Brown v. General Services Administration Annotated Brief for Petitioner
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January 1, 1975

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Brief Collection, LDF Court Filings. Brown v. General Services Administration Annotated Brief for Petitioner, 1975. 455b80a5-b69a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/670a8ccc-feda-4ceb-b313-0d2555792cd8/brown-v-general-services-administration-annotated-brief-for-petitioner. Accessed July 16, 2025.
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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. [5 lines] h [10 lines] -jyyv^r-rjW- ~{1 Tines] X ̂ S ££ <■* i -'-n o\ ,, o CL<b / 0 U 2 c3 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. V. . V l *A / n ( ‘■j ■ -) o f If t 1 .1 . '■ C\R<: 4 ■•. e ,<i v £ -r-vul i Aft1 ̂ ^ n i t» 1 cc l X)'us (j. S i>K CO A,/)> y l i c v „■- Ij 0 ■ CfCe-tv, j ~ A V - COU\ (e s t- f i C C-vvlcx f d- Y< -V H- <*■*> j a i * cf v ̂X ? l) J) he I ^ v-'i" tW j Iv O \uvtia. 0 r c i ( Ch aS O CAA bV f'&jGjiK ĉ (-c/ S’ 6 ^ b r •-j'*' f: t -7i- fr\< re / "> i-,vX C l ■ I, A A . ' \lj- ' kr jz>zxzk to V /} / *5 (, 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 - \ji -> r) i c-t lo <*-.U TXl/̂o ' py- L V P#'l*L - - - c'*» | r w ' Ft V - , J b } 1<\CF\ vkl *A' ^ A 1i ^ Aj - ? ~ ( t V V ̂ ♦'''lx' T cte- / ' ^ 4 ' ,•> .a ■" , !' i/n? Lk^fJc <̂p. . b ^ F d i I? /- PA £ jg tPf, r i L ^ ■'•'*» ^ : w* \V o —TT709---^ X . S, c C /^vf "*v L ( 4 t ■ ' 7̂ A 'Vw Ih-k /):1 1 0(? P H o P ,x ^ I ^ , U •' <sf<-5 ftbw-rs - ^ ̂ p,',-5̂it)l-| A F/t/ re (c{̂ ̂0” /r f^'rxt’ filch--Me 6 c L'yC'} r r j y p „ /w p /V«U~ U c" 7 ^ ' 6 3,