seems 
to me that should not be the attitude of the 
Senate, in face of the fact, as I say, that 
employees are not fully protected by the 
exclusive remedy which is sought to be com­
pelled by this amendment. 18/

A similar proposal was rejected by the House Labor Committee, 
which expressly approved the decisions in Young v. International 
Telephone & Telegraph Co., 438 F.2d 757 (3d Cir. 197l) and
Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970), 
and expressed its belief that the remedies afforded by Title 19/
VII and § 1981 "augment each other and are not mutually exclusive."
If government lawyers now believe that Congress erred in rejecting 
the Tower and Hruska amendments, their remedy is to seek an amend­
ment to Title VII from the Congress, not from the courts. See 
Penn v. SchTcsingcr, 490 F.2d 700, 701-05 (5th Cir. 1973), 
rov'd en banc on other grounds, 497 F.2d 970 (5th Cir. 1974), 
Petterway v. Veterans Administration Ilosp. , 495 F.2d 1223 (5th 
Cir. 1974):Bowers v. Campbell, 505 F.2d 1155, 1157-58 (9th Cir.
1974); see also, Baker v. F & F Investment Co., 489 F.2d 829

18/ Legislative History at 1512-14. 
19/ Legislative History at 78-79.

- 28 -



20 /(7th cir. 1973). As to preemption by § 706, whose pro­
visions are incorporated by § 717, see, e._g. , Mach 1 in _v. 
Spector Freight Systems, Inc., ____  U.S. App. D.C. ---- , 478
F.2d 979, 993-96 (D.C. Cir. 1973).

The notion of preemption is also inconsistent with the 
purpose of Title VII to provide for "parallel or overlapping 
remedies against discrimination" recognized by the Supreme 
Court in Alexander v. Gardner—Denver Co., supra, 415 U.S. 
at 47 and Johnson v. Railway Express, supra.

20/ As to district court decisions, see, e.g ., Miller v. Saxbc,
9 EPD T10.005 (DDC 1975) (Gesell); McMullen v. Warner. D.D.C.C.A.
No. 1363-73, decided June 6, 1974 (Sirica).

29



Ill
PLAINTIFF BLACK EMPLOYEE MAY BRING 
A CIVIL RIGHTS ACTION CHARGING RACIAL 
DISCRIMINATION IN FEDERAL AGENCY EM­
PLOYMENT PRACTICES UNDER 42 U.S.C.
§ 1981, THE FIFTH AMENDMENT OR EXECU­
TIVE ORDER 11478.

28 U.S.C. §§ 1331, 1343(4) and 2201 are adequate juris­
dictional bases for Mr. Bell to seek relief in court for rights 
protected under 42 U.S.C. § 1981, the Fifth Amendment or 
Executive Order 11478. As to § 1981, see supra, at pp. 27-29 
As to the Fifth Amendment, see Bolling v. Sharpe, 347 U.S. 497 
(1954); Bivens v. Six Unknown Named Agents Of Federal Bureau 
of Narcotics. 403 U.S. 388 (1971); Watkins v. Washington, 3 EPD
1182 91 (DDC 1971), affirmed, U.S. App. D.C. __, 471 F.2d 1373
(D.C. on 1972). As to E.O. 11478, see Chambers v. United States, 
451 F.2d 1045 (Ct. Cl. 1971). "The very essence of civil 
liberty certainly consists in the right of every individual to 
claim the protection of the laws, whenever he receives an injury. 
Marbury v. Madison, 1 Cranch 137 (1803).

The Solicitor General has recently characterized these 
additional remedies available under statutes such as § 1981 as 
"of substantial importance." Brief for the United States as 
Amicus Curiae in Johnson v. Railway Express Agency, No. 73-1543, 
pp. 13-14. The importance of preserving non-Title VII remedies 
for federal employees is well illustrated by the history of 
litigation under Title VII. Because of the stringent juris­
dictional requirements for a Title VII action, aggrieved minori­
ty employees —  frequently under-educated and within the .assist-

30



ance of counsel —  have often failed to meet the statutory 
prerequisites, and have resorted instead to suits under other 
federal statues. Compare Love v. Pullman Co., 404 U.S. 522, 
525-526 (1972).

Conelusion

For the reasons stated above, the Court should reverse 
the order of the district court of February 5, 1974 dismissing
the action, and remand this case for further proceedings.

Respectfully submitted,

RONALD A KARP 
Chaikin & Karp 
Suite 3061225 Connecticut Avenue, N.W. 
Washington, D.C. 20036
JACK GREENBERG CHARLES STEPHEN RALSTON 
MELVYN R. LEVENTHAL 
BILL LANN LEE 
Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Appellant

31



ADDENDUM ON CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

§ 717 (a) of Title VII of the 1964 Civil Rights Act, 
as amended, 42 U.S.C. § 2000e-16(a) provides:

All personnel actions affecting employees 
or applicants for employment (except with re­
gard to aliens employed outside the limits of 
the United States) in military departments as 
defined in section 102 of title 5, United 
States Code, in executive agencies (other than 
the General Accounting Office) as defined in 
section 105 of title 5, United States Code 
(including employees, and applicants for em­
ployment who are paid from nonappropriated 
funds) in the United States Postal Service and 
the Postal Rate Commission, in those units of 
the Government of the District of Columbia hav­
ing positions in the competitive service, and 
in those units of the legislative and judicial 
branches of the Federal Government, having posi­
tions in the competitive service, and in the 
Library of Congress shall be made free from 
any discrimination based on race, color, reli­
gion, sex, or national origin.

§ 717 (c) of Title VII of the 1964 Civil Rights Act, as 
amended, 42 U.S.C. § 2000e-16 (c), provides:

Within thirty days of receipt of notice of 
final action taken by a department, agency, or 
unit referred to in subsection 717 (a), or by 
the Civil Service Commission upon an appeal 
from a decision or order of such department, 
agency, or unit on a complaint of discrimination 
based on race, color, religion, sex, or national 
origin, brought pursuant to subsection (a) of 
this section, Executive Order 11478 or any suc­
ceeding 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 decision or order of such department, agency.

A1



or unit until such time as final action may 
be taken by a department, agency, or unit, 
an employee or applicant for employment, 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 provided in section 706, in which 
civil action the head of the department, 
agency, or unit, as appropriate, shall be 
the defendant.

§ 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981, 
provid es:

All persons within the jurisdiction of the United 
States shall have the same right in every State 
and Territory to make and enforce contracts to 
sue, be parties, give evidence, and to the full 
and equal benefit of all laws proceedings for 
the security of persons and property as is en­
joyed by white citizens and shall be subject to 
like punishment, pains, penalties, taxes, li­
censes, and exactions of every kind, and to no 
other.

The Fifth Amendment to the Constitution, in pertinent part, 
provides:

No person shall . . .  be deprived of life, 
liberty, or property, without due process 
of law.

§ 1 of Executive Order 11478 provides:
It is the policy of the Government of the 

United States to provide equal opportunity 
in Federal employment for all persons, to 
prohibit discrimination in employment because 
of race, color, religion, sex, or national 
origin, and to promote the full realization 
of equal employment opportunity through a 
continuing affirmative program in each execu­
tive department and agency. This policy of 
equal opportunity applies to and must be an 
integral part of every aspect of personnel 
policy and practice in the employment, de­
velopment, advancement, and treatment of

A2



civilian employees of the Federal Government.
28 U.S.C. § 1331(a) provides:

The district courts shall have original 
jurisdiction of all civil actions wherein 
the matter in controversy exceeds the sum 
or value of $10,000, exclusive of interest 
and costs, and arises under the Constitution, 
laws, or treaties of the United States.

28 U.S.C. § 1343(4) provides:
The district courts shall have original 

jurisdiction of any civil action authorized 
by law to be commenced by any person:

*  *  *

(4) To recover damages or to secure equit­
able or other relief under any Act of Congres 
providing for the protection of civil rights, 
including the right to vote.

28 U.S.C. § 2203 provides:
In a case of actual controversy within 

its jurisdiction, except with respect to 
Federal taxes, any court of the United States 
upon the filing of an appropriate pleading, 
may declare the rights and other legal rela­
tions of any interested party seeking such 
declaration, whether or not further relief 
is or could be sought. Any such declaration 
shall have the force and effect of a final 
judgment or decree and shall be reviewable 
as such.