Brown v. General Services Administration Brief for the Respondents

    No. 74-768

J n  the $np rem e djuwrt erf the U nited ^tntea
O c t o b e b  T e r m , 1975

C l a r e n c e  B r o w n , p e t it io n e r

v.
G e n e r a l  S e r v ic e s  A d m in is t r a t io n , e t  a l .

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENTS

R O B E R T  H. BORK,
Solicitor General,

R E X  E. LEE,
Assistant Attorney General, 

L A W R E N C E  G. W A L L A C E ,
Deputy Solicitor General,

M A R K  L. EV A N S,
Assistant to the Solicitor General, 

R O B E R T  E. KOPB,
JO H N  K. V IL L A ,
N E IL  H. KOSLOW E,

Attorneys,
Department of Justice, 

Washington* D.C. 20580.



I N D E X

Page

Opinions below----------------------------------------------  1
Jurisdiction--------------------------------------------------- 1
Questions presented---------------------------------------  1
Statute and regulations involved---------------------- 2
Statement __________________________________  2
Summary of argument------------------------------------  7
Argument:

I. Section 717 of the Civil Rights Act of 
1964 provides the exclusive judicial 
remedy for federal employment dis­
crimination claims, and petitioner’s 
complaint was properly dismissed as 
untimely under the provisions of that 
section ------------------------------------------  15

A. The Act establishes a compre­
hensive plan for eliminating 
federal employment discrim­
ination and adjudicating dis­
crimination complaints--------- 15

B. Section 717 was enacted with
the understanding that it 
would provide the sole statu­
tory basis for judicial review 
of federal employment dis­
crimination claims---------------  19

C. Permitting aggrieved federal
employees to maintain actions 
despite their failure to com­
ply with the requirements of 
Section 717 would defeat the 
legislative policy embodied in 
that section-------------------------  27

I



II

Argument—-continued
II. Even if petitioner’s failure to comply 

with the time requirements of Sec­
tion 717 is not a bar to this action, 
his complaint was properly dis­
missed for failure to exhaust the 
available administrative remedies—

A. Exhaustion of available admin­
istrative remedies is a pre­
condition to the filing of an 
action seeking relief from al­
leged federal employment dis­
crimination —

1. The policies underlying
the exhaustion doc­
trine are applicable to 
federal employment 
discrimination claims-

2. There is no reason broad­
ly to exempt all federal 
employment discrimi­
nation claims from the 
exhaustion require­
ment _______________

B. Petitioner was not excused
from the exhaustion require­
ment because of delay in proc­
essing his formal complaint 
or because an appeal would
have been “ futile” ---------------

Conclusion --------------------------------------------------
Appendix A --------------------------------------------------
Appendix B --------------------------------------------------
Appendix C--------------------------------------------------

Page

34

36

36

43

55
59
la

19a
53a



i n

CITATION'S
Cases:

Aircraft & Diesel Equipment Corp. v. .page
Hirsch, 331 U.S. 752__________________  37

Alexander v. Gardner-Denver Co., 415 U.S.
3 6 ______________________________ 8-9, 20, 26, 47

Baum, v. Zuckert, 342 F. 2d 145_________  23
Blaze v. Moon, 440 P. 2d 1348____________  23
Christian v. New York State Department

of Labor, 414 U.S. 614_____________ 13, 51, 58
Congress of Racial Equality v. Commis­

sioner, 270 P. Supp. 537______________  23
DeLong v. Ham.pton, 422 P. 2d 21________ 23
Eisen v. Eastman, 421 P. 2d 560, certiorari

denied, 400 U.S. 841___________________  52
Far East Conference v. United States, 342

U.S. 570_______________________________  47
Gnotta v. United States, 415 P. 2d 1271,

certiorari denied, 397 U.S. 934_________  22
Goldberg v. Kelly, 397 U.S. 254__________  51
Hargett v. Summerfield, 243 P. 2d 29, certi­

orari denied, 353 U.S. 970______________  23
Johnson v. Railway Express Agency, Inc.,

Ho. 73-1543, decided May 19, 1975______ 9,
20, 26, 27, 52

Jones v. Alfred H. Mayer Co., 392 U.S.
409 ____________________________________ 26

McGee v. United States, 402 U.S. 479___  13,
14, 47, 54

McKart v. United States, 395 U.S. 185___  14,
42, 43, 54

Morton v. Mancari, 417 U.S. 535_________  26
Myers v. Bethlehem Shipbuilding Corp.,

303 U.S. 41________________________    36-37
Ogletree v. McNamara, 449 F. 2d 93______ 23
Pelicone v. Hodges, 320 F. 2d 754------------  23



IV

Cases—continued
Penn v. Schlesinger, 497 F. 2d 970, petition 

for a writ of certiorari pending, No. 74-  ,Page
476 ------------------------------------------------------  43

Preiser v. Rodriguez, 411 U.S. 475_______ 9,
28, 29, 30, 33, 34

Renegotiation Board v. Bannercraft Cloth­
ing Co., 415 U.S. 1_____________________ 53

Richardson v. Morris, 409 U.S. 464______ 35
Schlesinger v. Councilman, 420 U.S. 738__ 43,

46-47
Sullivan v. Little Hunting Park, Inc., 396

U.S. 229 ______________________________  27
Tillman v. Wheaton-Haven Recreation

Assn., 410 U.S. 431_____________________ 27
United States Alkali Export Assn. v.

United States, 325 U.S. 196____________  52
United States v. Ruzicka, 329 U.S. 287__  44
United States v. Sing Tuck, 194 U.S. 161__ 55
Weinberger v. Salfi, No. 72-214, decided

June 26, 1975_________________ _ 37, 42, 47-48
Statutes and regulations:

Administrative Procedure Act, 5 U.S.C.
701-706 _______________________________  22

Civil Rights Act of 1866, 14 Stat. 27, as
amended, 42 U.S.C. 1981, et seq-------------  4.10

Civil Rights Act of 1964, Title V II, 78 
Stat. 253, as amended by the Equal Em­
ployment Opportunity Act of 1972, 86 
Stat. 103, 42 U.S.C. (Supp. I l l )  2000e, et
seq____ 2, 4, 7, 8, 9, 19, 20, 21, 22, 25, 26, 33, la

Sec. 701(b)___________________________ 22,1a
Sec. 706______________________________ 52,8a
Sec. 706(f)___________________________ 17,9a
Sec. 7 0 6 (f)(3 )__________________16, 9a, 10a
Sec. 7 0 6 (f )- (k )________________ 17, 9a-lla



V

Statutes and regulations—continued Page
Sec. 706(g)----------------------------------------17,11a
Sec. 706 (k )_________________________ 18,11a
Sec. 717_______________________passim, 16a
Sec. 717(a)________________________ 15, 16a
Sec. 717(b)______________  15, 16, 37, 50, 17a
Sec. 717(c)_____________ 4—5, 16, 17, 56, 17a
Sec. 717(d)_____________________16, 17, 18a
Sec. 717(e)_____________________18, 27, 18a

Declartory Judgment Act, 28 U.S.C. 2201,
et seq_________________________________  4

Mandamus Act, 28 U.S.C. 1361-------------- 22
Tucker Act:

28 U.S.C. 1346_______________________ 22
28 U.S.C. 1346(a)____________________ 4
28 U.S.C. 1346(b)____________________ 4

28 U.S.C. 1331___________________________  22
28 U.S.C. 1343(4)_______________________  4
Civil Service Commission Equal Opportu­

nity Regulations, 5 C.P.R. 713.220(a)
(1971) _______________________________  55

Civil Service Commission Equal Opportu­
nity Regulations (1974) :

5 C.P.R. Part 713____________ 2,16, 37,19a
5 C.P.R. 713.213(a)________________ 38,29a
5 C.P.R, 713.214(a)(1)____________  38,30a
5 C.P.R. 713.214(b)_________________41,31a
5 C.F.R. 713.216(a)________________ 38,32a
5 C.P.R. 713.216(b)________________ 38,33a
5 C.P.R. 713.217(a)________________ 39,34a
5 C.P.R. 713,217(b )________________ 39,34a
5 C.P.R. 713.218(a)________________  39,35a
5 C.P.R. 713.218(b)________________  39,36a
5 C.P.R. 713.218(c)(2)_____________ 39,36a
5 C.P.R. 713.218(e)________________  39, 37a



VI

Civil Service Commision Equal Opportunity Regula­
tions (1974)—continued

Page
5 C.F.R. 713.218(f)________________  39,38a
5 C.F.R. 713.218(g)________________  40,38a
5 C.F.R. 713.220(a)_____________  42,56,39a
5 C.F.R. 713.220(c)________________  42,40a
5 C.F.R. 713.220(d)________________  42,40a
5 C.F.R. 713.221_____________________40,41a
5 C.F.R. 713.231______________________6,43a
5 C.F.R. 713.234___________________  40,44a
5 C.F.R. 713.235_____________________41,44a
5 C.F.R, 713.271(a)_________________ 41,48a
5 C.F.R. 713.271(b)_________________ 41,50a

Miscellaneous:
Annual Report of the Director of the Ad­

ministrative Office of the United States
Courts, 1974 (1975)____________________ 58

Comment, Racial Discrimination in Fed­
eral Civil Service, 38 Oeo. Wash. L. Rev.
265 (1969) ___________________________  23

118 Cong. Rec. 3368-3369 (1972)_________  22
118 Cong. Rec. 3371 (1972)______________  9,25
118 Cong. Rec. 4922 (1972)______________  25
118 Cong. Rec. 4929 (1972)______________  25
Executive Order 9830, 3 C.F.R., 1943-1948

Comp., pp. 606-624____________________ 37
Executive Order 9980, 3 C.F.R., 1943-1948

Comp., pp. 720-721____________________ 37
Executive Order 10577, 3 C.F.R., 1954-1958

Comp., pp. 218-225____________________ 37
Executive Order 10590, 3 C.F.R., 1954-

1958 Comp., pp. 237-239_______________  37
Executive Order 10925, 3 C.F.R., 1959- 

1963 Comp., pp. 448-454_______________  37



VII

Miscellaneous— continued
Executive Order 11222, 3 C.F.R., 1964- Page

1965 Comp., pp. 306-311_______________  37
Executive Order 11246, 3 C.F.R., 1964-

1965 Comp., pp. 339-348_______________  37
Executive Order 11375, 3 C.F.R., 1966-

1970 Comp., pp. 684-686_______________  37
Executive Order 11478, 3 C.F.R., 1966-

1970 Comp., pp. 803-805_______________  37
Executive Order 11590, 36 Fed. Reg. 7831

(1971) _________________________ _______  37
37 Fed. Reg. 22717 (1972)_______________  56
Hearings on H.R. 1746 before the General 

Subcommittee on Labor of the House 
Committee on Education and Labor, 92d
Cong., 1st Sess. (1971)_________________ 23-24

Hearings on S. 2515, et al., before the Sub­
committee on Labor of the Senate Com­
mittee on Labor and Public Welfare, 92d
Cong., 1st Sess. (1971)-------------------------- 23,24

H.R. Conf. Rep. Ho. 92-899, 92d Cong., 2d
Sess. (1972) __________________________  25

H.R. Rep. No. 92-238, 92d Cong., 1st Sess.
(1971) _____________________________ 21,24,45

Legislative History of the Equal Employ­
ment Opportunity Act of 1972, prepared 
by the Subcommittee on Labor of the 
Senate Committee on Labor and Public
Welfare, 92d Cong., 2d Sess. (1972)-------  21,

22, 24, 25, 45, 46
Report of the United States Commission 

on Civil Rights, The Federal Civil 
Rights Enforcement Effort—1974 
(1975) ________________________________ 48>49



VIII

Miscellaneous—continued
Rules of the Supreme Court of the United Page

States, Rule 23(1) ( c )___________  35
S. Conf. Rep. No. 92-681, 92d Cong., 2d

Sess. (1972) __________________________  25
S. Rep. No. 92-415, 92d Cong., 1st Sess.

(1971) ----------------------------------- 8,21,24,45-46



J t t  ills jS u jjm itf  Gfourt afl the I t i M  ^ ia it i i
O c t o b e r  T e e m , 1975

No. 74-768

C l a r e n c e  B r o w n , p e t it io n e r

v.
G e n e r a l  S e r v ic e s  A d m in is t r a t io n , e t  a l .

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENTS

O PIN IO N S BELOW

The opinion of the court of appeals (Pet. App. 2a- 
18a) is reported at 507 F. 2d 1300. The opinion of the 
district court (Pet. App. la ) is not reported.

JU R ISD IC T IO N

The judgment of the court of appeals was entered 
on November 21, 1974. The petition for a writ of cer­
tiorari was filed on (December 20,1974, and was granted 
on May 27, 1975 (A. 67a). The jurisdiction of this 
Court rests on 28 U.S.C. 1254(1).

(i)



2
QUESTIONS P R E SE N TE D

1. Whether Section 717 of the Civil Rights Act of 
1964 provides the exclusive judicial remedy for fed­
eral employment discrimination claims.

2. Whether, if Section 717 is not exclusive, peti­
tioner’s complaint was properly dismissed for failure 
to exhaust administrative remedies.

ST A T U T E  A N D  R E G U L A T IO N S IN V O L V E D

Title Y II  of the Civil Rights Act of 1964, 78 Stat. 
253, as amended by the Equal Employment Oppor­
tunity Act of 1972, 86 Stat, 103, 42 U.S.C. 2000e, et 
seq., set forth in Appendix A to this brief, infra, 
pp. l/-18a. Portions of the statute that were amended 
in 1972 appear in italics.

The Civil Service Commission’s Equal Opportunity 
Regulations, 5 C.F.R. Part 713, are set forth in Ap­
pendix B to this brief, infra, pp. 19a-52a.

S T A T E M E N T

1. Petitioner, a black employee of the General Serv­
ices Administration, filed an administrative complaint 
on July 15, 1971 (A. 15a), alleging that he had been 
denied a promotion on the basis of race. After prepa­
ration and review of an investigative report, a Re­
gional Administrator notified petitioner on October 19, 
1972, that there was no evidence of racial discrimina­
tion (A. 30a-31a). The letter stated that “ the selection 
for advancement was made from among the best quali­
fied candidates” and that “ [t]here is not sufficient 
evidence in the complaint file to indicate either ad­



3

ministrative errors in the selection of Robert Own bey 
or racial discrimination against you” (A. 30a).

Petitioner requested a hearing before a certified 
complaints examiner from another agency (A. 33a). 
The hearing was held in December 1972, and in Feb­
ruary 1973 the complaints examiner issued his findings 
and recommended decision (A. 34a-42a). He found 
that “ the manner, extent, and degree of an employee’s 
cooperation is a reasonable factor which could be 
considered by a selecting officer when attempting to 
choose between two otherwise equally-qualified indi­
viduals,” that “ the evidence contains ample basis for 
the opinion of complainant’s supervisors that he was 
not fully cooperative,” and that “the basis for Mr. 
Brown’s nonselection lay in his lack of full coopera­
tion, and was not due to discrimination because of 
his race”  (A. 41a; emphasis in original).

The General Services Administration thereafter 
issued its final decision determining that the evidence 
did not support petitioner’s complaint of racial dis­
crimination (A. 43a-44a). Petitioner received written 
notification of that decision, together with a copy of 
the transcript of the hearing and the findings and 
recommended decision of the complaints examiner, on 
March 26, 1973 (A. 45a). The letter of notification ad­
vised petitioner that he could appeal the decision to 
the Civil Service Commission within 15 days of re­
ceipt of the letter or challenge the decision by com­
mencing an action in federal district court within 30 
days.



4

Petitioner did not appeal to the Civil Service Com­
mission and did not commence an action in federal 
district court within 30 days (Pet. Br. 6 ; Pet. App. 
6a).

2. On May 7, 1973—42 days after he received notice 
of (ISA ’s final decision—petitioner filed a complaint 
in the United States District Court for the Southern 
District of New York alleging that he was denied a 
promotion on the basis of his race and seeking “ in­
junctive orders, damages, costs, attorney’s fees and 
back pay” (A. la, 14a). The complaint purported 
to invoke the district court’s jurisdiction under Title 
V II  of the Civil Rights Act of 1964, 42 U.S.C. (Supp. 
I l l )  2000e, et seq., “with particular reference to § 717 
* * *, covering discrimination in federal employ­
ment” (A. 3a). It also alleged that jurisdiction was 
conferred by the general federal question statute, 28 
U.S.C. 1331, the Declaratory Judgment Act, 28 U.S.C. 
2201, et seq., and the Civil Rights Act of 1866, as 
amended, 42 U.S.C. 1981, et seq. (A. 3a-4a)!

Respondents moved to dismiss the complaint for 
lack of subject matter jurisdiction (A. 18a-19a), and 
the district court granted the motion (Pet. App. la ).

3. The court of appeals affirmed (Pet. App. 2a- 
18a). It held first that Congress intended Section

1 Petitioner’s motion (A . 48a-49a) for leave to amend his com­
plaint to allege additional bases o f jurisdiction under 28 U.S.C. 
1343(4) and 1346(a) and (b ), and to add an allegation that more 
than $10,000 was in controversy, was denied by the district court 
(A. 62a). The court o f appeals did not review the denial of the 
motion, and petitioner does not seek review of the denial in this 
Court.



5

717(e) to be the exclusive judicial remedy for federal 
employment discrimination claims. That remedy, the 
court reasoned, is retroactively available to any fed­
eral employee, sucb as petitioner, whose administrative 
complaint was pending at the time Section 717(c) 
became effective on March 24, 1972. Since petitioner’s 
complaint was untimely under Section 717(c), it was 
properly dismissed (Pet. App. 9a-15a). The court 
stated (id. at 13a; footnote omitted) :

We hold that there is no “ manifest injustice” 
in the retroactive application of the statute to 
Brown’s complaint. Twice he was notified in 
letters from the GfSA of the procedure for ob­
taining court review of the agency decision. 
Both letters gave notice of the 30 day filing 
requirement. His counsel have not suggested 
any excuse for the delay in filing the com­
plaint—either in their briefs, or in oral argu­
ment, particularly in response to a direct ques­
tion by the Court concerning such delay. In­
stead, his counsel argue that the statute does 
not apply because Brown has not complied with 
it. In a sense, he is correct in that he cannot 
take advantage of the statute because he has 
not complied with its terms. This failure is 
fatal to Brown’s claim, since * * * Congress 
intended Section 717(c) to be the exclusive 
judicial remedy for federal employee discrimi­
nation grievances.

Alternatively, the court held that even if Section 
717(c) were not the exclusive remedy and petitioner 
were not bound by the 30-day filing requirement, the 
complaint was properly dismissed because petitioner



6

inexcusably failed to exhaust his available adminis­
trative remedies by appealing (1SA 7s final decision 
to the Civil Service Commission, as provided by 5 
C.F.R. 713.231 (Pet. App. 16a-17a). The court 
stated that, even if “ exhaustion of federal adminis­
trative remedies may not be required in every case of 
alleged discriminatory federal employment practices” 
{id. at 16a), there is no reason to depart from the 
general exhaustion requirement in this case (id. at 
16a-17a) :

[W ]e cannot say that an appeal to the CSC 
might not have resulted in granting the relief 
sought by Brown. * * *

Moreover, it cannot be said here that the 
administrative remedies available to Brown 
were inadequate or futile. * * * Administrative 
regulations in effect at the time Brown filed 
his complaint in the district court (and which 
remain in effect) provided for retroactive pro­
motion with back pay if discrimination was 
found. 5 C.F.R. § 713.271(b) (1974), 37 Fed. 
Reg. 22,717 (1972). This essentially is the relief 
sought in his federal court action. Nor does 
Brown claim that he had no notice of the ap­
pellate relief available (he received two letters 
so informing him), or that his attempts to 
seek administrative remedies were frustrated.2

2 In light of its decision, the court found it “unnecessary to con­
sider appellant’s claims that jurisdiction can be founded on 28 
U.S.C. § 1361 (1970) (mandamus); the Administrative Pro­
cedure Act, 5 U.S.C. §§ 701-06 (1970); the Tucker Act, 28 U.S.C. 
§ 1346(a) and (b) (1970); and 42 U.S.C. §1981 (1970) and 28 
U.S.C. §1343(4) (1970)” (Pet. App. 15a-16a, n. 13).



7
S U M M A R Y  OR A R G U M E N T

Petitioner’s complaint was correctly dismissed for 
two reasons. First, it was untimely under Section 717 
of the Civil Rights Act of 1964.3 Although petitioner 
seeks to invoke other statutory bases of jurisdiction 
under which, he contends, his complaint was not un­
timely, Section 717 was intended by Congress to be 
the exclusive judicial remedy for federal employment 
discrimination claims. Second, even if Section 717 
were not exclusive, petitioner’s action would be barred 
because he failed to exhaust the administrative rem­
edy provided by the Civil Service Commission’s reg­
ulations. Section 717’s relaxation of the usual exhaus­
tion rule is unavailable to petitioner, because he did 
not file his complaint within the time specified by that 
section.

I
A. Section 717 establishes a comprehensive scheme 

for enforcing its proscription of employment discrimi­
nation in the federal civil service, a scheme that dif­
fers significantly from that established by Title Y II  
to enforce a similar proscription of discrimination in 
the private sector. Unlike the Equal Employment Op­
portunity Commission (which has conciliation and liti­
gation authority but which is not empowered to ad­
judicate complaints or award administrative relief),

3 Section 717 was added by the Equal Employment Opportunity 
Act of 1972. The provisions of Title V II of the Civil Rights Act 
o f 1964, as amended, are reproduced in full, with italics to indicate 
the amendments and additions made by the 1972 Act, in Appendix 
A  to this brief, infra, pp. la-18a.



8

the Civil Service Commission is authorized by Section 
717(b) to enforce the ban on federal employment dis­
crimination “ through appropriate remedies, including 
reinstatement or hiring of employees with or without 
back pay * * *.”

Congress addressed each facet of the enforcement 
scheme. The Act requires an aggrieved person to file 
his claim of discrimination initially with the respon­
sible agency, gives him a right to appeal the agency’s 
decision to the Civil Service Commission, permits him 
at several stages of the administrative process to file a 
civil action to review his claim, and authorizes the 
district court, upon a finding of intentional discrimi­
nation, to grant injunctive and other appropriate 
relief.

B. The comprehensiveness of the enforcement mech­
anism reflects a congressional judgment that the Act 
would, for the first time, provide a statutory basis for 
judicial review of federal employment discrimination 
claims. Congress did not undertake explicitly to repeal 
any of the statutes that petitioner seeks to invoke, be­
cause it determined that under existing law “an 
aggrieved Federal employee does not have access to 
the courts”  (S. Rep. No. 92-415, 92d Cong., 1st Sess. 
16 (1971)). It accordingly fashioned a remedial 
scheme with the understanding that it would stand 
alone as the exclusive means of enforcing the prohibi­
tion against federal employment discrimination.

The legislative history of Section 717 is thus quite 
different from that of the non-federal remedial provi­
sions of Title V II. As this Court observed in Alex­



9

ander v. Gardner-Denver Go., 415 U.S. 36, and Johnson 
v. Railway Express Agency, Inc., No. 73-1543, decided 
May 19, 1975, Congress recognized that non-federal 
employees already had access to the courts under other 
statutes, and it established an independent remedy de­
signed to supplement the existing remedies and to 
operate as one portion of a larger remedial scheme. 
Unlike the non-federal provisions of Title V II, Sec­
tion 717 is not “ premised on the continued existence 
and vitality of other remedies” (118 Cong. Rec. 3371 
(1972) (remarks of Senator Williams)), and reflects 
no congressional “ intent to accord parallel or over­
lapping remedies”  (Alexander v. Gardner-Denver Co., 
supra, 415 U.S. at 47).

C. Petitioner argues that all the provisions of Sec­
tion 717—including its exhaustion requirements, time 
limitations, and remedial restrictions—may be wholly 
disregarded at the option of an aggrieved person who 
determines to invoke some other allegedly available 
statutory remedy. But that would upset the balance 
struck by Congress when it enacted Section 717 and 
would defeat its policy of encouraging the develop­
ment of effective and expeditious administrative 
remedies for claims of federal employment discrimi­
nation.

Petitioner seeks to invoke the broad language of 
other statutes to avoid the explicit requirements of 
later and more specific legislation comprehensively 
designed to provide the kind of remedy he seeks for 
the kind of injury he alleges. As in Preiser v. Rod­
riguez, 411 U.S. 475, where state prisoners seeking

594-115 0 - 7 5 - 2



10

immediate or expedited release from confinement at­
tempted unsuccessfully to avoid the exhaustion re­
quirements of the federal habeas corpus statute by 
invoking provisions of the Civil Rights Act of 1866, 
“ [i]t would wholly frustrate explicit congressional 
intent to hold that [petitioner] could evade [the 
statutory] requirement[s] by the simple expedient 
of putting a different label on [his] pleadings”  (411 
U.S. at 489-490). Congress has determined that Sec­
tion 717 “ is the appropriate remedy”  for federal em­
ployment discrimination claims, “ and that specific 
determination must override the general terms” of the 
statutes relied on by petitioner (id. at 490).

II

Even if Section 717 were not exclusive and an 
action within its purview could properly be brought 
under other statutes,4 petitioner cannot maintain this 
action because he failed to exhaust the administrative 
appellate remedy provided by the Civil Service Com­
mission’s regulations.

A. The Civil Service Commission’s Equal Oppor­
tunity Regulations establish a three-tiered procedure 
for the investigation, conciliation, and adjudication 
of employment discrimination claims. The aggrieved 
person initially consults with an Equal Employment

4 We do not address petitioner’s lengthy argument concerning 
the availability of relief under the other statutes he relies upon, 
because the difficult questions raised by that argument were not 
decided by the court o f appeals, were not specifically presented in 
the petition for a writ o f certiorari, and, in our view, should not 
now be resolved by this Court (see note 18, infra).



11

Opportunity Counselor in his agency who provides 
counseling and seeks an informal resolution of the 
matter.

I f  resolution is not achieved, the aggrieved person 
may file a formal complaint with his agency. After 
completion of a prompt and thorough investigation, 
and a further opportunity for informal resolution, 
the complainant is apprised of the agency’s proposed 
disposition of the complaint and of his right to a 
hearing if he is not satisfied with that disposition. 
At the hearing, which is conducted by an impartial 
complaints examiner certified by the Civil Service 
Commission, the complainant may be represented by 
counsel, may present evidence, and may cross-examine 
witnesses. The complaints examiner submits his find­
ings and recommendations to the head of the agency, 
whose decision is made on the basis of information in 
the investigative file and hearing record. The decision 
must give specific reasons for rejecting or modifying 
the complaints examiner’s recommended decision.

The complainant then has the right to appeal the 
agency’s decision to the Civil Service Commission, 
whose Appeals Review Board considers the entire file 
and issues a written decision affirming or reversing 
the agency’s decision or remanding to the agency for 
further investigation or rehearing.

The regulations authorize broad remedial action by 
the agency or the Commission upon a finding of dis­
crimination, including, where appropriate, reinstate­
ment, hiring, promotion, back pay awards, and cancel­
lation of any adverse action.



12

The policies served by the traditional rule that ju­
dicial relief is unavailable unless prescribed adminis­
trative remedies have been exhausted are fully appli­
cable to the Commission’s complaint procedures. Full 
exhaustion of those procedures is necessary to prevent 
premature interference with the administrative proc­
ess and to permit the federal agencies and the Civil 
Service Commission to correct their own errors, apply 
their expertise to the facts of each case, and compile a 
record for possible judicial review. Moreover, pursuit 
of an administrative remedy through which suitable 
relief may be obtained may obviate judicial interven­
tion or narrow the scope of any necessary judicial 
review.

Petitioner argues that the Commission’s elaborate 
procedure need not even be commenced, much less ex­
hausted, by any federal employee who chooses to bring 
an action under statutes other than Section 717. The 
reasons he gives for such an unprecedented across- 
the-board exception to the usual exhaustion rule do not 
support his contention.

Contrary to petitioner’s assertions, the resolution of 
employment discrimination claims depends on an ex­
pert understanding of federal civil service personnel 
management problems, and Congress for that reason 
determined in 1972 to give the Civil Service Commis­
sion administrative jurisdiction over such claims and 
to strengthen its authority and broaden its responsi­
bilities. Where, as here, the disposition of an adminis­
trative claim “ depends on careful factual analysis” 
calling for the application of agency expertise, it is



13

impermissible to “ sidestep * * * the administrative 
process designed to marshal relevant facts and resolve 
factual issues in the first instance” (McGee v. United 
States, 402 U.S. 479, 488).

There is no basis for petitioner’s assertion that re­
sort to the administrative process is futile. This is 
not a case in which the issues to be resolved are be­
yond the Commission’s competence to decide or in 
which the nature of the relief sought is beyond the 
Commission’s authority to award. Xor is it accurate to 
say that claims are almost certainly to be denied. A 
large proportion of the claims are resolved informally 
to the satisfaction of the complainant; many others 
are resolved favorably to the complainant after for­
mal adjudication. Petitioner has not demonstrated 
that a meritorious complaint is likely to be denied or 
that a successful complainant is unlikely to obtain 
appropriate relief.

While reasonable persons may disagree over the 
fairest and most effective administrative procedures 
for adjudicating employment discrimination claims, 
Congress left the resolution of that question to the 
Commission. The procedures it adopted cannot ac­
curately be characterized as so grossly unfair as to ex­
cuse their invocation. Indeed, even when one seeks to 
attack agency procedures as in violation of due process 
standards, exhaustion of those procedures is a pre­
requisite. Christian v. New York State Department 
of Labor, 414 U.S. 614.

To accept petitioner’s contention that exhaustion is 
never required would encourage “ frequent and de­



14

liberate flouting” of the administrative complaint 
procedure (McKart v. United States, 395 U.S. 185, 
195) and would “ jeopardize * * * the functional au­
tonomy of the administrative bod[y] on which Con­
gress has conferred the primary responsibility” to 
adjudicate claims of federal employment discrimina­
tion (McGee v. United States, supra, 402 U.S. at 
487).

B. Petitioner’s failure to invoke his right to appeal 
the agency’s decision to the Civil Service Commission 
is therefore a bar to the present action. Though he 
argues that his agency’s delay in reaching a final 
decision in his case excused him from further ex­
haustion, he did not complain of that delay to the 
Civil Service Commission in accordance with the regu­
lations that were then in force, and he should not be 
heard to complain of it now.

Although Section 717 permits aggrieved persons to 
file a civil action without first appealing to the Civil 
Service Commission, that exception to the traditional 
exhaustion requirement is inapplicable here, because 
petitioner failed to satisfy the statutory condition of 
that exception—that the complaint be filed within 30 
days of notification of the agency’s decision.

Petitioner argues that an administrative appeal 
would have been futile. But his argument is not sup­
ported by the statistics he cites, which show only that 
the Appeals Review Board affirms agency decisions 
more often than it reverses them.



15
A R G U M E N T

I
SECTION 717 OP THE CIVIL RIGHTS ACT OF 1964 PROVIDES 

THE EXCLUSIVE JUDICIAL REMEDY FOR FEDERAL EM­
PLOYMENT DISCRIMINATION CLAIMS, AND PETITIONER’S 
COMPLAINT WAS PROPERLY DISMISSED AS UNTIMELY 

UNDER THE PROVISIONS OF THAT SECTION

A . T H E  A CT ESTABLISH ES A  C O M PR E H EN SIV E  P L A N  FOR E L IM IN A T IN G  

FEDERAL E M P L O Y M E N T  D IS C R IM IN A T IO N  A N D  A D JU D IC A T IN G  D IS­

C R IM IN A T IO N  C O M P L A IN T S

Section 717 of the Civil Rights Act of 1964, as 
added by Section 11 of the Equal Employment Op­
portunity Act of 1972, 86 Stat. I l l ,  42 U.S.C. (Supp. 
I l l )  2000e-16, proscribes federal employment dis­
crimination and establishes a comprehensive admin­
istrative and judicial enforcement scheme.

Section 717(a) provides that all personnel actions 
affecting federal employees and applicants for federal 
employment5 ‘ ‘ shall be made free from any discrimi­
nation based on race, color, religion, sex, or national 
origin.” Section 717(b) gives the Civil Service Com­
mission the authority to enforce the provisions of 
subsection (a) “ through appropriate remedies, in-

5 The section excludes from its coverage aliens employed outside 
the limits o f  the United States and employees of the General 
Accounting Office. It also excludes persons employed by those units 
of the Government o f the District of Columbia and federal legis­
lative and judicial branches that do not have positions in the com­
petitive service.

?' p

V;;?;£'€-Uv -
r



16

eluding reinstatement or hiring of employees with or 
without back pay,” and to issue appropriate rules or 
regulationsc to carry out its responsibilities under 
the section.6 7

Section 717(c) gives an aggrieved employee or ap­
plicant the right to file a civil action in a federal dis­
trict court to review his claim of employment dis­
crimination.8 That right is conditioned, however, upon 
compliance with timing and exhaustion requirements.

The complainant is required to file his claim ini­
tially with the department or agency that has allegedly 
discriminated against him. I f  the final decision by the 
department or agency is adverse, the complainant has 
a right to appeal to the Civil Service Commission. 
Alternatively, he may, within 30 days of his receipt

6 The Commission’s equal employment opportunity regulations 
are codified at 5 C.F.R. Part 713. Section 717 (b) of the Act directs 
the head of each department, agency, or unit to comply with the 
Civil Service Commission’s regulations.

7 Section 717(b) also provides that each department and agency 
shall submit to the Commission annually, for its review and ap­
proval, an “ equal employment opportunity plan” designed “ to 
maintain an affirmative program of equal employment opportunity 
* * The Commission is made responsible for reviewing and 
evaluating the operation o f all such programs, and it is directed 
to consult with interested individuals and organizations concern­
ing equal employment opportunity.

8 Section 706(f) (3 ), 42 U.S.C. (Supp. I l l )  2000e-5(f) (3 ), in­
corporated by Section 717(d), gives the federal district courts 
jurisdiction over such actions. It provides that an action may be. 
brought in any district in the State in which the discrimination 
allegedly occurred, in the district in which the relevant employ­
ment records are maintained, or in the district in which the ag­
grieved person would have worked but for the alleged discrimina­
tion.



17

of notice of the department’s or agency’s final decision, 
file a civil action directly without appealing to the 
Civil Service Commission. I f  he does appeal to the 
Commission, he may file a civil action within 30 days 
after receiving notice of the Commission’s final deci­
sion. In addition, the complainant may file a civil 
action if, after 180 days from the filing of his initial 
charge or the filing of his appeal, the department or 
agency, or the Civil Service Commission, has not yet 
taken final action on the charge or the appeal.9

Civil actions brought under Section 717 are gov­
erned by the provisions of Section 706(f) through 
(k), 42 U.S.C. (Supp. I l l )  2000e-5(f)-(k ), which are 
incorporated “ as applicable”  by Section 717(d). In 
addition to providing for jurisdiction and venue (see 
note 8, supra), Section 706(f) requires that cases be 
expedited and authorizes the district court to appoint 
an attorney for the complainant and to allow the 
action to be commenced without the payment of fees 
and costs. Section 706(g) authorizes the district court, 
on a finding that the agency intentionally engaged in 
unlawful discrimination, to grant injunctive and other 
appropriate relief, including back pay for a period 
not to exceed two years prior to the filing of the initial

9 Section 717(c) also expressly waives sovereign immunity by 
providing that in a civil action under the section “ the head o f the 
department, agency, or unit, as appropriate, shall be the defend­
ant.” Petitioner’s complaint named as defendants the General 
Services Administration and three subordinate officials of that 
agency (A. 3a). Petitioner thereafter sought to amend the com­
plaint (see note 1, supra) to add as defendants the Civil Service 
Commission and the complaints examiner (A. 50a, 52a).



18

lyy\ yjtj

administrative complaint. Section 706 (k) gives the 
district court discretion to allow the complainant, if 
he prevails, a reasonable attorney’s fee as part of the 
costs.

Finally, Section 717(e) provides that every govern­
ment agency and official shall retain “primary respon­
sibility to assure nondiscrimination in employment as 
required by the Constitution and statutes or * * * 
under Executive Order 11478 * *

Congress thus addressed each facet of the enforce­
ment mechanism. The Act defines with precision the 
employees and applicants covered and the nature of 
the discrimination that may be challenged. It estab­
lishes an administrative complaint and appeal pro­
cedure, specifies the administrative remedies that may 
be prescribed, imposes both a limited exhaustion re­
quirement and specific time limitations for the filing 
of a civil action to review the administrative deter­
mination, provides for jurisdiction and venue, waives 
sovereign immunity, specifies certain extraordinary 
procedures to be followed by the district court, and 
defines the scope of the district court’s remedial 
authority.

It is undisputed that petitioner’s action was un­
timely under Section 717. After receiving notice of 
his agency’s final decision rejecting his discrimination 
complaint, petitioner neither appealed to the Civil 
Service Commission nor filed a civil action within 
30 days. He argues that the action nevertheless may 
be maintained under other statutes that do not im­
pose a 30-day limitation period.



19

B. SECTION 7 1 7  W AS EN A C TED  W IT H  T H E  U N D E RSTA N D IN G  T H A T  IT

W OULD PROVIDE T H E  SOLE ST A T U T O R Y BASIS FOR JU D IC IA L  REVIEW

OP FEDERAL E M P L O Y M E N T  D IS C R IM IN A T IO N  C L A IM S

Petitioner would have this Court hold that the 
carefully constructed enforcement scheme established 
by Section 717 may be ignored altogether if  the fed­
eral employee merely invokes any of the “ diverse 
arsenal of remedies” (Br. 43) that allegedly were 
available before the enactment of Section 717. Under 
those pre-existing remedies, according to petitioner 
(Br. 43 and nn. 81 and 82): (1) any federal employee 
may bring a civil action seeking relief from alleged 
federal employment discrimination; (2) an aggrieved 
employee need exhaust no available administrative 
remedy before filing such an action; (3) an action 
may be filed without regard to the 30-day limitation 
period established by Section 717; and (4) the district 
court may award back pay without regard to the two- 
year limit under Title V II  and may also award com­
pensatory and punitive damages against the govern­
ment and individual officials.

I f  these other remedies were available at the time 
Section 717 was enacted, and if, as petitioner argues, 
Congress intended that they survive the 1972 enact­
ment, why then did Congress fashion so delicately 
balanced an enforcement scheme containing proce­
dural and remedial limitations that make it a less 
attractive remedy in important respects? Petitioner’s 
only answer is that Section 717, unlike the other 
statutes upon which he relies, “ provides for awards of 
attorneys’ fees, court appointed counsel, and waiver



20

of court costs, features which we may presume are 
particularly important to aggrieved federal employees 
of limited resources”  (Br. 43, n. 81). While we do not 
dispute petitioner’s presumption, we doubt that Con­
gress intended to create so elaborate a mechanism for 
so limited a purpose, in effect exacting a substantial 
procedural and remedial price only from those ag­
grieved individuals who need the benefits of court- 
appointed counsel and waiver of court costs.

Petitioner relies upon this Court’s decision in 
Johnson v. Railway Express Agency, Inc., No. 73- 
1543, decided May 19, 1975. The Court there held, 
in the non-federal employment context, that, “ [d]e- 
spite Title VIPs range and its design as a compre­
hensive solution for the problem of invidious dis­
crimination in employment, the aggrieved individual 
clearly is not deprived of other remedies he possesses 
and is not limited to Title V II  in his search for 
relief”  (slip op. 5).

That holding, however, rests upon the explicit legis­
lative history of the 1964 Act, which unequivocally 
reflects “ a congressional intent to allow [a non-federal 
employee] to pursue independently his rights under 
both Title V II  and other applicable state and federal 
statutes” (Alexander v. Gardner-Denver Go., 415 
U.S. 36, 48). As the Court in Johnson noted (slip 
op. 5), the Committee Reports made clear “ that the 
remedies available to the individual under Title V II 
are co-extensive with the indivdual’s [sm] right to 
sue under the provisions of the Civil Rights Act of 
1866, 42 U.S.C. § 1981, and that the two procedures



21

augment each other and are not mutually exclusive.” 
H.R. Rep. No. 92-238, 92d Cong., 1st Sess. 19 (1971) ; 
see also S. Rep. No. 92-415, 92d Cong., 1st Sess. 24 
(1971).

Petitioner argues that, “ [sjrffce Title V II  did not 
repeal the section 1981 rights of private employees, it 
necessarily follows that Title V II  did not repeal the 
section 1981 and other pre-existing rights of federal 
employees” (Br. 40; footnote omitted). But there is 
no necessary comparability between the direct judicial 
remedy (after an opportunity for conciliation efforts) 
established by Title V II  for non-federal employees 
and the comprehensive system of full administrative 
remedies and judicial review thereof established by 
Title V II  for federal employees (see note 15, infra). 
In any event, the legislative history of Section 717, 
unlike that of the 1964 Act, reflects no explicit, or 
even implicit, congressional intent to preserve any pre­
existing judicial remedies for federal employment dis­
crimination.10 What it does reveal is that Congress .. ^
thought it was writing on a blank slate and conceived 
of Section 717 as the sole statutory basis for judicial 
review of federal employment discrimination com­
plaints.

10 Congress rejected in 1972 an amendment proposed by Senator 
Hruska that would have made Title Y II “ the exclusive remedy 
of any person claiming to be aggrieved by an unlawful employ­
ment practice o f  an employer, employment agency, or labor orga­
nization.”  (The text of the amendment is reproduced in Legisla­
tive History of the Equal Employment Opportunity Act of 1972, 
prepared by the Subcommittee on Labor of the Senate Committee 
on Labor and Public Welfare, 92d Cong., 2d Sess. 1382 (1972),



22

When Congress was considering the 1972 legisla­
tion, there was at best considerable doubt, that federal 
employees could obtain judicial review of employment 
discrimination complaints. In a case in which an 
employee claimed he had been wrongfully denied a 
promotion, Gnotta v. United States, 415 F. 2d 1271 
(C.A. 8), certiorari denied, 397 U.S. 934, the court 
held that sovereign immunity barred a federal em­
ployment discrimination suit that predicated juris­
diction on the Administrative Procedure Act (5 
U.S.C. 701-706), the Mandamus Act (28 U.S.C. 
1361), and the Tucker Act (28 U.S.C. 1346). The 
court in Gnotta stated that a suit against the United 
States seeking a promotion is barred because “  [t]he 
plaintiff has not demonstrated that the United States 
has consented to be sued” ; the same rule applies when

hereinafter referred to as “ Legislative History.” ) The proposed 
amendment, however, would have applied only in the non-federal 
context; neither the United States nor any federal department or 
agency is included within the A ct’s definition o f “ employer.” See 
Section 701 (b ) , 42 U.S.C. 2000e(b). See also 118 Cong. Eec. 3368- 
3369 (1972), Legislative History 1395-1398 (remarks of Senator 
Hruska). Contrary to petitioner’s suggestion (Br. 42), therefore, 
no inference from the rejection of the Hruska amendment can 
properly be drawn concerning congi’essional intent with re­
spect to the exclusivity of Section 717.

Petitioner relies (Br. 38-39) on language in the Senate Report 
and remarks on the floor of the Senate to the effect that Section 
717 would give federal employees the same right that is granted 
to private employees to bring a civil action under Title VII. 
Those statements imply neither an intention to preserve, nor even 
a recognition of, any pre-existing remedies. They suggest only an 
intention to allow federal employees, like employees in the private 
sector, to obtain judicial review o f their employment discrimina­
tion claims under the provisions o f Title V II.



23

individual federal officers are named defendants, the 
court stated, because granting the relief sought 
“ would compel those individuals to promote the plain­
tiff, with the natural effect a promotion has upon the 
Treasury, and to exercise administrative discretion in 
an official personnel area” (415 F. 2d at 1277). See 
also Ogletree v. McNamara,, 449 F. 2d 93 (C.A. 6), 
in which the court held that sovereign immunity 
barred a challenge to the Air Force merit promotion 
program. Compare Congress of Racial Equality v. 
Commissioner, 270 F. Supp. 537 (D. Md.). See gen­
erally Comment, Racial Discrimination in Federal 
Civil Service, 38 Geo. Wash. L. Rev. 265 (1969).

The courts of appeals were in conflict over whether 
federal employees complaining of wrongful discharge 
were entitled to judicial review. Compare Pelicone v. 
Hodges, 320 F. 2d 754 (C.A. D.C.), and DeLong v. 
Hampton, 422 F. 2d 21 (C.A. 3), with Blaze v. Moon, 
440 F. 2d 1348 (C.A. 5). Such review as was available 
did not necessarily extend to an examination of the 
facts. See Hargett v. Summerfield, 243 F. 2d 29 (C.A. 
D.C.), certiorari denied, 353 U.S. 970; Baum v. 
Zuckert, 342 F. 2d 145 (C.A. 6).

Hearings before the Committees of both Houses in 
1971 evinced congressional concern over the apparent 
inability of federal employees to obtain judicial re­
view of employment discrimination complaints. See, 
e.g., Hearings on S. 2515, et al., before the Subcom­
mittee on Labor of the Senate Committee on Labor 
and Public Welfare, 92d Cong., 1st Sess. 296, 301, 308, 
318 (1971) (hereinafter “ Senate Hearings” ) ; Hear­
ings on H.R. 1746 before the General Subcommittee



24

on Labor of the House Committee on Education and 
Labor, 92d Cong., 1st Sess. 320, 322, 385-386, 391-392 
(1971) (hereinafter “ House Hearings” ). Much of the 
testimony was in conflict. Irving Kator, representing 
the Civil Service Commission, stated his view that, 
after exhaustion of administrative remedies, the ag­
grieved federal employee had a limited right to judi­
cial review of an employment discrimination com­
plaint. House Hearings 385-386. See also id. at 320, 
322; Senate Hearings 308, 318. Other witnesses ex­
pressed their doubts on that score. See Senate Hear­
ings 296; House Hearings 391-392.

Ultimately, the Committees concluded that judicial 
review was not available at all or that access was 
doubtful and that some forms of relief were definitely 
foreclosed. Thus, the Senate Report stated: “ The testi­
mony of the Civil Service Commission notwithstand­
ing, the committee found that an aggrieved Federal 
employee does not have access to the courts.” S. Rep. 
Ho. 92-415, 92d Cong., 1st Sess. 16 (1971), LegislativeJfHistory 425. And the House Committee observed 
(H.R. Rep. Ho. 92-238, 92d Cong., 1st Sess. 25 (1971), 
Legislative History 85) :

There is serious doubt that court review is 
available to the aggrieved Federal employee.

■ Monetary restitution or back pay is not attain­
able. In promotion situations, a critical area of 
discrimination, the promotion is often no longer 
available.

The point was reiterated during debate on the 
Senate floor. Senator Cranston, co-author of the 
amendment relating to federal employment, stated



25

that it would, “ [f]or  the first time, permit Federal 
employees to sue the Federal Government in discrim­
ination cases * * 118 Cong. Rec. 4929 (1972),
Legislative History 1744. See also 118 Cong. Rec. 4921 
(1972), Legislative History 1723. Senator Williams, 
sponsor and floor manager of the bill, stated that it 
“ provides, for the first time, to my knowledge, for 
the right of an individual to take his complaint to 
court.”  118 Cong. Rec. 4922 (1972), Legislative His­
tory 1725. Nothing in the Committee Reports or the 
floor debates contradicts the views of Senators Crans­
ton and Williams.

The Conference Committee accepted the Senate 
amendment. Its Reports described Section 717 as 
“ providing the statutory basis for * * * appeal or 
court access * * H.R. Conf. Rep. Ho. 92-899, 92d 
Cong., 2d Sess. 21 (1972), Legislative History 1841 
(emphasis added); S. Conf. Rep. Ho. 92-681, 92d 
Cong., 2d Sess. 21 (1972), Legislative History 1819 
(emphasis added).

The legislative history of Section 717 is thus quite 
unlike that of the 1964 Act. The judicial remedy for 
non-federal employees under Title Y II  was enacted 
with the express intention of supplementing the other 
statutory remedies that Congress recognized as al- /vtLf '^ /  
ready available to such individuals. It was designed as 
one part of a comprehensive remedial scheme. The 
1972 amendments relating to non-federal employees 
were likewise “premised on the continued existence  ̂ L'^ 
and vitality of other remedies for employment dis- 
crimination” (118 Cong. Rec. 3371 (1972), Legisla­
tive History 1403 (remarks of Senator Williams)).

594-115 0 - 7 5 - 3



26

7&C

Section 717, by contrast, was enacted with the 
understanding that no other judicial remedies were 
available for federal employees. It was not “ premised 
on the continued existence and vitality of other reme­
dies” {ibid.) but was designed to stand alone as a 
comprehensive enforcement scheme in itself. Thus, 
while Congress of course did not undertake expressly 
to repeal existing statutes that it concluded were in­
applicable,11 it intended Section 717 exclusively to 
govern judicial review of federal employment dis­
crimination claims within its purview.

The present case therefore differs not only from 
Johnson v. Railway Express Agency, Inc., supra, but 
also from the other cases petitioner cites to illustrate 
“ the general policy of providing * * * a variety of 
remedies for the protection of important civil rights” 
(Br. 41-42). In each of those cases, the Court was able 
to infer from the statute and its legislative history a 
congressional “ intent to accord parallel or overlapping 
remedies against discrimination” {Alexander v. Gard­
ner-!) enver Co., supra, 415 U.S. at 47).12 No such in-

11 Petitioner invokes the established rule that repeals by impli- 
I cation are not favored (Br. 41—42). See Morton v. Mancari, 417

U.S. 535, 549-551. But that rule is not a meaningful guide to legis­
lative intent in circumstances such as these, where Congress clearly 

' expressed its understanding that there was nothing to repeal.
12 W e adverted above (pp. 20-21, supra) to the legislative his­

tory of Title V II  as applied to non-Federal employees, which 
plainly reveals an intent “to supplement, rather than supplant,

j existing laws and institutions relating to employment discrimina- 
1 tion” (Alexander v. Gardner-D'emver Gosupra,  415 U.S. at 48- 

49). Similarly, in Jones v. Alfred H. Mayer Go., 392 U.S. 409, the 
i Court found compelling indications in the legislative history of 
i the Fair Housing Title o f the Civil Rights Act of 1968 that Con-



27

tent may be inferred from Section 717 or its legis­
lative history.13

C. P E R M IT T IN G  AGGRIEVED FEDERAL EM PLOYEES TO M A IN T A IN  ACTIO N S

DESPITE T H E IR  F A IL U R E  TO C O M P L Y  W IT H  T H E  R E Q U IR E M E N TS OF

SECTION 7 1 7  W OU LD DEFEAT T H E  LEGISLATIVE P O L IC Y  EMBODIED IN
T H A T  SECTION

As this Court stated in Johnson v. Railway Express 
Agency, Inc., supra, “ [although any statute of limi­
tations is necessarily arbitrary, the length of the 
period allowed for instituting suit inevitably reflects 
a value .judgment concerning the point at which the 
interests in favor of protecting valid claims are out­
weighed by the interests in prohibiting the prosecu-
gress was aware o f the overlapping provisions of 42 U.S.C. 1982 
and nevertheless concluded that additional legislation was needed 
(see 392 U.S. at 413-417). In Sullivan v. Little Hunting Park, 
Inc., 396 U.S. 229, the Court held that the public accommodations 
provisions of Title II  of the Civil Rights Act o f 1964 did not super­
sede the provisions of 42 U.S.C. 1982. As the Court noted (396 
U.S. at 237-238), that Title included a savings clause that ex­
pressly preserved the right o f individuals to pursue other reme­
dies under statutes barring discrimination in public accommoda­
tions (42 U.S.C. 2O0Oa-6(b)). In Tillman v. Wheaton-ffaven 
Recreation Assn., 410 U.S. 431, the Court found it unnecessary to 
consider whether a statutory exemption under Title II  of the 
Civil Rights Act of 1964 implied that the application of 42 U.S.C. 
1982 should be similarly limited (see 410 U.S. at 438-439).

13 Petitioner points (Br. 41) to Section 717(e), which provides 
that nothing in the Act “ shall relieve any Government agency or 
official of its or his primary responsibility to assure nondiscrimi­
nation in employment as required by the Constitution and statutes 
or * * * under Executive Order 11478 * * But that language 
does not bear upon the existence or preservation of any other ju- -r 
dicial remedies. We know of nothing in the legislative history, and 
petitioner cites nothing, to suggest that Section 717(e) was in­
tended to preserve statutory remedies that Congress determined 
were non-existent. Ur' 0 eg rA'Pe



28

tion of stale ones” (slip op. 10). The time require­
ments of Section 717 reflect a general congressional 
judgment that expedition in resolving federal em­
ployment discrimination claims is desirable. The sec­
tion provides that civil actions alleging federal em­
ployment discrimination must be filed within 30 days 
after notification of the agency’s final decision or of 
the Civil Service Commission’s final action on appeal, 
but that if action on the initial charge or the appeal 
is delayed beyond 180 days, then a suit may be com­
menced at any time before such final action is taken.

Petitioner chose not to file a complaint before his 
agency issued its final decision, and he neither invoked 
the available appeal mechanism nor commenced this 
action within the 30 days allowed by statute. Per­
mitting the action to be maintained in these circum­
stances would nullify the legislative policy underlying 
Section 717’s time requirements.

The situation here is analogous to that in Preiser v.
Rodriguez, 411 U.S. 475. The issue there was whether 
state prisoners challenging the fact or duration of 
their confinement and seeking immediate or expedited 
release from imprisonment may obtain equitable relief 
under 42 U.S.C. 1983, despite the availability of a 
clearly and specifically applicable remedy under the 
federal habeas corpus statute, 28 U.S.C. 2254. The 
availability of federal habeas corpus is conditioned 
upon the applicant’s exhaustion of state judicial reme­
dies, and the prisoners in Rodriguez sought to avoid 
that requirement by invoking the provisions of the 
Civil Rights Act. Like petitioner in the present case, 
they argued that, “  since their complaints plainly came



29

within the literal terms of [the Civil Eights] statute, 
there is no justifiable reason to exclude them from the 
broad remedial protection provided by that law” (411 
U.S. at 488).

The Court stated, however, that “ [t]he broad lan­
guage of § 1983 * * * is not conclusive of the issue 
before us. The statute is a general one, and, despite 
the literal applicability of its terms, the question re­
mains whether the specific federal habeas corpus 
statute, explicitly and historically designed to pro­
vide the means for a state prisoner to attack the va­
lidity of his confinement, must be understood to be 
the exclusive remedy available in a situation like this 
where it so clearly applies” (id. at 489). When Con­
gress amended the habeas corpus laws in 1948, it 
“ clearly required exhaustion of adequate state reme­
dies as a condition precedent to the invocation of fed­
eral judicial relief under those laws” (ibid.). The 
Court accordingly concluded (id. at 489-490) :

It would wholly frustrate explicit congres­
sional intent to hold that the respondents in 
the present case could evade this requirement 
by the simple expedient of putting a different 
label on their pleadings. In short, Congress has 
determined that habeas corpus is the appropri­
ate remedy for state prisoners attacking the 
validity of the fact or length of their confine­
ment, and that specific determination must 
override the general terms of § 1983.

The same analysis is applicable here. Like the pris­
oners in Preiser v. Rodriguez, petitioner here invokes 
the broad language of the Civil Rights Act in an effort 
to avoid an explicit requirement of a later and more



30

specific statute comprehensively designed to provide 
precisely the kind of remedy he seeks for precisely the 
kind of injury he alleges. As in Rodriquez, it would 
“wholly frustrate explicit congressional intent”  to per­
mit petitioner to evade the clearly applicable 30-day 
time requirement of Section 717 “ by the simple ex­
pedient of putting a different label on [his] plead­
ings” (ibid.). In the absence of legislative history to 
the contrary, the specific provisions of Section 717, 
like the specific federal habeas corpus statute in Rod­
riguez, “ must be understood to be the exclusive remedy 
available in a situation like this where it so clearly 
applies” (id. at 489).14

Although the circumstances of this case only par­
tially illustrate the other consequences that would fol-

14 The considerations o f federal-state comity that account for 
the exhaustion rule in federal habeas corpus actions obviously 
differ from the considerations underlying the time requirements 
of Section 717 (which were designed in large part to encourage the 
development of expeditious and effective administrative remedies). 
But that difference does not mean that the analysis in Preiser v. 
Rodriguez is inapplicable here. The Court’s emphasis on comity 
considerations in Rodriguez was in response to a contention that 
the policy o f the exhaustion requirement, and therefore the re­
quirement itself, is inapplicable when the prisoner is challenging 
the actions of a state administrative body rather than o f a state 
court. This Court concluded that the underlying policy was 
broader than merely avoiding unnecessary interference by one 
court with the courts o f another sovereign and that the exhaustion 
requirement was fully applicable to the prisoners’ challenges (411 
U.s. at 49CM192). There is here no doubt that Section 717’s time 
requirement is applicable. Nothing in the Rodriguez opinion sug­
gests that a clearly applicable statutory requirement may be ig­
nored if  its underlying policy is different from, or relatively less 
important than, the comity principles underlying the federal 
habeas corpus exhaustion rule.



31

low from petitioner’s theory, his contention is that a 
federal employee alleging unlawful discrimination may 
file a civil action not only in disregard of the express 
time requirements of Section 717 but also without first 
presenting his complaint to his own agency at all.

Congress struck a delicate balance between the com­
peting objectives of permitting aggrieved federal em­
ployees to obtain prompt judicial review of their dis­
crimination claims and giving the federal government 
an opportunity to keep its own house in order by ad­
judicating such claims in the first instance. It deter­
mined that no civil action should be filed until the 
employee’s agency has had a reasonable opportunity 
to consider the claim. The judicial remedy was not to 
be invoked until the agency either reached a final de­
cision or failed to do so within 180 days. Similarly, 
while determining that an appeal to the Civil Service 
Commission should be optional rather than mandatory, 
Congress concluded that, once such an appeal is filed, 
judicial review should not be available until the Com­
mission takes final action or fails to do so within 180 
days.

Petitioner says, however, that this meticulously 
designed structure—obviously intended to encourage 
the development of effective and expeditious admin­
istrative remedies for federal employment discrimi­
nation—can be wholly disregarded at the employee’s 
option if he simply determines to invoke some other 
judicial remedy. “ Under remedies other than Title 
VII, particularly section 1981, a federal employee 
would not be subject to the limited exhaustion re­
quirement of section 717(e)” (Br. 43, n. 81). We ar-



32

gue in the following section of this brief that Section 
717 in fact represents a relaxation of the otherwise 
applicable exhaustion requirements, and that a federal 
employment discrimination suit under any other al­
legedly applicable statute coul d not be commenced 
without first invoking all available administrative 
remedies, including an appeal to the Civil Service 
Commission.

Under petitioner’s theory, however, a federal em­
ployee would be free to go immediately to court with­
out first apprising even his own agency of his claim 
of discrimination. Alternatively, he could file a com­
plaint with his agency, await the outcome of an in­
vestigation or the commencement of a hearing, and 
then decide to file a judicial action without awaiting 
the agency’s final decision or the passing of 180 days. 
He would be free also to abort an appeal by filing an 
action without awaiting a decision under the adminis­
trative appeal procedures he invoked. Even after a 
final agency decision, or indeed a final administrative 
decision by the Civil Service Commission, he presum­
ably could file an independent suit raising the same 
claim de novo, rather than a suit under Section 717 
for review of the administrative decision10—thus frus­
trating the congressional scheme to strengthen the 
development of the administrative remedies. In sum, 
the employee would be free to file an action irrespec­
tive of the Section 717 procedures, so long as he did

15 The question whether a complainant who brings a civil action 
under Section 717 is entitled to a full trial de novo in the district 
court is presented in three petitions for writs of certiorari pending 
in this Court. Chandler v. Johnson, No. 7T-1599; Salone v. United 
States, No. 74-1600; United States v. Sperling, No. 75-247.



33

so within the time provided by the applicable state 
statute of limitations.16

Surely this is not what Congress had in mind when 
it enacted Section 717. If, as in 1964, Congress had 
clearly expressed its determination that the existence 
of such overlapping remedial schemes would be con­
sistent with its objectives in enacting the Title V II 
remedy, this would be a different case. In creating the 
enforcement scheme for federal employees, however, /> 
Congress did not envision that the procedures so ■>,/ 
clearly spelled out in the statute could thus be dis- c, v 
regarded or aborted by any federal employee who 
chose not to follow them, and thus that thousands o f  
federal employment discrimination complaints (see 
Pet. Br. 53; App. 9aa) could be filed directly in the 
federal district courts each year.

Petitioner’s theory would effectively nullify the re­
quirements of the statute and would defeat the con­
gressional policy for the development of effective ad­
ministrative remedies that those requirements reflect. 
Congress has determined that Section 717 is the ap­
propriate mechanism to be used by federal employees 
claiming unlawful discrimination. As in Preiser v. 
Rodriguez, supra, 411 U.S. at 490, “ that specific de­
termination must override the general terms”  of the 
other statutes that petitioner purports to invoke.17

16 Petitioner states that the New York limitations period appli­
cable to this case is three years and that some states allow a shorter 
period (Br. 47-48 and n. 91).

17 Petitioner also argues that an employee who elects to proceed 
under statutes other than Section 717 “ would be entitled in appro­
priate circumstances to punitive or compensatory damages against 
the government officials individually” (Br. 43, n. 81). Without



34

II

EVEN IF PETITIONEE’S FAILTTKE TO COMPLY WITH THE 
TIME REQUIREMENTS OF SECTION 717 IS NOT A BAR TO 
THIS ACTION, HIS COMPLAINT WAS PROPERLY DISMISSED 
FOR FAILURE TO EXHAUST THE AVAILABLE ADMINISTRA­
TIVE REMEDIES

I f  the Court agrees with our contention that Sec­
tion 717 is the sole statutory basis for judicial review 
of federal employment discrimination claims, it need 
not consider petitioner’s contention that exhaustion 
of administrative remedies is unnecessary under stat­
utes other than Section 717, because the complaint in 
this case was concededly filed out of time under that

conceding the correctness o f that contention, we note that the 
Court in Preiser v. Rodriguez, supra, responded to a similar claim 
concerning the availability of damages under Section 1983 by em­
phasizing that the exclusivity o f the habeas corpus procedure 
applies only to actions challenging the fact or duration o f con­
finement and seeking immediate or speedier release. A  damages 
claim, the Court ruled, would not fall within the purview of the 
habeas corpus remedy and could be pursued under the Civil Eights 
Act without the need for exhausting state remedies (411 IJ.S. at 
493-494). Assuming, arguendo, that petitioner could successfully 
overcome potential jurisdictional and official immunity obstacles 
to pursuing a separate claim for damages against individual fed­
eral officials, it may be that a similar answer would be appropriate 
in this context.

Petitioner, however, did not specifically seek such damages in 
this case, and, while his complaint included a broad prayer for 
“ such relief as may be appropriate, including * * * damages” 
(A. 14a), the question of the availability of such relief against 
individual officers was not considered by the court of appeals and 
is not among the questions presented in the petition for a writ o f 
certiorari in this case.



35

section. Our argument in this portion of the brief is 
predicated on the assumptions that Section 717 is 
not exclusive and that an action alleging federal em­
ployment discrimination may properly be brought un­
der one or more of the other statutes invoked by 
petitioner.18

We submit, on those assumptions, that petitioner’s 
failure to appeal to the Civil Service Commission the 
General Services Administration’s final decision re­
jecting his claim of racial discrimination is a bar to 
his present action. Although Section 717 authorizes 
an aggrieved federal employee to file a civil action 
without first invoking the established administrative

18 Petitioner argues at length (Br. 11-37) that jurisdiction is 
conferred by five different statutes enacted prior to the enactment 
of Section 717. Whether those statutes confer subject matter juris­
diction and whether they constitute waivers o f sovereign im- 
munity with respect to federal employment discrimination claims 
are difficult questions. Although they were briefed and argued 
in the court of appeals, that court found it unnecessary to resolve 
them in view of its disposition o f the case (see note 2, supra). More­
over, while petitioner’s brief on the merits describes the first ques­
tion presented as whether “ jurisdiction over this action [is] 
conferred by statutes enacted prior to the adoption in 1972 o f sec­
tion 717 o f Title V I I ” (Br. 1), the petition for a writ o f certiorari 
presented the different question whether Section 717 repealed pro 
tamto four of the five statutes that petitioner now seeks to invoke 
(Pet. 2).

Even if  the question framed by the brief is properly considered 
to be “ fairly comprised” within the question presented by the 
petition (see Rule 23(1) (c) of the Rules of this Court), we sub­
mit that, i f  the Court concludes that Section 717 is not exclusive 
and that petitioner’s failure to exhaust the available administra­
tive remedies is not a bar to this action, it should remand the case 
to the court of appeals to permit that court to consider the juris­
diction and sovereign immunity issues in the first instance. See, 
e.y., Richardson v. Morris, 409 U.S. 464.



36

appeal procedure, that statute represents a conditional 
relaxation of the usual rule that available adminis­
trative remedies must be pursued to their conclusion 
at the highest administrative level. Since petitioner 
did not file his action within the 30 days allowed by 
Section 717, he failed to satisfy the condition and was 
required to exhaust the administrative appellate rem­
edy before seeking judicial review.

Petitioner’s argument that he is entitled to maintain 
this action notwithstanding his failure to exhaust ad­
ministrative remedies takes two forms. First, he con­
tends broadly that no administrative remedies need 
be exhausted by a federal employee challenging al­
leged employment discrimination under statutes other 
than Section 717 (Br. 44-61). Second, he contends 
that his agency’s delay in processing his initial charge 
excused him from invoking further administrative 
remedies (Br. 61-65). Neither contention withstands 
scrutiny.

A . E X H A U S T IO N  OP A V A IL A B L E  A D M IN IST R A T IV E  REM EDIES IS  A  PRE­

CO N D ITIO N  TO T H E  P IL IN G  OP A N  A C T IO N  SE E K IN G  RELIEF FROM 

ALLEGED FEDERAL E M P L O Y M E N T  D IS C R IM IN A T IO N

1. The policies underlying the exhaustion doctrine are applicable 
to federal employment discrimination claims.

Petitioner’s effort to obtain judicial review of his 
discrimination claim without having invoked the Civil 
Service Commission’s appeal procedure “ is at war 
with the long settled rule of judicial administration 
that no one is entitled to judicial relief for a supposed 
or threatened injury until the prescribed administra­
tive remedy has been exhausted”  (Myers v. BetMe-



37

hem Shipbuilding Corp., 303 U.S. 41, 50-51). For it 
is settled that the exhaustion doctrine “ does not re­
quire merely the initiation of prescribed administra­
tive procedures” ; it requires “pursuing them to their 
appropriate conclusion and * * * awaiting their final 
outcome before seeking judicial intervention” (A ir­
craft d  Diesel Equipment Corp. v. Hirsch, 331 U.S. 
752, 767).

“ [T]he doctrine of administrative exhaustion 
should be applied with a regard for the particular 
administrative scheme at issue” ( Weinberger v. Salfi, 
No. 74-214, decided June 26, 1975, slip op. 13). The 
Civil Service Commission’s administrative scheme, 
established pursuant to its authority under Section 
717(b) of the Civil Rights Act of 1964 and a series 
of Executive Orders proscribing discriminatory em­
ployment practices in the federal civil service,19 pro­
vides comprehensively for the investigation, concili­
ation, and adjudication of federal equal employment 
opportunity complaints.

The Commission’s Equal Opportunity Regulations, 
as amended in October 1972, 5 C.P.R. Part 713,20

19 See Executive Order 9830, 3 C.F.R., 1943-1918 Comp., pp. 
606-624; Executive Order 9980, 3 C.F.R. 1943-1948 Comp., pp. 
720-721; Executive Order 10577, 3 C.F.R., 1954-1958 Comp., pp. 
218-225; Executive Order 10590, 3 C.F.R. 1954-1958 Comp., pp. 
237-239; Executive Order 10925, 3 C.F.R., 1959-1963 Comp., pp. 
448-454; Executive Order 11222, 3 C.F.R., 1964-1965 Comp., pp. 
306-311; Executive Order 11246, 3 C.F.R., 1964-1965 Comp., pp. 
339-348; Executive Order 11375, 3 C.F.R., 1966-1970 Comp., pp. 
648-686; Executive Order 11478, 3 C.F.R., 1966-1970 Comp., pp. 
803-805; Executive Order 11590, 36 Fed. Reg. 7831 (1971).

20 The regulations are reproduced in Appendix B to this brief, 
infra, pp. 19a-52a.



38

provide that a person who believes he has been dis­
criminated against on the basis of race, color, religion, 
sex, or national origin may, within 30 days of the 
matter causing him to believe he has been discrimi­
nated against, consult with an Equal Employment 
Opportunity Counselor in his agency, who makes in­
quiry into the matter, seeks an informal resolution 
of it, and counsels the aggrieved person. 5 C.F.R. 
713.213(a), 713.214(a) (1) (i). I f  the matter has not 
been resolved after the Counselor’s final interview 
with the aggrieved person or after 21 days, whichever 
comes first, the person must be informed in writing 
of his right to file a formal discrimination complaint 
within 15 days from receipt of the notice. 5 C.F.R. 
713.213(a), 713.214(a) (1) (ii).

I f  a complaint is filed, the agency’s Director of 
Equal Employment Opportunity initiates a prompt 
investigation, to be conducted by a person outside the 
jurisdiction of the head of the part of the agency in 
which the complaint arose. 5 C.F.R. 713.216(a). The 
investigator is charged with conducting “ a thorough 
review of the circumstances under which the alleged 
discrimination occurred” (ibid.), and he is empowered 
to require the cooperation of all agency employees 
and the giving of sworn testimony by all employees 
having knowledge of the matter under investigation. 
5 C.F.R. 713.216(b).

When the investigative file is completed, it is fur­
nished to the complainant, who is then afforded a 
fresh opportunity to discuss the matter with appro­
priate officials and to resolve the complaint inf or-



39

maHy. 5 C.F.R. 713.217(a). I f  the matter is not re­
solved, the complainant must be notified in writing 
of the proposed disposition of the complaint, of his 
right to a hearing and decision by the agency head if 
such a request is made within 15 days, and of his 
right to a decision by the agency head without a 
hearing. 5 C.F.R. 713.217(b).

I f  a hearing is requested, it is conducted by a quali­
fied complaints examiner, certified by the Civil Serv­
ice Commission, who must be an employee of a differ­
ent agency. 5 C.F.R. 713.218(a). The complaints ex­
aminer reviews the investigative file, and, if he deter­
mines that further investigation is necessary, may 
remand the complaint for further investigation or may 
arrange for the appearance of witnesses necessary to 
supply the needed information at the hearing. 5 C.F.R. 
713.218(b). The complaints examiner is directed to 
conduct the hearing so as to elicit all “ [information 
having a bearing on the complaint or employment pol­
icy or practices relevant to the complaint * * 5
C.F.R. 713.218(c)(2). The complainant may cross- 
examine witnesses (ibid.) and may request that the 
complaints examiner arrange for the presence as a 
witness of any federal employee who would furnish 
pertinent testimony. 5 C.F.R. 713.218(e). The hearing 
is recorded and transcribed verbatim. 5 C.F.R. 
713.218(f).

The complaints examiner thereafter transmits to 
the head of the complainant’s agency his, findings of 
fact and recommended decision, including his recom­
mendations for any appropriate remedial action “ with



40

regard to the matter which gave rise to the complaint 
and the general environment out of which the com­
plaint arose.” 5 C.F.R. 713.218(g).

The agency head makes his decision concerning the 
complaint on the basis of the information in the com­
plaint file, including the hearing record. The decision 
is in writing and is sent to the complainant, together 
with a copy of the complaints examiner’s findings and 
recommendations and a copy of the hearing record. 
I f  the decision rejects or modifies the examiner’s rec­
ommended decision, specific reasons for that action 
must be given. The complainant must be notified of 
his right to appeal to the Civil Service Commission 
within 15 days or to file a civil action within 30 days. 
5 C.F.R. 713.221.

Appeals are considered without a hearing by the 
Commission’s Appeals Review Board (formerly the 
Board of Appeals and Review). The Board reviews 
the complaint file and all relevant written representa­
tions made to it. It may remand a complaint to the 
agency for further investigation or for a rehearing, or 
it may arrange for additional investigation to be con­
ducted by Commission personnel. The Board is di­
rected to issue a written decision setting forth the 
reasons for its action on the appeal and informing 
the complainant of his right to file a civil action 
within 30 days. 5 C.F.R. 713.234.

Although the Board’s decision is final, the Commis­
sioners may reopen and reconsider any decision upon 
a showing that new and material evidence is available, 
that the decision involves an erroneous interpretation 
of law or misapplication of policy, or that the deci-



41

sion involves new policy considerations of general im­
portance or is otherwise so exceptional as to merit the 
attention o f the Commissioners. 5 C.F.R. 713.235.

The regulations authorize broad remedial action by 
the agency or the Commission upon a finding of dis­
crimination. In the case of a rejected applicant who 
would have been hired in the absence of improper dis­
crimination, the agency must offer the applicant em­
ployment of the type and grade denied him, together 
with back pay and employment credit from the date 
he wTould have been hired but for the discrimination 
(but not earlier than two years prior to the filing of 
the formal administrative complaint). 5 C.F.R, 
713.271(a).

In the case of an existing employee who was denied 
an employment benefit because of improper discrimi­
nation, the agency must take whatever remedial meas­
ures may be appropriate, including retroactive 
promotion with back pay (with the same two-year 
limitation), cancellation of an unwarranted personnel 
action, or elimination from the agency’s records of any 
reference to an unwarranted disciplinary action. 5 
C.F.R. 713.271(b).

The regulations provide that at every stage of the 
complaint process, including the pre-complaint coun­
seling stage, “ the complainant shall have the right to 
be accompanied, represented, and advised by a repre­
sentative of his own choosing.” 5 C.F.R. 713.214(b).

They also provide that “  [t]he complaint shall be 
resolved promptly” ; both the complair^fent and the 
agency must “ proceed with the complaint without

594-115 0  -  75 - 4



42

undue delay so that the complaint is resolved within 
180 calendar days after it was filed * * 5 C.F.R.
713.220(a). I f  an agency has neither issued a final 
decision nor requested the Commission to supply a 
complaints examiner within 75 days, “ the Commission 
may require the agency to take special measures to in­
sure prompt processing of the complaint or may 
assume responsibility for processing the complaint 
* * 5 C.F.R. 713.220(c). I f  the complaints ex­
aminer has submitted a recommended decision finding 
discrimination and the agency has not issued a final 
decision within 180 days after the complaint was filed, 
the recommended decision becomes the final decision 
binding on the agency 30 days after its submission.
5 C.F.R. 713.220(d).

The important policies that underpin the exhaus­
tion rule are fully applicable to the Commission’s 
administrative scheme and require that an aggrieved 
person pursue his administrative remedies at each 
stage of the complaint process, including the appellate 
stage. Exhaustion is required here, as in other con­
texts, in order to prevent “premature interruption of 
the administrative process” (McKart v. United States, 
395 U.S. 185, 193), “ so that the agency may function 
efficiently and so that it may have an opportunity to 
correct its own errors, to afford the parties and the 
courts the benefit of its experience and expertise, and 
to compile a record which is adequate for judicial 
review” (Weinberger v. S a i f s u p r a , slip op. 13). 
Moreover, “practical notions of judicial efficiency’ ' 
strongly favor application of the exhaustion require-



43

ment; since “ [a] complaining party may be success­
ful in vindicating his rights in the administrative 
process[,] * * * the courts may never have to inter­
vene” (McKart v. United States, supra, 395 U.S. at 
195). Even when judicial intervention is not obviated, 
“ [t]he rule ensures that whatever judicial review is 
available will be informed and narrowed by the agen­
cies’ own decisions” (Schlesinger v. Councilman, 420 
U.S. 738, 756).

2. There is no reason 'broadly to exempt all federal employment 
discrimination claims from the exhaustion requirement.

Petitioner seeks a broad and unprecedented exemp­
tion from the usual exhaustion requirement that would 
permit federal employees to obtain judicial review of 
their employment discrimination claims without even 
commencing, much less exhausting, the applicable ad­
ministrative procedures. We know of no case, and 
petitioner cites none, in which this Court has sanc­
tioned the wholesale bypassing of a federal adminis­
trative remedy which, if  pursued, could lead to a 
vindication of the complainant’s rights and appro­
priate administrative relief through adjudicatory 
processes. There is no reason to take that drastic step 
here.21

Petitioner contends that the Civil Service Commis­
sion’s complaint procedures may properly be ignored 
because “ [t]he agencies have no particular expertise

21 Indeed, the only other court of appeals which has considered 
the issue agreed with the court below that exhaustion o f adminis­
trative remedies is required. Penn v. Schlesinger, 497 F.2d 970 
(C.A. 5) (en banc), petition for certiorari pending, No. 7FA76.



44

to offer” and “ the federal courts are considerably more 
expert in the applicable legal problems”  (Br. 49). The 
Civil Service Commission, however, has had equal 
employment opportunity enforcement responsibility 
with respect to the federal civil service since 1965. The 
adjudication of employment discrimination claims 
necessarily draws upon, and adds to, the Commission’s 
accumulated expertise in administering the federal 
government’s long-standing non-discrimination policy.

Petitioner mistakenly suggests that the Commis­
sion’s expertise is limited to matters of “ ordinary per­
sonnel management” and not “ unlawful discrimina­
tion” (Br. 49). Evaluating a claim of unlawful dis­
crimination requires an intimate understanding of 
personnel management. Indeed, the principal investi­
gative and adjudicative inquiry in such cases often is 
whether the personnel action complained of reflected 
legitimate management considerations or illegitimate 
discriminatory considerations. The Commission’s fact­
finding task is to distinguish between the two, and its 
expertise naturally extends to the recognition of both.22

22 See United States v. Ruzicka, 329 U.S. 287, where, in an action 
by the government to enforce an order o f the Secretary of A gri­
culture requiring a milk handler to pay money into a producer- 
settlement fund, the Court held that the defendant, having failed 
to invoke its administrative remedy before the Secretary, could 
not defend against the action on the ground that the demand to 
pay was based on a faulty inspection of its accounts and improper 
tests of its milk. The defendant argued that the district court may 
not enforce an order not “ in accordance with law.” The Court, in 
language applicable by analogy to petitioner’s contention con­
cerning unlawful discrimination, responded (329 U.S. at 294) : 
“ [WJhether such an order is or is not in accordance with law is 
not a question that brings its own immediate answer, or even an



45

Petitioner asserts that “ Congress expressly con­
cluded in 1972 that the Civil Service Commission itself 
was lacking in such expertise” (Br. 49). What peti­
tioner ignores is that the 1972 Act was designed to 
build upon the Commission’s expertise and to bolster 
its authority to eliminate federal employment dis­
crimination. Thus, while Congress may not have been 
fully satisfied in 1971 with the Commission’s success 
in eradicating discrimination, and while the bill pro­
posed by the House Committee would have transferred 
jurisdiction over federal employment discrimination 
matters to the Equal Employment Opportunity Com­
mission,23 the bill passed by the House did not cover 
federal employees at all,24 and both Houses ultimately 
determined to vest continued jurisdiction in the Civil 
Service Commission and to strengthen its authority 
and broaden its responsibilities.

The Report of the Senate Committee stated that"' 
the “ task for the Civil Service Commission is to de­
velop more expertise in recognizing and isolating the 
various forms of discrimination which exist in the 
system it administers.” S. Rep. No. 92-415, 92d Cong., 
1st Sess. 14 (1971), Legislative History 423. It was 
“ [i]n order to assist the Commission in accomplishing

answer which it is the familiar, everyday business of courts to 
find. Congress has provided a special procedure for ascertaining 
whether such an order is or is not in accordance with law. The 
questions are not, or may not be, abstract questions of law. * * * 
[T]hey are questions of law arising out of, or entwined with, fac­
tors that call for understanding of the * * * industry.”

23 See H.R. Rep. No. 92-238, 92d Cong., 1st Sess. 24-25, 32, 56- 
57 (1971), Legislative History 8L-85, 92, 116-117.

24 See Legislative History 326-332.



46

its goals”  that the Committee proposed, and Congress 
adopted, measures “ intended to strengthen the en­
forcement powers of the Civil Service Commission 
* * S. Rep. No. 92-415, supra, at 15, Legislative 
History 424.

The 1972 Act thus represents a congressional judg­
ment that the Civil Service Commission’s experience 
should be the foundation of a strengthened enforce­
ment effort. It is reasonable to assume that the Com-1/ ....... .......  •• -........
mission’s increased responsibilities and additional en­
forcement experience since the statute’s enactment 
have enhanced rather than diminished its expertise in 
employment discrimination matters. To excuse ex­
haustion of Commission remedies on the ground that 
the Commission is without expertise would hardly 
comport with the legislative determination to main­
tain the Commission as the expert agency in such 
matters.

Petitioner also contends (Br. 51) that exhaustion is 
superfluous because there is no need in cases such as 
the present one for a factual record. But employment 
discrimination claims obviously turn on the peculiar 
facts of each case, and a factual record in these cases, 
no less than in rate-making cases or other adminis­
trative agency litigation, is an essential foundation for 
effective judicial review. Even if an aggrieved person 
were entitled to de novo judicial review of his discrim­
ination claim,25 the existence of a full administrative 
record might enable the court to avoid needless evi­
dentiary duplication. See Schlesinger v. Councilman,

25 See note 15, supra.

KfiT~



47

supra, 420 U.S. at 756; of. Alexander v. Gardner-Den- 
ver G osu p ra , 415 U.S. at 59-60.

A failure to pursue the established complaint pro­
cedures for discrimination claims would, as in McGee 
v. United States, 402 U.S. 479, 486, “ jeopardize the 
interest in full administrative fact-gathering and uti­
lization of agency expertise/* * It proves little 
to say, as petitioner does, that “  [o]nce the facts are 
established, the conclusions and remedy follow as a 
matter of law” (Br. 50). Where, as here, the disposi­
tion of a claim “ depends on careful factual analysis,” i 
it is impermissible to “ sidestep * * * the administra- • 
tive process designed to marshal relevant facts and 
resolve factual issues in the first instance”  (McGee v. 
United States, supra, 402 U.S. at 488).26

Petitioner asserts, however, that resort to the ad­
ministrative process is futile (Br. 51-54). His con­
tention is that the Commission’s complaint process 
rarely results in awards of back pay or retroactive v 
promotions, that the procedure is ineffective and un­
fair, and that the regulations do not authorize relief 
as broad as that to which a person might be entitled 
in court.

There may, of course, be instances when a failure 
to exhaust administrative remedies is excused because 
exhaustion would be futile. In Weinberger v. Salfi,

26 Cf. Far East Conference v. United States, 342 U.S. 570, 574: 
In “ cases requiring the exercise of administrative discretion, 
agencies created by Congress for regulating the subject matter 
should not be passed over. This is so even though the facts after 
they have been appraised by specialized competence serve as a 
premise for legal consequences to be judicially defined.”



48

supra, for example, full exhaustion was excused be­
cause “ the Secretary * * * determined that the only 
issue to be resolved is a matter of constitutional law 
concededly beyond his competence to decide” (slip op. 
15).27 But federal employment discrimination claims 
do not ordinarily turn on issues beyond the compe­
tence of the Civil Service Commission to decide; nor 
is the nature of the relief sought ordinarily beyond 
the Commission’s authority to award.

It is one thing to excuse exhaustion in a particular 
case in which prior administrative consideration of a 
claim could serve no useful purpose. It is quite an­
other thing to excuse exhaustion across the board for 
all claimants simply because most claims do not result 
in the fullest possible administrative relief. In a 
scheme that emphasizes informal conciliation and 
authorizes a wide variety of relief appropriate to the 
particular facts, statistics showing the number of com­
plainants who secure the most extensive relief avail­
able through formal adjudication are not especially 
meaningful.

Thus, while petitioner states that only a handful of 
complainants were awarded back pay or retroactive 
promotions in fiscal year 1973 (Br. 52-53),28 the report 
on which he relies also shows that only about one out

27 The Court noted that “ a court may not substitute its con­
clusion as to futility for the contrary conclusion o f the Secretary” 
('Weinberger v. Sal ft, supra, slip op. 15).

28 The actual figure used by petitioner, drawn from a report of 
the United States Commission on Civil Rights, The Federal Civil 
Rights Enforcement Effort-—1971 (1975), is incorrectly charac­
terized in petitioner’s brief. The report states that “ retroactive 
relief was provided in 22 (or 3 percent) o f 778 cases in which



49

of every ten informal complaints ripens into a formal * 
complaint and that 35 to 45 percent of the informal 
complaints are followed by some form of corrective 
action, including promotion, reinstatement, reassign­
ment, and reduction or rescission of adverse action.29

action was taken to correct discrimination” (p. 85). The Civil 
Service Commission official who provided the statistical informa­
tion to the Civil Rights Commission’s telephone interviewer (see 
p. 85, n. 292) has informed us that the figures relate to final action 
taken by the various employing agencies on formal complaints 
and do not include action taken at the informal counseling stage 
or by the Commission on appeal. The 22 cases—referred to in the 
report as instances in which “ retroactive relief was provided,” and 
in petitioner’s brief as instances in which “ federal employees re­
ceived back pay or retroactive promotions” (Br. 53)— actually 
represent only instances in which employing agencies awarded 
back pay. The figure does not include awards of retroactive pro­
motions without back pay. We are also informed that the total 
figure o f 778 referred to in the report is inaccurate. The correct 
figure is 718.

The Civil Service Commission has.furnished us with the follow­
ing figures for fiscal year 1974. There were 2,650 final agency dis­
positions o f formal discrimination complaints, o f which 1,410 were 
decided on the merits) 870 were withdrawn by the complainant 
(with or without informal resolution),1265 were rejected as un­
timely or outside the purview of the„.regulations, and 105 were 
cancelled for non-prosecution. Agencies took corrective action in 
985 (or 43 percent) of the cases decided on the merits or with- , H 
drawn by the complainant. In 16 percent o f the cases in which 
corrective action was taken, the complainant was awarded a pro­
spective promotion; in four percent of the cases, he was awarded 
back pay; in six percent o f the cases, he was awarded retroactive 
promotion. (Where both back pay and retroactive promotion 
were awarded, the case was counted in both categories.)

29 The Federal Civil Rights Enforcement Effort—1974, supra, 
p. 67 and n. 221. Not all corrective action entails specific relief to 
the complainant, ‘.included among .corrective actions taken by 
agencies are improvements in personnel practices and in equal 
employment opportunity practices.



The report also states that the employing agencies 
made findings of discrimination in 12.8 percent of the 
formal complaints considered on the merits in fiscal 
year 1974.30\A significant proportion of the eases ap­
pealed to the Commission resulted in findings of dis­
crimination, reversals of agency decisions on other 
grounds, or remands for further investigation.31 j

This is not a process that can accurately be charac­
terized as futile. Many complaints that might other­
wise be brought to the courts in the first instance are 
resolved informally to the satisfaction of the complain­
ant. Many others are resolved favorably to the com­
plainant after formal adjudication. Petitioner has not 
demonstrated that any meritorious complaint is likely 
to be denied or that less than adequate relief is likely 
to be awarded.

Nor is this a case in which it can be said that the 
available procedures are so grossly unfair that a com­
plainant should be excused from invoking them. 
Though reasonable persons may differ concerning the 
fairest and most effective procedures for the adjudica­
tion of discrimination claims, Congress determined to 
leave the resolution of that question to the Commis­
sion by authorizing it in Section 717(b) to “ issue such 
rules, regulations, orders and instructions as it deems 
necessary and appropriate to carry out its responsi­

ble. at 79, n. 272. When all final dispositions are taken into 
account, including rejections and cancellations o f complaints, the 
figure is seven percent. Id. at 79. As the figures stated in note 28, 
supra, indicate, corrective action is frequently taken even with­
out a finding o f discrimination.

31 Id. at 82. See p. 57, infra.



51

bilities * * *.” Some believe that the complaint proce­
dure established by the Commission pursuant to that 
authority could be improved upon. But that is a mat­
ter for the Commission’s judgment (or for further 
congressional consideration).

No one could reasonably contend that the proce­
dures fail to comply with due process standards.32 Yet 
this Court has held that even a person claiming that 
agency procedures are inadequate under the due proc­
ess clause must first invoke and exhaust those proce­
dures. Christian v. New York State Department of 
Labor, 414 U.S. 614.

Even if one assumes, as petitioner does, that some 
aggrieved persons might obtain broader relief in court 
than the Commission’s regulations authorize, that does 
not mean that the administrative remedy is futile or 
ineffectual. The complainant may be successful in se­
curing at least a portion of the relief he seeks admin­
istratively, and he may determine at the conclusion 
of the administrative process that resort to the courts 
is not necessary. I f  he elects to file a civil action, the

32 The regulations provide for the right to a hearing before a 
qualified, impartial complaints examiner, at which the complain­
ant may be represented by counsel, may cross-examine witnesses, 
and may present evidence. Testimony is under oath and is recorded 
verbatim. The complaints examiner must make written findings 
and recommendations, and, if the agency head rejects or modifies 
the examiner’s recommended decision, he must state his reasons in 
writing. The complainant has a right to appeal to the Civil Serv­
ice Commission and to submit additional written information or 
argument. The Commission must issue a written decision. The 
regulations thus more than satisfy the minimum standards of 
procedural due process. Cf. Goldberg v. Kelly, 397 U.S. 254.



52

resulting dispute will presumably be narrower than it 
would otherwise have been. And even if the complain­
ant is unsuccessful administratively, the record com­
piled by the agency may obviate some of the trial 
litigation that would otherwise have been required 
(see p. 46, supra).

Petitioner advances several additional reasons for 
exempting all federal employment discrimination 
claims from the exhaustion requirement, but none re­
quires extensive comment.

He contends that “ [fjederal employees should not 
be subjected to the burden of an exhaustion require­
ment from which all state and private employees are 
immune” (Br. 46). Even if his premise were correct,33 
the conclusion would not follow from it. Private and 
state employees do not have access to the elaborate 
adjudicative procedures made available to federal em­
ployees by the Civil Service Commission’s regulations, 
under which an aggrieved person, if successful, can 
achieve extensive and suitable relief.34

. „y.33 In Johnson v. Railway Express Agency, Inc., supra, which in­
v o lv ed  a private employee’s suit alleging employment discrimina­
tion under 42 U.S.C. 1981, the Court expressly reserved the ques­
tion “ whether a § 1981 claim of employment discrimination is ever 
subject to a requirement that administrative remedies be ex­
hausted” (slip op. 3, n. 3). See, also, Eisen v. Eastman, 421 F.2d 
560, 568-569 (C.A. 2), certiorari denied, 400 U.S. 841, discussing 
the circumstances in which exhaustion o f state remedies is required.

34 The Equal Employment Opportunity Commission has no au­
thority to adjudicate discrimination complaints or to grant the 
kind of administrative relief that the Civil Service Commission 
is empowered to award. See Section 706 of the Civil Rights Act o f 
1964, as amended, 42 U.S.C. (Supp. I l l )  2000e-5. Cf. United 
States Alkali Export Assn. v. United States, 325 U.S. 196, 210.



53

That the exhaustion requirement “ often poses a 
serious burden on the employee” (Br. 58) is not a 

, reason to dispense with it. See Renegotiation Board 
v. Bannercraft Clothing Co., 415 U.S. 1, 24. Indeed, 
as petitioner admits, the administrative process “ is 
less expensive, less formal, and less time consuming 
than an ordinary court case” (ibid.)-—and the em­
ployee, of course, has a right to ultimate judicial 
review.

Petitioner argues that the exhaustion requirement 
is counterproductive because it would require the 
courts to devote valuable resources to “ resolving 
scholastic controversies about the ‘correct’ way to 
exhaust,” when those resources “ would be far better 
spent deciding these cases on the merits” (Br. 57). The 
clarity and relative simplicity of the Commission’s 
regulations, however, leave little room for doubt con­
cerning the “  ‘correct’ way to exhaust.” And, while 
questions concerning the exhaustion of administrative 
remedies, like other threshold jurisdictional issues, 
may occasionally occupy the attention of the courts, 
it is obviously unrealistic to suppose that abandon­
ing the exhaustion doctrine altogether in federal 
employment discrimination cases would reduce the 
workload of the federal judiciary.

Finally, petitioner asserts that the “ requirement of 
exhaustion may tend to undermine the effectiveness of 
the administrative process” by encouraging employ­
ees who are determined to seek judicial review to 
“ substantially abbreviate it by waiving various aspects 
of the process” in order to “ decrease the likelihood of



54

any favorable administrative ruling and increase the 
probability that judicial intervention will be required” 
(Br. 59-60).“° On the other hand, says petitioner, the 
administrative process would be strengthened by giv­
ing employees “ direct access to the courts” (Br. 61). 
Since the Commission “would naturally prefer”  to 
avoid court litigation, it would have an incentive to 
“ render [the administrative] process attractive to em­
ployees” to encourage its use {ibid.).

These fanciful suppositions turn the policy of the 
exhaustion doctrine on its head. What undermines an 
administrative process is not its invocation but its 
“ frequent and deliberate flouting”  {McKart v. United 
States, supra, 395 U.S. at 195). To eliminate the ex­
haustion requirement would be to encourage not “ re­
form” (Br. 61) but atrophy. It would “ jeopardize 
* * * the functional autonomy of the administrative 
bod[y] on which Congress has conferred the primary 
responsibility”  to adjudicate claims of federal em­
ployment discrimination {McGee v. United States, 
supra, 402 U.S. at 487).

Petitioner’s notions of administrative autonomy and 
judicial efficiency are the antithesis of those expressed 
by this Court in McKart and other eases. There is no 
reason to depart here from the general doctrine that 
exhaustion of administrative remedies serves rather 
than disserves those important objectives.

35 Waiving aspects o f the administrative process may well 
amount to a failure to exhaust. See McGee v. United States, supra, 
402 U.S. at 488-491.



55

B. PE TITIO N E R  W A S  N O T  EXCUSED FROM  T H E  E X H A U S T IO N  R EQ U IRE­

M E N T  BECAUSE OF D E LA Y I N  PROCESSING H IS  FO R M A L C O M P L A IN T  

OR BECAUSE A N  A P P E A L  W OU LD H A V E  BEE N  “ F U T IL E ”

It has long been settled that the failure to pursue an 
available administrative appeal precludes resort to the 
courts. United States v. Sing Tuck, 194 U.S. 161. 
Apart from petitioner’s broadside attack on the ex­
haustion rule generally, he argues more narrowly that 
he was not required to appeal his agency’s decision to 
the Civil Service Commission because the agency did 
not issue its final decision until 617 days after he filed 
his formal complaint (Br. 61-64) and because an 
appeal to the Commission would have been futile 
(Br. 64-65).

1. Petitioner should not be heard to complain at this 
stage of delays in the processing'of his formal com­
plaint. The Commission’s Equal Opportunity Regula­
tions in force at the time petitioner filed his complaint 
contemplated that, except in unusual circumstances, 
agencies would take final action on discrimination 
complaints within 60 days (excluding time spent in 
processing complaints by the complaints examiner). 
5 C.P.R. (1971 rev.) 713.220(a). They specifically pro­
vided, moreover, that administrative relief could be 
sought from any unnecessary delay {ibid. ) :

When the complaint has not been resolved 
within this limit, the complainant may appeal 
to the [Civil Service] Commission for a review 
of the reasons for the delay. Upon review of 
this appeal, the Commission may require the 
agency to take special measures to insure 
prompt processing of the complaint or may



56

accept the appeal for consideration under 
§ 713.234.

Had petitioner been aggrieved by the General Serv­
ices Administration’s delay in processing his com­
plaint, he thus had a suitable administrative remedy 
before the Civil Service Commission. Petitioner, how­
ever, did not seek review of the reasons for the delay.

Moreover, the current provision contemplating a 
final decision by the agency within 180 days, including 
the time spent in processing the complaint by the com­
plaints examiner (5 C.F.R. 713.220(a)), was promul­
gated on October 21, 1972 (37 Fed. Reg. 22717), two 
days after petitioner was notified of his right to a 
hearing (A. 30a-31a)„ The agency issued its final de­
cision, after a hearing and the submission of the 
examiner’s findings and recommendations, 153 days 
after the date on which the new regulations were 
promulgated.

Petitioner argues that, since Congress in Section 
717 authorized the filing of a civil action, without 
further exhaustion of administrative remedies, after 
the agency issues its final decision or after 180 days 
elapse without final agency action, complainants who 
sue under statutes other than Section 717 should be 
treated similarly. But petitioner’s action would be 
barred even if he were treated similarly. Section 717 
(c) authorizes the filing of an action within 30 days 
of the agency’s final decision or after 180 days from 
the filing of the initial charge “until such time as final 
action may be taken * * Petitioner did not file 
this action before his agency issued its final decision,



57

nor did he file it within 30 days after he was notified 
of that decision.

Section 717 relaxes the usual exhaustion require­
ment but imposes strict and clearly defined time re­
strictions on those who choose to forego the pursuit 
of further administrative remedies. Petitioner seeks 
impermissibly to exploit the one while ignoring the 
other.

2. Petitioner also argues that “ an appeal to the 
Appeals Review Board would be futile” because the 
Board rarely reverses an agency decision (Br. 64). 
We have set forth as an appendix to this brief (infra, 
p. 53a) a table of statistics furnished to us by the 
Civil Service Commission showing the Appeals Re­
view Board’s disposition of appeals for fiscal years 
1973,1974, and 1975. As the table indicates, in the most 
recent fiscal year the Board disposed of 749 appeals, 
affirming agency decisions in 564 cases (or 75 per­
cent), reversing in 74 cases (or 10 percent), and re­
manding to the agency in 111 cases (or 15 percent).36

These figures do not support petitioner’s claim that 
“ the process is little more than an empty ritual” 
(Br. 65). On the contrary, they reflect a vital, delib­
erative process in which cases are disposed of accord­
ing to their merits. That the Board affirms agency 
decisions more often than it reverses them may mean 38

38 The Board affirmed agency findings of no discrimination in 
405 cases (or 54 percent of the appeals) and reversed such findings 
upon determining that discrimination had occurred in 16 cases (or 
two percent). O f those cases in which the Board affirmed or re­
versed findings of no discrimination, the reversals constitute four 
percent.

594-115 0 - 7 5 - 5



58

only that the agency decisions are correct more often 
than they are incorrect. It does not mean that the ap­
peal process is futile.37

It follows that petitioner’s failure to appeal his 
agency’s decision to the Civil Service Commission bars 
the present action and that the district court there­
fore correctly dismissed the complaint.38

37 The reversal rate in the federal judicial system is also rela­
tively low. But it would be inaccurate to say that an appeal to a 
court of appeals would be futile in all cases, irrespective o f the 
merits, simply because only 18.6 percent of the judgments appealed 
from are reversed, or that a petition for a writ of certiorari to this 
Court would be futile because only six percent of the petitions 
filed are granted. See Annual Report o f the Director of the A d­
ministrative Office of the United States Courts, 1974, pp. 193, 
367 (1975).

38 Petitioner argues that, “ where a party has not properly ex­
hausted his administrative remedies, the court is not to dismiss 
the case but merely to stay proceedings while that administrative 
proceeding is resumed and completed” (Br. 65). The question 
whether dismissal of the complaint is an appropriate disposition 
when it appears that the plaintiff has failed to exhaust available 
administrative remedies was not presented by the petition for a 
writ of certiorari in this case and should not be considered by this 
Court.

In any event, dismissal was proper in this case because the time 
for appealing to the Civil Service Commission had already ex­
pired when petitioner filed this action. There is no contention here 
that petitioner was not given proper notice o f the time and manner 
for filing an appeal. Cf. Christian v. New York State Department 
of Labor, supra, 414 U.S. at 623-624 and n. 10. Having allowed 
the time to expire, petitioner may not recapture his lost oppor­
tunity simply by filing a civil action that is precluded for failure 
to exhaust administrative remedies. I f  that were possible, the in­
tegrity o f the administrative time restrictions would be under­
mined.



59
CONCLUSION

The judgment of the court of appeals should be 
affirmed.

Respectfully submitted,
R obert H. B ork,

October 1975.

Solicitor General. 
R ex E. Lee,
Assistant Attorney General. 
L awrence G. W allace, 

Deputy Solicitor General. 
Mark L. E vans,

Assistant to the Solicitor General. 
R obert E. K opp,
J ohn K. Y illa,
Neil H. K oslowe,

Attorneys.



Appendix A

CIVIL EIGHTS ACT OF 1964 AS AMENDED
AN ACT To enforce the constitutional right to vote, to confer jurisdiction upon 

the district courts of the United States to provide injunctive relief against 
discrimination in public accommodations, to authorize the Attorney General 
to institute suits to protect constitutional rights in public facilities and_ public 
education, to extend the Commission on Civil Rights, to prevent discrimination 
in federally assisted programs, to establish a Commission on Equal Employ­
ment Opportunity, and for other purposes.
Be it enacted by the Senate and House oj Representatives of the United 

States of America in Congress assembled, That this Act may be cited 
as the “ Civil Rights Act of 1964” .

* * * . * *■ 1 * * ■ 

TITLE VII—EQUAL EMPLOYMENT OPPORTUNITY1

DEFINITIONS

Sec. 701. For the purposes of this title—
(a) The term, “ person”  includes one or more individuals, govern­

ments, governmental agencies, political subdivisions, labor unions, part­
nerships, associations, corporations, legal representatives, mutual 
companies, joint-stock companies, trusts, unincorporated organiza­
tions, trustees, trustees in bankruptcy, or receivers.

(b) The term “ employer” means a person engaged m an industry
affecting commerce who has fifteen or more employees for each working 
day in each of twenty or more calendar weeks in the current or pre­
ceding calendar year, and any agent of such a person, but such term 
does not include (1) the United States, a corporation wholly owned by 
the Government of the United Statesman Indian tribe, or any depart-: 
ment or agency of the District of Columbia subject by statute to procedures 
of the competitive service (as defined in section 2102 of title 5 of the L rated 
States Code), or (2) a bona fide private membership club (other than 
a labor organization) which is exempt from taxation under section 
501(c) of the Internal Revenue Code of 1954, except that during the’ 
first year after the date of enactment of the Equal Employment Opportunity 
Act of 1972, persons having fewer than twenty-five employees (and 
their agents) shall not be considered employers. i

(c) The term “ employment agency”  means any person regmariy 
undertaking with or without compensation to procure employees lor 
an employer or to procure for employees opportunities to work tor. 
an employer and includes an agent of such a person.

(d) The term “labor organization” means a labor organization en­
gaged in an industry affecting commerce, and any agent of such an 
organization, and includes any organization of any kind, any agency, 
or employee representation committee, group, association, or plan s 
engaged in which employees participate and which exists lor t

1 Includes 1972 amendments made by P.L. 92—261 printed in italic.

l a



2a

purpose, in whole or in part, of dealing with employers concerning 
grievances, labor disputes, wages, rates of pay, hours, or other terms 
or conditions of employment, and any conference, general committee, 
joint or system board, or joint council so engaged which is subordinate 
to a national or international labor organization.

(e) A labor organization shall be deemed to be engaged in an industry 
affecting commerce if (1) it maintains or operates a hiring hall or hiring 
office which procures employees for an employer or procures for em­
ployees opportunities to work for an employer, or (2) the number of its 
members (or, where it is a labor organization composed of other labor 
organizations or their representatives, if the aggregate number of the 
members of such other labor organization) is (A) twenty-jive or more 
during the first year after the date of enactment of the Equal Employ­
ment Opportunity Act of 1972, or (B) jifteen or more thereafter, and 
such labor organization—

(1) is the certified representative of employees under the pro­
visions of the National Labor Relations Act, as amended, or the 
Railway Labor Act, as amended;

(2) although not certified, is a national or international labor 
organization or a local labor organization recognized or acting as 
the representative of employees of ah employer or employers 
engaged in an industry affecting commerce; or

(3) has chartered a local labor organization or subsidiary body 
which is representing or actively seeking to represent employees 
of employers within the meaning of paragraph (1) or (2); or

(4) has been chartered by a labor organization representing or 
actively seeking to represent employees within the meaning of 
paragraph (1) or (2) as the local or subordinate body through 
which such employees may enjoy membership or become affiliated 
with such labor organization; or

(5) is a conference, general committee, joint or system board, 
or joint council subordinate to a national or international labor 
organization, which includes a labor organization engaged in an 
industry affecting commerce within the meaning of any of the 
preceding paragraphs of this subsection.

(f) The term “ employee” means an individual employed by an 
employer, except that the term ‘employee’ shall not include any person 
elected to public office in any State or political subdivision of any State 
by the qualified voters thereof, or any person chosen by such officer to be 
on such officer’s personal staff, or an appointee on the policymaking level 
or an immediate adviser with respect to the excercise of the constitutional 
or legal powers of the office. The exemption set forth in the preceding 
sentence shall not include employees subject to the civil service laws of a 
State government, governmental agency or political subdivision.

(g) The term “ commerce”  means trade, traffic, commerce, trans­
portation, transmission, or communication among the several States; 
or between a State and any place outside thereof; or .within the 
District of Columbia, or a possession of the United States; or between 
points in the same State but through a point outside thereof.

(h) The term “ industry affecting commerce”  means any activity, 
business, or industry in commerce or in which a labor dispute would 
hinder or obstruct commerce or the free flow of commerce and includes 
any activity or industry “ affecting commerce”  within the meaning of



3a

the Labor-Management Reporting and Disclosure Act of 1959, and 
further includes any governmental industry, business, or activity. y

(i) The term “ State”  includes a State of the United States, the 
District of Columbia, Puerto Rico, the Virgin Islands, .American 
Samoa, Guam, Wake Island, the Canal Zone, and Outer Continental 
Shelf lands defined in the Outer Continental Shelf Lands Act.

(j) The term “religion” includes all aspects of religious observance 
and practice, as well as belief, unless an employer demonstrates that he. 
is unable to reasonably accommodate to an employee’s or prospective: 
employee’s, religious observance or practice without undue hardship on.. 
the conduct of the employer’s business.

E X E M P T IO N

Sec . 702. This title shall not apply to an employer with respect to 
the employment of aliens outside any State, or to a religious corpora-' 
tion, association, educational institution, or society with respect to 
the employment of individuals of a particular religion to perform work 
connected with the carrying on b y  such corporation, association, 
educational institution, or society of its activities.

D ISC R IM IN A T IO N , B ECAU SE O P R A C E , COLOR, R E L IG IO N , S E X , OR
N A T IO N A L  O R IGIN

Sec . 703. (a) It shall be an unlawful employment practice for an 
employer—

(1) to fail or refuse to hire or to discharge any individual,:
or otherwise to discriminate against any individual with respect 
to his compensation, terms, conditions, or privileges of employ­
ment, because of such individual’s race, color, religion, sex, or: 
national origin; or _

(2) to limit, segregate, or classify Ms employees or applicants for 
employment in any way which would deprive or tend to deprive 
any individual of employment opportunities or otherwise ad­
versely affect his status as an employee, because of such indi­
vidual’s race, color, religion, sex, or national origin.

(b) It shall be an unlawful - employment practice for an employ­
ment agency to fail or refuse to refer for employment, or otherwise 
to discriminate against, any individual because of his race, color, 
religion, sex, or national origin, or to classify or refer_ for employ­
ment any individual on the basis of his race, color, religion, sex, or 
national origin.

(c) It shall be an unlawful employment practice for a labor 
organization—

(1) to exclude or to expel from its membership, or otherwise 
to discriminate against, any individual because of his race, color, 
religion, sex, or national origin;

(2) to limit, segregate, or classify its membership, or applicants 
for membership or to classify or fail or refuse to refer for employ­
ment any-individual, in any way which would deprive or tend to 
deprive any individual of employment opportunities, or would 
limit such employment opportunities or otherwise adversely affect 
his status as an employee or as an applicant for employment, be­
cause of such individual’s race, color, religion, sex, or national 
origin; or



4a

(3) to cause or attempt to cause an employer to discriminate 
against an individual in violation of this section.

(d) It shall be an unlawful employment practice for any employer, 
labor organization, or joint labor-management committee controlling 
apprenticeship or other training or retraining, including on-the-job' 
training programs to discriminate against any individual because of 
bis race, color, religion, sex, or national origin in admission to, or 
employment in, any program established to provide apprenticeship or 
other training.

(e) Notwithstanding any other provision of this title, (1) it shall 
not be an unlawful employment practice for an employer to hire and 
employ employees, for an employment agency to classify, or refer for 
employment any individual, for a labor organization to classify its 
membership or to classify or refer for employment any individual, or 
for an employer, labor organization, or joint labor-management com­
mittee controlling apprenticeship or other training or retraining pro­
grams to admit or employ any individual in any such program, on the 
basis of his religion, sex, or national origin in those certain instances 
where religion, sex, or national origin is a bona fide occupational quali­
fication reasonably necessary to the normal operation of that particular 
business or enterprise, and (2) it shall not be an unlawful employment 
practice for a school, college, university, or other educational institu­
tion or institution of learning to hire and employ employees of a_ par­
ticular religion if such school, college, university, or other educational 
institution or institution of learning is, in whole or in substantial part, 
owned, supported, controlled, or managed by a particular religion or 
by a particular religious corporation, association, or society, or if the 
curriculum of such school, college, university, or other educational 
institution or institution of learning is directed toward the propagation 
of a particular religion.

(f) As used in this title, the phrase “ unlawful employment practice” 
shall not be deemed to include any action or measure taken by an 
employer, labor organization, joint labor-management committee, or 
employment agency with respect to an individual who is a member 
of the Communist Party of the United States or of any other organiza­
tion required to register as a Communist-action or Communist-front 
organization by final order of the Subversive Activities Control Board 
pursuant to the Subversive Activities Control Act of 1950.

(g) Notwithstanding any other provision of this title, it shall not 
be an unlawful employment practice for an employer to fail or refuse 
to hire and employ any individual for any position, for an employer 
to discharge any individual from any position, or for an employment 
agency to fail or refuse to refer any individual for employment in any 
position, or for a labor organization to fail or refuse to refer any 
individual for employment in any position, if—-

(1) the occupancy of such position, or access to the premises 
in or upon which any part of the duties of such position is per­
formed or is to be performed, is subject to any requirement 
imposed in the interest of the national security of the United 
States under any security program in effect pursuant to or admin­
istered under any statute of the United States or any Executive 
order of the President; and

(2) such individual has not fulfilled or has ceased to fulfill that 
requirement.



5a

(h) Notwithstanding any other provision of this title, it shall not 
be an unlawful employment practice for an employer to apply differ­
ent standards of compensation, or different terms, conditions, or 
privileges of employment pursuant to a bona fide seniority or merit 
system, or a system which measures earnings by quantity or quality of 
production or to employees who work in different locations, provided 
that such differences are not the result of an intention to discriminate 
because of race, color, religion, sex, or national origin, nor shall it be 
an unlawful employment practice for an employer to give and to act 
upon the results of any professionally developed ability test provided 
that such test, its administration or action upon the results is not 
designed, intended or used to discriminate because of race, color, 
religion, sex or national origin. It shall not be an unlawful employ­
ment practice under this title for any employer to differentiate upon 
the basis of sex in determining the amount of the wages or compen­
sation paid or to be paid to employees of such employer if such 
differentiation is authorized by the provisions of section 6(d) of the 
Fair Labor Standards Act of 1938, as amended (29 U.S.C. 206(d)).

(i) Nothing contained in this title shall apply to any business or 
enterprise on or near an Indian reservation with respect to any publicly 
announced employment practice of such business or enterprise under 
which a preferential treatment is given to any individual because he 
is an Indian living on or near a reservation.

(j) Nothing contained in this title shall be interpreted to require 
any employer, employment agency, labor organization, or joint labor- 
management committee subject to this title to grant preferential treat­
ment to any individual or to any group because of the race, color, reli­
gion, sex, or national origin of such individual or group on account of 
an imbalance which m ay exist with respect to the total number or per­
centage of persons of any race, color, religion, sex, or national origin 
employed b y  any employer, referred or classified for employm ent by 
any employment agency or labor organization, admitted to member­
ship or classified b y  any labor organization, or admitted to, or em­
ployed in, any apprenticeship or other training program, in compari­
son with the total number or percentage, of persons of such race, color, 
religion, sex, or national origin in any community, State, section, or 
other area, or in the available work force in any community, State, 
section, or other area.

O TH E R  U N LAW FU L EM PLOYM EN T PR AC TIC ES

Sec. 704. (a) It shall be an unlawful employment practice for an 
employer to discriminate against any of his employees or applicants 
for employment, for an employment agency, or joint labor-management 
committee controlling apprenticeship or other training or retraining, 
including on-the-job training programs, to discriminate against any 
individual, or for a labor organization to_ discriminate against any 
member thereof or applicant for membership, because he has opposed 
any practice made an unlawful employment practice by this title, or 
because he has made a charge, testified, assisted, or participated in any 
manner in an investigation, proceeding, or hearing under this title.

(b) It shall be an unlawful employment practice for an employer, 
labor organization, employment agency, or joint labor-management 
committee controlling apprenticeship or other training or retraining, in-



6 a

eluding on-the-job training programs, to print or publish or cause to be 
printed or published any notice or advertisement relating to employ­
ment by such an employer or membership in or any classification or 
referral for employment by such a labor organization, or relating to 
any classification or referral for employment by such an employment
agency, or relating to admission to, or employment in, any program 
established to provide apprenticeship or other training by such a joint 
labor-management committee indicating any preference, limitation, 
specification, or discrimination, based on race, color, religion, sex, or 
national origin, except that such a notice or advertisement may 
indicate a preference, limitation, specification, or discrimination based 
.on religion, sex, or national  ̂origin when religion, sex, or national 
origin is a bona fide occupational qualification for employment.

E Q U AL E M PLO YM EN T O P P O R T U N IT Y COMMISSION

Sec . 705. (a) There is hereby created a Commission to be known as 
the Equal Employment Opportunity Commission, which shall be com­
posed of five members, not more than three of whom shall be members 
of the same political party. Members oj the Commission shall be ap­
pointed by the President by and with the advice and consent of the 
Senate for a term of five years. Any individual chosen to Jill a vacancy 
shall be appointed only for the unexpired term of the member ̂  whom 
he shall succeed, and all members of the Commission shall continue to 
serve until their successors are appointed and qualified, except that no 
such member of the Commission shall continue to serve (l) for more than 
sixty days when the Congress is in session unless a nomination to fill 
such vacancy shall have been submitted to the Senate, or (2) after the 
adjournment sine die of the session of the Senate in which such nomination 
was submitted. The President shall designate one member to serve as 
Chairman of the Commission, and one member to serve as Vice Chair­
man. The Chairman shall be responsible on behalf of the Commission, 
for the administrative operations of the Commission, and except as 
provided in subsection (b), shall appoint, in accordance with the pro­
visions of title 5, United States Code, governing appointments in the 
competitive service, such officers, agents, attorneys, hearing examiners, and 
employees as he deems necessary to assist it in the performance of its 
functions and to fix their compensation in accordance with the provisions 
of chapter 51 and subchapter III of chapter 68 of title 5, United States 
Code, relating to classification and General Schedule pay rates: Provided, 
That assignment, removal, and compensation of hearing examiners> shall 
be in accordance with sections 3105, SSjj, 5362, and 7521 of title 5, 
United States Code. . .

(b)(1) There shall be a General Counsel of the Commission appointed 
by the President, by and with the advice and consent of the Senate, for a 
term of four years. The General Counsel shall have responsibility for the 
conduct of litigation as provided, in sections 706 and 707 of this title. The 
General Counsel shall have such other duties as the Commission may 
prescribe or as may be provided by law and shall concur with, the Chairman 
of the Commission on the appointment and supervision of regional 
attorneys. The General Counsel of the Commission on the effective date 
of this Act shall continue in such position and perform the functions 
specified in this subsection -until a successor is appointed and qualified.



7a

(2) Attorneys appointed under this section may, at the direction oj 
the Commission, appear for and represent the Commission in any case 
in court, provided that the Attorney General shall conduct all litigation 
to which the Commission is a party in the Supreme Court pursuant to 
this title.

(c) A vacancy in the Commission shall not impair the right of the 
remaining members to exercise all the powers of the Commission and 
three members thereof shall constitute a quorum.

(d) The Commission shall have an official seal which shall be 
judicially noticed.

(e) The Commission shall at the close of each fiscal year report 
to the Congress and to the President concerning the action it has 
taken; the names, salaries, and duties of all individuals in its employ 
and the moneys it has disbursed; and shall make such further reports 
on the cause of and means of eliminating discrimination and such 
recommendations for further legislation as may appear desirable.

(f) The principal office of the Commission shall be in or near the 
District of Columbia, but it may meet or exercise any or all its powers 
at any other place. The Commission may establish such regional or 
State offices as it deems necessary to accomplish the purpose of this 
title.

(g) The Commission shall have power—
(1) to cooperate with and, with their consent, utilize regional, 

State, local, and other agencies, both public and private, and 
individuals;

(2) to pay to witnesses whose depositions are taken or who are 
summoned before the Commission or any of its agents the same

, witness and mileage fees as are paid to witnesses in the courts 
of the United States;

(3) to furnish to persons subject to this title such technical 
assistance as they may request to further their compliance with 
this title or an order issued thereunder;;

(4) upon the request of (i) any employer, whose employees 
or some of them, or (ii) any labor organization, whose members 
or some of them, refuse or threaten to refuse to cooperate in 
effectuating the provisions of this title, to assist in such effectua­
tion by conciliation or such other remedial action as is provided 
by this title;

(5) to make such technical studies as are appropriate to 
effectuate the purposes and policies of this title and to make the 
results of such studies available to the public;.

(6) to intervene in a civil action brought under section 706 by an 
aggrieved party against a respondent other than a government, 
governmental agency, or political subdivision.

(h) The Commission shall, in any of its educational or promotional 
activities, cooperate with other departments and agencies in the 
performance of such educational and promotional activities.

(i) All officers, agents, attorneys, and employees of the Commission 
shall be subject to the provisions of section 9 of the Act of August 2, 
1939, as amended (the Hatch Act), notwithstanding any exemption 
contained in such section.



8a
P R E V E N T IO N  OF U N L A W F U L  EM PLO Y M E N T PRACTICES

Sec . 706. (a) The Commission is empowered, as hereinafter provided, 
to prevent any person from engaging in any unlawful employment prac­
tice as set forth in section 70S or 70 j  of this title. .

(6) Whenever a charge is filed by or on behalf of a person claiming 
to be aggrieved, or by a member of the Commission, alleging that an 
employer, employment agency, labor organization, or joint labor- 
management committee controlling apprenticeship or other training or 
retraining, including on-the-job training programs, has engaged m an 
unlawful employment practice, the Commission shall serve a notice 
of the charge (including the date, place and circumstances of the alleged 
unlawful employment practice) on such employer, employment agency, 
labor organization, or joint labor-management committee (hereinafter 
referred to as the “respondent” ) within fen days, and shall make an 
investigation thereof. Charges shall be in writing under oath or affirmation 
and shall contain such information and be in such form as the Commis­
sion requires. Charges shall not be made public by the Commission. 
If the Commission determines after such investigation that there 
is not reasonable cause to believe that the charge is true, it shall dismiss 
the charge and promptly notify the person claiming to be aggrieved andf he 
respondent of its action. In determining whether reasonable cause exists, 
the Commission shall accord substantial weight to final findings and, orders 
made by State or local authorities in proceedings commenced under 
State or local law pursuant to the requirements of subsections (c) and 
(d). If the Commission determines after such investigation that there 
is reasonable cause to believe that ther charge is true, the Commission 
shall endeavor to eliminate any such alleged unlawful employment 
practice by informal methods of conference, conciliation, and persua­
sion. Nothing said or done during and as a part_ O j. such informal 
endeavors may be made public by the Commission, its officers or 
employees, or used as evidence in a subsequent proceeding without the 
written consent of the persons concerned. Any person who makes 
public information in violation of this subsection shall be fined not 
more than $1,000 or imprisoned for not more than one year, or both. 
The Commission shall make its determination on reasonable cause as 
promptly as possible and, so far as practicable, not later than one hundred 
and twenty days from the filing of the charge or, where applicable under 
subsection (c) or (d) from the date upon which the Commission is author­
ized to take action with respect to the charge.

(c) In the case of an alleged unlawful employment practice occur­
ring in a State, or political subdivision of a State, which has a State or 
local law prohibiting the unlawful employment practice alleged and 
establishing or authorizing a State or local authority to grant or seek 
relief from such practice or to institute criminal proceedings with 
respect thereto upon receiving notice thereof, no charge may be hied 
under subsection (a) by the person aggrieved before the expiration 
of sixty days after proceedings have been commenced under the btate 
or local law, unless such proceedings have been earlier terminated, 
provided that such sixty-day period shall be extended to one hundred 
and twenty days during the first year after the effective date of such 
State or local law. If any requirement for the commencement of such 
proceedings is imposed by a State or local autnority othei than a 
requirement of the filing of a written and signed statement of the facts



9a

upon which the proceeding is based, the proceeding shall be deemed 
to have been commenced for the purposes of this subsection at the 
time- such statement is sent by registered mail to the appropriate 
State or local authority. . .

(d) In the case of any charge filed by a member of the Commission 
alleging an unlawful employment practice occurring in a State or 
political subdivision of a State which has a State or local law prohibit­
ing the practice alleged and establishing or authorizing a State or local 
authority to grant or seek relief from such practice or to institute 
criminal proceedings with respect thereto upon receiving notice 
thereof, the Commission shall, before taking any action with respect to 
such charge, notify the appropriate  ̂State or local officials and, upon 
request, afford them a reasonable time, but not less than sixty days 
(provided that such sixty-day period shall be extended to one hundred 
and twenty days during the first year after the effective date of such 
State or local law), unless a shorter period is requested, to act under 
such State or local law to remedy the practice alleged.

(e) A charge under this section shall be filed within one hundred and 
eighty days after the alleged unlawful employment practice occurred 
and notice oj the charge (including the date, 'place and circumstances 
of the alleged unlawful employment practice) shall be served upon the 
person against whom such charge is made within ten dayŝ  thereafter, 
except that in a case of an unlawful employment practice with respect 
to which the person aggrieved has initially instituted proceedings with 
a State or local agency with authority to grant or seek relief from, such 
practice, or to institute criminal proceedings with respect thereto upon 
receiving notice thereof, such charge shall be filed by or on behalf of 
the person aggrieved within three hundred days after the alleged 
unlawful employment practice occurred, or within thirty days after 
receiving notice that the State or local agency has terminated the 
proceedings under the State or local law*, whichever is earlier, and a 
copy of such charge shall be filed by the Commission with the State 
or local agency.

( f )  (1) If within thirty days after a charge is filed with the Commis­
sion or within thirty days after expiration of any period of reference 
under subsection (c) or (d), the Commission has been unable to secure 
from the respondent a conciliation agreement acceptable to the Commission, 
the Commission may bring a civil action against any respondent not a, 
government, governmental agency, or political subdivision named in the 
charge. In the case of a respondent which is a government, governmental 
agency, or political subdivision, if the Commission has been unable to 
secure from the respondent a conciliation agreement acceptable to the 
Commission, the Commission shall take no further action _ and shall 
refer the case to the Attorney General who may bring a civil action against 
such respondent in the appropriate United States district court. I  tie person 
or persons aggrieved shall have.the right to intervene in a civil action 
brought by the Commission or the Attorney General in a case involving a 
government, governmental agency, or political subdivision. If a charge 
filed with the Commission pursuant to subsection (b) is dismissed, by the 
Commission, or if within one hundred and eighty days from the filing oj 
such charge or the expiration of any period of ref erence under subsection
(c) or (d), whichever is later, the Commission has not filed a civil action 
under this section or the Attorney General has notified a civil action m a



10a

case involving a government, governmental agency, or political subdivision, 
or the Commission has not entered into a conciliation agreement to which, 
the person aggrieved is a party, the Commission, or the Attorney General 
in a, case involving a government, governmental agency, or political' sub­
division, shall so notify the person aggrieved, and within ninety days ajter 
the giving oj such notice a civil action may be brought against the 
respondent named in the charge (A) by the person claiming to be 
aggrieved, or (B) if such charge was filed by a member of the Com­
mission, by any person whom the charge alleges was aggrieved by 
the alleged unlawful employment practice. Upon application by 
the complainant and in such circumstances as the court may deem 
just, the court may appoint an attorney for such complainant and 
may authorize the commencement of the action without the payment 
of fees, costs, or security. Upon timely application, the court may, 
in its discretion, permit the Commission, or the Attorney General 
in a case involving a government, governmental agency, or political 
subdivision, to intervene in such civil action upon certification that 
the case is of general public importance. Upon request, the court rnay, 
in its discretion, stay further proceedings for not more than sixty 
days pending the termination of State or local proceedings described 
in subsections (c) or (d) oj this section or further efforts of the Com­
mission to obtain voluntary compliance.

(2) Whenever a charge is filed with the Commission arid the Commission 
concludes on the basis oj a preliminary investigation that prompt judicial 
action is necessary to carry out the purposes oj this Act, the Commission, 
or the Attorney General in a case involving a government, governmental 
agency, or political subdivision, may bring an action jor appropriate 
temporary or preliminary relief pending final disposition oj such charge. 
Any temporary restraining order or other order granting preliminary 
or temporary relief shall be issued in accordance with rule 65 oj the 
Federal Rules oj Civil Procedure. It shall be the duty oj a court having 
jurisdiction over proceedings under this section to assign cases jor hearing 
at the earliest practicable date and to cause such cases to be in every way 
expedited.

(8) Each United States district, court and each United States court oj 
a place subject to the jurisdiction oj the United States shall have juris­
diction oj actions brought under this title. Such an action may be brought 
in any judicial district in the State in which the unlawful employment 
practice is alleged to have been committed, in the judicial district in which 
the employment records relevant to such practice are maintained and 
administered, or in the judicial district in which the aggrieved person 
would have worked but jor the alleged unlawful employment practice, but 
if the respondent is not found within any such district, such an action 
may be brought within the judicial district in which the respondent has 
his principal office. For purposes oj sections llfij and lj06 oj title 28 
oj the United States Code, the judicial district in which the respondent 
has his principal office shall in all cases be considered a district in which 
the action might have been brought.

(4) It shall be the duty oj "the chief judge oj the district {or in his 
«absence, the acting chief judge) in which the case is pending immediately 
to designate a judge in such district to hear and determine the case. In 
the event that no judge in the district is available to hear and determine 
the case, the chief judge oj the district, or the acting chief judge, as the



11a
case may be, shall certify this fact to the chief judge of the circuit (or in 
his absence, the acting chief judge) who shall then designate a district 
or circuit judge of the circuit to hear and determine the case.

(6) It shall be the duty of the judge designated pursuant to this sub­
section to assign the case for hearing at the earliest practicable date and 
to cause the case to be in every way expedited. I f such judge has not 
scheduled the case for trial within one hundred and twenty days after 
issue has been joined, that judge may appoint a master pursuant to rule 
53 of the Federal Rules of Civil Procedure.

(g) If the court finds that the respondent has intentionally engaged in 
or is intentionally engaging in an unlawful employment practice charged 
in the complaint, the court may enjoin the respondent from engaging in 
such unlawful employment practice, and order such affirmative action as 
may be appropriate, which may include, but is not limited to, reinstate­
ment or hiring of employees, with or without back pay (payable by the 
employer, employment agency, or labor organization, as the case may be, 
responsible for the unlawful employment practice), or any other equitable 
relief as the court deems appropriate. Back pay liability shall not accrue 
from a date more than two years prior to the filing of a charge with the 
Commission. Interim earnings or amounts earnable with reasonable 
diligence by the person or persons discriminated against shall operate to 
reduce the back pay otherwise allowable. No order of the court shall 
require the admission or reinstatement of an individual as a member of a 
union, or the hiring, reinstatement, or promotion of an individual as an 
employee, or the payment to him of any back pay, if such individual was 
refused admission, suspended, or expelled, or was refused employment 
or advancement or was suspended or discharged for any reason other than 
discrimination on account of race, color, religion, sex, or national origin 
or in violation of section 704(a).

(h) The provisions of the Act entitled “An Act to amend the 
Judicial Code and to define and limit the jurisdiction of courts sitting 
in equity, and for other purposes,” approved March 23, 1932 (29 
U.S.C. 101—115), shall not apply with respect to civil actions brought 
under this section.

(i) In any case in which an employer, employment agency, or labor 
organization fails to comply with an order of a court issued in a civil 
action brought under this section, the Commission may commence 
proceedings to compel compliance with such order.

(j) Any civil action brought under this section and any proceed­
ings brought under subsection (i) shall be subject to appeal as pro­
vided in sections 1291 and 1292, title 28, United States Code.

(k) In any action or proceeding under this title the court, in its 
discretion, may allow the prevailing party, other than the Commission 
or the United States, a reasonable attorney’s fee as part of the costs, 
and the Commission and the United States shall be liable for costs 
the same as a private person.

Sec . 707. (a) Whenever the Attorney General has reasonable 
cause to believe that any person or group of persons is engaged in a 
pattern or practice of resistance to the full enjoyment of any of the 
rights secured by this title, and that the pattern or practice is of 
such a nature and is intended to deny the full exercise of the rights 
herein described, the Attorney General may bring a civil action in 
the appropriate district court of the United States by filing with it a



12a

complaint (1) signed by  him (or in his absence the Acting Attorney 
General), (2) setting forth facts pertaining to such pattern or prac­
tice, and (3) requesting such relief, including an application for a 
permanent or temporary injunction, restraining order or other order 
against the person or persons responsible for such pattern or practice, 
as he deems necessary to insure the full enjoyment of the rights 
herein described.

(b)_ The district courts of the United States shall have and shall 
exercise jurisdiction of proceedings instituted pursuant to this sec­
tion, and in any such proceeding the Attorney General may file with 
the clerk of such court a request that a court of three judges be con­
vened to hear and determine the case. Such request by the Attorney 
General shall be accompanied by a certificate that, in his opinion, the 
case is of general public importance. A copy of the certificate and 
request for a three-judge court shall be immediately furnished by such 
clerk to the chief judge of the circuit (or in his absence, the presiding 
circuit judge of the circuit) in which the case is pending. Upon receipt 
of such request it shall be the duty of the chief judge of the circuit or 
the presiding circuit judge, as the case may be, to designate imme­
diately three judges in such circuit, of whom at least one shall be a . 
circuit judge and another of whom shall be a district judge of the court 
in which the proceeding was instituted, to hear and determine such 
case, and it shall be the duty of the judges so designated to assign the 
case for hearing at the earliest practicable date, to participate in the 
hearing and determination thereof, and to cause the case to be in 
every way_ expedited. An appeal from the final judgment of such 
court will lie to the Supreme Court.

In the event the Attorney General fails to file such a request in any 
such proceeding, it shall be the duty of the chief judge of the distinct 
(or in his absence, the acting chief judge) in which the case is pending 
immediately to designate a judge in such district to hear and deter­
mine the case. In the event that no judge in the district is available 
to near and determine the case, the chief judge of the district, or the 
acting chief judge, as the case may be, shall certify this fact to the 
chief judge of the circuit (or in his absence, the acting chief judge) 
who shall then designate a district or circuit judge of the circuit to 
hear and determine the case.

It shall be the duty of the judge designated pursuant to this section 
to assign the case for hearing at the earliest practicable date and to 
cause the case to be in every way expedited.

(c) Effective two years after the date of enactment of the Equal Employ­
ment Opportunity Act of 1972, the functions of the Attorney General tinder 
this section shall be transferred to the Commission, together with such 
personnel, property, records, and unexpended balances of appropriations, 
allocations, and other funds employed, used, held, available, or to be made 
available in connection with stick functions unless the President submits, 
and neither House of Congress vetoes, a reorganization plan pursuant to 
chapter 9, of title 5, United States Code, inconsistent with the provisions 
of this subsection. The Commission shall carry out such functions in 
accordance with subsections (d) and (e) of this section.

(d) Upon the transfer of functions provided for in subsection (c) of 
this section, in all suits commenced pursuant to this section prior to the 
date of such transfer, proceedings sriall continue without abatement, all



13a

court orders and decrees shall remain in effect, and the Commission shall 
be substituted as a party for the United States of America, the Attorney 
General, or the Acting Attorney General, as appropriate.

(■e) Subsequent to the date of enactment of the Equal Employment, 
Opportunity Act of 1972, the Commission shall have authority to in­
vestigate and act on a charge of a pattern or practice of discrimination, 
whether filed by or on behalf of a person claiming to be aggrieved or by 
a member of the Commission. All such actions shall be conducted in 
accordance with the procedures set forth in section 706 of this Act.

E FFEC T ON STATE LAW S

S e c . 708. Nothing in this title shall be deemed to exempt or relieve 
any person from any liability, duty, penalty, or punishment pro­
vided by any present or future law of any State or political subdi­
vision of a State, other than any such law which purports to require 
or permit the doing of any act which would be an unlawful employ­
ment practice under this title.

IN V E ST IG A T IO N S, IN SPECTIO N S, HECOBDS, STATE A G EN CIES

Sec . 709. (a) In connection with any investigation of a charge filed 
under section 706, the Commission or its designated representative 
shall at all reasonable times have access to, for the purposes of exam­
ination, and the right to copy any evidence of any person being 
investigated or proceeded against that relates to unlawful em ploy­
ment practices covered by  this title and is relevant to the charge 
under investigation.

(b) The Commission may cooperate with State and local agencies 
charged with the administration of State fair employment practices 
laws and, with the consent of such agencies, may, for the purpose of 
carrying out its functions and duties under this title and within the 
limitation of funds appropriated specifically for such purpose, engage 
in and contribute to the cost of research and other projects of mutual in­
terest undertaken by such agencies, and utilize the services of such 
agencies and their employees, and, notwithstanding any other pro­
vision of law, pay by advance or- reimbursement such agencies and 
their employees for services rendered to assist the Commission in 
carrying out this title. In furtherance of such cooperative efforts, 
the Commission may enter into written agreements with such State 
or local agencies and such agreements may include provisions under 
which the Commission shall refrain from processing a charge in any 
cases or class of cases specified in such agreements or under which 
the Commission shall relieve any person or class of persons in such 
State or locality from requirements imposed under this section. The 
Commission shall rescind any such agreement whenever it determines 
that the agreement no longer serves the interest of effective enforce­
ment of this title.

(c) Every employer, employment agency, and labor organization sub­
ject to this title shall (1) make and keep such records relevant to the 
determinations of whether unlawful employment practices have been 
or are being committed, (2) preserve such records for such periods, 
and (3) make such reports therefrom, as the Commission shall pre­
scribe by'regulation or order, after public hearing, as reasonable,

594-115 0  -  75 - 6



14a

necessary, or appropriate for the enforcement of this title or the 
regulations or orders thereunder. The Commission shall, by regula­
tion, require each employer, labor organization, and joint labor- 
management committee subject to this title which controls an ap­
prenticeship or other training program to maintain such records as 
are reasonably necessary to carry out the purpose of this title, in­
cluding, but not limited to, a list of applicants who wish to participate 
in such program, including the chronological order in which applica­
tions were received, and to furnish to the Commission upon request, 
a detailed description of the manner in which persons are selected 
to participate in the apprenticeship or other_ training program. Any 
employer, employment agency, labor organization, or joint labor- 
management committee which believes that the application to it of 
any regulation or order issued under this section would result in undue 
hardship may apply to the Commission for an exemption from the 
application of such regulation or order, and, if such application for 
an exemption is denied, bring a civil action in the United States 
district court for the district where such records are kept. If the 
Commission or the court, as the case may be, finds that the applica­
tion of the regulation or order to the employer, employment agency, 
or labor organization in question would impose an undue hardship, 
the Commission or the court, as the case may be, may grant appro­
priate relief. I f any person required to comply with the. provisions of 
this subsection fails or refuses to do so, the United States district court 
for the district in which such person is found, resides, or transacts business, 
shall, upon application of the Commission, or the Attorney General in a 
case involving a government, governmental agency or political subdivision, 
have jurisdiction to issue to such person an order requiring him to comply.

(d) In prescribing requirements pursuant to subsection (c) of this sec­
tion, the Commission shall consult with other interested State and Federal 
agencies and shall endeavor to coordinate its requirements with those 
adopted by such agencies. The Commission shall furnish upon request and 
without cost to any State or local agency charged with the administration of 
a fair employment practice law information obtained pursuant to sub­
section (c) of this section from any employer, employment agency, labor 
organisation, or joint labor-management committee subject to the jurisdic­
tion of such agency. Such information shall be furnished on condition that 
it not be made public by the recipient agency prior to the institution of a 
proceeding under State or local law involving such information. If this 
condition, is violated by a recipient agency, the Commission may decline 
to honor subsequent requests pursuant to this subsection.

(e) It shall be unlawful for any officer or employee of the Commis­
sion to make public in any manner whatever any information obtained 
by the Commission pursuant to its authority under this section prior 
to the institution of any proceeding under this title involving such 
information. Any officer or employee of the Commission who_ shall 
make public in any manner whatever any information in violation of 
this subsection shall be guilty of a misdemeanor and upon conviction 
thereof, shall be fined not more than $1,000, or imprisoned not more 
than one year.

IN V E S T IG A T O R Y  POW ERS

Sec . 710. For the purpose of all hearings and investigations conducted 
by the Commission or its duly authorized agents or agencies, section 11 of



15a

the National Labor Relations Act (49 Stat. 465; 29 U.S.C. 161) shall 
apply.

N O TIC ES TO B E  POSTED

Sec . 711. (a) Every employer, employment agency, and labor orga­
nization, as the case may be, shall post and keep posted in conspicuous 
places upon its premises where notices to employees, applicants for 
employment, and members are customarily posted a notice to be pre­
pared or approved by the Commission setting forth excerpts from , or 
summaries of, the pertinent provisions of this title and information 
pertinent to the filing of a complaint.

(b) A willful violation of this section shall be punishable by a fine 
of not more than $100 for each separate offense.

v e t e r a n s ’  p r e f e r e n c e

Sec. 712. Nothing contained in this title shall be construed to re­
peal or modify any Federal, State, territorial, or local law creating 
special rights or preference for veterans.

R U LE S A N D  REG U LA TIO N S

Sec. 713. (a) The Commission shall have authority from time to 
time to issue, amend, or rescind suitable procedural regulations to 
carry out the provisions of this title. Regulations issued under the 
section shall be in conformity with the standards and limitations of 
the Administrative Procedure Act.

(b) In any action or proceeding based on any alleged, unlawful 
employment practice, no person shall be subject to any liability or 
punishment for or on account of (1) the commission by such person 
of an unlawful employment practice if he pleads and proves that the 
act or omission complained of was in good faith, in conformity with, 
and in reliance on any written interpretation or opinion of the Com­
mission, or (2) the failure of such person to publish and file any 
information required by any provision of this title if he pleads and 
proves that he failed to publish and file such information in good faith, 
in conformity with the instructions of the Commission issued under 
this title regarding the filing of such information. Such a defense, if 
established, shall be a bar to the action or proceeding, notwithstand­
ing that (A) after such act or omission, such interpretation or opinion 
is modified or rescinded or is determined by judicial authority to be 
invalid or of no legal effect, or (B) after publishing or filing the descrip­
tion and annual reports, such publication or filing is determined by 
judicial authority not to be in conformity with the requirements of 
this title.

F O R C IB L Y  R E SIST IN G  TH E  COMMISSION OR IT S  R E P R E SE N T A T IV E S

Sec: 714. The provisions of sections 111 ancl 1114 title 18, United 
States Code, shall apply to officers,_ agents, and employees of the 
Cojnmission in the performance of their official duties. Notwithstanding 
the provisions oj sections 111 and 1114 of title 18, United States Code, 
whoever in violation of the provisions of section 1114 of suck title kills 
a person while engaged in or on account of the performance of his official



16a

functions under this Act shall be punished by imprisonment for any 
term of years or for life.

EQUAL EM PLOYM EN T OPPORTU NITY COORDINATING COUNCIL

S ec. 715. There shall be established an Equal Employment Opportunity 
Coordinating Council (hereinafter referred to in this section as the 
Council) composed of the Secretary of Labor, the Chairman of the Equal 
Employment Opportunity Commission, the Attorney General, the Chair­
man of the United States Civil Service Commission, and the Chairman of 
the United States Civil Bights Commission, or their respective delegates. 
The Council shall have the responsibility for developing and implementing 
agreements, policies and practices designed to maximize effort, promote 
efficiency, and eliminate conflict, competition, duplication and incon­
sistency among the operations, functions and jurisdictions of the various 
departments, agencies and branches of the Federal government responsible 
for the implementation and enforcement of equal employment opportunity 
legislation, orders, and policies. On or before July 1 of each year, the 
Council shall transmit to the President and to the Congress a report of 
its activities, together with such recommendations for legislative or ad­
ministrative changes as it concludes are desirable to further promote the 
purposes of this section.

E FFEC TIV E  DA TE

S e c . 718. (a) This title shall become effective one year after the date 
of its enactment.

(b) Notwithstanding subsection (a), sections of this title other than 
sections 703, 704, 708, and 707 shall become effective immediately.

(c) The President shall, as soon as feasible after the enactment of 
this title, convene one or more conferences for the purpose of enabling 
the leaders of groups whose members will be affected by this title to 
become familiar with the rights afforded and obligations imposed by 
its provisions, and for the purpose of making plans which will result 
in the fair and effective administration of this title when all of its 
provisions become effective. The President shall invite the participa­
tion in such conference or conferences of (1) the members of the 
President’s Committee on Equal Employment Opportunity, (2) the 
members of the Commission on Civil Rights, (3) representatives of 
State and local agencies engaged in furthering equal employment 
opportunity, (4) representatives of private agencies engaged in fur­
thering equal employment opportunity, and (5) representatives of 
employers, labor organizations, and employment agencies who will be 
subject to this title.

NONDISCRIMINATION IN  FEDERAL GOVERNMENT EMPLOYMENT

Sec. 717. (a) All personnel actions affecting employees or applicants 
for employment (except with regard to aliens employed outside the limits 
of the United Stales) in military departments as defined in section 102 of 
title 5, United States Code, in executive agencies (other than the General 
Accounting Office) .aŝ defined in section 105 of title 5, United States Code 
(including einploytfifrand applicants for employment who are paid from 
nonappropriated funds), in the United Stales Postal Service and the Postal 
Bate Commission, in those units of the Government of the District of 
Columb ia having positions in the competitive service, and, in those units o f



17a

the legislative 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.

(,b) Except as otherwise provided in this subsection, the Civil Service 
Commission shall have authority to enforce the provisions of subsection 
(a) through appropriate remedies, including reinstatement or hiring of 
employees with or without back pay, as will effectuate the policies of this 
section, and shall issue such rules, regulations, orders, and instructions 
as it deems necessary and appropriate to carry out its responsibilities 
under this section. The Civil Service Commission shall—

(1) be responsible for the annual review and approval of a national 
and regional equal employment opportunity plan which each de­
partment and agency and each appropriate unit referred to in 
subsection (a) of this section shall submit in order to maintain an 
affirmative program of equal employment opportunity for all such 
employees and applicants for employment;

(2) be responsible for the review and evaluation of the operation 
of all agency equal employment opportunity programs, periodically 
obtaining and p'ablishing {on at least a semiannual basis) progress 
reports from each such department, agency, or unit; and

(8) constdt with and solicit the recommendations of interested 
individuals, groups, and organizations relating to equal employ­
ment opportunity.

The head of each such department, agency, or unit shall comply with such- 
rules, regulations, orders, and instructions which shall include a provision 
that an employee or applicant for employment shall be notified of any 
final action taken on any complaint of discrimination filed by him 
thereunder. The plan submitted by each department, agency, arid unit 
shall include, but not be limited to—

(!) provision for the establishment of, training and education 
programs designed to provide a maximum opportunity for employees 
to advance so as to perform at their highest potential; and

(2) a description of the qualifications in terms of training and 
experience relating to equal employment opportunity for the principal 
and operating officials of each such department, agency, or unit 
responsible for carrying out the equal employment opportunity 
program and of the allocation of personnel and resources proposed 
by such department, agency, or unit to carry out its equal employ­
ment opportunity program.

With respect to employment in the Library of Congress, authorities granted, 
in this subsection to the Civil Service Commission shall be exercised, by the 
Librarian of Congress.

(c) 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 department, agency, or unit or ivith the Civil Service 
* Commission on appealfrom a decision or order of such department, agency, 
or unit until such time as final action may be taken by a department



18a

agency, or unit, an employee or applicant for employment, if aggrieved 
by the final disposition oj 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.

(d) The provisions of section 706(f) through (k), as applicable, shall 
govern civil actions brought hereunder.

(e) 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 employ­
ment opportunity in the Federal Government.

S P E C IA L  PROVISION S W IT H  RESPECT TO D E N IA L , TE R M IN AT IO N , AND  
SUSPENSION OF GOVERNMENT CONTRACTS

Sec. 718. No Government contract, or portion thereof, with any em­
ployer, shall be denied, withheld, terminated, or suspended, by any agency 
or officer oj the United States under any equal employment opportunity law 
or order, where such employer has an affirmative action plan which has 
previously been accepted by the Government for the same facility within 
the past twelve months without first according such employer full hearing 
and adjudication under the provisions of title 5, United States Code, 
section 554, and. the following pertinent sections: Provided, That if such 
employer has deviated substantially from such previously agreed to 
affirmative action plan, this section shall not apply: Provided further, 
That for the purposes of this section an affirmative action plan shall be 
deemed to have been accepted by the Government at the time the appropriate 
compliance agency has accepted such plan unless within forty-five days 
thereafter the Office of Federal Contract Compliance has disapproved such 
plan.



Appendix B
The Civil Service Commission’s Equal Opportunity

Regulations

P A R T  713— EQU AL O PPO RTU N ITY

S u b p a r t  B—E q u a l  O p p o r t u n it y  W i t h o u t  R e g a r d  t o  
R a c e , C o l o r , R e l ig io n , S e x , or  N a t io n a l  O r ig in

Subpart B o f Part 713 Equal Opportunity is revised 
to implement the Equal Employment Opportunity Act 
o f 1972, 86 Sta-t. 103, and to strengthen the system 
of complaint processing. Among others, these changes 
emphasize the affirmative aspects o f agency equal em­
ployment opportunity obligations, set out requirements 
for submission o f  national and regional plans, extend 
the time limits for contacting a counselor, provide for 
the reasonable accommodation to the religious needs 
of applicants and employees, provide for timely inves­
tigation and resolution of complaints including com­
plaints o f coercion and reprisal, set out the remedial 
action available( including back pay), and strengthen 
the third party complaint system.

G e n e r a l  P r o v is io n s

Sec.
713.201 Purpose and applicability.
713.202 General policy.
713.203 Agency program.
713.204 Implementation o f agency program.
713.205 Commission review and evaluation o f agency

program operations.

A g e n c y  R e g u l a t io n s  f o r  P r o c e s s in g  C o m p l a in t s  o f  
D i s c r im in a t io n

713.211 General.
713.212 Coverage.
713.213 Precomplaint processing.
713.214 Filing and presentation o f complaint.
713.215 Rejection or cancellation o f complaint.
713.216 Investigation.
713.217 Adjustment o f complaint and offer o f  hearing.

19a



20a

Sec.
713.218 Hearing.
712.219 Relationship to other agency appellate proce­

dures.
713.220 Avoidance of delay.
713.221 Decision by head o f agency or designee.
713.222 Complaint file.

A p p e a l  t o  t h e  C o m m is s io n

713.231 Entitlement.
713.232 Where to appeal.
713.233 Time limit.
713.234 Appellate procedures.
713.235 Review by the Commissioners.
713.236 Relationship to other appeals.

R e p o r t s  t o  t h e  C o m m is s io n  

713.241 Reports to the Commission on complaints.

T h i r d - P a r t y  A l l e g a t io n s  

713.251 Third-party allegations of discrimination. 

F r e e d o m  F r o m  R e p r is a l  or  I n t e r f e r e n c e

713.261 Freedom from reprisal.
713.262 Review o f allegations o f reprisal.

R e m e d ia l  A c t io n s  

713.271 Remedial actions.

R i g h t  To F i l e  a  C i v i l  A c t io n

713.281 Statutory right.
713.282 Notice o f right.
713.283 Effect on administrative processing.

A u t h o r it y :  : The provisions o f this Subpart B issued 
under 5 U.S.C. 1301, 3301, 3302, 7151-7154, 7301; 86 
Stat. I l l ;  E.O. 10577; 3 CFR, 1934-58 Comp., p. 218, 
E.O. 11222, 3 CFR 1964-1965 Comp., p. 306, E.O. 11478, 
3 CFR 1969 Comp.



21a

Subpart B — E qual Opportunity W ithout R e­
gard to R ace, Color, R eligion, Sex, or R a­
tional Origin

General Provisions
§ 713.201 PURPOSE AND APPLICABILITY

(a) Purpose. This subpart sets forth the reg­
ulations under which an agency shall establish 
a continuing affirmative program for equal op­
portunity in employment and personnel opera­
tions 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 dis­
satisfied with an agency’s decision or other 
final action on his complaint of discrimination 
on grounds of race, color, religion, sex, or na­
tional origin.

(b) Applicability. (1) This subpart applies:
(i) To military department as defined in sec­
tion 102 of title 5, United States Code, execu­
tive agencies (other than the General Account­
ing Office) as defined in section 105 of title 5, 
United States Code, the U.S. Postal Service, 
and the Postal Rate Commission, and to the 
employees thereof, including employees paid 
from nonappropriated funds, and (ii) to those 
portions of the legislative and judicial branches 
of the Federal Government and the government 
of the District of Columbia having positions in 
the competitive service and to the employees 
in those positions.

(2) This subpart does not apply to aliens 
employed outside the limits of the United 
States.

§ 713.202 GENERAL POLICY

It is the policy of the Government of the 
United States and of the government of the 
District of Columbia to provide equal oppor­
tunity in employment for all persons, to pro-



22a

Mbit 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 agency.

§ 7 1 3 .2 0 3  AGENCY PROGRAM

The head of each agency shall exercise per­
sonal leadership in establishing, maintaining, 
and carrying out a continuing affirmative pro­
gram designed to promote equal opportunity in 
every aspect of agency personnel policy and 
practice in the employment, development, ad­
vancement, and treatment of employees. Under 
the terms of its program, an agency shall:

(a) Provide sufficient resources to administer 
its equal employment opportunity program in 
a positive and effective manner and assure that 
the principal and operating officials responsible 
for carrying out the equal employment oppor­
tunity program meet established qualifications 
requirements;

(b) Conduct a continuing campaign to eradi­
cate every form of prejudice or discrimination 
based upon race, color, religion, sex, or national 
origin, from the agency’s personnel policies and 
practices and working conditions, including dis­
ciplinary action against employees who engage 
in discriminatory practices;

(e) Utilize to the fullest extent the present 
skills of employee by all means, including the 
redesigning of jobs where feasible so that tasks 
not requiring the full utilization of skills of 
incumbents are concentrated in jobs with lower 
skill requirements;

(d) Provide the maximum feasible oppor­
tunity to employees to enhance their skills 
through on-the-job training, work-study pro­
grams, and other training measures so that they 
may perform at their highest potential and 
advance in accordance with their abilities;



23a

(e) Communicate the agency’s equal employ­
ment opportunity policy and program and its 
employment needs to all sources of job candi­
dates without regard to race, color, religion, 
sex, or national origin, and solicit their recruit­
ment assistance on a continuing basis;

( f )  Participate at the community level with 
other employers, with schools and universities, 
and with other public and private groups in co­
operative action to improve employment op­
portunities and community conditions that af­
fect employability;

(g) Review, evaluate, and control managerial 
and supervisory performance in such a manner 
as to insure a continuing affirmative applica­
tion and vigorous enforcement of the policy of 
equal opportunity, and provide orientation, 
training, and advice to managers and super­
visors to assure their understanding and imple­
mentation of the equal employment opportunity 
policy and program;

(h) Provide recognition to employees, super­
visors, managers, and units demonstrating su­
perior acomplishment in equal employment 
opportunity;

(i) Inform its employees and recognized 
labor organizations of the affirmative equal em­
ployment opportunity policy and program and 
enlist their cooperation;

( j)  Provide for counseling employees and 
applicants who believe they have been discrim­
inated against because of race, color, religion, 
sex, or national origin and for resolving in­
formally the matters raised by them;

(k) Provide for the prompt, fair, and im­
partial consideration and disposition of com­
plaints involving issues of discrimination on 
grounds of race, color, religion, sex, or national 
origin; and

(l) Establish a system for periodically evalu­
ating the effectiveness of the agency’s overall 
equal employment opportunity effort.



24a

§ 713 .204  IMPLEMENTATION OF AGENCY PROGRAM

To implement the program established under 
this subpart, an agency shall:

(a) Develop the plans, procedures, and regu­
lations necessary to carry out its program 
established under this subpart;

(b) Appraise its personnel operations at 
regular intervals to assure their conformity 
with the policy in § 713.202 and its program 
established in accordance with § 713.203;

(c) Designate a Director of Equal Employ­
ment Opportunity and as many Equal Oppor­
tunity Officers, Equal Employment Opportu­
nity Counselors, Federal Women’s Program 
Coordinators, and other persons as may be nec­
essary, to assist the head of the agency to carry 
out the functions described in this subpart in 
all organizational units and locations of the 
agency. The functioning and the qualifications 
o f the persons so designated shall be subject to 
review by the Commission. The Director of 
Equal Employment Opportunity shall be under 
the immediate supervision of the head of his 
agency, and shall be given the authority nec­
essary to enable him to carry out his responsi­
bilities under the regulations in this subpart ;

(d) Assign to the Director of Equal Employ­
ment Opportunity the functions o f;

(1) Advising the head of his agency with 
respect to the preparation of national and 
regional equal employment opportunity 
plans, procedures, regulations, reports, and 
other matters pertaining to the policy in 
§ 713.202 and the agency program required 
to be established under § 713.203;

(2) Evaluating from time to time the 
sufficiency of the total agency program for 
equal employment opportunity and report­
ing thereon to the head of the agency with 
recommendations as to any improvement 
or correction needed, including remedial or



25a

disciplinary action with respect to man­
agerial or supervisory employees who have 
failed in their responsibilities;

(3) When authorized by the head of the 
agency, making changes in programs and 
procedures designed to eliminate discrim­
inatory practices and improve the agency’s 
program for equal employment opportu­
nity;

(4) Providing for counseling by an Equal 
Employment Opportunity Counselor, of 
any aggrieved employee or applicant for 
employment who believes that he has been 
discriminated against because of race, color, 
religion, sex, or national origin and for 
attempting to resolve on an informal basis 
the matter raised by the employee or appli­
cant before a complaint of discrimination 
may be filed under § 713.214;

(5) Providing for the receipt and in­
vestigation of individual complaints of dis­
crimination in personnel matters within the 
agency, subject to §§ 713.211 through 
713.222;

(6) Providing for the receipt, investiga­
tion, and disposition of general allegations 
by organizations or other third parties of 
discrimination in personnel matters within 
the agency subject to § 713.251.

(7) When authorized by the head of the 
agency, making the decision under § 713.221 
for the head of the agency on complaints 
of discrimination and ordering such cor­
rective measures as he may consider nec­
essary, including the recommendation for 
such disciplinary action as is warranted by 
the circumstances when an employee has 
been found to have engaged in a discrim­
inatory practice; and

(8) When not authorized to make the 
decision for the head of the agency on com­
plaints of discrimination, reviewing at his

594-1 1 5  0 - 7 5 - 7



26a

discretion, the record on any complaint be­
fore the decision is made under § 713.221 
and making such recommendations to the 
head of the agency or his designee as he 
considers desirable, including the recom­
mendation for such disciplinary action as 
is warranted by the circumstances when 
an employee is found to have engaged in a 
discriminatory practice;

(e) Insure that equal opportunity for women 
is an integral part of the agency’s overall pro­
gram by assigning to the Federal Women’s Pro­
gram Coordinators the function of advising the 
Director of Equal Employment Opportunity 
on matters affecting the employment and ad­
vancement of women;

(f )  Publicize to its employees and post per­
manently on official bulletin boards:

(1) The names and addresses of the 
Director of Equal Employment Opportun­
ity and the Federal Women’s Program 
Coordinators;

(2) The name and address of the appro­
priate Equal Employment Opportunity 
Officer;

(3) The name and address of the Equal 
Employment Opportunity Counselor and 
the organizational units he serves; his avail­
ability to counsel an employee or applicant 
for employment who believes that he has 
been discriminated against because of race, 
color, religion, sex, or national origin; and 
the requirement that an employee or appli­
cant for employment must consult the 
Counselor as provided by § 713.213 about 
his allegation of discrimination because of 
race, color, religion, sex, or national origin 
before a complaint as provided by § 713.214 
may be filed; and

(4) Time limits for contacting an Equal 
Employment Opportunity Counselor.



27a

■(g) Make reasonable accommodations to the 
religious needs of applicants and employees, 
including the needs of those who observe the 
Sabbath on other than Sunday, when those 
accommodations can be made (by substitution 
of another qualified employee, by a grant of 
leave, a change of a tour of duty, or other 
means) without undue hardship on the business 
of the agency. I f  an agency cannot accommo­
date an employee or applicant, it has a duty in 
a complaint arising under this subpart to dem­
onstrate its inability to do so; and

(h) Make readily available to its employees 
a copy of its regulations issued to carry out its 
program of equal employment opportunity.

(i) Submit annually for the review and ap­
proval of the Commission written national and 
regional equal employment opportunity plans 
o f action. Plans shall be submitted in a format 
prescribed by the Commission and shall include, 
but not be limited to—

(1) Provision for the establishment of 
training and education programs designed 
to provide maximum opportunity for em­
ployees to advance so as to perform at their 
highest potential;

(2) Description of the qualifications, in 
terms of training and experience relating 
to equal employment opportunity, of the 
principal and operating officials concerned 
with administration of the agency’s equal 
employment opportunity program; and

(3) Description of the allocation of per­
sonnel and resources proposed by the 
agency to carry out its equal employment 
opportunity program.

§  713.205 COMMISSION REVIEW AND EVALUATION 
OF AGENCY PROGRAM OPERATIONS

The Commission shall review and evaluate 
agency program operations periodically, obtain



28a

such reports as it deems necessary, and report 
to the President as appropriate on overall prog­
ress. When it finds that an agency’s program 
operations are not in conformity with the 
policy set forth in § 713.202 and the regulations 
in this subpart, the Commission shall require 
improvement or corrective action to bring the 
agency’s program operations into conformity 
with this policy and the regulations in this sub­
part. The head of each department and agency 
shall comply with the rules, regulations, orders, 
and instructions issued by the Commission.

A gency R egulations for P rocessing 
Complaints or D iscrimination

§ 713.211 GENERAL

An agency shall insure that its regulations 
governing the processing of complaints of dis­
crimination on grounds o f race, color, religion, 
sex, or national origin comply with the prin­
ciples and requirements in §§ 713.212 through 
713.222.

§ 713.212 COVERAGE

(a) The agency shall provide in its regula­
tions for the acceptance o f a complaint from 
any aggrieved employee or applicant for em­
ployment with that agency who believes that he 
has been discriminated against because of race, 
color, religion, sex, or national origin. A  com­
plaint may also be filed by an organization for 
the aggrieved person with his consent

(b) Sections 713.211 through 713.222 do not 
apply to the consideration by an agency of a 
general allegation o f discrimination by an orga­
nization or other third party which is unrelated 
to an individual complaint of discrimination 
subject to §§713.211 through 713.222. (Section 
713.251 applies to general allegations by orga­
nizations or other third parties.)



29a

§ 7 1 3 .2 1 3  PRECOMPLAINT PROCESSING

(a) An agency shall require that an 
aggrieved person who believes that he has been 
discriminated against because o f race, color, 
religion, sex, or national origin consult with an 
Equal Employment Opportunity Counselor 
when he wishes to resolve the matter. The 
agency shall require the Equal Employment 
Opportunity Counselor to make whatever in­
quiry he believes necessary into the matter; to 
seek a solution o f the matter on an informal 
basis; to counsel the aggrieved person concern­
ing the issues in the matter; to keep a record of 
his counseling activities so as to brief periodi­
cally, the Equal Employment Opportunity Offi­
cer on those activities ; and, when advised that 
a complaint of discrimination has been accepted 
from an aggrieved person, to submit a written 
report to the Equal Employment Opportunity 
Officer, with a copy to the aggrieved person, 
summarizing his actions and advice both to the 
agency and the aggrieved person concerning the 
issues in the matter. The Equal Employment 
Opportunity Counselor shall, insofar as is prac­
ticable, conduct his final interview with the 
aggrieved person not later than 21 calendar 
days after the date on which the matter was 
called to his attention by the aggrieved person. 
I f  the final interview is not concluded within 
21 days and the matter has not previously been 
resolved to the satisfaction o f the aggrieved 
person, shall be informed in writing at that 
time of his right to file a complaint of discrimi­
nation. The notice shall inform the complainant 
o f his right to file a complaint at any time after 
receipt of the notice up to 15 calendar days 
after the final interview (which shall be so 
identified in writing by the Equal Employment 
Opportunity Counselor) and the appropriate 
official with whom to file a complaint. The 
Counselor shall not attempt in any way to re-



30a

strain the aggrieved person from filing a formal 
complaint. The Equal Employment Opportunity 
Counselor shall not reveal the identity of an 
aggrieved person who has come to him for con­
sultation, except when authorized to do so by 
the aggrieved person, until the agency has 
accepted a complaint of discrimination from 
him.

(b) The agency shall assure that full cooper­
ation is provided by all employees to the Equal 
Employment Opportunity Counselor in the per­
formance of his duties under this section.

(c) The Equal Employment Opportunity 
Counselor shall be free from restraint, inter­
ference, coercion, discrimination, or reprisal in 
connection with the peformance of his duties 
under this section.

§ 733 .214  FILING AND PRESENTATION OF 
COMPLAINT

(a) Time limits. (1) An agency shall require 
that a complaint be submitted in writing by the 
complainant or his representative and be signed 
by the complainant. The complaint may be de­
livered in person or submitted by mail. The 
agency may accept the complaint for processing 
in accordance with this subpart only if—

(i) The complainant brought to the 
attention of the Equal Employment Op­
portunity Counselor the matter causing 
him to believe he had been discriminated 
against within 30 calendar days of the date 
of that matter, or, if  a personnel action, 
within 30 calendar days of its effective 
date; and

(ii) The complainant or his represent­
ative submitted his written complaint to an 
appropriate official within 15 calendar days 
of the date of his final interview with the 
Equal Employment Opportunity Counselor.



31a

(2) The appropriate officials to receive com­
plaints are the head of the agency, the agency’s 
Director of Equal Employment Opportunity, 
the head of a field installation, an Equal Em­
ployment Opportunity Officer, a Federal Wom­
en’s Program Coordinator, and such other of­
ficials as the agency may designate for that pur­
pose. Upon receipt of the complaint, the agency 
official shall transmit it to the Director o f Equal 
Employment Opportunity or appropriate Equal 
Employment Opportunity Officer who shall ac­
knowledge its receipt in accordance with sub- 
paragraph (3) of this paragraph.

(3) A complaint shall be deemed filed on the 
date it is received, if delivered to an appropriate 
official, or on the date postmarked if addressed 
to an appronriate official designated to receive 
complaints. The agency shall acknowledge to the 
complainant or his representative in writing 
receipt of the complaint and advise the eom- 
plaintant in writing of all his administrative 
rights and of his right to file a civil action as 
set forth in § 713.281, including the time limits 
imposed on the exercise of these rights.

(4) The agency shall extend the time limits 
in this section: ” (i) When the complainant 
shows that he was not notified of the time limits 
and was not otherwise aware of them, or that 
he was prevented by circumstances beyond his 
control from submitting the matter within the 
time limits; or (ii) for other reasons considered 
sufficient by the agency.

(b) Presentation of complaint. At any stage 
in the presentation of a complaint, including 
the counseling stage under § 713.213, the com­
plainant shall have the right to be accompanied, 
represented, and advised by a representative o f 
his own choosing. I f  the complainant is an em­
ployee of the agency, he shall have a reasonable 
amount of official time to present his complaint 
if  he is otherwise in an active duty status. I f  
the complainant is an employee of the agency



32a

and ne designates another employee of the 
agency as his representative, the represent­
ative, shall have a reasonable amount of official 
time, if  he is otherwise in an active duty status, 
to present the complaint.

§ 713.215 REJECTION OR CANCELLATION OF 
COMPLAINT

The head of the agency or his designee may 
reject a complaint which was not timely filed 
and shall reject those allegations in a complaint 
which are not within the purview of § 713.212 or 
which set forth identical matters as contained in 
a previous complaint filed by the same com­
plainant which is pending in the agency or has 
been decided by the agency. He may cancel a 
complaint because of failure of the complainant 
to prosecute the complaint. He shall transmit 
the decision to reject or cancel by letter to the 
complainant and his representative. The de­
cision letter shall inform the complainant of his 
right to appeal the decision of the agency to the 
Commission and of the time limit within which 
the appeal may be submitted and of his right to 
file a civil action as described in § 713.281.

§ 713.216 INVESTIGATION

(a) The Equal Employment Opportunity 
Officer shall advise the Director o f Equal Em­
ployment Opportunity of the acceptance of a 
complaint. The Director of Equal Employment 
Opportunity shall provide for the prompt in­
vestigation of the complaint. The person as­
signed to investigate the complaint shall occupy 
a position in the agency which is not, directly 
or indirectly, under the jurisdiction of the head 
of that part of the agency in which the com­
plaint arose. The agency shall authorize the 
investigator to administer oaths and require 
that statements of witnesses shall be under



33a

oath or affirmation, without a pledge of confi­
dence. The investigation shall include a thor­
ough review of the circumstances under which 
the alleged discrimination occurred, the treat­
ment of members of the complainant’s group 
identified by his complaint as compared with 
the treatment of other employees in the orga­
nizational segment in which the alleged discrim­
ination occurred, and any policies and prac­
tices related to the work situation which may 
constitute, or appear to constitute, discrimina­
tion even though they have not been expressly 
cited by the complainant. Information needed 
for an appraisal of the utilization of members 
of the complainant’s group as compared to the 
utilization of persons outside the complainant’s 
group shall be recorded in statistical form in 
the investigative file, but specific information 
as to a person’s membership or nonmembership 
in the complainant’s group needed to facilitate 
an adjustment of the complaint or to make an 
informed decision on the complaint shall, if 
available, be recorded by name in the investi­
gative file. (As used in this subpart, the term 
“ investigative file”  shall mean the various doc­
uments and information acquired during the 
investigation under this section—including affi­
davits of the complainant, of the alleged dis­
criminating official, and of the witnesses and 
copies of, or extracts from, records, policy 
statements, or regulations of the agency—orga­
nized to show their relevance to the complaint 
or the general environment out of which the 
complaint arose.) I f  necessary, the investigator 
may obtain information regarding the member­
ship or nonmembership of a person in the 
complainant’s group by asking each person con­
cerned to provide the information voluntarily; 
he shall not require or coerce an employee to 
provide this information.

(b) The Director of Equal Employment 
Opportunity shall arrange to furnish to the



34a

person conducting the investigation a written 
authorization: (1) To investigate all aspects 
of complaints of discrimination, (2) to require 
all employees of the agency to cooperate with 
him in the conduct of the investigation, and
(3) to require employees o f the agency having 
any knowledge of the matter complained of to 
furnish testimony under oath or affirmation 
without a pledge of confidence.

§  713.217 ADJUSTMENT OP COMPLAINT AND 
OFFER OF HEARING

(a) The agency shall provide an opportunity 
for adjustment of the complaint on an informal 
basis after the complainant has reviewed the 
investigative file. For this purpose, the agency 
shall furnish the complainant a copy of the 
investigative file promptly after receiving it 
from the investigator, and provide opportunity 
for the complainant to discuss the investigative 
file with appropriate officials. I f  an adjustment 
of the complaint is arrived at, the terms of the 
adjustment shall be reduced to writing and 
made part of the complaint file, with a copy 
of the terms of the adjustment provided the 
complainant. I f  the agency does not carry out, 
or rescinds, any action specified by the terms 
of the adjustment for any reason not attributa­
ble to acts or conduct of the complainant the 
agency shall, upon the complainant’s written 
request, reinstate the complaint for further 
processing from the point processing ceased 
under the terms of the adjustment.

(b) I f  an adjustment of the complaint is not 
arrived at, the complainant shall be notified in 
writing: (1) Of the proposed disposition of 
complaint, (2) of his right to a hearing and 
decision by the agency head or his designee 
if  he notifies the agency in writing within 15 
calendar days of the receipt of the notice that 
he desires a hearing, and (3) of his right to a



35a

decision by the head of the agency or his des­
ignee without a hearing.

(c) I f  the complainant fails to notify the 
agency of his wishes within the 15-day period 
prescribed in paragraph (b) of this section, the 
appropriate Equal Employment Opportunity 
Officer may adopt the disposition of the com­
plaint proposed in the notice sent to the com­
plainant under paragraph (b) of this section 
as the decision of the agency on the complaint 
when delegated the authority to make a de­
cision for the head of the agency under those 
circumstances. When this is done, the Equal 
Employment Opportunity Officer shall transmit 
the decision by letter to the complainant and 
his representative which shall inform the com­
plainant of his right of appeal to the Commis­
sion and the time limit applicable thereto and 
of his right to file a civil action as described in 
§ 713.231. I f  the Equal Employment Opportu­
nity Officer does not issue a decision under this 
paragraph, the complainant, together with the 
complaint file shall be forwarded to the head 
of the agency, or his designee, for decision 
under §713.221.

§ 713.218 HEARING,

(a) Complaints examiner. The hearing shall 
be held by a complaints examiner who must be 
an employee of another agency except when the 
agency in which the complaint arose is: (1) 
The government of the District of Columbia, 
or (2) an agency which, by reason of law, is 
prevented from divulging information concern­
ing the matter complained of to a person who 
has not received the security clearance required 
by that agency, in which event the agency shall 
arrange with the Commission for the selection 
of an impartial employee of the agency to 
serve as complaints examiner. (For purposes 
of this paragraph, the Department of Defense



36a

is considered to be a single agency.) The agency 
in which the complaint arose shall request the 
Commission to supply the name of a complaints 
examiner who has been certified by the Com­
mission as qualified to conduct a hearing under 
this section.

(b) Arrangements for hearing. The agency in 
which the complaint arose shall transmit the 
complaint file containing all the documents 
described in § 713.222 which have been acquired 
up to that point in the processing of the com­
plaint, including the original copy of the inves­
tigative file (which shall be considered by the 
complaints examiner in making his recom­
mended decision on the complaint), to the com­
plaints examiner who shall review the complaint 
file to determine whether further investigation 
is needed before scheduling the hearing. When 
the complaints examiner determines that, fur­
ther investigation is needed, he shall remand the 
complaint to the Director of Equal Employ­
ment Opportunity for further investigation or 
arrange for the appearance of witnesses neces­
sary to supply the needed information at the 
hearing. The requirements of § 713.216 apply to 
any further investigation by the agency on” the 
complaint. The complaints examiner shall sched­
ule the hearing for a convenient time and place.

(c) Conduct of hearing. (1) Attendance at 
the hearing is limited to persons determined by 
the complaints examiner to have a direct con­
nection with the complaint.

(2) The complaints examiner shall conduct 
the hearing so as to bring out pertinent facts, 
including the production of pertinent docu­
ments. Rules of evidence shall not be applied 
strictly, but the complaints examiner shall ex­
clude irrelevant or unduly repetitious evidence. 
Information having a bearing on the complaint 
or employment policy or practices relevant to 
the complaint shall be received in evidence. 
The complainant, his representative, and the



37a

representatives of the agency at the hearing 
shall be given the opportunity to cross-examine 
witnesses who appear and testify. Testimony 
shall be under oath or affirmation.

(d) Powers of complaints examiner. In addi­
tion to the other powers vested in the com­
plaints examiner by the agency in accordance 
with this subpart, the agency shall authorize 
the complaints examiner to:

(1) Administer oaths or affirmations;
(2) Regulate the course of the hearing;
(3) Rule on offers of proof;
(4) Limit the number of witnesses whose 

testimony would he unduly repetitious; and
(5) Exclude any person from the hear­

ing for contumacious conduct or misbe­
havior that obstructs the hearing.

(e) Witnesses at hearing. The complaints ex­
aminer shall request any agency subject to this 
subpart to make available as a witness at the 
hearing an employee requested by the com­
plainant when he determines that the testimony 
of the employee is necessary. He may also 
request the appearance of an employee of any 
Federal agency whose testimony he determines 
is necessary to furnish information pertinent 
to the complaint under consideration. The com­
plaints examiner shall give the complainant his 
reasons for the denial of a request for the ap­
pearance of employees as witnesses and shall 
insert those reasons in the record of the hear­
ing. An agency to whom a request is made 
shall make its employees available as witnesses 
at a hearing on a complaint when requested to 
do so by the complaints examiner and it is not 
administratively impracticable to comply with 
the request. When it is administratively im­
practicable to comply with the request for a 
witness, the agency to whom request is made 
shall provide an explanation to the complaints 
examiner. I f  the explanation is inadequate, the



38a

complaints examiner shall so advise the agency 
and request it to make the employee available 
as a witness at the hearing. I f  the explanation 
is adequate, the complaints examiner shall in­
sert it in the record of the hearing, provide a 
copy to the complainant, and make arrange­
ments to secure testimony from the employee 
through a written interrogatory. An employee 
of an agency shall be in a duty status during 
the time he is made available as a witness.

( f )  Record of hearing. The hearing shall be 
recorded and transcribed verbatim. All docu­
ments submitted to, and accepted by, the com­
plaints examiner at the hearing shall be made 
part o f the record of the hearing. I f  the agency 
submits a document that is accepted, it .shall 
furnish a copy of the document to the complain­
ant. I f  the complainant submits a document 
that is accepted, he shall make the document 
available to the agency representative for 
reproduction.

(g) Findings, analysis, and recommendations. 
The complaints examiner shall transmit to the 
head of the agency or his designee: (1) The 
complaint file (including the record of the hear­
ing), (2) the findings and analysis of the com­
plaints examiner with regard to the matter 
which gave rise to the complaint and the gen­
eral environment out of which the complaint 
arose, and (3) the recommended decision of 
the complaints examiner on the merits of the 
complaint, including recommended remedial ac­
tion, where appropriate, with regard to the 
matter which gave rise to the complaint and 
the general environment out of which the com­
plaint arose. The complaints examiner shall 
notify the complainant o f the date on which 
this was done. In addition, the complaints ex­
aminer shall transmit, by separate letter to 
the Director of Equal Employment Oppor­
tunity, whatever findings and recommendations 
he considers appropriate with respect to con-



39a

ditions in the agency which do not bear directly 
on the matter which gave rise to the complaint 
or which bear on the general environment out 
of which the complaint arose.

§ 713.219 RELATIONSHIP TO OTHER AGENCY 
APPELLATE PROCEDURES

(a) Except as provided in paragraphs (b) 
and (c) of this section, when an employee 
makes a written allegation of discrimination 
on grounds of race, color, religion, sex, or na­
tional origin, in connection with an action that 
would otherwise be processed under a grievance 
or appeals system of the agency, the agency 
may process the allegation of discrimination 
under that system when the system meets the 
principles and requirements in §§ 713.212 
through 713.220 and the head of the agency, 
or his designee, makes the decision of the 
agency on the issue of discrimination. That 
decision on the issue of discrimination shall be 
incorporated in and become a part of the de­
cision on the grievance or appeal.

(b) An allegation of discrimination made in 
connection with an appeal under Subpart B of 
Part 771 of this chapter shall be processed 
under that subpart.

(c) An allegation o f discrimination made in 
connection with a grievance under Subpart C 
of Part 771 of this chapter shall be processed 
under this part.

§ 713.220 AVOIDANCE OF DELAY

(a) The complaint shall be resolved prompt­
ly. To this end, both the complainant and the 
agency shall proceed with the complaint with­
out undue delay so that the complaint is resolved 
within 180 calendar days after it was filed, in­
cluding time spent in the processing of the com­
plaint by the complaints examiner under 
§ 713.218.



40a

(b) The head of the agency or his designee 
may cancel a complaint if the complainant fails 
to prosecute the complaint without undue de­
lay. However, instead of canceling for failure 
to prosecute, the complaint may be adjudicated 
if sufficient information for that purpose is 
available.

(c) The agency shall furnish the Commission 
monthly reports on all complaints pending 
within the agency in a form specified by the 
Commission. I f  an agency has not issued a final 
decision, and has not requested the Commission 
to supply a complaints examiner, within 75 
calendar days from the date a complaint was 
filed, the Commission may require the agency 
to take special measures to insure prompt proc­
essing of the complaint or may assume re­
sponsibility for processing the complaint, in­
cluding supplying an investigator to conduct 
any necessary investigation on behalf of the 
agency. When the Commission supplies an in­
vestigator, the agency shall reimburse the Com­
mission for all expenses incurred in connection 
with the investigation and shall notify the com­
plainant in writing of the proposed disposi­
tion of the complaint no later than 15 calendar 
days after its receipt of the investigative report.

(d) When the complaints examiner has sub­
mitted a recommended decision finding discrim­
ination and the agency has not issued a final 
decision within 180 calendar days after the date 
the complaint was filed, the complaints ex­
aminer’s recommended decision shall become 
a final decision binding on the agency 30 calen­
dar days after its submission to the agency. In 
such event, the agency shall so notify the com­
plainant of the decision and furnish to him a 
copy of the findings, analysis, and recommended 
decision of the complaints examiner under 
§ 713.218(g) and a copy of the hearing record 
and also shall notify him in writing of his right



41a

of appeal to the Commission and the time limits 
applicable thereto and of his right to file a 
civil action as described in § 713.281.

§ 713.221 DECISION BY HEAD OF AGENCY OB 
DESIGNEE

(a) The head of the agency, or his designee, 
shall make the decision of the agency on a com­
plaint based on information in the complaint 
file. A person designated to make the decision 
for the head of the agency shall be one who is 
fair, impartial, and objective.

( b )  (1) The decision of the agency shall be 
in writing and shall be transmitted by letter to 
the complainant and his representative. When 
there has been no hearing, the decision shall 
contain the specific reasons in detail for the 
agency’s action, including any remedial action 
taken.

(2) When there has been a hearing on the 
complaint, the decision letter shall transmit a 
copy of the findings, analysis, and recommended 
decision of the complaints examiner under sec­
tion 713.218(g) and a copy of the hearing- 
record. The decision o f the agency shall adopt, 
reject, or modify the decision recommended by 
the complaints examiner. I f  the decision is to 
reject or modify the recommended decision, the 
decision letter shall set forth the specific rea­
sons in detail for rejection or modification.

(3) When there has been no hearing and no 
decision under § 713.217(c), the decision letter 
shall set forth the findings, analysis, and deci­
sion of the head of the agency or his designee.

(c) The decision of the agency shall require 
any remedial action authorized by law deter­
mined to be necessary or desirable to resolve 
the issues of discrimination and to promote the 
policy of equal opportunity, whether or not- 
there is a finding of discrimination. WTien dis­
crimination is found, the agency shall require-

594-115 0 - 7 5 - 8



42a

remedial action to be taken in accordance with 
§713.271, shall review the matter giving rise 
to the complaint to determine whether disciplin­
ary action against alleged discriminatory offi­
cials is appropriate, and shall record the basis 
for its decision to take, or not to take, disciplin­
ary action but this decision shall not be in­
cluded in the complaint file.

(d) The decision letter shall inform the com­
plainant of his right to appeal the decision of 
the agency to the Commission of his right to 
file a civil action in accordance with § 713.281, 
and of the time limits applicable thereto.

§ 713.222 COMPLAINT PILE

The agency shall establish a complaint file. 
Except as provided in § 713.221(c), this file 
shall contain all documents pertinent to the 
complaint. The complaint file shall include 
copies o f: (a) The notice of the Equal Employ­
ment Opportunity Counselor to the aggrieved 
person under § 713.213(a), (b) the written re­
port of the Equal Employment Opportunity 
Counsel under § 713.213 to the Equal Employ­
ment Opportunity Officer on whatever preeom- 
plaint counseling efforts were made with regard 
to the complainant’s ease, (c) the complaint,
(d ) the investigative file, (e) if the complaint 
is withdrawn by the complainant, a written 
statement of the complainant or his representa­
tive to that effect, ( f ) if adjustment o f the com­
plaint is arrived at under § 713.217, the written 
record of the terms of the adjustment, (g ) if  no 
adjustment of the complaint is arrived at under 
§ 713.217, a copy of the letter notifying the com­
plainant, of the proposed disposition o f the com­
plaint and o f his right to a hearing, (h) if  de­
cision is made under §713.217 (c), a copy of the 
letter to the complainant transmitting that deci­
sion, (i) if a hearing was held, the record of the 
hearing, together with the complaints ex-



43a

aminer’s findings, analysis, and recommended 
decision on the merits of the complaint, ( j )  if  
the Director of Equal Employment Opportu­
nity is not the designee, the recommendations, 
if any, made by him to the head of the agency 
or his designee, and (k) if decision is made 
under § 713.221, a copy of the letter transmit­
ting the decision of the head of the agency or 
his designee. The complaint file shall not con­
tain any document that has not been made 
available to the complainant or to his designated 
physician under § 294.401 of this chapter.

A p p e a l  to  t h e  C o m m is s io n

§ 713.231 ENTITLEMENT

(a) Except as provided by paragraph (b) 
of this section, a complainant may appeal to 
the Commission the decision of the head of the 
agency, or his designee:

(1) To reject his complaint, or a portion
■ thereof, for reasons covered by § 713.215; or

(2) To cancel his complaint because of 
the complainant’s failure to prosecute his 
complaint; or

(3) On the merits o f the complaint, 
under § 713.217(c) or §713.221, but the 
decision does not resolve the complaint to 
the complainant’s satisfaction.

(b) A  complainant may not appeal to the 
Commission under paragraph (a) of this sec­
tion when the issue of discrimination giving rise 
to the complaint is being considered, or has been 
considered, in connection with any other appeal 
by the complainant to the Commission.

§ 713.232 WHEKE TO APPEAL

The complainant shall file his appeal in writ­
ing, either personally or by mail, with the 
Board of Appeals and Review, U.S. Civil Serv­
ice Commission, Washington, D.C. 20415.



44a

§ 713.233 TIM ELIM IT

(a) Except as provided in paragraph (b) o f 
this section, a complainant may file an appeal 
at any time after receipt of his agency’s notice 
of final decision on his complaint but not later 
than 15 calendar days after receipt of that 
notice.

(b) The time limit in paragraph (a) of this 
section may be extended in the discretion o f the 
Board of Appeals and Review, upon a show­
ing by the complainant that he was not noti­
fied of the prescribed time limit and was not 
otherwise aware of it or that circumstances, 
beyond his control prevented him from filing an 
appeal within the prescribed time limit.

§ 713.234 APPELLATE PROCEDURES

The Board of Appeals and Review shall re­
view the complaint file and all relevant written 
representations made to the board. The board, 
may remand a complaint to the agency for fur­
ther investigation or a rehearing if it considers 
that action necessary or have additional investi­
gation conducted by Commission personnel. 
This subpart applies to any further investiga­
tion or rehearing resulting from a remand from 
the board. There is no right to a hearing before 
the board. The board shall issue a written deci­
sion setting forth its reasons for the decision 
and shall send copies thereof the complain­
ant, his designated representative, and the 
agency. When corrective action is ordered, the 
agency shall report promptly to the board that 
the corrective action has been taken. The deci­
sion of the board is final, but shall contain a 
notice of the right to file a civil action in ac­
cordance with § 713.282.

§ 713.235 REVIEW BY THE COMMISSIONERS

The Commissioners may, in their discretion,, 
reopen and reconsider anv previous decision



45a

when the party requesting reopening submits 
written argument or evidence which tends to 
establish that:

(1) New and material evidence is avail­
able that was not readily available when the
previous decision was issued;

(2) The previous decision involves an
erroneous interpretation of law or regula­
tion or a misapplication of established pol­
icy; or „

(3) The previous decision is of a prec­
edential nature involving a new or un­
reviewed policy consideration that may 
have effects beyond the actual case at hand, 
or is otherwise of such an exceptional na­
ture as to merit the personal attention of 
the Commissioners.

§ 713.236 RELATIONSHIP TO OTHER APPEALS

When the basis of the complaint of discrimi­
nation because of race, color, religion, sex, or 
national origin involves an action which is 
otherwise appealable to the Commission and the 
complainant having been informed by the agen­
cy o f his right to proceed under this subpart 
elects to proceed by appeal to the Com mi ssion, 
the case, including the issue of discrimination, 
will be processed under the regulations appro­
priate to that appeal when the complainant 
makes a timely appeal to the Commission in 
accordance with those regulations.

R epo rts  t o  t h e  C o m m is s io n

§ 713.241 REPORTS TO THE COMMISSION ON 
COMPLAINTS

Each agency shall report to the Commission 
information concerning precomplaint counsel­
ing and the status and disposition of complaints 
under this subpart at such times and in such 
manner as the Commission prescribes.



46a

T h ir d  P a r t y  A l l e g a t io n s

§ 713.251 THIRD-PARTY ALLEGATION OP 
DISCRIMINATION

(a) Coverage. This section applies to general 
allegations by organizations or other third par­
ties of discrimination in personnel matters with­
in the agency which are unrelated to an indi­
vidual complaint of discrimination subject to 
§§ 713.211 through 713.222.

(b) Agency procedure. The organization or 
other third party shall state the allegation with 
sufficient specificity so that the agency may in­
vestigate the allegation. The agency may re­
quire additional specificity as necessary to pro­
ceed with its investigation. The agency shall 
establish a file on each general allegation, and 
this file shall contain copies of all material used 
in making the decision on the allegation. The 
agency shall furnish a copy of this file to the 
party submitting the allegation and shall make 
it available to the Commission for review on 
request. The agency shall notify the party sub­
mitting the allegation of its decision, including 
any corrective action taken on the general al­
legations, and shall furnish to the Commission 
on request a copy of its decision.

(c) Commission procedures. I f  the  ̂ third 
party disagrees with the ageney decision, it 
may, within 30 davs after receipt of the de­
cision, request the Commission to review it. The 
request shall be in writing and shall set forth 
with particularity the basis for the request. 
When the Commission receives such a request, 
it shall make, or require the agency to make, 
any additional investigations the Commission 
deems necessary. The Commission shall issue a 
decision on the allegation ordering such cor­
rective action, with or without back pay, as it  
deems appropriate.



47a

F r e e d o m  F r o m  R e p r is a l  or  I n t e r f e r e n c e s

§ 713.261 FREEDOM FROM REPRISAL

(a) Complainants, their representatives, and 
witnesses shall be free from restraint interfer­
ence, coercion, discrimination, or reprisal at any 
stage in the presentation and processing of a 
complaint, including the counseling stage under 
section 713, or any time thereafter.

§ 713.262 REVIEW OF ALLEGATIONS OF REPRISAL

(a) Choice of review procedures. A  complain­
ant, his representative, or a witness who alleges 
restraint, interference, coercion, discrimination, 
or renrisial in connection with the presentation 
of a complaint under this subpart, may, if  an 
emplovee or annlicant, have the allegation re­
viewed as an individual complaint of discrimi­
nation subject to §§ 713.211 through 713.222 or 
as a charge subject to paragraph (b) of this 
section.

(b) Procedure for reviewr of charges. (1) An 
employee or applicant may file a charge of 
restraint, interference, coercion, discrimination 
or reprisal, in connection with the presentation 
of a complaint with an appropriate agency 
official as defined in § 713.214(a) (2) within 15 
calendar days of the date of the alleged occur­
rence. The charge shall be in writing and shall 
contain all pertinent facts. Except as provided 
in subparagraph (2) of this paragraph, the 
agency shall undertake an appropriate inquiry 
into such a charge and shall forward to the 
Commission within 15 calendar days of the 
date of its receipt a copy of the charge and 
report of action taken. The agency shall also 
provide the charging party with a copy of the 
report o f action taken. When the agency has 
not completed an appropriate inquiry 15 calen­
dar days after receipt of such a charge, the



48a

charging party may submit a written statement 
with all pertinent facts to the Commission, and 
the Commission shall require the agency to take 
whatever action is appropriate.

(c) When a complainant, after completion 
of the investigation of his complaint under 
§ 713.216, requests a hearing and in connection 
with that complaint alleges restraint, interfer­
ence, coercion, discrimination, or reprisal, the 
complaints examiner assigned to hold the hear­
ing shall consider the allegation as an issue in 
the complaint at hand or refer the matter to 
the agency for further processing under the 
procedure chosen by the complainant pursuant 
to paragraph (a) of this section.

R e m e d ia l  A c t io n s

§ 713.271 REMEDIAL ACTIONS

(a) Remedial action involving an applicant.
(1) When an agency, or the Commission, finds 
that an applicant for employment has been dis­
criminated against and except for that discri­
mination would have been hired, the agency 
shall offer the applicant employment of the 
type and grade denied him. The offer shall be 
made in writing. The individual shall have 15 
calendar days from receipt of the offer within 
which to accept or decline the offer. Failure to 
notify the agency of his decision within the 15- 
day period will be considered a declination of 
the offer, unless the individual can show that 
circumstances beyond his control prevented 
him from responding within the time limit. I f  
the offer is accepted, appointment shall be re­
troactive to the date the applicant would have 
been hired, subject to the limitation in sub- 
paragraph (4) of this paragraph. Backpay, 
computed in the same manner prescribed by 
§ 550.804 of this chapter, shall be awarded from 
the beginning of the retroactive period, subject 
to the same limitation, until the date the indi-



49a

vidual actually enters on duty. The individual 
shall be deemed to have performed service for 
the agency during this period of retroactivity 
for all purposes except for meeting service re­
quirements for completion of a probationary or 
trial period that is required. I f  the offer is 
declined, the agency shall award the individual 
a sum equal to the backpay he would have re­
ceived, computed in the same manner pres­
cribed by §550.804 of this chapter, from the 
date he would have been appointed until the 
date the offer was made, subject to the limita­
tion of subparagraph (4) of this paragraph. 
The agency shall inform the applicant, in its 
offer, of his right to this award in the event he 
declines the offer.

(2) When an ageney, or the Commission, 
finds that discrimination existed at the time 
the applicant was considered for employment 
but does not find that the individual is the one 
who would have been hired except for discri­
mination, the agency shall consider the indivi­
dual for any existing vacancy o f  the type and 
grade for which he had been considered initi­
ally and for which he is qualified before con­
sideration is given to other candidates. I f  the 
individual is not selected, the agency shall 
record the reasons for nonselection. I f  no va­
cancy exists, the agency shall give him this pri­
ority consideration for the next vacancy for 
which he is qualified. This priority shall take 
precedence over priorities provided under other 
regulations in this chapter.

(3) This paragraph shall be cited as the au­
thority under which the above-described ap­
pointments or awards of backpay shall be made.

(4) A  period of retroactivity or a period 
for which backpay is awarded under this para­
graph may not extend from a date earlier than 
2 years prior to the date on which the complaint 
was initially filed by the applicant. I f  a finding 
of discrimination was not based on a complaint, 
the period of retroactivity or period for which



50a

backpay is awarded this paragraph may not 
extend earlier than 2 years prior to the date 
the finding of discrimination was recorded.

(b) Remedial action involving an employee. 
When an agency, or the Commission, finds that 
an employee of the agency was discriminated 
against and as a result of that discrimination 
was denied an employment benefit, or an ad­
ministrative decision 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:

(1) Retroactive promotion, with back­
pay computed in the same manner pre­
scribed by § 550.804 of this chapter, when 
the record clearly shows that but for the 
discrimination the employee would have 
been promoted or would have been em­
ployed 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. I f  a finding of 
discrimination was not based on a com­
plaint, the backpay liability may not ac­
crue from a date earlier than 2 years prior 
to the date the finding of discrimination 
was recorded, but, in any event, not to ex­
ceed the date he would have been promoted.

(2) Consideration for promotion to a po­
sition for which he is qualified before con­
sideration is given to other candidates when 
the record shows that discrimination ex­
isted at the time selection for promotion was 
made but it is not clear that except for the 
discrimination the employee would have been 
promoted. I f  the individual is not selected, 
the agency shall record the : reasons for 
nonseleetion. This priority consideration 
shall take precedence over priorities under 
other regulations in this chapter.



51a

(3) Cancellation of an unwarranted per­
sonnel action and restoration of the 
employee.

(4) Expunction from the agency’s rec­
ords of any reference to or any record of 
an unwarranted disciplinary action that is 
not a personnel action.

(5) Full opportunity to participate in 
the employee benefit denied him (e.g., 
training, preferential work assignments, 
overtime scheduling).

R i g h t  T o F il e  a  C i v i l  A c t io n

§ 713.281 STATUTORY RIGHT

An employee or applicant is authorized by 
section 717(c) of the Civil Rights Act, as. 
amended, 84 Stat. 112, to file a civil action in an 
appropriate U.S. District Court within:

(a) Thirty (30) calendar days of his receipt 
of notice of final action taken by his agency on 
a complaint.

(b) One hundred-eighty (180) calendar days 
from the date of filing a complaint with his; 
agency if  there has been no decision.

(c) Thirty (30) calendar days of his receipt 
of notice o f final action taken by the Commis­
sion on his complaint, or,

(d) One hundred-eighty (180) calendar days, 
from the date of filing an appeal with the Com­
mission if  there has been no Commission 
decision.

§ 713.282 NOTICE OF RIGHT

An agency shall notify an employee or appli­
cant of his right to file a civil action, and of the- 
30-day time limit for filing, in any final action 
on a complaint under §§ 713.215 and 713.217, or- 
§ 713.221. The Commission shall notify an em­
ployee or applicant of his right to file a civil



52a

action, and of the 30-day time limit for filing, 
in any decision under § 713.234.

§ 713.283 EFFECT ON ADMINISTRATIVE 
PROCESSING

The filing of a civil action by an employee or 
applicant does not terminate agency processing 
o f a complaint or Commission processing of an 
appeal under this subpart.

U n it e d  S t a t e s  C i v i l  S e r v ic e  C o m m i s s i o n ,
[ s e a l ]  J a m e s  C . S p r y ,

Executive Assistant to the Commissioners.

[F R  D oc. 72-18054 F iled  1 0 -20 -72 ; 8 :49 am ]



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A p p e n d ix  C

A p p e a l s  R e v ie w  B o a r d  D is p o s it io n  o f  E E O  A p p e a l s

TOTAL APPEALS CLOSED

AFFIRMED AGENCY DECISION

A g e n c y  fo u n d  n o  d i s c r i m i n a t i o n  
A g e n c y  f o u n d  n o  d i s c r i m i n a t i o n  (b u t  

f u r t h e r  c o r r e c t i v e  a c t i o n  
re co m m e n d e d  b y  ARB,)

A g e n c y  f o u n d  d i s c r i m i n a t i o n  
A g e n c y  f o u n d  d i s c r i m i n a t i o n  ( f u r t h e r  

c o r r e c t i v e  a c t i o n  re co m m e n d e d  b y  ARB) 
A g e n c y  f o u n d  c o m p l a i n t  u n t i m e l y  o r  n o t  

w i t h i n  p u r v ie w  o f  r e g u l a t i o n s

REVERSED AGENCY DECISION

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

w i t h i n  p u r v ie w  o f  r e g u l a t i o n s  
I m p r o p e r  r e j e c t i o n  o r  c a n c e l l a t i o n  

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

REMANDED TO AGENCY FOR FURTHER 
INVESTIGATION OR REHEARING

FY 1 9 7 3 FY 1 9 7 4 FY 1 9 7 5

6 7 7 7 27 7 4 9

6 0 8 595 5 6 4

4 5 4 42  7 3 7 1

11 12 34
3 4 4

9 4 11

1 3 1 1 4 8 1 4 4

4 4 50 74

i i 18 16

21 2 3 23

7 2 32
5 7 3

2 5 82 i n

1/ Excludes appeals cancelled by complainant before decision or rejected by Board as untimely.



f