Brown v. General Services Administration Annotated Brief for Petitioner

    IN THE

UNITED STATES SUPREME COURT 
OCTOBER TERM, 1974

No.

CLARENCE BROWN,

Petitioner,

v.

GENERAL SERVICES ADMINISTRATION, et al.

BRIEF FOR PETITIONER

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON MELVYN LEVENTHAL 
BARRY L. 'GOLDSTEIN BILL LANN LEE 
ERIC SCHNAPPER

10 Columbus Circle
New York, New York 10019

JEFF GREENUP
200 West 135th Street 
New York, New York 10030

Counsel for Petitioner.



TABLE OF CONTENTS

Page
Opinions Below

Jurisdiction

Questions Presented

Statutory Provisions Involved
X

/  f

Statement of the Case

/Vv\ /W\ I ̂  ^ 1 v
ARGUMENT 

I .

II.

■'ll
vV̂,a

Jurisdiction Over This Action Is 
Conferred By Statutes Adopted Prior 
To Section 717 of Title VII Of The 
19S4 Civil Rights Act ............. .
A. 1. The 1866 Civil Rights ..... .

2 . The Mandamus Act .......... .
3 . The Tucker Act ............ .
4. The Administrative Procedure

Act ......................
5. 28 U.S.C. § 1331 .......... .

B. Application Of Section 717 To
Discrimiriatipur'Occurring Before 
March 24,^97.2 ................ .

C. Section 717 Did Not Repeal Pre- 
Existing Remedies For Discrimi­
nation in Federal Employment ....

This Action Should Not Be Dismissed 
For Failure To Exhaust Administra­
tive Remedies ..................... .
A. Exhaustion of Administrative

Remedies Is Not a Prerequisite 
To An Action Under The 1866 
Civil Rights Act, etc.........

B. Even If Exhaustion Is Generally
Required In Such Actions, It 
Should Not Be Required In This 
Case .........................

CONCLUSION



r

IN THE
UNITED STATES SUPREME COURT 

OCTOBER TERM, 1974 
No. ____

CLARENCE BROWN
Petitioner,

v .
GENERAL SERVICES ADMINISTRATION, et al.

BRIEF FOR PETITIONER

Opinions Below
The opinion of the Court of Appeals, which is not yet

( \c (M.lir- W Kreported, is set out in the Appenqix hereto at pp. 2a-18a. 
The opinion of the District Court, which is not reported, is

. * 1 Pfc' n nset out in the Appendix hereto at.p.la.

Jurisdiction
The judgment of the Court of Appeals was entered on



Questions Presented
1. Did section 717 of-Title VII of the 1964 Civil 

Richts Act repeal, pro tanto, the 1866 Civil Rights Act, the
Tucker Act, the Maridamus Act, and the Administrative Procedure

T 1 'W'O f) c ' h sinAct? '~~y\ ! ̂  y Qs? ( i ~~J I '7 (
U

{ />y 7
2. Are the^exhaustion requirements for a civil action 

to remedy employment discrimination, maintained under the 1866
\ yT

Civil Rights Act, the Tucker Act, the Mandamus Act, and the\ /
Administrative Procedure Act, different and more stringent
than those establiished b;

h T x
i S  a w 7  h U o
jr A r I -7r ] ‘

by Congress for an action under section 717?
Jsd 4 1

1/ h

Statutory Provisions Involved 
Section 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 regard 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 Account­
ing Office) as defined in section 105 of title 5, 
United States Code (including employees and applicants for employment 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 having positions in the com­
petitive service, and in those units of the legisla­
tive and judicial branches of the Federal Government 
having positions in the competitive service, and in 
the Library of Congress shall be made free from any 
discrimination based on race, color, religion, sex 
or national origin.
Section 717(c) of Title VII of the 1964 Civil Rights Act,

as amended, 42 U.S.C, §2000e-16 (c) , provides:

-  2 -



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 succeeding Executive 
orders, or after one hundred and eighty days from 
the filing of the initial charge with the depart­
ment, agency, or unit or with the Civil Service 
Commission on appeal from a decision or order of 
such department, agency, or unit until such time 
as final action may be taken by a department, 
agency, or unit, an employee or 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.
Section 1981, 42 U.S.C., provides:

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 enjoyed by 
white citizens and shall be subject to like punish­
ment, pains, penalties, taxes, licenses, and exactions 
of every kind, and to no other.
Section 1361, 28 U.S.C., provides:

The district courts shall have original juris­
diction of any action in the nature of mandamus to 
compel an officer or employee of the United States 
of any agency thereof to perform a duty owed to the 
plaintiff.
Section 1346, 28 U.S.C. provides in pertinent part:
(a) The district courts shall have original juris­

diction, concurrent with the Court of Claims, of:
x x

Any other civil action or claim against 
the United States, not exceeding $10,000 
in amount, founded upon the Constitution

- 3 -

(2)



or any Act of Congress, or any regulation 
of an executive department, or upon any 
express or implied contract with the United 
States, or for liquidated or unliquidated 
damages in cases not sounding in tort.

Statement—of-^the—Case----
Petitioner is a black employee of the General Services 

Administration. Petitioner, who is presently a GS-7, has not 
been promoted for 8 years.

On July 15, 1971, petitioner filed with the General 
Services Administration Equal Employment Office an administra­
tive complaint alleging that he had been denied a promotion on 
the basis of race. The agency investigation revealed that 
petitioner had been repeatedly passed over for promotions in 
favor of white employees. The uncontested statistics revealed 
that a disproportionately low number of black employees were 
promoted above the GS-7 level within the General Services Adminis­
tration. On March 23, 1973, twenty months after petitioner 
filed his administrative complaint, the General Services Adminis­
tration issued its final agency decision concluding that it had 
not discriminated on the basis of race.

Petitioner was notified of the agency decision on March 
26, 1973. The letter of notification advised petitioner that 
he could commence a civil action in the United States District 
Court, or file an appeal to the Board of Appeals and Review of 
the Civil Service Commission. The letter also indicated that 
any action under section 717 of the 1964 Civil Rights Act, 42 
U.S.C. §2000e-16, must be commenced within 30 days of receipt

- 4 -



J

of the letter. At that time, and until May of 1974, it was the 
uniform position of the Department of Justice that section 717 
did not apply to claims such as those of petitioner, which arose 
prior to the effective date of the statute, and that there were

Vaccordxngly no rights to be lost by failing to sue within 30 days.
On the basis of this letter petitioner decided to file suit. 

Because petitioner had great difficulty locating an attorney 
who would represent him, he did not succeed in filing his com­
plaint until May 7, 1973, 12 days after the deadline for filing

Van action under section 717. Since the deadline for filing an 
action under section 717 had by then passed, petitioner asserted 
federal jurisdiction under several other statutes, including 
the Mandamus Act, 28 U.S.C. §1361, the Tucker Act, 28 U.S.C.
§1346, the 1866 Civil Rights Act, 42 U.S.C. §1981, and the 
Administrative Procedure Act.

On September 27, 1973, the District Court for the Southern 
District of New York dismissed the action for lack of jurisdic­
tion. On November 21, 1974, the Court of Appeals for the 
Second Circuit affirmed that dismissal. The Second Circuit 
concluded (1) that section 717 had, by implication, repealed 
pro tanto the Tucker Act, the Mandamus Act, the 1866 Civil Rights 
Act, the Administrative Procedure Act, and the other statutes 
which petitioner asserted created federal jurisdiction (2) that 
section 717 applied to discrimination occurring prior to its 
effective date, March 24, 1972, and that the implied repeal was

__/ On August 10, 1973, the government moved to dismiss this
action in the District Court on the ground, inter alia, that 
petitioner had not commenced his action within the 30 days 
required under Section 717. On July 27 and September 24, 1973 
the same United States Attorney filed memoranda in the same 
District Court, in Henderson v. Defense Contract Administration 
Services, 370 F.Supp.180 (S.D.N.Y.1973), arguing that section 
717 did not apply to employees such as petitioner who were the 
victims of discrimination prior to March 24, 1972.

_/ jĵ lthin a week of receiving the letter of March 23, petitioner 
presented himself and the letter to the clerk of the United 
States District Court for the Southern District of New York, 
where the pro se clerk advised him to retain a private attorney. 
Compare, Huston v. General Motors Corp., 477 F.2d 1003 (8th

5



accordingly retrospective and (3)/^couTd not sue because he had 
not completely exhausted the available administrative remedies.

__/ (contd.)
Cir. 1973). Prior to obtaining the services of counsel, 
petitioner unsuccessfully sought assistance from three 
other attorneys, the New Jersey Civil Liberties Union, 
and the national office and a civil rights organization.

6



1
ARGUMENT

X '

I. Jurisdiction Over This Action Is Conferred 
By Statutes Adopted Prior To Section 717 of 
Title VII of The 1964 Civil Rights Act

In 1971-72, when Congress was considering adopting section
717 or other legislation to assure federal employees a right to
judicial determination of their claims of discrimination, both
the Civil Service Commission and /l5he Department of Justice advised
Congress that federal employees already had that righfe^Irving
Kator, the Executive Director of the Commission, testified:

"There is also little question in our mind 
that a Federal employee who believe he has 
been discriminated against may take his 
case to the Federal courts . . . . " _ /

The Commission submitted a written statement insisting:
"We believe Federal Employees now have the 
opportunity for court review of allegations 
of discrimination, and believe they should 
have such a right."_/

The Commission insisted that the then leading cases denying 
/Federal employees such a right to sue, Gnotta v. United States , 
415 F.2d 1271 (8th Cir. 1969), cert, denied 397 U.S. 934(1970), 
and Congress of Racial Equality v. Commissioner, 270 F.Supp.
537 (D.Md. 1967^were incorrectly decided. T

_/ Hearings Before Subcommittee of the Senate Committee on
Labor & Public Welfare, 92 Cong., 1st Sess. 301 (1971) p.296.
_/ Id. p. 310
_/ In the CORE case, suit was brought to redress alleged
discriminatory denials of promotions. The case was dismissed 
on several groundq^among which was that Executive Order No.11246 
(the predecessor of the present Executive Order relating to 
discrimination) gave no actionable right in a district court.
As it appears that the attention of the court in thei&ORE case 
was not directed to the statute (5 U.S.C. § 7151 (Supp. v. 1965- 
1969) and that case involved no constitutional issue, we do not 
regard it as dispositive of the matter under consideration. To 
the same effect see Gnotta v. United States,415 F 2d 1271 (8th Cir. 
1969), in which one court found no jurisdiction to review an alleged 
failure of promotion due to discrimination but did not discuss the 
statutory or constitutional issues that might be involved in such 
an action. We are of the opinion that an individual who has exhausted the discrimination complaint procedure provided in Part 
713 of the Civil Service regulations (5 CFR part 713) may obtain 
judicial review of the alleged discriminatory action . . . "
Hearings Before the Sub-committee on Labor of the House Committee 
on Education and Labor, 92 Cong., 1st Sess. 386 (1971).

7



~2
Assistant Attorney General Ruckelshaus assured the Senate 
that the courts could remedy any unconstitutional or unlawful 
federal action.

"[T]o come extent injunctive remedies are already 
available. The constitutionality of any program 
can be challenged. The authority within the program 
of an official to act can be challenged."

"[T]here is no doubt that a court today may look 
into unauthorized or unconstitutional agency action 
. . . "  /

Although the Civil Service Commission insisted that section 717
_ /"would add nothing" to the rights federal employees already 

enjoyed under earlier statutes. Congress adopted section 717 
in view of its concern that the courts might not construe the 
existing statutes to provide such a remedy.

Petitioner in the instant case asserts that jurisdiction 
over his claims of federal employment jurisdiction is confined
by statutes adopted prior to section 717: the 1866 Civil Rights

/  /Act , the Mandamus Act, the Tucker Ac^
_ /Procedure Act and 28 U.S.C. §1331. 

the defendants' allege.! refusal to prom'

Administrative 
ner maintains that 

im on account of race
violates the Fifth Amendment, the 1866 Civil Rights Act, 5 U.S.C.

_/ _/ ____/§ 7151, Executive Order 11482 and 5 C.F.R. §713

/
_/

_/

_/

_/

_/

_/

/

V _ y  t ^

42 U.S.C. §1981.
28 U.S.C. §1361 
28 U.S.C. §1346 
5 U.S.C. §702-06.
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8



A . 1. The 1866 Civil Rights Act
Section 1981, 42 U.S.C., which derives from Section 1 

of the 1866 Civil Rights Act, provides:
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 and pro­
ceedings for the security of persons 
and property as is enjoyed by white 
citizens, and shall be subject to like 
punishment, pains, penalties, taxes, 
licenses, and exactions of every kind, 
and to no other. (Emphasis added)

The right to make and enforce contracts clearly includes employ­
ment contracts, and entails a ban on racial discrimination in 
hiring and promotion. Johnson v. Railway Express Agency, 43 U.S.
L.W. 4623, 4625 (1975). Section 1981 has been uniformly held

_/ _/to bar discrimination in employment by state and local governments
_/ _/by private employers, and by labor unions. Petitioner maintains 

that section 1981 bars discrimination in employment by the federal 
government as well.

The broad language of Section 1981 manifestly includes 
within its scope all discrimination in employment by any employer.

.c \ )

_/ See e.g. Johnson v. Cain, 5 EPD 1(8509 (D. Del. 1973); Suel v.
Addington, 5 EPD 1(8042 (D. Alaska 1972); Strain v. Philpott, 4 EPD
KK7885, 7562, 7521 (M.D. Ala. 1971); Morrow v. Crisler, 3 EPBh8119 
(S.D. Miss. 1971); London v. Florida Department of Health, 3 EPD 
1[8018 (N.D. Fla. 1970) .
_/ Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971); Arrington
v. Massachusetts Bay Transportation Authority, 306 F.Supp. 1355 
(D. Mass. 1969); Glover v. Daniel. 434 F.2d 617 (5th Cir., 1970); 
Smiley v. City of 'Montgomery^ 350F.Supp. 451 (M.D. Ala. 1972);
West v. Board of Education of Prince George's County, 165 F.Supp.
382 (D. Md. 1958); Mills v. Board of Education of Ann Arundel, 30
F.Supp. (D. Md. 1938).
_/ Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970),cert, denied 401 U.S. 948 (1971); Rice v. Chrysler Corp. 327 F.Supp. 
80 (E.D. Mich. 1971); Hackett v. McGuire Brothers Inc., 445 F.2d 
442 (3d Cir. 1971); Young v. International Tel. & Tel. Co., 438
F.2d 737 (3d Cir. 1971); Brown v, Gaston County Dyeing Machine Co.,

\ \ q) 457 F.2d 1377 (4th Cir. 1972), cerfyr- denied, 93 S. Ct. 319 (1972);Boudreau v. Baton Rouge Marine Contracting, 437 F.2d 1011 (5th Cir. 
1971);Caldwell v^ National Brewing Co., 443 F.2d 1044 (5th Cir.1971), 
cert, denied 404 U.S. 998 (1970); Brqdy v, Bristol Myers, 452 F.2d 
621 (8th Cir. 1972);Bennette v. Gravel^e, 323 F.Supp. 203 (D. Md.1971 
Copeland v. Mead Corp. , 51 F/iR. D. 2 66 ITn .D. Ga. 1970); Lazard v.

^  Boeing Co., 322 F.Supp.343 ( ~ D. La.1971); Long v. Ford Motor Co.,352 F.Supp. 135 (E.D. Mich. J_972); Guerra v. Manchester Terminal Corp 
350 F.Supp. 529 (S.D. Tex. 1 72); Jenkins v~. General Motors Corp. ,475 F.2d 764 (5th Cir. 1973).
/ Waters v. Wisconsin SI eel Works, 427 F.'M 476 (7th Cir.1970)



public or private. The class of persons protected is described
in the all encompassing language to be "[a]11 persons within the
jurisdiction of the United States." Any attempt to restrict the
literal scope of section 1981 would fly in the face of this express
language. Had Congress wished to limit the statute so as to
preclude federal discrimination, it knew how to do so. Section
1983, 42 U.S.C., expressly limits its coverage to persons acting
under color of state law, as did a number of other post Civil War

-  _ /civil rights provisions. See e.g. 16 Stat. 140, §§ 1^2^ 3. No
such limitation was placed in section 1981, and no such limitation 
should be added to it by the courts.

The conclusion that section 1981 prohibits federal 
discrimination is dictated by this Court's decisions in Hurd v. 
Hodge, 334 U.S. 74 (1948) and District of Columbia v. Carter,
409 U.S. 418 (1973). Section 1981 was originally enacted as part 
of Section 1 of the 1866 Civil Rights Act, 14 Stat. 27, which pro­
vided :

[A]11 persons born in the United States 
and not subject to any foreign power, excluding 
Indians not taxed, are hereby declared to be 
citizens of the United States; and such citizens, 
of every race and color, without regard to any 
previous condition of slavery or involuntary 
servitude, except as a punishment for crime 
whereof the party shall have been duly convicted, 
shall have the same right in every State and 
Territory in the United States to make and enforce 
contracts, to sue, be parties, and give evidence, 
to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full 
and equal benefit of all laws and proceedings

~7 (contd)
cert, denied 400 U.S 911 (1970); James v. Ogilvie, 310 F.Supp.661(N.D. 111. 1970); Guerra v. Manchester Terminal Corp., 350 F.Supp. 
529 (S.D. Tex. 1972); Johnson v. Goodyear Tire & Rubber Co., 349 
F.Supp. 3 (S.D. Tex. 1972) Jenkins v. General Motors Corp., 475 F.2d
764 (5th Cir. 1973)
_/ The criminal provi
Act, 16 Stat. 140, apply _____
the criminal provisions of the 1866 Act apply to conduct under color of any law. 14 Stat. 27

ion 2 of the 1870 Civil Rights 
conduct under color of state law;

l0



). I

for the security of person and property, 
as is enjoyed by white citizens, and shall 
be subject to like punishment, pains, and 
penalties, and to none other, any law, statute, 
ordinance, regulation, or custom, to the 
contrary notwithstanding.

Section 1 protected, not only the rights now covered in §1981,
including the right to contract, but also the right to buy and
own real property. Manifestly if any one of the rights covered
by Section 1 was protected against federal discrimination, all of
them must have been, for the enumeration of rights encompassed
draws no distinction among them. Since 1866, section 1 of the
Civil Rights Act w^aivided into two sections; the provisions

_ /
regarding real property were placed in 42 U.S.C. §1982, and the 
other provisions in §1981. This restructuring, however, involved 
no change in the substance of the rights first established in 1866.

This Court has correctly noted that the scope of §1981
and §1982 is necessarily the same. In Tillman v. Wheaton Haven
Recreation Asso., 35 L.Ed. 2d 403 (1973), the Court held,.

The operative language of both § 1981 and §1982 
is traceable to the Act of April 9,1866, c.31,
1, 14 Stat. 27. Hurd v. Hodge, 334 U.S. 24,30-31 
(1948). In light of the historical interrelation­
ship between §1981 and §1982, we see no reason 
to construe these sections differently . . .

35 L.Ed. 2d at 410-411. Since the Court had concluded that §1982
covered discrimination by private clubs, it held that §1981 did S &

as well.
s In Hurd v. Hodge, 334 U.S. 24(1948), the Court held that 

Xection 1982 precluded the federal courts in the District of 
Columbia from assisting housing discrimination by enforcing re- 
structive covenants. See 334 U.S. at 30-34. Manifestly if 
section 1982 barred federal discrimination, then, as in Tillman, 
section 1981 covers federal discrimination as well. The holding

_/ "All citizens of the United States'shall have the same right, 
in every State and Territory, as is enjoyed by white citizens thereof 
to inherit, purchase, lease, sell, hold, and convey real and personal property."

11



in Sped was reaffirmed last year in District of Columbia v. Carter, 
409 U.S. 418 (1973).

Section 1982, which first entered 
our jurisprudence as §1 of the Civil Rights 
Act of 1866 . . . was enacted as a means to
enforce the Thirteenth Amendment's proclamation that " [n]either slavery nor involuntarily 
servitude . . . shall exist within the United
States, or any place subject to their jurisdiction."
See Jones v. Alfred H. Mayer Co., 392 U.S. 409,
437-438 (1968). "As its text reveals, the 
Thirteenth Amendment is not a mere prohibition of State laws established or upholding slavery, but 
an absolute declaration that slavery or involuntarily 
servitude shall not exist in any part of the United 
States." Civil Rights Cases, 109 U.S. 3,20 (1883) . . .

Moreover, like tha Amendment upon which it is 
based, §1982 is not a "mere prohibition of State laws 
establishing or upholding" racial discrimination in 
the sale or rental of property but, rather, an "absolute" 
bar to all such discrimination, private as well as 
public, federal as well as state. C.F. Jones v. Alfred H . Mayer & Co., supra, at 413. With this in mind, 
it would be anomalous indeed if Congress chose to 
carve out the District of Columbia as the sole 
expection to an act of otherwise universal application. 
And this is all the more true where, as here, the 
legislative purposes underlying §1982 support its 
applicability in the District. The dangers of 
private discrimination, for example, that provided 
a focal point of Congress' concern in enacting the 
legislation, were and are, as present in the District 
of Columbia as in the States, and the same considerations 
that led Congress to extend the prohibitions of §1982 
to the Federal Government apply with equal force to 
the District, which is a mree instrumentality of 
that Government. [Emphasis added)

_/409 U.S. at 422. The reasoning of Carter is fully applicable
to §1981. Section 1981, like section 1982, is an absolute bar 
to all discrimination ■not' limited to state action. Section 1981,
like section 1982, was originally based on the broad prohibition

It-. /of the Thirteenth Amendment, not the narrower, commands of the 
Fourteenth Amendment which deal with'the States. And, like
section 1982, employment discrimination in violation of section
1981 was 
hands of 
of state

and is as present in the District of Columbia and at the 
federal officials as it is in the ̂ S^ates and at the hands 
officials.

_/ in Screws v. United States, 325 U.S. 91, 97, n.2 (1945)
the 'court held that §2 of the 1866 Act, rendering criminal certain 
discrimination against lany inhabitant of any State, Territory or District," applies to Federal officials.



The legislative background of the 1866 Civil Rights 
gives no reason to believe that Congress would have intended 
to deny to newly freed slaves protection from discrimination 
by federal officials. The abolitionists in control of 
Congress in 1866 had for a generation been anxious to abolish
slavery and all its trappings in the District of Columbia.

/See ten Brook, Equctl Under Law,pp. 41-57 (1951). it is
unlikely that Congress, having forbidden slavery throughout
the nation, intended by Section 1 of the Civil Rights Act
to abolish the "badges of slavery" only in the states and
to leave them intact in the nation's capitol. See Jones v.
Alfred H. Mayer Co., 392 U.S. 409, 439 (1968). Congress
also had ample reason for concern that the Federal officials
of the Freedmen's Bureau, established in 1865, were seriously

_/mistreating and exploiting the newly black former slaves.
The memory of the mistreatment of blacks by federal officials
under the Fugitive Slave Act was still fresh in the minds

_/of abolitionists in 1866. Freedmen1s Bureau agents were 
reported to be more sympathetic to the desires of white Southern

-j rl. (Seplanters than the needs of Freedmen. (See e.g. K. Stamp, 
The Era of Reconstruction 133-34 (1965) .J By April of 1866 
Congress was aware of President Johnson's opposition to its 
reconstruction program, and believed that he was actively

_/ Henry B. Stanton, in an address to the Massachusetts legis­
lative urging abolition in the District of Columbia, had argued 
"Having robbed the slave of himself, and thus made him a thing. 
Congress is consistent in denying to him all the protections of 
the law as a man. His labor is coerced from him by laws of Congress: No bargain is made, no wage is given . . . There is
not the shadow of legal protection for the family state among 
the slaves of the District . . . No slave can be a party before a
judicial tribunal, . . . in any species of action against any person, no matter how atrocious may have been the injury received. 
He is not known to the law as a person: much less, a person with 
civil rights . . . Congress should immediately restore to every
slave, the ownership of his own body, mind and soul, transfer 
them from things without rights, to men with rights . . . the
slave himself should be legally protected in life and limb, in his 
earnings, his family and social relations, and his conscience." ten Broek, Equal Under Law, p.46 (1951).
f^955?'BentleY' History of the Feedmen's Bureau,77, 84,125-132

See
ooth

J.
21

Equal Under Law, 
508 (1858) 57-65(1951); Ableman

- 13



undermining enforcement of new legislation and dismissing
. - Vfederal officers who supported Congress’ policies. See M. King,

Lyman Trumbull 293-95 (1965).' That concern about the conduct
of federal officials is manifest in other provisions of the 1866
Civil Rights Act, which compels federal marshalls , on pain of

_/criminal punishment, to enforce the Act, expressly requires that 
the district attorneys and other officials be paid for enforcing

_/the Act at the usual rates, and authorized the circuit courts, 
rather the President, to appoint commissioners with the power to 
arrest and imprison persons violating the Act.

Any possibility that Congress intended to exempt federal
officials from coverage by the 1866 Civil Rights Act is negated
by the express language of the Act extending its coverage to the
territories. Territorial governments, like that of the District
of Columbia, are but instrumentalities of the federal government,
and in the territories it is the United States itself which is the
sovereign. See District of Columbia v. Carter, 409 U.S. 418,422
(1973); United States v. City of Kodiak, 132 F.Supp. 574, 579
(D. Ct. Alaska, 1955). Many officials in the territories, including
judges and marshalls, were appointed directly by Washington, and all

/ .
territorial officers were technically federal officials.
In the mid-nineteenth century, when the role of the federal govern­
ment was far more limited than it is today, federal employees were 
under normal circumstances concentrated in the District of Columbia 
and the territories, and it was in general only there that 
employees were likely to be in a position to deny blacks the right

_/ 14 Stat. 28 §5.
_/ 14 Stat. 29, §7
_/ See E. Pomeroy, The Territories and the United States (1947);
M. Ferrand, Legislation of Congress for the Government of the 
Organized Territories of the United States (1896).

14



/

V

to make contracts, to enjoy equally the benefit from the 
protection of the law and legal proceedings, or to be subject to 
only the same pains and punishments as whites. The status and
treatment of Blacks in the territories had long concerned the 
abolitions in the 1066 -r- Congress; that issue had been a 
major factor leading to the Civil War.\L Dred Scott v. Sanford,
19 How. ( U.S.) 399 (185- ) . The inclusion under the 1866 I Xi

of persons in the territories represented a deliberate decision 
by Congress to protect freedmen in a region where the only 
officials who could interfere with their rights were federal

remedy /

officials, and thus to ban federal discrimination.

The 1866 Civil Rightsl, in addition to forbidding employ-
r d jment discrimination m  section,, expressly provided a judicial

r  7
That khe district courts of the United 
State's, within their respective dis­
tricts, shall have . . . cognizance 
. . . concurrently within the circuit
courts of the United States, of all 
cases, civil and criminal, affecting 
persons who are denied . . . any of
the rights secured to them by the 
first section of this act . . .

14 Stat. 27. This provision is now incorporated in 28 U.S.C. 
§1343, which provides in part,

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 equitable 
or other relief under any Act of Congress 
providing for the protection of civil rights, 
including the right to vote.

The literal language of Section 3 and 28 U.S.C. §1343(4) 
clearly encompasses jurisdiction to afford relief againstjviolationsfJvAo. \J K711s\ r  \ \J Ck  \  cv.

of §1981, fey federal officials.

_/ If Congress had wanted to limit jurisdiction to discrimination
involving state action, it knew how to do so. Sections 2 and 3 of 
the 1870 Civil Rights Act and Section 1 of the 1871 Civil Rights 
Act expressly restrict their coverage to action taken under color 
of ̂ rfate law, as d'oes 28 U S.C. §1343 (3). No such limitation is 
to be found in the 1866 Act or ..flection 1343 (4), and itsaosence must be taken as abCongressional intent to do just what those provisions said —  confer jurisdiction over all violation of §1981, 
regardless of whether the violation may be by state officials, federa



It is particularly unlikely that the Congress which enacted 
the 1866 Civil Rights Act could have intended that, to the extent 
that federal officials violated its provisions, aggrieved citizens 
would have no legal remedy. The abolitionists who finally won 
control of the Congress and many states in the 1860's a^dl$70's 
had long maintained that the rights described in Reconstruction Amend­
ments, and legislation were not new, but already existed by virtue

_/of the privileges and immunities clause and the Bill of Rights.
The purpose of such Amendments and legislation was, above all, to 
make those rights enforceable. The 1866 Civil Rights Act, enacted 
before the Fourteenth Amendment, was entitled "An Act to protect 
all Persons in the United States in their Civil Rights, and 
Furnish the Means of their Vindication." 14 Stat. 27 (Emphasis
added) Congressman Wilson, speaking in favor of the 1866 Civil 
Rights Bill, explained:

Mr. Speaker, I think I may safely affirm 
that this bill, so far as it declares the 
equality of all citizens in the enjoyment 
of Civil rights and immunities, merely 
affirms existing law. We are following the 
Constitution. We are reducing to statute 
form the spirit of the Constitution. We 
are establishing no new right, declaring no 
new principle. It is not the object of this
bill to establish new rights, but to protect and enforce those which already belong to 
every citizen. Cong. Globe, 39th Cong. 1st 
Sess. 1117.

To hold the 1866 Civil Rights Act unenforceable against the federal 
government would be to frustrate the manifest intent of Congress.
And, since federal discrimination was already forbidden by the 
Fifth Amendment, to render the Act unenforceable against federal 
defendants would be to render the Act, in this regard, nugatory.

_/ See generally ten Brock, Equal Under Law (1951); Graham,
"The Early Anti-Slavery Backgrounds of the Fourteenth Amendment, 
1950 Wis. L. Rev. 479; Graham, "The Conspiracy Theory1 of the 
Fourteenth Amendment," 47 Ufele L.J. 371 (1938).

-  16



The fact that section 1981 creates an enforceable remedy
against federal officials and thus entails in certain instances

v b tiff' it  j •: i i n  Cj pa waiver of sovereign immunity.. The Congress which enacted section 
1981 had no fondness for sovereign immunity, and cannot have 
contemplated that any ex-slaves aggrieved by .Federal misconduct would 
have to seek a remedy through a private bill. This court had already 
made clear that it will not "as a self constituted guardian of the 
Treasury import immunity back into a statute designed to limit it. 
Indian Trading v. United States, 350 U.S. 61, 69 (1955), or 
"whittle down . . .  by refinements" e*? statute affecting sovereign 
immunity. United States v. Yellow Cab Co.» 340 U.S. 543, 550 (1950)

/ No sovereign immunity would be involved in an action for
injunctive relief or to enforce the regulation requiring back pay. 
See p. , infra. Section 1981, ir^onjunction with §1343 (4). 
covers ordinary damages and any other appropriate relief.
/ That Congress* only three years earlier, led by many of
the prominent abolitionists, jH^had enacted the first compre­
hensive waiver of federal immunity in an attempt to end the 
long standing practice of seeking redress from Congress through 
private bills. President Lincoln, in his first State of the 
Union message, had urged such abolition:

Sc
th

It is important that some more convenient means 
should be provided, if possible, for the adjust­
ment of claims against the Government especially 
in view of their increased number by reason of the 
war. It is as_jjui-eh''1fHe_ duty of GoveTTimeixi^to render 
prompt T ĵatrfce against itself in favor~tof--cafi>aens 
as^j^is to administer the same between
ictLviduals. The investigation and ad-indication.

"of claims in their nature ^
department.

a thtii j i a d i

lesinger and Israel, The State^tff the Union Messages 
President, v. 2, 1060 (1966)/. The legislatio^^fdng
immunity was abolished largely Jto__en£-^h^pi^ctice of 

redre^SPg—€P"i 'bills . which left many
citizens without a remedy, fostered lobbyists pressing 
dubious claims, and corrupted the Congress.
38th Cong., 1st Sess. 1674-75.

See Cong. Globe,

J  See also Rayonier v. United States, 352 U.S. 315, 320
(1957).



On the contrary, precisely because that immunity "gives the 
government a privileged position, it has been appropriately 
confined," Keifer & Keifer v. Reconstruction Finance Corp., 
306 U.S. 381, 388 (1938), and any authority to sue "is to be 
liberally construed." United States v. Shaw, 309 U.S. 495, 
502 (1939). When Congress establishes by statute a legal 
right, including a right against the federal government, it 
must be deemed enforceable by the courts unless there is an 
unequivocal congressional intent to the contrary. Insofar
as the 1866 Civil Rights Act is concerned, it is clear that 
Congress adopted it primarily for the purpose of creating 
judicially enforceable rights.

Indiana al 
to the prgtfe 
States, t| 
by implic 
U.S. at 388,

len Cpngress^estab] 
fdinq^efright ,-aTgainj

4- ^  U

les by^staptffe a/Tegalf rigfrt,
inc^rfdina^aC right hgaingff the^fdaera^lr^ove^phmervt4 it Xs gen- 

tlli{̂ f5resumeQh to ha^e intefided that the riĝ ft woiyld be 
enf-orceablo. In Minnesota v. United States, 305 U.S. 382 
(1939), Minnesota had sued the United States to condemn cer­
tain Indian land. The only applicable federal statute 
authorized state suits to condemn Indian land, but did not 
say against whom such suits could be brought. The United 
States argued that it could not be sued since it had not 
waived sovereign immunity. Noting that a suit against the

puld not have been adequate to confer title 
.nee it was held in trust by the United 
Irt held "that authorization to condemn confers 

fn permission to sue the United States." 305 
n. 5. See also United States v. Hellard, 322 

U.S. 363 (1944). Similarly, in United States v, Jones, 109
U.S. 513 (1883), the Court was called upon to construe a
statute which directed the Secretary of War and his agents, 
prior to taking any lancL^^jo first pay such compensation as 
may have been ascertainadHn the mode provided by the laws of 
the state." 109 U.S. ar5l5. The United States urged that, 
although Congress had directed such payment, it was immune from 
any suit to force payment. The Supreme Court held otherwise, 
and ruled that the statute constituted a valid waiver of sover­
eign immunity authorizing suits against the United States in 
state court. 109 U.S. at 519-521. The grant of jurisdiction 
in Section 3 of the 1866 Civil Rights Act^ is more express than 
in Minnesota v. United States and United States v. Jones, and 
such a waiver of immunity is equally essential to render mean­
ingful the creation of the substantive rightJT involved.

18



2 . The Mandamus Act
Section 1361, 28 U.S.C., provides:

The district courts shall have original 
jurisdiction of any action in the nature 
of mandamus to compel an officer or employee 
of the United States or any agency thereof 
to perform a duty owed to the plaintiff.

This provision, enacted in 1962, was intended to confer upon 
the district courts the mandamus power until then limited 
to the District Court for the District of Columbia. Jarrett 
v. Resor, 426 F.2d 213 (9th Cir. 1970); Rural Electrification 
Administration v. Northern States Power Co., 373 F.2d 686 
(8th Cir. 1967), cert, denied, 387 U.S. 945. A writ of mandamus
is available to compel a federal officer to perfoi inister-
ial act, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), 
regardless of whether the official's obligation arises under 
the Constitution, a federal statute, a regulation or an Execu­
tive Order. Leonhard v. Mitchell, 473 F.2d 709, 713 (2d Cir. 
1973) .

The defendant officialsclearly have such a ministerial 
duty to make promotions within the General Services Administra­
tion without discrimination on the basis of race. -E4.̂ st. jche 
Fifth Amendment guarantee of due process of law,, absolutely 
prohibits the federal government from discriminating against 
blacks in employment, education, or any other regard. Bolling

__/ [T]he Constitution of the United States, in its present
form, forbids, so far as civil and political rights are con­
cerned, discrimination by the General Government, or by the 
States, against any citizen because of his race.” 347 U.S. at 
499, quoting Gibson v. Mississippi, 162 U.S. 595, 591 (1866). 
The Senate Report on the 1972 amendments to Title VII concluded

v. Sharpe. 347 U.S. 497 (1954). "Second

L9



the defendants in personnel matters is strictly circumscribed 
by section 7151 of Title 5 of the United States Code, which 
d^cjLres it to be the official policy of the United States 
"to insure equal employment opportunities for employees without 
discrimination because of race, color,religion, sex or national 
origin," and directs that the President "shall" carry out this

— 7 Qpolicy. Thucd,—.ir-acial discrimination by defendants is for-
*5̂0 fC'i.

bidden by the Civil Rights Act of 1866, 42 U.S.C. § 1981, 
pp. . 9?eunth, discrimination is barred by federal regu-

/
lations and Executive Order.

Continued
on the basis of Bolling that "[t]he prohibition against dis­
crimination by the Federal government, based upon the Due 
Process clause of the Fifth Amendment, was judicially recog- 

ed long before the enactment of the Civil Rights Act of 
" S. Rep. No. 92-415, 92nd Cong., 1st Sess. (1971),
ôiLivn. Illstioiyy/ ppi 133. The Fifth Amendment has 
expressly held to bar federal discrimination in employment 

Davis v. Washington, 4 EPD  ̂7926 (D. D.C. 1972); Faruk v. 
Rogers, 5 EPD 8015 (D. D.C. 1972).
__/ Section 7151 is no mere assertion of social goal^p it
is a direct and unequivocal command to the executive branch 
not to discriminate against plaintiff because of his race.
See Henderson v. Defense Contract Administration, ___ EPD ___
(S.D. N.Y. 1973).
__/ Section 713, 5 Code of Federal Regulations xhaiftr oo air­
fares a series of Executive Orders dating back to 1948. See 
E.O. 9980, July 26, 1948; E.O. 10590, January 18, 1955; E.0. 
10925, March 6, 1961; E.O. 11246, September 21, 1965; E.O.
11478, August 8, 1969; E.O. 11590. Both section 713 and 
Executive Order 11478 establish that it is the policy of the 
government of the Uniied States "to provide equal opportunity 
in federal employment for all persons, to prohibit discrimina­
tion in employment because of race," E.O. 11478, § 1; 5 C.F.R.
§ 713.202, and require that each executive department and 
agency "shall" establish a program to assure "equal opportunity 
in employment and personnel operations without regard to race." 
E.O. 11478, § 2; C.F.R. § 713.201(a).

k

part,
E.O. 11478, as amended by E.O. 11590, provides in pertinent 

"Section 1. It is the policy of the government

2 0



The lower courts have repeatedly held that mandamus is 
available to compel federal defendants to hire and promote 
without regard to race. In Beale v. Blount, 461 F.2d 1133 
(5th Cir. 1972), the plaintiff claimed he had been dismissed 
because he was black. The Fifth Circuit concluded: * 5

_/ Continued
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 executive department and agency ...
"Section 2. The head of each executive department 
and agency shall establish and maintain an affirma­
tive program of equal employment opportunity for 
all civilian employees and applicants for employ­
ment within his jurisdiction in accordance with 
the policy set forth in Section 1. It is the 
responsibility of each department and agency head, 
to the maximum extent possible, to provide suffi­
cient resources to administer such a program in a 
positive and effective manner ..."

5 C.F.R. § 713.201 provides,
"Purpose and applicability. - (a) Purpose. This 
subpart sets forth the regulations under which an 
agency shall establish a continuing affirmative 
program for equal opportunity in employment and 
personnel operations without regard to race, color, 
religion, sex, or national origin and under which 
the Commission will review an agency's program and 
entertain an appeal from a person dissatisfied with an 
agency's decision or other final action on his com­
plaint of discrimination on grounds of race, color, 
religion, sex, or national origin."

5 C.F.R. § 713.202 provides,
"General Policy. - It is the policy of the Govern­
ment of the United States and of the government of 
the District of Columbia to provide equal opportunity 
in employment for all persons, to prohibit discrim­
ination 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 agency."

-  2 1  -



Traditionally, the procedural avenue to 
reinstatement for an ex-employee of the 
federal government claiming to be the victim 
of improper discharge has been a petition 
for mandatory injunction or writ of mandamus 
directed to the head of the agency concerned 
commanding the re-employment of petitioner.
... In 1962, Congress broadened the avail­
ability of the mandamus remedy by investing 
the district courts generally with jurisdic­
tion to issue the writ which eliminated the 
previous requirement that reinstatement 
suits be maintained only in the United States 
District Court for the District of Columbia 
... Title 28 U.S.C., Section 1361. 461 F.2d
at 1137.

See also, Penn v. Schlesinger, ___ F.2d ___, ___ (5th Cir. 1973),
reversed on other grounds, ____ F.2d ____ (5th Cir. 1974);
Thorn v. Richardson, 4 EPD f 7630, p. 5490 (W.D. Wash. 1971).

Mandamus is also available to enforce a ministerial duty
_ /

to pay a particular sum of money to the plaintiff, though 
not to compel payment in an ordinary disputed tort or contract 
action. In the instant action plaintiff seeks, inter alia, 
an award of back pay. Were this a mere claim for consequential 
damages mandamus would be inappropriate. But the applicable

__/ In United States ex rel. Parish v. Macveagh, 214 U.S. 124
(1909), the Secretary of the Treasury had refused to pay the 
plaintiff $181,358.95, which payment was required by a special 
Act of Congress. This Court held that mandamus was available 
to compel the Secretary to issue a draft in that amount. 214 
U.S. at 138. In Miguel v, McCarl, 291 U.S. 442 (1934), this 
Court held that mandamus was available to compel the payment 
of a pension unlawfully withheld by the Comptroller General 
and the Army Chief of Finance. In Roberts v. United States ex 
rel. Valentine, 176 U.S. 221 (1900), this Court upheld a writ 
of mandamus directing the Treasurer of the United States to pay 
interest on certain bonds issued by the District of Columbia.
See also Garfield v. United States ex rel. Goldsby, 211 U.S. 249 
(1908); Work v. United States ex rel. Lynn, 266 U.S. 161 
(1924); City of New York v. Ruckelshaus, 358 F. Supp. 669 
(D. D.C. 1973).

22



regulations place upon defendants an unusual express obligation
to compute and award back pay in cases of racial discrimination,
rendering the award of such back pay a ministerial act.
Whether in fact plaintiff was denied promotion because of his
race is a disputed fact to be resolved by the district court.
If the district court determines that discrimination was
involved, the defendants will have an absolute obligation to
provide back pay, and, if they should fail to do so, that court
can compel performance of that ministerial act by a writ of

_ /
mandamus.

Section 713.271(b), 5 C.F.R., provides:
Remedial action involving an employee when 

an agency or the Commission, finds that an 
employee of the agency was discrimira ted against' 
and as a result of that discrimination was denied 
an employment benefit, or an administrative deci­
sion adverse to him was made, the agency shall 
take remedial actions which shall include one or 
more of the following, but need not be limited to 
these actions:

Retroactive promotion, with back pay computed 
in the same manner prescribed by § 550804 of this 
chapter, when the record clearly shows that but for 
the discrimination the employee would have been pro­
moted or would have been employed at a higher grade, 
except that the backpay liability may not accrue 
from a date earlier than 2 years prior to the date 
the discrimination complaint was filed, but in any 
event, not to exceed the date he would have been 
promoted. If a finding of discrimination was not 
based on a complaint, the backpay liability may not 
accrue from a date earlier than 2 years prior to 
the date the finding of discrimination was recorded, 
but, in any event, not to exceed the date he would 
have been promoted. (Emphasis added)

__/ The decisions of the Fifth Circuit in this regard'
divided. The panel in Beale held that backpay was awardable 
along with reinstatement in an appropriate case. 461 F.2d 
1133, 1138. The^anel in Penn concluded that backpay was 
unavailable because it would "impinge upon the Treasury."
____ F.2d ___, ____. Neither decision considered the unusual
provisions of 5 C.F.R. § 713.271(b).

23



Sovereign immunity affords no obstacles to the award of
relief by writ of mandamus. Mandamus is in general available
only when the defendants are acting in clear violation of
federal law; in such a case, however, the unlawful acts are no
longer those of the sovereign, and may be corrected by the
courts. The defense of sovereign immunity in a mandamus action
was raised and rejected long ago in Marbury v. Madison, 5 U.S.
(1 Cranch), 137, 166, 170-171 (1803). Any action in which a
federal official has refused to perform a ministerial act is,
by definition, one in which the official has lost theirantle

_ /
of the sovereign and is a mere private wrongdoer. In addi­
tion to sanctioning mandamus actions against federal officials, 
Section 1361 also authorizes mandamus against "any agency" of
the United States, including in this case the defendant General

_ /  '
Service Administration. This express language modifies the
usual rule that, because of sovereign immunity and the nature

_/ See Clackamas County, Oregon v. Mackay, 219 F.2d 479,
488-496 (D.C. Cir. 1954), vacated as moot, 349 U.S. 909 (1955); 
McQueary v. Laird, 449 F.2d 608, 611 (10th Cir. 1971); Byse and 
Fiucca, "Section 1361 of the Mandamus and Venue Act of 1962"
81 Harv. L. Rev. 308, 340-42 (1967).
_/ That section 1361 authorized mandamus against an agency
was well understood. Senator Mansfield, explaining the bill on 
behalf of the Judiciary Committee, stated that under it the 
court can only compel "the official or agency to act where there 
is a duty which the committee construes as an obligation, to 
act ... As stated in the House report, the bill does not 
define the term 'agency,' but the committee agrees that it 
should be taken to mean any department, independent establish­
ment, commission, administration, authority, board, or bureau 
of the United States, or any corporation in which the United 
States has a proprietary interest." 108 Cong. Rec. 18784. 
(Emphasis added)

24



of mandamus itself, a government agency cannot be subject to 
mandamus. The change, however, is one largely of form permit­
ting an agency to be sued in its own name; the relief available 
is the same as would be afforded if the individual in charge 
of the agency were sued instead. Certainly section 1361 con­
stitutes a waiver of immunity in any action "in the nature of 
mandamus"; if it did not that provision would be in a dead 
letter.

25



3. The Tucker Act
Section 1346, Title 28 United States Code, provides in

pertinent part:
(a) The district courts shall have original juris­

diction, concurrent with the Court of Claims, of:* * *
(2) Any other civil action or claim against
the United States, not exceeding $10,000 __/ in
amount, founded either upon the Constitution or 
any Act of Congress, or any regulation of an 
executive department, or upon any express or 
implied contract with the United States, or for 
liquidated or unliquidated damages in cases not 
sounding in tort.

This statute, known as the Tucker Act, is understood to be an
express waiver of severeign immunity as to claims falling within

_ /its scope.
Petitioner's claims clearly fall within the literal language 

of Section 1346. Racial discrimination in federal employment 
is prohibited by the Fifth Amendment to the Constitution. See 
Bolling v, Sharpe, 347 U.S. 497 (1954). An action is "founded 
upon" the Constitution whenever the damages are alleged to result 
from a violation of the Constitution; the plaintiff need not 
prove the Constitution expressly authorizes a lawsuit for that 
particular type of violation, since the (constitution) contains 
no express authorization of litigation for violation of any of

__/ The Original Complaint contained no allegation as to the size
of plaintiff's claim. The proposed Amended Complaint alleges thatthe amount "in controversy" exceeds $10,000., p. __a, but the
United States denied that such an amount was at stake. Defendants' 
Memorandum In Opposition to Plaintiff's Motion to Amend, p. 4. If 
this court were to determine that jurisdiction to award backpay and 
damages existed only under section 1346, plaintiffs would be entitled 
to waive recovery in excess of $10,000 and thus confer jurisdiction 

V i, on the .District jCourt, and would do so. See Perry v. United States, 
308 F. Supp 245 (D. Colo. 1970), aff'd 442 F.2d (10th Cir. 1971); 
Sutcliffe Storage & Warehouse Co. v. United States, 162 F.2d 849 (1st cir. 1947); United States v. Johnson, 153 F.2d 846 (9th Cir. 
1946); Hill v. United States, 40 F.2d 441 (1st Cir. 1889); Jones v. United States, 127 F. Supp. 31 (E.D.N.C. 1954).
__/ United States v. Yellow Cab Co., 340 U.S. 543 (1951); Spillway
Marina, Inc, v. U.S.. 445 F.2d 876 (10th Cir. 1971); Lloyds' London 
v. Blair, 262 F.2d 211 (10th Cir. 1958); Union Trust Co. v. United 
States, 113 F. Supp 80 (D.D.C. 1953), aff'd in part 221 F.2d 62, cert, denied 350 U.S. 911.

26



its provisions. Similarly, the discrimination of which
plaintiff complains is a violation of two federal statutes,
5 U.S.C. § 7151 and 42 U.S.C. § 1981. An action is "founded 
upon" a federal statute if the government action complained 
of is a violation of that statute, regardless of whether the 
statute itself creates or contemplates a cause of action.
The lower courts have unanimously rejected the argument that 
an action under the Tucker Act can only be "founded upon" a

a

actions

__/ m  Smith v. United States, 458 F.2d 1231 (9th Cir. 1972)the plaintiffs sued under § 1346(a)(2), alleging a violation 
of the Fifth Amendment's prohibition against taking private 
property without just compensation; the Ninth circuit unanimously 
upheld a judgment in favor of plaintiffs. An3 ~%n United States 
Iv .Hil?.sle.f> 237 U.S. 1 (1915), an action was upheld under this section as "founded upon" Article I, Section 9 of the Constitution, which forbids taxes on exports from any state. Similarly, in 
Bivens v. Six Unknown Federal Narcotics Agents. 403 U.S. 388 
I (1971) , thfr Supreme-Court upheld .th^t>a suit against federal 
employees arising out of a violation of the Fourth Amendment was 
an action which prises under the Constitution." See, 28.U.S.C.
§ 1331(a). None of the constitutional provisions in Smith,
Hvoslef or Bivens contained any authorization of a civil action.

/ Section 1346(a)(2) has long been construed to authorize 
ho—cCmpeT) refund of fines or penalties, on the ground propriety of the fine or penalty was governed by a federal statute. See Carriso v. United States. 106 F.2d 707 

(9th Cir. 1939); Compagnie General Translantigue v. United 
States, 21 F.2d 465 (S.D. N.Y. 1927), aff'd 26 F.2d 195.
Spanish Royal Mail Line Agency, Inc, v. United States, 45 F.2d 
404 (S.D. N.Y. 1930); Sinclair Nav. Co. v. United States. 32 
?:2d ?? (5th Cir. 1929); Sultzbach Clothing Co. v. United States,10 F.2d 363 (W.D. N.Y. 1925); Law v. United States, 18 F. Supp 
42 ( D. Mass. 1937); Lanashire Shipping Co. v. United States,
4 F. Supp 544 (S.D. N.Y. 1933). Litigation unde~§"l346TTai 
been expressly sanctioned as "founded upon" a wide variety of 
other statutes which set the standard for government conduct, 
but contained no mention of any remedy. See, e.g., Beers v.
Federal Security Administrator. 172 F.2d 34 (2nd Cir. 1949)
(Social Security Act); Ross Packing Co. v. United States, 42 
F. Supp 932 (E.D. Wash. 1942) (National Labor Relations Act);
Alcoa S.S.Co. v. United States, 80 F. Supp 158 (S.D. N.Y. 1948) (Transportation Act).

27



federal statute which itself creates a remedy or right of
_ /action. In United States v. Emery, Bird, Thayer R.R. Co.,

237 U.S. 28 (1915), this Court held that an action to recover
a tax was "founded upon" the Corporation Tax Law under which
the tax was collected, although that tax provision contained

_ /no remedial provision. 237 U.S. at 31-32.

__/ In Aycock-Lindsey Corporation v. United States, 171 F.2d
518 (5th Cir. 1948), the United States urged that an action under 
§ 1346 could not be "founded upon" the Soil Conservation and 
Domestic Allotment Act because that statute "created no enforceable 
claim or right of action against the Government." 171 F.2d at 520. 
The Fifth circuit expressly rejected that argument:

The Tucker Act does not provide that a statute 
of Congress upon which a statute is founded 
shall also provide that suit may be maintained 
against the United States for claims arising 
under such statute. The authority for a suit 
is found in the general terms of the Tucker Act 
and need not be reiterated in every enactment of 
Congress upon which a claim against the United 
States could be "founded." 171 F.2d at 518.

Similarly, in Compagnie General Transatlantigue v. United States,
21 F.2d 465 (S.D. N.Y. 1927) the court held that an action for 
the refund of a penalty could be founded upon the provisions of 
the Immigration Laws under which the penalty had purportedly been 
collected. 39 Stat. 880 and 43 Stat. 155. Judge Augustus Hand explained:

To limit recovery in cases "founded" upon a 
law of Congress to cases where the law provides 
in terms for a recovery would make that pro­
vision of the Tucker Act almost entirely 
unavailable, because it would allow recovery 
only in cases where laws other than the Tucker 
Act already created a right of recovery. "Founded" 
must therefore mean reasonably involving the 
application of a law of Congress. 21 F.2d at 466.

See, also Ross Packing Co. v. United States, 42 F. Supp 932. 937 (E.D. Wash".""1942) .
__/ ~$his Arises under tbiejfederal regulation
forbidding discrimination rnTiederai employment. 5 C.F.R. § 713, 
and Executive Order 11478. In Gnotta v. United States. 415 F.2d 
1271 (8th Cir. 1969), cert, denied 397 U.S. 984 the court con­
cluded that no action under the Tucker Act could be had to enforce 
the order and regulation on the ground that neither mentioned money 
claims, and "none of the executive orders or regulations . . . 
purports to confer any right on an employee of the United States to 
institute a civil action for damages against the United States."
415 F.2d at 1278. This reasoning is plainly erroneous. First, 
since the decis>gtS--4̂ »-̂ jris>j:ta the regulations have been amended to 
authorize theymvard of pack pay. Second, no mere regulation of 
Executive Ord^r couiW, bv^xtself, create a federal cause of action; 
only Congress na^^ffiaj^5ower. Third, the reasoning in Gnotta —  
that an action can only be "founded upon" a regulation which itself 
creates a cause of action —  is precisely the construction of the Tucker Act consistently rejected by all other federal courts.

2 8



J

-bg ,
The lisfe&ea-l tarrgrt&efe- of § 1346 is manifestly 

broad enough to cover claims for damages and back pay arising 
out of racial discrimination in employment. The statute 
covers "any claim" arising under the Constitution, statutes 
or regulations, and, while there are express exceptions, 
they are not applicable to this case. As this Court held 
in construing a similar provision, "The statute's terms 
are clear . . . they provide for district court jurisdic­
tion over any claim . . . .  Without resort to an automatic 
maxim of construction, such exceptions make it clear to 
us that Congress knew what it was about when it used the 
term 'any claim'". Brooks v. United States, 337 U.S. 49,
51 (1949).

This construction of § 1346 is supported by the
interpretation given by the Court of Claims to the similarly
tAhU(WV /  . .vav-eride'd-7provisxons of 28 U.S.C. § 1491. The latter statute 
provides, inter alia,

The Court of Claims shall have jurisdiction 
to render judgment upon any claim against the 
United States founded either by the Constitu­
tion, or any Act of Congress, or any regulation of an executive department . . .

In Cnambprs v. United St-aXLes . 451 F. 2d 1045 (Ct. Cl. 1971),
the court held that a claim of racial discrimination in
federal employment stated a cause of action under § 1491,
since such discrimination violated Executive Orders 11246
and 11478. The Court of Claims expressly considered, and
held erroneous, the reasoning in Gnotta v. United States,
415 F .2d 1271, (8th Cir. 1969), cert. denied, 387 U.S. 934.
See also Allison v. United States, 451 F.2d 1035 (Ct. Cl.
1971); Pettit v. United States, No. 253-72 (Ct. Cl. 1973)

__/ Section (d) provides:
have jurisdiction under this 
or claim for a pension. "

"The district courts shall not 
section of any civil action

2 9



- \,V* - yg,
> A  ' A 'b it yt'"•>*, ■Jf: *" j/—- /-• v, «A». "  J* • 

: * •■»••**■ s./**V*i ffl*V

J

(Opinion dated December 19, 1973), The decisions of the 
Court of Claims construing its own jurisdiction, which is 
by definition concurrent with and identical to that of 
the district courts, must be afforded substantial weight. 
See Beale v. Blount, 461 F.2d 1133, 1135 n.2 (5th Cir.
1972). District court jurisdiction under the Tucker Act 
to award back pay for discrimination in employment was 
expressly upheld in Palmer v. Rogers, 5 EPD 51 8822, p. 5493 
n. 1 (D.D.C. 1973) .

That back pay is available under the Tucker Act 
is made abundantly clear by its legislative history. Prior 
to 1964, § 1346 expressly excluded from its coverage " [a]ny 
civil action or claim to recover fees, salary or compensa­
tion for official services of officers or employees of 
the United States." See, 28 U.S.C.A. § 1346(d)(2) (1952).
This exception to the broad language of § 1346(a)(2) was 
understood to preclude the award of back pay. Jackson v. 
United States, 129 F.Supp. 537 (D. Utah 1955). In 1954 
this restrictive provision of Section 1346 was repealed. 
Pub. L. 88-519, 78 Stat. 699. The House Report, the

__/ H. Rep. 1604, 88th Cong., 2d Sass., p. 2P "The com­
mittee notes that by virtue of the act of October 5, 1952 
(76 Stat. 744, 28 U.S. § 1361), it is now possible for 
Government Employees who claim to have been improperly 
discharged to sue in their home districts for reinstate­
ment. However, the present prohibition of subsection 
(d)(2) of section 1346, 28 United States Code makes it 
necessary for any claim for back pay to be brought in 
the Court of Claims. The committee believes that when 
the amount claimed as back-, pay is not more than $10,000, 
and is therefore within the monetary limit of the district 
courts 1 general jurisdiction of contract claims against 
the United States the issue of reinstatement and the issue 
of compensation should be susceptible of being disposed 
of in a single rn I imi " 'Y , 1 n» ̂ ng

3 0



/Senate Report, and the congressional debates all
(/( t \ e\ • A,

agreed that the^f irst^purpose of the change was to allow 
actions for back pay in the district courts.

Section 1346 therefore confers jurisdiction 
on the district court to award plaintiff back pay and 
damages up to $10,000 upon a showing that he was denied 
a promotion or otherwise discriminated against because 
of his race.

S.Rep.
and Admin.

1390, 88th 
News (1964),

Cong., 1st 
p. 3255,

Sess., 2 U.S. Code Cong.

"Under the existing statutes, any officer or 
employee of the United States is required to 
file only in the Court of Claims here in 
Washington a civil suit to recover fees, salary, 
or compensation for services rendered as an 
officer or employee of the United States. By 
virtue of the act of October 5, 1962 (76 Stat.
744, 28 U.S.C. 1361), it is now possible for 
Government employees who allege they have been 
improperly discharged to sue in their home dis­
tricts for reinstatement, but under the prohibi­
tion of subsection (d) of 28 U.S.C., Section 
1346, the employee's claim for back pay, which very frequently accompanies his claim for rein­
statement, must be brought in the Court of Claims. 
Under the circumstances it is clear, that in order to do complete justice as efficiently 
and inexpensively as possible, the district 
courts should be given jurisdiction of the 
compensation claimed as well as the improper 
discharge, in order that they may be disposed 
of in a single action."

/ 110 Cong. Rec. 19766 (Remarks of Sen. Keating):
"This bill will have its most salutary effect in 
employee discharge cases. Today, under a 1962 
statute, a Government employee who claims to have 
been improperly removed from his position may sue 
to get his job back in his local federal court.
But the subsection of the Judicial Code whichthe 
present bill would repeal today prevents the 
employee , if he succeeds in establishing his 
right to reinstatement from getting a judgment 
in the same action for the backpay to which he 
is also entitled. To get the back pay, he must 
either bring another suit in the Court of Claims 
or, in some instances,seek the additional relied 
administratively. Now, if this bill is finally 
approved, it will be possible for him to secure 
both reinstatement and complete monetary relief 
in single proceeding."

__/ Injunctive relief is not available under the Tucker Act.
See Clay v. United States, 210 F.2d 686 (D.C.Cir. 1954);
Rambo v. United States, 145 F.2d 670 (5th Cir. 1944), cert.
denied 324 U.S. 848; Blanc v. United States, 244 F.2d 708 
(2d Cir. 1957).

- 31  -



4. The Administrative Procedure Act
Section 10(a) of the Administrative Procedure 

Act, 5 U.S.C. § 702, provides in broad language that 
"[A] person suffering legal wrong because of agency action, 
or adversely affected or aggrieved by agency action within 
the meaning of a relevant statute, is entitled to judicial 
review thereof." The remedy which a reviewing court can 
afford is broadly cast; the aggrieved plaintiff may main­
tain "any applicable form of legal action, including actions 
for declaratory judgments or writs of prohibitory or mandatory 
injunction . . ."5 U.S.C. § 703. The reviewing court is
commanded to

(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, 

findings, and conclusions found to be -
(a) arbitrary, capricious, an abuse 

of discretion, or otherwise not 
in accordance with .alw;

(b) contrary to constitutional right,
power, privilege, or immunity . . .

5 U.S.C. § 706.
The instant action is within the literal language 

of the Administrative Procedure Act. p/a intiff is undeniably 
aggrieved by the refusal of the defendant General Services 
Administration to promote him. A refusal to promote plaintiff 
because of his race would be in violation of his rights under 
the Fifth Amendment to the Constitution. See § 706(2) (b) .
Any decision based on racial discrimination is by definition
"arbitrary and capricious." § 706 (2) (b) . And snoh,discrimina­
tion violates two federal statutes, 42 U.S.C. § 1931 and 5 U.S.C. 
§ 7151, a series of Executive Orders culminating in Executive 
Order 11482, and the applicable federal regulations, 5 C.F.R.
§ 713, and is undeniably "not in accordance with law." §706(1)

_ /and (2)(a). The coverage of the Administrative Procedure Act

__/ "Law
Preserve

clearly includes regulations, 
Overton Park v. Volpe, 401 U.S.

See e.g. Citizens to 
402

e r s v



_ /is to be liberally interpreted. There is nothing to 
indicate any intent to preclude judicial review in the 
language, or legislative history, of the Fifth Amendment,
42 U.S.C. § 1981, 5 U.S.C. § 7151, Executive Order 11482, 
or 5 C.F.R. § 713. While there are certain express exceptions 
to the provisions for judicial review, see 5 U.S.C. 701(b), 
none of them are applicable here.

It is well established that the Administrative 
Procedure Act confers jurisdiction on the district courts 
to review agency action. The question was resolved by this 
Court in Rusk v. Cort, 396 U.S. 367 (1962), where the plain­
tiff sued under the Administrative Procedure Act and the 
Declaratory Judgment Act to overturn a decision of the 
Secretary of State. The Court, reasoning that "on their 
face the provisions of these statutes appear clearly to 
permit an action such as was brought here to review the 
final administrative determination of the Secretary of State, 
'concluded that "the District Court was correct in holding 
that it had jurisdiction to entertain this action for

H

__/ As this Court detailed in Abbott Laboratories v. Gardner,387 U.S. 136, 140-141 (1967):
The legislative material elucidating 

that seminal act manifests a congressional 
intention that it cover a broad spectrum of 
administrative actions, and this Court has 
echoed that theme by noting that the Ad­
ministrative Procedure Act's ♦generous 
review provisions" must be given a ♦hos­
pitable? interpretation. Shaughnessy v. 
Pedreiro, 349 U.S. 48, 51, 9^ h.ad 000; 073 j 951 
■C i 0 In. tiCHr; see United States v. Interstate 
Commerce Comm'n, 337 U.S. 426, 433-435,
Ljud. 1451, T4CCJ, 0 9 'Mi©’! Brownell
v. Tom We Shung, supra; Heikkila v. Barber, supra. Again in Rusk v. Cort, supra 369 U.S. at n7Q-nno -n T i m  ■ i on., .
the Court held that only upon a showing of 
♦iclear"* and convincing evidence" of a con­
trary legislative intent should the courts restrict access to judicial review. See 
also Jaffe, Judicial Control of Administra­
tive Action 336-359 (1965). See also 
Chicago v. United States, 396 U.S. 162 165 (1969; Norwalk CORE v. Norwalk Re­
development Agency, 395 F.2d 920, 932-933 
(2d Cir. 1968) . /<

- 3 3 -



0

_ /declaratory and injunctive relief." 369 U.S. at 370, 372. 
That the Administrative Procedure Act confers jurisdiction 
on the district court has been repeatedly affirmed by the 
lower courts. The "legal right" which plaintiff seeks to 
enforce need not be contained in a statute which establishes 
an independent basis of jurisdiction; it is sufficient that 
the statute was enacted to protect plaintiff's interests. 
Norwalk Core v. Norwalk Redevelopment Agency, 395 F.2d 920, 
933 (2d Cir. 1968)

The Administrative Procedure Act, by virtue of
conferring jurisdiction to review the actions of federal
agencies, ipso facto waived any immunity those agencies might
have frornhsuit. Manifestly if the Act contained no such waiver,
it would be a dead letter. Four circuits have expressly held
that the Administrative Procedure Act constitutes a waiver of

The same conclusion has been reached
_ /courts. The District of Columbia Circuit

sovereign immunity, 
by several district

&__/ Justice Brennan, concurring, -haid. that the Administrative
Procedure Act was a general grant of jurisdiction. 369 at 
380, n. 1. Justice Harlan dissented on the ground that juris­
diction had been withdrawn by the Immigrational Nationality 
Act of 1952, but agreed that otherwise it would have been 
conferred by the Administrative Procedure Act. See 369 U.S. at 383-399.
__/ See Citizens Committee for Hudson Valley v. Volpe,
425 F.2d 97, 102-103 (2d Cir. 1970) cert, denied 400 U.S.
949 (1970); Cappadora v. Celebrezze, 356 F.2d 1, 5-6 (2d Cir. 
1966); Schicker v. United States, 346 F.Supp. 417, 419 (D. 
Conn. 1972) modified on other grounds sub no Schicker v. 
Romney, 474 F.2d 309 (2d Cir. 1973); Road Review League v. 
Boyd, 270 F.Supp. 650, 651 (S.D.N.Y. 1967); Harris v. Kaine, 
352 F.Supp. 769, 772 (S.D.N.Y. 1972). See also Davis v. 
Romney, 355 F.Supp. 29, 40-42 (E.D. Pa. 1973); Northeast 
Residents Association v. Department of Housing and Urban 
Development, 325 F.Supp. 65, 67 (E.D. Wis. 1971); Arrow 
Meat Company v. Freeman, 261 F.Supp. 622, 623 (D. Ore. 1966.
__/ Kletschka v. Driver, 411 F.2d 436, 445 (2nd Cir. 1969) ;Scanwell Laboratories Inc., v. Shaffer, 424 F.2d 859-873-4 
(D.C. Cir. 1970); Estrada v. Ahiens, 296 F.2d 690 698
(5th Cir. 1959); Adams v. Witmer, 271 F.2d 29, 34 (9th Cir. 1959.
__/ See National Helium Corporation v. Morton, 326 F.Supp.
151, 154 (D. Kan. 1971) aff'd 455 F.2d 650, Lombard Corpora­
tion v. Resoc, 321 F.Supp. 687, 692-693 (D.D.C. 1970);Schroede Nursing Care, Inc, v. Mutual of Omaha Inc. Co.. 311 
F.Supp. 405-409 (E.D. Wis. .197(5).V other courts have reached the same result by arguing that, if the defendant individuals 
have acted unlawfully, the uction is not one against the sovereign. 
See e.g. National Helium Corporation v. Morton, 455 F.2d 650^



in Scanwell Laboratories, Inc, v. Shaffer, 424 F.2d 859
(D.C.C. 1970) correctly reasoned ;

It seems axiomatic to us that one must 
imply, from a statement by Congress that 
judicial review of agency action will be 
granted, an intention on the part of 
Congress to waive the right of sovereign 
immunity; any other construction would 
make the review provisions illusory. _ /

Order and ral regulations all strip the defendants of
any discretion to refuse to promote the plaintiff because 
of his race, and, as Congress has already determined, this

_ /mission have significant expertise. Jurisdiction over the

Administration is thus clearly appropriate under the Admin­
istrative Procedure Act.

— / That the contrary rule would nullify the Administrative 
Procedure Act, is well illustrated by Gnotta v. United States. 
415 F.2d 1271 (8th Cir. 1969), cert. denied 397 U.S. 934 
where the court held that judicial review was technically 
available, but that sovereign immunity barred a suit for 
review against any conceivable defendant, including the 
United States, the Civil Service Commission, and the in­
dividual government employees accused of unconstitutional 
and illegal conduct, and dismissed the action, 415 F.2d at 
1277. That decision has been widely criticized inter alia, 
by Professor Davis. Davis, Administrative Law Treatise^
1970 Supplement, p. 904. The Civil Service Commission sug­
gested to Congress that Gnotta was wrongly decided, see p. 
supra, and cited as proof that federal employees could sue 
to redress discrimination in employments Nixon v. Harris.
325 F.Supp. 28 (D. Colo.) an action brought- under the-Admin­
istrative Procedure Act. ' See Hearings Before a Subcommittee of the Senate Committee on Labor and Public Welfare, 92nd Cong., 1st Sess., pp. 296, 301, 318 (1971).

424 F.2d at 874.
The/Constitution, Acts of Congress, an Executive

is not an area in which the agencies or Civil Service Corn-

instant action to review the actions of the General Services

See pp. , infra ,



5 • 28 U .S.C. S 1331
Section 133J, 28 U.S.C. , confers jurisdiction on the 

district courts in any action in which the sural- in controversy 
exceeds $10,000 and which "arises under the Constitution, laws 
or treaties of the United States." The term "laws" is not limited
to congressionally enacted statutes, but includes any regulation

_ /or Executive Order with the force of law. Indisputably petitioner's
claim arises under the laws and Constitution of the United States.

p  i o  v ' ( b ySection 1331 thus ©enters jurisdiction over the individual
defendants in this federal employment discrimination action unless
those individuals are protected from suit by the sovereign immunity 
of the federal government. At least since Marbury v. Madison, 5 U.S. 
(1 Cranch) 137 (1803) it has been clear that federal employees who 
act in excess of their authority or in violation of the Constitution 
enjoy no such immunity. Marbury arose out of a mandamus action 
to compel the Secretary of State to deliver to plaintiff his com­
mission as justice of the peace. This Court expressly rejected 
the suggestion that the Secretary of State could not be sued because 
he was an important federal official,

It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety of issuing a mandamus is to be determined.Where the head of a department acts in a case, in which executive discretion is to be exercised; in which he is the mere organ of executive will; it is again repeated, 
that any application to a court to control, in any respect, his conduct would be rejected without hesitation.
But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the President cannot lawfully forbid, and therefore is never presumed to have forbidden; as for example, to record a commission, or a patent for land, which 
has received all the legal solemnities; or to give a copy of

____/ Regarding the allegation of jurisdictional amount,see n. , supra.
___/ Murphy v. Colonial Fed. Savings and Loan, 388 F.2d
609 (2d Cir. 1957); Farmer v. Philadelphia Elec. Co., 329 
F .2d 3 (3d Cir. 1964) .
___/ Several lower courts have sustained jurisdiction
on this basis. See e.g. Palmer v. Rogers, 6 EPD 5[ 8822,

(Q ( \ p. 5493 (D.D.C. 1973); Cartwright v. Reasor. 325 F.Supp.
- " 797,808 (E.D.N.Y. 1971).

- 3 6 -



such record; in such cases, it is not perceived on what ground the 
courts of the country are further 
excused from the duty of giving judgment that right be done to an 
injured individual, than if the 
same services were to be performed 
by a person not the head of a 
department.

5 U.S. at 166, 170-71.
A similar question arises in view of the immunity 

from suit conferred upon the states by the Eleventh Amend­
ment, and it has been similarly answered. In Ex Parte Young, 
209 U.S. 123 (1908), the stockholders of a railroad company
sued the Attorney General of Minnesota, seeking an order re­
straining him from enforcing state regulations claimed to 
violate the Fourteenth Amendment. The Attorney General 
urged the action was in effect one against the state, and 
thus barred by the Eleventh Amendment. Th)̂  -S-uprawns-Court 
rejected this contention, and held that state officials 
could be enjoined from taking actions which would violate 
the

The act to be enforced is alleged 
to beuncconstitutional; and if it be so, 
the use of the name of the state to en­
force an unconstitutional act to the 
injury of complainants is a proceeding 
without the authority of, and one which 
does not affect, the state in its sov­
ereign or governmental capacity. It is 
simply an illegal act upon the part of 
a state official in attempting, by the 
use of the name of the state, to enforce 
a legislative enactment which is void 
because unconstitutional. If the act 
which the state attorney general seeks 
to enforce be a violation of the Federal 
Constitution, the officer, in proceed­
ing under such enactment. comes into 
conflict with the superior authority 
of that Constitution, and he is in that 
case stripped of his official or repre­sentative character and is subjected in 
his person to the consequences of his 
individual conduct.

209 U.S. at 159-160. The limitation on the immunity of state 
officers, delineated in Ex Parte Young, is the same limitation 
applicable to federal officials. See Philadelphia Co. v. 
Stimson, 223 U.S. 605, 621 (1912.

- 3 7 -



The established standard which derives from 
these cases is that federal officers may be sued if
either (1) their actions are beyond the authority con­
ferred upon them by state, regulation, or other order, 
or (2) although the actions are within the scope of the 
authority itself or the manner in which it was exercised 
is unconstitutional. See Dugan v. Rank, 372 U.S. 609,
621-624 (1963); Malone v. Baldwin, 369 U.S. 643 (1962);
Larson v. Domestic and Foreign Commerce Corp., 337 U.S.
643 (1949). If the action at issue is unlawful, it may 
be enjoined even though the activity may involve large 
number^of federal employees, substantial sums of money, 
or policies supported by high public officials. The 
operation of a segregated school system in the District 
of Columbia involved thousands of federal employees and 
millions of tax dollars and the seizure of the steel 
mills in 1952 was directly ordered by the President 
himself, yet both these activities were enjoined by the 
federal courts. Bolling v. Sharpe, 347 U.S. 497 (1954); 
Youngstown Sneet & Tube Co. v. Sawyer,343 U.S. 579 (1952).
These cases were properly deemed suits against individuals 
rather than against the United States, not because the 
issues were unimportant, or the relief in some metaphysical 
sense "negative" rather than "affirmative", but because, 
since the activity involved was unconstitutional, tbrerb— $jc-b 
activity was ipso facto not that of the sovereign. An 
order enjoining racial discrimination on any scale cannot 
"operate against the Government'^ for when such discrimina­
tion occurs it is an act of individuals but not the government"?" /

__/ The lower courts have consistently rejected out of hand
contentions by the United States that its officers were pro­
tected by sovereign immunity when they act in violation 
of the Constitution_or in excess of their statutory authority.
I nrl W a s s q»->v . Tro>45ridVe , 3 82 EUr2'd 80 7 (2ct-eisr. l^oT^-the plrd̂ n- 
titf s*fed c^ie^ecreta^ of/raranence to^halllnge^<ertajn^dis-| cipbHiary acTfions takov-by the Men^j>dnt Mari ner^Academy alleging

- 3  8 -



either
Not every 

unauthorized
wrongful act by a federal official is 
or unconstitutional and thus without

immunity. A federal officer who breaks or violates a con- 
tracVwith a private party may have express and constitu­
tional authority to do so,, and this be immune from suit.
Larson v. Domestic and Foreign Commerce Corp., 337 U .S.
682 (1949). A federal officer may not ordinarily be 
enjoined from action constituting ordinary trespass; the 
taking of private property for public use is widely authorized, 
and the constitutionally required redress is just compensation
See Dugan v . Rank, 372 U.S. 609 (1963); Malone v. Baldwin, 369 
U.S . 643 (1962) .

/ continued
duralthat the defendants had failed to afford 

protections required by the Due Process c
Amendment. Th£§/Court of Appeals held, "Indisputedly the. 
District Court had jurisdiction to determine whether the pro­
cedure applied to Wasson was constitutionally sufficient. Ex
-J?arte Young. 209 U.S. 123" 382 F.2d at 811 (ffiooiro iPTf. In
Leonhard v. Mitchell, 473 F.2d 709 (2d Cir.""T973) , the plain­
tiff claimed the~Attorney General and other federal officials 
had violated his right to raise his children as he saw fit, 
in violation of the Due Process clause. The United States 
urged without success that the action be dismissed on the 
ground that it was in reality a suit "against the government,'

"Sovereign immunity is no bar . . .
[where] the complaint alleges that agents 
of the Government have exceeded their con­
stitutional authority while purporting to 
act in the name of the sovereign." . . .
See Dugan v. Rank, 372 U.S. 609, 621-622
• * * • Larson v . Domestic and Foreign Commerce 
Corp., 337 U.S. 682, 689-691. . . . Since
Leonhard's complaint alleged that the defendant's 
participation in the secretion of his children 
abridged rights secured to him by the Fifth 
Amendment, the action did not, improperly name 
these defendants.

473 F.2d at 712, n. 2 (Knufmann In Toilet Goods Associationv. Gardner, 360 F.2d 677 (2d Cir. 1966) aff'd 387 U.S. 158, 167, 
the plaintiffs sued the Secretary of Health, Education and Welfare 
to invalidate certain regulations which they claimed he lacked 
authority to issue. The United Spates urged that the suit was 
barred by sovereign immunity. ^JjJdge^Vendly commented,

We need not di^fcus'h-^he^fext the surprising contention that an â ioru^dr a declaration that 
federal regulatory officials have acted in excess 
of their authority constitutes an unconsented suit against the Uuited States. The contrary is clearly established by Philadelphia Co. v.



'll**

In the instant case, however, the complaint 
alleges that the individual defendants took actions in 
excess of their authority and in violation of the Con­
stitution. The federal officials sued by plaintiff had 
no authority to consider plaintiff's race in passing on 
his applications for promotion, for they are forbidden 
to do so by statute, regulation and Executive Order^and 
any attempt to authorize consideration of race or color 
would be void under the Fifth Amendment. If, as alleged, 
the individual defendants did deny plaintiff promotions
because of his race, they did so — r not as agents of the

~6 .United States cloaked with its immunity -- but as private 
individuals on an invidious frolic and detour of their own, 
and it is those individuals, not the plaintiff, who are 
interfering with the administration of official government 
policy. Settle v. E.E.O.C. , 5 EPD, <J[ 8100, p. 6989 (S.D.
Tex. 1972). Whether such determination has occurred is 
aquestion of fact to be determined by the District Court.
But when discrimination exists within the federal govern­
ment and individuals bring actions such as these to prevent 
it, such actions -- far from being "against the United 
States" -- are in reality suits by private attorneys 
general on behalf of the United States to bring those 
guilty of discrimination back into conformity with federal 
1aw. Compare Newman v. Piggie Park Enterprises, 3 90 U .S.
900 (1968).

If this were an action alleging racial discrimina­
tion in employment by a state, a defense of sovereign immunity 
would necessarily fail. The immunity conferred upon the states

/ continued
Stimson, 233 U.S. 605, 619-620, . . . and
indeed follows inevitably from Ex Parte 
Young, 209 U.S. 123 . . .; law officers
of the Government ought not to take the 
time of busK judges or of opposing parties by advancing an argument so plainly fore­closed by Supreme Court decisions.

360 F.2d at 683, n.6. See also Berk_v. Laird, 429 F.2d 302,



by the Eleventh Amendment does not, of course, protect 
a state official guilty of unconstitutional racial dis­
crimination. Griffin v. County Scho.ol Board of Prince__
Edward County, 377 U.S. 218, 228 (1964} The Constitution
places upon the states a legally enforceable obligation 
to hire and promote employees without discriminating on 
the basis of race; "it would be unthinkable that the 
same Constitution would impose a lesser duty on the 
federal Government." Bolling v. Snarpe, 347 U.S. 497,
500 (1954) . /

_/ State officials practicing discrimination in employ­
ment have been repeatedly held to lack sovereign immunity. 
Board of Trustees of Arkansas A & M College v. Davis, 396 
F. 2d 730, ' (8th Cir. 1968); Carter v. Gallagher, 452
F .2d 315 (8th Cir. 1971). Federal courts have consistently 
taken jurisdiction over litigation against state agencies 
and officials to resolve allegations of racial discrimina­
tion in hiring or promotion. See, e.g. Castro v. Beecher, 
452 F .2d 315 (8th Cir. 1971); N.A.A.C.P. v. Allen, 340 F.Supp. 703 (M.D. Ala. 1972) ; Johnson v. Cain, 5 EPD 8509 
(D. Del. 1973); Suel v. Addington, 5 EPD f 8043 (9th Cir. 
1972) ; Bennett v. Gravelle, 4 EPD 7566 (4th Cir. 1971); 
Strain v. Philpott, 4 EPD M  7835, 7562, 7521 (M.D. Ala. 
1971); Morrow v. Crisler, 3 EPD H 8119 (S.D. Miss. 1971); 
London v. Florida Department of Health, 3 EPD H 8018 
(N.D. Fla. 1970).
_/ See also Watkins v. Washington, 3 EPD § 8291, p. 6988
(D.D.C. 1971) ■;--- ----------------

- 4 1 -



B. Application of Section 717 to Discrimination
Occurring Before March 24, 1972

The Second Circuit concluded that §717 applies to 
discrimination occurring before its effective date,
March 24, 1972. P. a-a. In the light of this court's 
decision in Bradley v. The School Board of the City of
Richmond, ________ U.S. __________(1974), petitioner
believes that the holding of the Court of Appeals on 
this issue was correct.

- 4 2 -



C . Section 717 Did Not Repeal Pre-Existing 
Remedies for Discrimination in Federal 
Employment

Any inquiry into the meaning of Section 717 must
begin with an examination of Title VII as it applies

6"^ .to private employees. Section 717 was adopted by 
Congress for the express purpose of giving federal 
employees the same rights as one enjoyed by employees in 
the private sector.

Under Section 717, the Senate report stated, "Aggrieved
employees or applicants will also have the full rights
available in the courts as one granted to individuals in the

_ /private sector under Title VII." Senator Dominick, one
of the draftsmen of the Senate version of §717(c), argued:

A federal employee . . . would . . .
have a right . . .  to go into court 
himself in order to get a solution to his problem . . .  It seems to me that 
where we are dealing with job discrimination, 
it makes no difference what type of job you 
have, you should be entitled to the same , 
remedies anyone else has, and this is a right
to have the federal court determine whether__/
or not you have been discriminated against.

Senator Williams, the floor manager of §2515, agreed
Previously, there have been unrealistically 
high barriers which prevented or discouraged 
a federal employee from taking a case to court. 
This will no longer be the case. There is no 
reason why a federal employee should not 
have the same private right of action en­joyed by individuals in the private sector, 
and I believe that the committee has acted 
wisely in this regard__ /

Accordingly the rights afforded a federal employee under 
Title VII must be at least as great as those provided to

/

/
/

[S.Rep. No. 92-415, pp. 16-17 
118 Cong. Rec. 3967 (emphasis 
118 Cong. Rec. 4922 (emphasis

(emphasis
added)] 
added)̂

added)

4 3 -



/
private employees.

Even prior to the 1972 amendments to Title VII it 
was well established that that Title had not in any way 
replealed or pre-empted 42 U.S.C. §1981 or any other 
pre-existing statutes. Four circuits had alreadly rejected 
that contention on the part of defendant employees.
The Fifth Circuit in Sanders v. Dobbs Housen Inc., Inc.

period before a civil action may be commenced, a federal 
claim is processed by the defendant agency and Civil 
Service Commission rather than EEOC. Congress so 
provided, despite its conviction that the Civil Service 
complaint process was generally ineffective^solely because 
it concluded that giving this responsibility to EEOC 
would "impose an unmanageable burden on that overworked
and underfunded agency." 118 Cong. Rec._________(Remarks
of Senator Kennedy) (19/14/71)). (2) Federal employees
must file a civil action under Title VII within 30 days' 
of receipt of a "right to sue" letter, whereas private 
employeegx^ho prior to 1972 also had a 30 day limit, ow-e- 
allowed 90 days within which to sue. See §§706(f),
717 (c). The legislative history is silent as to the 
reason for, or any recognition of, this difference. The
the consideration of the 1972 Act, and the failure of the 
draftsmen to conform §717(c) to the final alteration may

V 4' time limit under 706 (,Fj was changed at several times during

A

- 4 4 -



431 F. 2d 1097 ,1100-01 (5th Cir. .1970) reasoned
Since there is no language in Title VII that 
can remotely be construed as directly repealing 
§1981, the only means of repeal through pre­
emption would be by implication. Repeals by 
implication, however, are not favored . . . .
Thus we conclude that the specific remedies 
fashioned by Congress in Title VII were not 
intended to pre-empt the general remedial 
language of §1981 . . . .  The wide differences 
provided by the statute of limitations applicable 
to actions under the two acts are not irreconcilable

Since adoption of section 717 three other circuits have
_/rejected the pre-emption argument. This Court expressly

L Uheld in Johnson v. Railway Express Agency, -43 U.S.h.w. 4523, 
4&l5 (1975), that Title VII had not repealed pre-existing
statutes providing remedies for racial discrimination in 
employment. "Despite Title VII's range and its design as 
a comprehensive solution for the problem of individious 
discrimination in employment, the aggrieved individual 
clearly is not deprived of other remedies he possess and is 
not limited to Title VII in his search for relief."
Similarly in Alexander v. Garden-Denver Co., ____U.S. ___
(1974) this Court held

[L]egislative enactments in this area have 
long envinced a general intent to accord 
parallel or overlapping remedies against 
discrimination . . . .  Moreover, 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 inference is that Title VII was designed to supplement, rather than supplant, 
existing laws and institutions relating to 
employment discrimination.

U.S. at

(S'r r V-
cb'h)i\ ^ i

4

■\
C\ \\J

_/ Waters v. Wisconsin Steel Works, 427 F.2d 476, 484-85 (7th Cir. 1970); Macklin v. Speotor Freight Systems. Inc., 
478 F.2d 979, 993-996 (D.C. Cir.1973)

- 4 5 -



Congress has repeatedly and expressly rejected
proposals to make Title VII the exclusive remedy for
claims of racial discrimination 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. I n  1972 S e n a t o r  H r u s k a  p r o p o s e d  a n  a m e n d m e n t

which would have made Title V I I  the exclusive remedy for
claims of employment discrimination. The amendment was
opposed by the Department of Justice; thex^ii^f— the '
C i v i l  R i g h t s  D i v i s i o n  t e s t i f i e d ;

[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 employ­
ment discrimination. In the field of 
civil rights, the Congress has regularly 
insured that there be a variety of enforcement devices to insure that all 
available resources are brought to bear 
on problems of discrimination . . . .
[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._/

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 made 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. President, the key to the proposition 
which we laid before the Senate - incidentally, 
this has noxv been the law for the last 8 years - 
is that what this amendment would seek tc 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

_/ Hearings Before the Senate Committee on Labor and Public Welfare, 91 st Cong. 1st Sess. 162-163 (1971)

- 4  6 -



• -i ■ - 4tr Vlhv.A-o <•

exclusive remedy which is sought to be 
compelled by this amendment.

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. 1971) and 
Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970), 
and expressed its belief that the remedies afforded by Title VII 
and section 1981 "augment each other and are not mutually 
exclusive." If the Department of Justice now believes that 
Congress erred in rejecting the Tower and Hruska amendments, 
its remedy is to seek an amendment to Title VII from the Congress, 
not from the courts.

I

Even outside the context of Title VII section 717 would
not be construed as pre-empting pre-existing remedies. In 
Morton the Appellant argued that 717 had tacitly repealed earlier 
enacted statutory preferences 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 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. 2d at 300-301.
The coverage of section 717 is clearly not coextensive with 

that of section 1981 and other pre-existing legal remedies .
These earlier statutes provide for relief not necessarily 
available under Title VII. Under section 1981 and section 1331 
an employee would be entitled under appropriate circumstances 
to punitive or compensatory damages against the government

- 4 7 -



I A W  Up
— — ~ officials who engager̂ - i-r̂ ^iscr iimî a-t-irerrr Such

damages would also be awardable against the agency itself
under section 1981 and the Tucker Act. Certain federal_/ -rAiars
agencies are not subject to section 717. 41hre—twô  year 
limitation on back pay, if it is applicable to the federal 
government, would not restrict the back pay available 
under any of the pre-existing remedies. Under remedies 
other than Title VII, particularly^Section 1981, a federal 
employee would not be subject to the limited exhaustion 
requirement of section 717(c). Title VII, on the other 
hand, provides for waiver of court costs, attorneys' fees, 
and the appointment of counsel, items that are not within 
the specific terms of section 1981 and other remedies. (---

__/ Aliens employed outside the limits of the United
States, employees of the Government Accounting Office, 
and persons in the Government of the District of Columbia 
and the legislative and judicial branches who are not in the competitive service.
__/ Section 706(g) provides that back pay liability
shall not accrue "from a date more than two years prior 
to the filing of a charge with the Commission." A federal 
employee, of course, does not file a charge with the E.E.O.C. 
but with his own agency or the Civil Service Commission. 
Whether such a limitation should nonetheless be imposed 
in federal cases because of the congressional policy of 
treating federal and private employees similarly under 
Title VII is a question not presented in this case.

Ip {
r /V Pj

p.l
sM

C? c (y
§ f y  i r h

rtf
1 -48-I (j

(S~̂\i,.—



II. THIS ACTION SHOULD NOT BE DISMISSED
FOR FAILURE TO EXHAUST ADMINISTRATIVE
REMEDIES

A . Exhaustion Of Administrative Remedies Is_Not A
Prerequisite To An Action Under The 1866 Civil 
Rights Act, etc.

The question of exhaustion, like that of implied
repeal, must be resolved primarily with reference to the
rights of private employees under similar circumstances.
For federal and private employees alike, " [t]he legisla­
tive history of Title VII manifests a congressional intent 
to allow an individual to pursue independently his rights 
under both Title VII and other applicable state and federal 
statutes". Alexander v. Gardner-Dsnver Co., 415 U.S. 30,
48 (1974). Specifically with regard to the 1866 Civil 
Rights Act, this Court held last term that "Congress clearly 
has retained §1981 as a remedy against private employment 
discrimination separate from and independent of the more 
elaborate and time consuming procedures of Title VII". 
Johnson v. Railway Express Agency, 43 U.S.L.W. 4623.
4627 (1975). Precisely because of the independent nature 
of these remedies a private employee is not required to 
invoke them in any particular order. A private employee 
need Not, for example, have his complaint processed by 
E.E.O.C. before filing a § 1931 action —  indeed, under 
certain circumstances he may not so delay commencing 
his §1981 action. Id.

VA federil employee is afforded a comparable though 
not identical arsenal of statutory remedies. Because these 
remedies are independent of one another, he is free to 
choose whether to invoke §1981, the Tucker Act, the Mandamus 
Act, etc., as best befits his needs and situation. The 
administrative complaint procedure established by 5 C.F.R.

__/ See p. , supra

./

- 4 9 -



§ 713 is another such administrative remedy available
to a federal employee which he can choose to pursue
when he concludes it is the best way of pursuing his
claim. Congress,, of course has to a limited extent
required an employee to use this administrative remedy

_ /before filing a Title VII action, but no such pre­
condition is placed on actions under other statutes.
In view of the congressional purpose that remedies 
for employment discrimination be independent, it would 
be particularly inappropriate to engraft on to other 
statutes a jurisdictional prerequisite which Congress 
has seen fit to adopt solely for section 717 actions.
The creation of the E„E.O.C. administrative remedy for 
private employees has properly been held not to reflect 
a Congressional requirement that all private complaints 
be processed there first; that reasoning applies a_ 
fortiori to section 717 (c) , which did not create the 
administrative remedy but was intended instead to limit 
an employee's obligation to use that already existing 
procedure. ’This independence of remedial schemes is 
consistent with the decisions of this Court in construing 
the civil rights acts adopted in the last century of' C VD 
giving "due respect to a suitor's choice of a federal 
forum for the hearing and decision of his federal con-

-trstitutional claims". Zwickler v. Koola, 389 U.S. 241,
248 (1967) .

__/ The employee need not process his claim all the
way through the Appeals Review Board, or even await final 
agency action; he may commence suit if final agency action 
has not occurred within 180 days of filing his administra­
tive complaint. Section 717(c). A majority of all ad­
ministrative complaints are not decided within 180 days,
despite an express requirement in § 713.___ that they
be resolved in that time. U 4_ / , ,ib

t  (S' CiS- Os? fr, t  CO 7 \ d . ‘~
• s— .   ̂ -7 u .  Cv

j iMj ih Ls\Z‘- '•
Z- -JTjfL J ■)«&»

■\v J / (J stsv\ ̂ . h-x ĵ-urr\ ^
L<- I *-»■ ̂ ]<iLd

, ,S' -50, —rv st.
iujuj T



This Court has long held that a plaintiff
O'. I __/seeking to invoke remedies§-JL^Sd-Tieed not

pursue or exhaust any available administrative remedies.
Damico v. California, 389 U.S. 416 (1967); McNeese v.
Board of Education, 373 U.S. 668 (1963); Monroe v. Papa,
365 U.S. 167 (1961). Monroe held that an aggrieved
citizen need not raise his claim in state court before
seeking federal intervention. "The federal remedy is
supplementary to the state remedy, and the latter need
not be first sought and refused before the federal one
is invoked." 365 U.S. at 183. In McNeese and Damico
that principle was applied to federal claims under the
Fourteenth Amendment despite the alleged availability
of a state administrative remedy. Damico v. California,
389 at 416-17; McNeese v. Board of Education, 373 U.S.
at 674. This Court explained in McNees_gj— -

We yet like to believe that wherever 
the Federal courts sit, human rights 
under the Federal Constitution are 
always a proper subject for adjudica­
tion, and that we have not the right to decline the exercise of that juris­
diction simply because the rights asserted 
may be adjudicated in some other forum.
373 U.S. at 674.

That principle is no less applicable where at issue
the Fifth Amendment right to be free from federal dis-

_ /crimination and the "other forum" as a federal administra­
tive process.

In Johnson v. Railway Express Agency, 43 U.S.L.W.
4623 (1975), this Court held that an employee could not 
choose to delay the filing of a § 1981 complaint while a 
related charge of discrimination was being processed

_/ Except, of course, in
the core of habeas corpus. 
U.S. 475.

the case of an action within 
Preiser v. Rodriguez, 411

/ Bolling v. Sharpe, 347 U.S. 497 (1954).



under Title VII. The reasoning of Johnson applies _a
fortiori to the suggestion of the Second Circuit 
that a federal employee not only -&u«-but must so 
delay his § 1981 action. In a number of states, including 
that involved in Johnson, the statute of limitations ap­
plicable to a § 1981 case is one or two years. Petitioner's 
case, however, was already 19 months old when final agency 
action occurred, and doubtless would have aged still further
pending an appeal to the Appeals Review Board. Those statutes

\V,
t yof limitations reflect "a valtfe judgment concerning the 

point at which the interests in favor of protecting valid 
claims are outweighed by the interests in prohibiting the 
prosecution of stale ones". 4-3 U.S.L.W. at 4626. Section 
1938, 42 U.S.C., clearly indicates that the time frame 
within which a § 1988 ought to be filed should be measured 
by state law, not an judicially fashioned ad hoc rule. 
Particularly in view of the severe limitations on the 
types of claims that may be processed under the Civil 
Service Regulations, it is unlikely that there will 
be a "complete identity of the causes of action" considered 
in that process and raised in the § 1931 action, and that 
discrepancy may well work to the disadvantage of the
defendants. 4 3 - - âE-_452B7'-n̂ __JL4̂  In view of the

/

A c-

J
c .h' (v )

i

- 5 2 -



underlying congressional policy that federal and private 
employees be treated alike, it is difficult to understand 
how a federal employee can be compelled to endure a delay
before filing a § 1931 action under circumstances which,

C' U ^ A  * i ^if acquiesced in by a private employee, would be property?—  
l'Shrehett-'s leeping on his rights.

The administrative and judicial processes may, 
of course, prove complimentary if an employee chooses to 
pursue them simultaneously. A section 1981 action will 
entitle the employee to invoke discovery procedures, which 
are essential to unearth the facts but are not available 
in the administrative process. The administrative process, 
on the other hand, involves unique opportunities for con-
cicliation, such as through the efforts of the E.E.O.

/Counselor. The employee would be free to seek to stay 
or accelerate the judicial proceeding so as to dovetail 
with activities in the administrative process. Similarly 
the government Inâ  be able to request a stay of up to 
60 days to(pej?mit efforts to agree upon voluntary compliance 
See Johnson v. Railway Express Agency, 43 U.S.L.W. 4623,
4627 (1975) (~(/\

None of the factors which would tend to militate 
in favor of an exhaustion requirement are applicable to 
a charge of federal employment discrimination.

__/ 5 C.F.R. § 713.___
A  /

__/ Section 706 (f) (1) , providing for such stays, is
literally inapplicable Here since it refers to efforts 
to obtain voluntary compliance by the E.E.O.C. Whether 
a similar procedure should be followed in § 1981 or §717 
cases, inlight of congressional intent to seek federal
and private employees similarly, is a question not pre­
sented by this base.

- 5 3 -



1

"S- ^  ^ 4  

^  > f  1  r

P * c „ r  „ D * * ^  , ^ 5  ^  *  / %  <

These are not cases in which the agency has anv 
particular expertise to offer. McKart v. United Sta- 

U.S. _, _____  (19__) The issue is not a matter
of ordinary personnel management, but of unlawful discrimina­
tion. Congress expressly concluded in 1972 that the Civil 
Service Commission itself was lacking in such expertise.
In the light of 10 years of employment discrimination 
litigation the United States District Courts are considerably
more expert in the applicable legal problems than personnel

Jofficials inside or outside the government service. The
officials which process these complaints are ill equiped
to handle or deal with the complex body of law that has
grown u d  in the area; the regulations do not require that

_ /any of the officials involved be attorneys, and the instruc­
tion manuals are largely devoid of reference to any of 
the applicable court decisions.' Even among the decisions 
of the Appeals Review Board reliance on or citations to 
the law as announced by federal courts is virtually non- 
existenti^ Frequently the processing of discrimination 
Icomplaints is in the hands of officials whose primary 
duties lie elsewhere. Clearly these officials have far 
less expertise than the E.E.O.C., yet the courts do not.

0

_/ Both the House and Senate Reports noted that
the Commission "has been plagued by a general lack of 
expertise in recognizing and isolating the various forms 
of discrimination within the system." H. R. Rep. No. 92-238, p. 24; 
S.Rep. No. 92-415, p. 15.
_/ See testing cases rejecting company expert tests.
_/ 5 C.F.R. §§

f t A/V

- 5 4 -



out of deference to the E.E.O.C., defer action in a 
§ 1981 case or give weight to its determinations in a 
particular case. Alexander v. Gardner-Denver Co., 415 
U.S. 36, 44 (1974).

This is not an area in which the agencies may 
properly be said to have any discretion to exercise. 
Once the facts in any given case are established, the 
conclusions and remedy follow as a matter of law. See
McKart v. United States . ____ U.S.____, _____  (19__) ;
Moody v. Albemarle Paper Co., 43 U.S.L.W. ____,
(1975). The resolution of those statutory and constitu­
tional issues "is a primary responsibility of the courts, 
and judicial construction has proved especially necessary" 
with respect to § 1981, whose broad language frequently
can give meaning only by reference (bo public law concepts. y'.) 
The concept of discretion seems particularly inappropriate 
in a case of alleged discrimination, for it is a claim 
which calls into question the motives of the very agency

■» ’ .

officials deciding the case and places that responsibility
in the hands of officials who are the nominal if not the 
actual defendants. Compare Turney v. Ohio, ____ U.S. ___

V
(19__) It is particularly for this reason that the courts
must be regarded as the forum "for the ultimate resolution 
of discriminatory employment claims". Alexander v. Gardner- 
Denver Co., 415 U.S. 35, 60 n. 21 (1974).

Nar is this the type of case in which it is 
necessary to permit the agency to develop a factual record.
McKart v. United States, ____U.S._____, ____ (19___ ) .
That principle is applicable to a situation such as a 
rate making case, where the relevant evidence is in the 
possession of the plaintiff and the agency uses its power 
and expertise to develop a record. Compare ______________

In an employment discrimination action, however, the 
relevant, evidence is almost entirely in the possession



7

of the defendant agency, which clearly does 
administrative proceeding to learn what its records and
employees would reveal. The plaintiff of course is the 
one who needs that information, but he cannot usually 
rely on the administrative process to develop a factual 
record because there are no provisions whatever for
discovery. '1 r

T h i s

ro <S< V5
iryTh kcv? LG-

C M  ’ “I
Ay* (nWgj., a I~JL _ xouirt

! bCOUt.
I n - i i )  | r 'r 'n.j uv<- ' ,  I J— T Z -  C  ' u  /flu-LL t tws> ' ro —T7-

ou.iv̂ p ?"< '̂7/'- yto-— run ) "alt /Kbc--- r_as long recognized that exhaustion "-yy
fw fryer av, J/ n 7 /■ furl j *a/f /V), Hog, • wz l̂u. & «i Ac

ĥ<. C-v ,
should not be required where there is no reasonable chanc^ 
that the administrative proceedings will result in a C\-P-\7^3
decision favorable to the complainant. City Bank Farmers' ( °' 1)

-------------------- ( W i
Trust Co. v. Schnader, 291 U.S. 24 (1934). Congress
concluded in 1972 after extensive hearings that the ad-

»\
y)Giut‘v̂ h
qo^ U*> &

ministrative complaint process had proved ineffective 
for the most part," and "had impeded rather than advanced 
the goal of the elimination of discrimination in Federal, 
employment." The futility of the process is amply

_/ 5 C.F.R. § 713..
__/ H. Rep. No. 92-238, pp. 23-24, stated:

•r° i r  ‘" o i r i r w  a  7  n

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 elimina­
tion of discrimination in Federal employment. 
The defect, which existed under the old com­
plaint procedure, was not corrected by the new complaint process. The new procedure, intended 
to provide for the informal resolution of com­
plaints, has, in practice denied employees ade­
quate opportunity for impartial investigation 
and resolution of complaints.

Under the revised procedure, effective 
July 1, 1969, the agency is still responsible 
for investigating and judging itself. Although 
the procedure provides for the appointment of 
a hearing examiner from an outside agency, the 
examiner does not have the authority to conduct 
an independent investigation. Further, the 
conclusions and findings of the examiner are 
in the nature of recommendations to the agency head who makes the final agency determination 
as to whether discrimination exists. Although 
the complaint procedure provides for an appeal 
to the Board of Appeals and Review in the Civil 
Service Commission, the record shows that the Board rarely reverses the agency decision.



'8S&S8&
□

demonstrated by its results —  in 1973 the agencies on'
_.yfound discrimination i n ____o f _____complaints, and the

Appeals Review Board only reserved a finding of no dis- 
crimination in ____ of ____ cases. This overall in­
effectiveness of the process was the result of a number 
of factors. (1) Responsibility for deciding these case; 
at the agency level is in the hands of official^/who are

Athe nominal or actual defendants in the case.A(2) The 
complainant has no access to the discovery tools necessary 
to learn the relevant facts. (3) Neither at the agency 
or Appeals Review Board level is consideration given to 
judicial decisions in employment discrimination cases.
(4) The agency is almost always represented by an attorney 
in the administrative proceeding but the employee usually 
is not. See Appendix pp. - . The efficacy of the
process can and does vary from agency to agency, according 
to the attitutes and experience of the investigators, E.E.O. 
Counselors, E.E.O. Officers, and the designee of the agency

O f £ l ? C  ̂0 11 * *
head who decides the cases on the merits.

/ continued
/L> C

f / c u 1 T ■ tn ry ?  cf\

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

See also, S.Rep. No. 92-415, p. 14.

5 C.F.R. §
5 C.F.R. § 713._
See 5 C.F.R. § 713.___

(\Jo c - ^  W Qfyf

- 5 7 -



e P OAVS> - ya l - 4 far I I °\1 Z-) j |\JeM A ^
'fooJ  ,A/|(

T h e r e  a r e ,  m o r e o v e r ,  a w i d e  v a r i e t y  o f  c o m p l a i n t s

cognizable in court for which the regulations do not authorize
r e l i e f . !  A d m i n i s t r a t i v e  c l a s s  a c t i o n s  a r e  d e l i b e r a t e l y  p r o -

_ /hibited. The agency will not give relief for discrimination 
more than 30 days before the complaint process is begun, 
even if a continuing violation is involved. Once a policy 
of discrimination is shown, the burden of proof does not 
shift to the defendant, as required by McDonnell-Douglas v. 
Green, ____ U.S. ____, ____  (19 ) , but remains on the com­

Vy  ,

plaint to show that the agency was motivated by prejudice
in taking the action under attack B a c k  p a y  i s  l i m i t e d

y  vf to two years, although that limitation is certainly not
. V   ̂0,y\Lc v applicable to actions under statutes other than § 717.

yjr a jf'* Johnson v. Railway Express Agency, 43 U.S.L.W.‘V•\ ' (O
■& ' (1975).^ In addition, the Regulations contain a number of

y  y

i technicalities violation of which dooms a complaint to
/ A y '  - /r e j e c t i o n .  C l e a r l y  i t  w o u l d  b e  p o i n t l e s s  f o r  a n  e m p l o y e e  

w i t h  a c o m p l a i n t  t o  w a s t e  h i s  t i m e  i n  t h e  a d m i n i s t r a t i v e

y
s

J®'

process merely awaiting the rejection that is certain to 
/ . S' Q"- bf\ C'oco m e

1 I t  i s  a p p a r e n t  t h a t ,  m  t e r m s  o f  f u t i l i t y  a l o n e ,  

a n y  e x h a u s t i o n  r u l e  w o u l d  b e  h o n e y c o m b e d  w i t h  e x c e p t i o n s .

__/ 5 C.F.R. § 713._
_/ 5 C.F.R. § 713._
_/ 5 C.F.R. § 713._
_/ 5 C.F.R. § 713._
__/ As to the applicability of the two year limitation
to section 717, see n. , supra.
___/  S e e  e . g .  5 C.F.R. §§

^Petitioner maintains that each of the limitations in 
and restrictions on the administrative procedure described in these two paragraphs, and elsewhere, is unlawful. Whefe^r 
that is so is a questions not presented by this case.

'’kJt - -  c^r^J L-i)u r^-rJU* j roudl ^  n V "

L , ̂  tlC pAK-terO ■qj- ^



r
f j

hto establish that some or all of their complaint would 
^  not stand a reasonable chance of success. In any case

v.

| it would be open to the employee to base that claim on

1

5 the overall record of his agency in rejecting complaints

T o  ̂̂  of discrimination, an allegation that would require an
s r o,

u  ̂ * $ evidentiary hearing of potentially vast scope. Ain a
r? S . . . y '^   ̂ ^  * case such as this, where petitioner challenges the effic;

s $̂ of taking discrimination appeals to the Appeals Review
£ 3 1 ;  ̂ '^hjX^Board, a detailed inquirjy as to the workings and record

V \f 1/ u-1-$ 5
ly. -

-o — - o f  t h e  B o a r d .  A d e c i s i o n  a f t e r  a n y  s u c h  i n q u i r y  w o u l d
s ' J'
 ̂ y  * n o t  b e  r e s  j  u d i c a t a  a s  t o  o t h e r  e m p l o y e e s ,  a n d  w o u l d ̂ " c ^

V »  p -  ^

* 1 - - c-_^ o n l y  a p p l y  a s  a m a t t e r  o f  c o l l a t e r a l  e s t o p p e l  a g a i n s t

% O yc. I the agency or Board until its practices materially changed, 
w"- ^ b i Manifestly the time that would have to be consumed in ad-

qM1

j ) r  W *
' y :

v^irrS
\

judicating exhaustion questions would easily exceed any 
court time that might be saved by such a requirement.
See Alexander v. Gardner-Denver Co. ____U.S.
____ (1974) .

If an exhaustion rule were applied to these 
cases, the courts would be obliged to decide, not only 
whether to require exhaustion in each case, but what 
steps were necessary to exhaust. A federal employee 
aggrieved by employment discrimination may find his com­
plaint covered by several of the seven overlapping and 
inconsistent administrative procedures. The regulations 
provide no guidance as to how to proceed in such a situation. /

/ Footnote, leave 10 lines V

i “ v J 4/•V
/ Footnote, leave 7 lines



Within each procedure there are a variety of ways in 
which an employee can process his complaint, he must 
decide what issues to raise in the complaint whether 
to demand a hearing, etc. Congress in 1972 concluded 
that, where federal employees were confronted by a govern­
ment defense of failure to exhaust administrative remedies 
there is "no certainty as to the steps required to exhaust 
such remedies". The time and energies of the lower courts 
are already being consumed by government arguments that 
aggrieved employees chose the wrong administrative process. 
Those judicial resoucres would be far better spent deciding 
these cases on the merits than resolving scholastic contro­
versies about the "correct" way to exhaust.

Cognizance must also be taken of the fact that 
exhausting administrative remedies often poses a serious 
burden on the employee. Where the employee is seeking a

_  ~jypromotion al^a job,', a substantial award of back pay, the 
delay may well mean that the essential needs of the employee 
and his family will go unmet. If the employee wants to 
pursue the administrative process seriously and thus retains 
an attorney, the out of pocket cost will be substantial 
compared to the income of ordinary civil servants, and 
regulations do not provide for awards of counsel fees even 
if he wins. The time and effort which must be expended 
on the administrative complaint may be substantial, and 
may detract from the employee's ability to do his regular

__/ S. Rep. No. 92-415, 92nd Cong., 1st Sess. p. ___
__/ ___ See e.g. McHoney v. Callaway, No.______, __
D.N.Y., (government contends employee erred by invoking
adverse action process rather than § 713); _________________________________________, No. , (government
contends employee erred by failing to demand an administra­
tive hearing).
__/ Petitioner maintains the absence of such a provision is
unlawful, and that a prevailing employee would be entitled
to a court award for counsel retained in connection with the administrative proceeding. Neither question is presented 
by this case.



<Vl n ,v' ojob well and '.HrcTeSse his chances of future promotion. 
The^rb^are, to be sure, after matters of no consequence 
to a multimillion dollar corporation with a covery of 
retained counsel, but for a GS-5 clerk they may well
prove so burdensome as to force him to abandon his claim.

J h { ^  . I ^ 7  c\s) to su— ^  In  .-.oh
The criterion of time and futility which a court

would have to apply in deciding whether to require further 
exhaustion in a particular case are the same factors 
which the employee would consider in deciding himself 
whether to pursue an administrative remedy. There are, 
tobe sure, a variety of reasons why an employee would 
want to resort to the administrative process where it 
offers a reasonable chance of success -- it is less 
expensive, less formal, and less time consuming than an 
ordinary court case. Given these advantages, and the 
possible forfeiture of his Title VII rights, an employee, 
would be foolhardy to abandon the administrative so long 
as there is a meaningful chance that he can obtain there 
the relief he seeks. McKart v. United States, 395 U.S. 
185, 200 (1969). But there are situations in which such 
a meaningful chance of success does not exist, and the 
minute possibility is far outweighed by the burdens on 
the employee. In such circumstances the employee ought, 
in all fairness, to have immediate access to the courts, 
and this Court's decisions so hold. The question is 
whether an employee or the Court should decide whether 
those circumstances are present. The employee knows 
far better than any court the internal workings of the 
agency, the fate of payt complaints, the attitudes of the

__/ If an employee sued under § 1981 without ever filingan administrative complaint he could not invoke section 717. 
If the employee filed a complaint but sued before both final 
agency action and the apssage of 180 days, his section 717 
right to sue would accrue on the occurrence of either event and he could then add that basis of jurisdiction to his 
complaint.



agency officials who will decide the case, the influence
of the defendant supervisors, and the extent to which 
his complaint is within the scope of the administrative 
remedies, and he is particularly aware of the burden 
that further administrative proceedings would impose on 
him in terms of time, effort, the cost of an attorney, 
and the delay until relief is finally awarded. The 
employee's self interest will preclude abandoning the 
administrative process except where it is clearly futile 
or unreasonable delay has occurred. There is no reason 
to believe that a federal judge, unfamiliar with the 
processes and history of the agency^unaffected by the 
burdens of further delay, and preoccupied with the 
problem of reducing his docket, would better able to 
make this judgment than the employee. The administration 
of an exhaustion requirement would require the courts to 
relegate to themselves a decision more properly made by 
the employee involved. Federal employees are neither so 
uninformed not so lacking in judgment as to need the bene-

F l 4-0 '0 /volent assistance of Isireh -an-ioutside body- to tell them
when the administrative process in which they are embroiled

to-T /is not a fair and efficient adjudicatory process ~'bŷ "the 
pointless and endless quagmire which Congress discovered

/and condemned in 1972.
The very requirement of exhaustion may itself

CAtuJi i ) v  <tc It 4 s b  :.r sk W ,  rfcdefeat the very “purpose of having the complaint, if possible, 
by the agency. Under the applicable regulations the employee

__/ It is noteworthy that, in section 717, Congress gave
the employee broad discretion to decide when it was in 
his interest to continue in the administrative process.
At any time 180 days after filing a complaint or after 
filing an appeal, and after final agency action, the 
employee can choose to pursue that process or to file 
a civil action. The employee's decision is, of course, 
binding on the court, which has no authority to require 
further administrative proceedings but must itself hear 
the case as expeditiously as possible.



has a great degree of control over the nature of the 
process and, consequently, of how long it will take. 
If an employee insists on a detailed investigation, 
provides the investigator with much information, ne­
gotiates at length on the basis of the investigation, 
asks for a full hearing, asks for hiscwn witnesses to 
be called for such a hearing and subjects other witnesses 
to lengthy cross examination, and, if unsuccessful, files 
a substantial brief with the Appeals Review Board, both 
the agency and Board action will doubtless take longer 
and far exceed the 180 limit. If, on the other hand, the 
employee believes the administrative process is futile 
and knows he has to complete it before suing, he can sub­
stantially abbreviate that process by waiving any hearing, 
making no demands on and volunteering no information to 
the investigator, refusing to negotiate through the E.E.Q. 
Counselor or after the investigation, and declining to 
file any written statement with the Board. An exhaustion 
requirement would eacourage^n employee to take precisely 
these steps; if the agency was in fact one which might 
have ruled favorably on this complaint, this ta-ctie will 
of course decrease the likelihood of such a ruling and 
increase the likelihood that judicial intervention will 
be required. In the absence of an exhaustion requirement 
an employee would have no^'incentive to thus short circuit 
the process; rather than handle his complaint to curtail

5 C.F.R. § 713.216
_ y 5 C.F.R. § 7.13.217 (a)
_ / 5 C.F.R. § 713.217(c)

-63-



f\ r\

the process, he wirifr"handle it so as to maximize the odds 
that his administrative action will succeed, secure in 
the knowledge that, if it becomes apparent that the administra­
tive process is futile, he will not by so doing have doomed 
himself to many more months of delay within that process.

The effect of an exhaustion requirement on those 
who establish and manage the administrative process is 
equally serious. So long as every employee is required 
to go through that process, the agency has no incentive 
to make the process either fact or fair. On the contrary, 
a process replete with delays and heavily biased against 
the employee will serve the dual purpose of postponing 
the day when the agency is brought into court and so dis­
couraging and exhausting the complainant that he is unlikely 
to sue. Such seems to have been the effect in recent years 
of the general assumption that exhaustion is required. In 
1972 Congress clearly identified a wide range of defects 
in the administrative process and mandated the Civil Service 
Commission to reform it. Since then, however, virtually 
none of the problems Congress identified have been solved, 
and the Regulations which Congress found totally inadequate 
remain largely unchanged. This situation is a direct 
result of the belief by the Commission and agency officials 
that employees would have to suffer through the administra­
tive process no matter how bad it might be. In the long 
run, of course, this means that fewer cases will actually 
be remedied in the administrative process and that more 
aggrieved employees will end up in court.

T h e  a b s e n c e  o f  a n  e x h a u s t i o n  r e q u i r e m e n t ,  h o w e v e r m —  i 

w o u l d  c r e a t e  t h e  i n c e n t i v e  f o r  r e f o r m  t h a t  h a s  h a r e t o f o o r e  

b e e n  m i s s i n g .  T h e  C o m m i s s i o n  a n d  a f f e c t e d  a g e n c i e s  w o u l d

A  k —See pp_ ri/VvT) ^ jk'o/k '10 S W
v

jU  k 7
- 6  i -



i . V 1

^ tO ̂X' - 0

\ y  p

< y y\fT nA

naturally prefer that complaints of discrimination not 
not be brought to court. If an aggrieved employee is 
free to choose between the administrative process and 
direct access to the courts, government officials will 
have to take steps to render that process attractive 
to employees, in terms of both speed and effectiveneps,

m oor the process simply will not be used. That woul^tend 
to deter agency officials from withholding information 
about the complaint process or discouraging its use.
Compare Penn v. Settlesinqer, No._________.

The issue presented by this case is not whether 
federal agencies will be precluded from investigating or 
remedying unlawful discrimination because an employee 
filed a lawsuit rather than pursuing an administrative 
complaint. No statute, regulation or Executive Order 
forbids any federal official from stopping or remedying 
discrimination merely because an administrative complaint 
has not been filed or pursued. On the contrary, section

Cl
717$')which mandates the establishment of the complaint 
process, expressly admonishes -

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.

This responsibility reflects the fact that, in our constitu­
tional scheme, racial discrimination is not a minor personal 
inconvenience but a violation of fundamental national policies. 
Alexander v. Gardner-Denver, 415 U.S. 35, 45 (1974). The law 
requires the federal government, as it does private employers, 

self-examine and self evaluate their employment practices,t i L

\S> X*4' and to endeavor to eliminate, so far as possible, the last

;

(W , jp| ^ j ^ p r y ^ i s  t o r y " .  Mo od y v .  A l b e m a r l e  P a p e r  C o . , 43 U . S . L . W .

( 1 9 7 5 > '  ' <=
(h c a



I f  a f e d e r a l  o f f i c i a l  h a s  r e a s o n  t o  b e l i e v e

t h e r e  i s  d i s c r i m i n a t i o n  w i t h i n  h i s  a g e n c y ,  h e  i s  u n d e r  

a n  a b s o l u t e  l e g a l  d u t y  t o  e n d  a n d  f u l l y  r e m e d y  t h a t  d i s ­

c r i m i n a t i o n  r e g a r d l e s s  o f  w h e t h e r  t h e r e  i s  a w e l l  p l e ' a d e d  

a d m i n i s t r a t i v e  c o m p l a i n t  p e n d i n g  b e f o r e  h i m .  T h a t  i s  

e q u a l l y  t r u e  w h e t h e r  t h e  o f f i c i a l  a n d  a g e n c y  l e a r n  o f  

t h a t  a l l e g e d  d i s c r i m i n a t i o n  t h r o u g h  a d e f e c t i v e  a d m i n i s t r a ­

t i v e  c o m p l a i n t ,  a  l a w s u i t  i n  a  U n i t e d  S t a t e s  D i s t r i c t  C o u r t ,  

o r  o t h e r  s o u r c e s .  I n  t h e  o r d i n a r y  c o u r s e  o f  t h i n g s  a n  

a g e n c y  o r  i t s  o f f i c i a l s ,  a c t i n g  s u a  s p o n t e ,  a f t e r  t h e  c o m ­

m e n c e m e n t  o f  a  l a w s u i t  w o u l d  b e  a b l e  t o  r e s o l v e  a n y  p r o b l e m  

o f  d i s c r i m i n a t i o n  w e l l  b e f o r e  a c o u r t  c o u l d  a c t u a l l y  s e t  

t h e  m a t t e r  f o r  t r i a l ,  b e n e f i t i n g  d i r e c t l y  f r o m  a n y  d i s c o v e r y  

i n  t h a t  p r o c e e d i n g .  T h e  p l a i n t i f f  e m p l o y e e  w o u l d  o f  c o u r s e  

b e  o b l i g a t e d  t o  c o o p e r a t e  w i t h  a n y  s u c h  i n v e s t i g a t i o n  a n d  

t h e  p r o c e s s  w o u l d  n o t  n e e d  t o  d i f f e r  s i g n i f i c a n t l y  f r o m  

t h e  a d m i n i s t r a t i v e  c o m p l a i n t  p r o c e s s  i n  w h i c h  t h e  p r i m e  

m o v a n t  a n d  i n v e s t i g a t o r  i s  s u p p o s e d  t o  b e  t h e  a g e n c y  i t s e l f .

o f  t h e  f e d e r a l  a g e n c i e s ,  i t  i s  n o t  a n  a c c u r a t e  d e s c r i p t i o n  

o f  how t h o s e  a g e n c i e s  d e a l  w i t h  p r o b l e m s  o f  d i s c r i m i n a t i o n .  

T h e  q u e s t i o n  p r e s e n t e d  b y  t h i s  c a s e  a r i s e s  p r e c i s e l y  b e c a u s eC\
'■ nicrfflt. rjo v e r n m & rrb-m a-iasta-t-fra-ddra-t a g e n c y  o f f i c i a l s  ^ jnave n e i t h e r  

t h e  d u t y  n o t  t h e  p o w e r  t o  do a n y t h i n g  a b o u t  d i s c r i m i n a t i o n  

u n l e s s  t h e y  a r e  c o n f r o n t e d  w i t h  a  w e l l  p l e a d e d  a d m i n i s t r a ­

t i v e  c o m p l a i n t .  I f  f e d e r a l  o f f i c i a l s  p r o m p t l y  i n v e s t i g a t e d

a n y  a l l e g a t i o n  o f  d i s c r i m i n a t i o n ,  t h e p r o b l e m  o f  e x h a u s t i o n  
py/\a/\.; cJJA7

w o u l d  n e n e i :  a r i s e ,  b e c a u s e  t h e  g o v e r n m e n t  w o u l d  ' ' h a v e  com ­

p l e t e d  i t s  i n q u i r y  l o n g  b e f o r e  t h e  c a s e  / fe ve r  w-o u l -d co m e 

t o  t r i a l .  W h a t  a c t u a l l y  h a p p e n s  i s  w e l l  i l l u s t r a t e d  b y

p l a i n t i f f s  a t  M a x w e l l  A i r  F o r c e  B a s e  b r o u g h t  t h e i r  a l l e g a t i o n  

o f  d i s c r i m i n a t i o n  t o  t h e i r  s u p e r i o r s  a n d  a n  E q u a l  E m p l o y m e n t  

O p p o r t u n i t y  O f f i c e r ;  o n e  w a s  n o t  t o l d  o f  h i s  r i g h t  t o  f i l e

W h i l e  t h a t  i s  c l e a r l y  t h e  l e g a l  r e s p o n s i b i l i t y

c c

P e n n  v . S c h l e s i n g e r , N o .
Ia/

I n  P e n n  t h e  t § o  i n d i v i d u a l



an administrative complaint, the other was discouraged
f r o m  d o i n g  s o .  P l a i n t i f f s  s u b s e q u e n t l y  f i l e d  a d e t a i l e d

complaint in the United States District Court for the
N o r t h e r n  D i s t r i c t  o f  A l a b a m a  a n d  b e g a n  d o c u m e n t i n g  t h e i r

c h a r g e s  t h r o u g h  d i s c o v e r y .  F o r  t h r e e  a n d  o n e  h a l f  y e a r s

thereafter, while the Department of Justice fought to
have the action dismissed, the defendant officials did
nothing. In July, 1974, Judge Tuttle asked, rhetorically -

What, in the name of Justice, has prevented 
the agency from discovering what must have 
been apparent to everyone at Maxwell Air 
Force Base all these years? And what, but 
a conscious intent not to do so has prevented the proper officials from correcting those 
crass "errors". Penn v. Schlesinger, 497 
F .2d 970, 975-6 (5th Cir. 1974)

I n  P e n n t h e  g o v e r n m e n t  s u g g e s t e d  t h a t  a l t h o u g h  t h e  m o s t

virulent form of discrimination might well be practiced
a t  M a x w e l l  A .  F o r c e  B a s e ,  a n d  a l t h o u g h  o f f i c i a l s  t h e r e

might be systematically breaking the law, there was
n o t h i n g  t h a t  t h e  S e c r e t a r y  o f  D e f e n s e  o r  a n y o n e  e l s e  c o u l d

do a b o u t  u n l e s s  M r .  P e n n  w o u l d  d r o p  h i s  l a w s u i t  a n d  f i l e

an administrative complaint. See Penn v. Schlesinger, 490
F .2d 700, 706 (5th Cir. 1973). That contention is not
merely wrong, it reflects an attitude which underlies
t h e  w h o l e  p r o b l e m  o f  e x h a u s t i o n .  I f  f e d e r a l  o f f i c i a l s

had recognized that the "primary responsibility to assure
non-discrimination" was the agency's and not the complainants,
the agencies involved would sua sponte have long ago completed
their consideration of these problems of discrimination
a n d  t h e  e x h a u s t i o n  i s s u e  i n  t h i s  c a s e  a n d  P e n n  w o u l d  b e  m o o t .

- 6 7 -



B . E v e n  I f  E x h a u s t i o n  I s  G e n e r a l l y  R e q u i r e d
I n  S u c h  A c t i o n s ,  I t  S h o u l d  N o t  Be R e q u i r e d  
I n  T h i s  C a s e

Assuming, arguendo, that the requirement of exhaustion 
is applicable to section 1981 actions against the federal 
government, that is not conclusive of the correct disposi- 
tion of this case. tfeil^-ckh^austion may generally be appro- 
priate, that requirementNd&u«4; not be "blindly" applied.
McKart v. United States, 395 U.S. 185, ____________ (1969).
Rather, the courts must consider in each case the variety 
of factors bearing on the question of whether further ex­
haustion should be required in that particular case, such
as the burden of such exhaustion on the plaintiff, the « 
futility of the administrative remedy and the delays al­
ready endured.

The Second Cir*2tTrtf7 however, did not>ccjsider whether
p<v>\- CU/j^such exhaustion w^Sv^appropriatej^ The uou£i/ of Appels 

stated "There is nothing in the allegations of Brown's 
complaint which justifies the 'premature interruption of 
the administrative process'". P. a. This statement
is disingenous. At no time prior to oral argument in the 
Court of Appeals did the United States ever contend that 
petitioner had not adequately exhausted his administrative 
remedies. Neither in its various motions in the district
c o u r t ,  n o r  i n  i t s  l e n g t h y  a p p e a l  

o f  J u s t i c e  s u g g e s t  p e t i t i o n e r  w a s  

R e v i e w  B o a r d .  P e t i t i o n e r ,  a s s u m i n g  t h a t  n o  f u r t h e r  e x h a u s ­

t i o n  w a s  r e q u i r e d  s i n c e  h e  h a d  m e t  t h e  e x h a u s t i o n  s t a n d a r d s  

o f  §717( c ) , r e p e a t e d l y  a s s e r t e d  h e  h a d  f u l l y  e x h a u s t e d  h i s

- 6 8 -



___ /administrative remedies. Only at oral argument did the
government suggest, in a casual remark, that petitioner 
might have had an obligation to appeal to the Board. While 
it may have been within the discretion of the Court of 
Appeals to permit the government to raise such an entirely 
new issue for the first time at oral argument, it certainly 
was unreasonable to penalize petitioner for having failed to 
respond to that argument some 18 months earlier when his 
complaint was filed.

Petitioner maintains that, as a matter of law, the 
delays which had already occurred in the processing of his 
complaint excused him from any responsibility to further 
exhaust. The Civil Service Commission's regulations ex­
pressly require that every agency must take final action on
an employment discrimination complaint within 180 days afterchff-ny
it is filed. 5 CFR §713.______. §717 (c), which embodies
a congressional determination as to the maximum amount of 
delay to which a federal employee should be subjected, gives 
such employees a right to sue without further exhaustion 
180 days after a complaint is filed. In the instant case 
the defendant agency consumed 617 days processing petitioner's 
complaint. The agency had been in violation of the govern­
ment's own regulations for over a year when petitioner finally 
filed suit.

-69-



Petitioner urges that, if exhaustion is required in 
^«el/cases, the courts should adopt this 180 day rule as 
fixing the point in time after which further efforts at 
exhaustion are not required in a non-Jpitle VII action.
That time limit reflects the considered judgment of both 
Congress and the Civil Service Commission as to what would 
constitute a reasonable deadline, considering both the bur­
dens on the employee and the time needed for an expeditious 
administrative proceeding. Such a rule would be congruent 
with the comparable provisions of Title VII, would provide 
a clear standard by which both agencies and employees can 
guide their conduct, and would avoid the uncertainty and
l i t i g a t i o n  g e n e r a t e d  bl 

F e d e r a l  e m p l o y e e s

f a n  a d  h o c  a p p r o a c h  i n ' e a c h  c a s e ,  

a r e  a l s o  e n t i t l e d  t o  s u e  u n d e r  

a c t i o n  h a s  o c c u r r e d .  E m p l o y e e s  

i n v o k e  t h e i r  n o n - t i t l e  V I I  r e m e d i e s

at that point as well, regardless of whether 180 days have 
passed. The provision in §717 allowing federal employees 
to sue without taking an appeal to the Appeals Review Board 
is based on an express^ congressional determination that 
such appeals are usually futile because "the record shows
that the 
Xna smuch

____ /Board rarely reverses the agency decision"
as the entire exhaustion doctrine, unlike statutes

/of limitations , is a creation and creature of the

/
/

H. Rep. 92-238, 92nd Cong., 2d 
See Johnson v. Railway Express

Sess., p. 24 
Agency, 43 1173. L.W . "

-70-



e d e r a l  j u d i c i a r y ,  t h i congressionalrt y'd̂ ffers
judgment in this regard rather than requiring the aggrieved
employee to prove in each case that such an appeal would be 

____/pointless. If an employee were required to appeal to
the Appeals Review Board or impair his non-title VII rights 
he would have to choose between such impairment and sacri­
ficing the right deliberately provided by Congressuunder 
§717 to sue without further delay. Such a result would 
change §717 and §1981 from complimentary to conflicting
remedies, and tend to require an employee to elect between

____ /
t h e m .

P e t i t i o n e r ,  m o r e o v e r ,  m a i n t a i n s  t h a t ,  a s  a m a t t e r  o f  

f a c t ,  a n  a p p e a l  t o  t h e  A p p e a l s  R e v i e w  B o a r d  w o u l d  b e  f u t i l e .  

T h e  B o a r d ' s  A n n u a l  R e p o r t s  c l e a r l y  e s t a b l i s h  a p r i m a  f a c i e

/

/ See p. , infra
/ Those rights would not be forfeited by his failure 

to take such appeal, provided he took it later upon 
being afforded an opportunity to do so by the court. 
See p. , infra.

_/ Such forced elections among independent remedies is 
contrary to the congressional scheme. Alexander v.
Gardner - Denver, Co. , ________ US ______ , _______
(1974). ) It is unclear whether an employee might be 
able to partially avoid this dilemma by suingrtmcter 
§717 and appealing to the Board on the 10th day, but 
Congress certainly did not contemplate that such tac­
tual maneuvering would be necessary to preserve in­
dependent remedies.

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case of futility -- in the last three fiscal years the 
Board has reversed an agency decision and entered a 
finding of discrimination in only 37 of 1876 appeals, 
less than 2%. in most of the 37 cases, moreover,
neither back pay nor promotions were awarded to the com­
plainant .-./ -It makes no sense to require 1876 Federal em­
ployees, who have already pursued their complaints with­
out success in their agencies, to expend further time and 
effort in an administrative appeal in the sure and certain 
knowledge that 1839 of them will lose that appeal. if 
afforded an appropriate evidentiary hearing on this ques­
tion, petitioner would adduce evidence demonstrating why

Jhitso few appeals are successful and/the process is little
____ / *more than an empty ritual The Second Circuit asserted

"For aught that appears in the record before us, we cannot 
say that an appeal to the CSC might not have resulted in 
granting the relief sought by Brown", P. a. There is

/

/

J

A

Board of Appeals and Review, 
fiscal years 1972, 1973, 1974 Statistics,Work Load

The evidence would show (1) that the Board virtually 
never follows or even considers substantive federal 
law regarding employment discrimination as expounded 
by the courts (2) that the Board members have neither 
expertise nor experience in employment discrimination 
or personnel matters (3) that there has been racial 
discrimination in the promotion of Board personnel.
(4) that Board members tend to vote along racial lines 
-45) that the Board doeŝ TTOtT' regard" its earlier deci- ^ 
sion as meaningful precedent, and decides each case an ad. hoc basis N(6) that the seven members of the

-annua 1— tofea 1 of 5,000 opinions 
-50,000 pages, and that this volume of work precludes Board members from signifi­

cant consideration of the facts on each case , (7) that 
the opinions in each case are drafted by appeals exa­
miners employed by the Board before it is considered 
by the members, that these drafts are rarely altered 
by the Board, and that the examiners are primarily re­
cent law school graduates with no experience whatever 
in Federal personnel problems, employment discrimina­tion questions, or the practice of law.

X
on
Board writers-avetfrge-;ing;



naught in the record for the simple reason that the "record" 
consists solely of a response for summary judgment in which 
the government made no claim that petitioner had failed to 
exhaust his remedies. Petitioner maintains that such an 
appeal would indeed have been futile, and he is entitled 
to an opportunity to prove it.

Even if this (pourt, or the district court on remand, 
should conclude that petitioner had an obligation to further 
exhaust the administrative remedies, the proper disposition 
of the case would not be an outright dismissal. At least 
since Prentis v. Chesapeake & Ohio Railway, 211 U.S. 210 
(1908) it has been clear that, where a party has not pro­
perly exhausted his administrative remedies, the court is 
not to dismiss the case but merely to stay proceedings 
while that administrative proceeding is resumed and com­
pleted. In Prentis the plaintiff, claiming an order of 
the Virginia State Corporation Commission violated its 
rights, brought suit in federal court without first appeal­
ing that order to the Virginia Supreme Court of Appeals.
This (court held that the exercise of federal state remedyv ___/ _ k
had been j&euyliL. By the date of the (court's opinion
the deadline for any appeal appeared to have passed. Th^
-court held that the district court should stay further ac­
tion while plaintiff sought such an appeal, and that if the 
appeal were rejected on the merits or because of the passage 
of time, the court should then resume consideration of the

This requirement that a 
administrative remedies the law. See 
(19 ) .

plaintiff exhaust state and is, in general, no longer
US



- >

____ /complaint on the merits. See also Somma v. United
States, 283 F.2d 149 (3d Cr. 1960).

In Penn v. Schlesinger, No. , the government,
while objecting that plaintiffs had not exhausted their 
administrative remedies, did not seek a dismissal with 
prejudice, but asked only that the plaintiffs be required 
to complete exhaustion. The government correctly recog­
nized that, if this procedure were followed, a time limit 
should be placed on further administrative proceedings to 
prevent unfair delay.

On the remand the district court should proceed by 
dismissing the complaint without prejudice to the plain­
tiffs filing a new action, if necessary, upon exhaustion 
of administrative remedies. In the alternative, the dis­
trict court could simply stay all further proceedings un­
til plaintiffs have exhausted their administrative reme­
dies. Of. Somma v. United States, 283 F.2d 149 (C.A. 3,
1960). The court may also wish to specify a time period 
within which the defendant agencies could act on plain­
tiff's claims and after which plaintiffs could return to 
court. This approach was adopted in the Equal Employment

/ 211 U.S. a|t 232. ^Vt maybe that once an appeal is taken to tl\e Supreme Cojirt of Appeals this section 
will be helcN-bo appJLŷ and the appeal be declared 
too late. We express no opinion upon the matter, 
which is for the state tribunals to decide, but 
simply notice a possibility. If the present bills 
should be dismissed, and then that possible conclu­
sion reached, injustice might be done. As our 
decision does not go upon a denial of power to en­
tertain the bills at the present stage, but upon 
our views as to what is the most proper and orderly 
course in cases of this sort when practicable, it seems to us that the bills should 
the present to await the 
the companies see fit to k&hrê bhB* 
are dismissed, as brought too late 
will be entitled to decrees.

b e  r e t a i n e d  f o r  
t h e  a p p e a l s  i f  

I f  t h e  a p p e a l s  
t h e  c o m p a n i e s

- 7 4 -



Opportunity Act of 1972, 42 U.S.C. 2000e-16(c), which gives
agencies 180 days from the filing of the initial charge
within which to act, after which the aggrieved employee
or applicant may file suit. - Where a litigant has
failed to satisfy applicable exhaustion requirements, this

____ /is certainly the correct approach. it would of course
be inappropriate for any governmental defendant to object, f 
jfhere were as yet unused administrative processes, and 
a-ls-©'7oppose/ permitting the plaintiff to invoke such 
process. That is particularly true for federal employees 
as to whom Congress itself has determined the exhaustion
requirements are unclear. / An employee should not be

/ Appellants' Supplemental Brief on Rehearing En Bane, 
Penn V. Schlesinger, No. 72-3684, 5 C/r.

/ itt a section 717 action, of course, no such stay of judicial proceedings would be appropriate once the 
specific exhaustion requirements of that Statute 
were met. Congress authorized the filing of a 
civil action after, e.g., 180 days because it con­
cluded that it would be unfair to the plaintiff to 
require him to delay further. Grubbs v. Butz, EPD § (D.C.C. 1975)

/ See p. supra.

- 7 5 -



*
J

required to guess, at peril of forfeiting his claim, when
the moment has arrived which a court may later determine
was the right time to sue. Accordingly, if this Wourt fr* A Jc/rv̂ -i-
concludes that petitioner was required to further exhaust
his administrative remedies, it should direct the district
court on remand that -it ohould permit petitioner to file
an appeal with the Appeals Review Board, and if he does

■ c ,ic /
; IV5. ■ ‘ •' V > v ' . _______ /

s o  t O / s t a y  . / f u r t h e r  p r o c e e d i n g s  f o r  a p e r i o d  o f  n o

more than 180 days while the Board considers that appeal.
■UJ- «, |->> do'vC l K Y

l i t -

TAik 6  - J

t % (  (t>

g.,s, ^  \  7 ?)

Under most circumstances discovery should be per­
mitted during this period, since there is no pro­
vision for discovery in the administrative process
a n d  t h e  i n f o r m a t i o n  r e v e a l e d  w o u l d  b e  o f  a s s i s t a n c e  
t o  t h e  a g e n c y  o r  B o a r d  a n d ,  i f  t h e y  d e n y  r e l i e f ,  
t o  t h e  c o u r t .

7 6 -



CONCLUSION

For the above reasons, the judgment and opinion 
of the Second Circuit should be reversed.

Respectfully submitted,
dk cf

Q
■#-

MH

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
MELVYN R. LEVENTHAL 
BARRY L. GOLDSTEIN 
BILL LANN LEE 
ERIC SCHNAPPER

10 Columbus Circle
New York, New York 10019

JEFF GREENUP
200 West 135th Street 
New York, New York 10030

Counsel for Petitioner

- 7 7 -



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