Houseton v. Cleland Motion for Leave to File and Brief Amicus Curiae
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June 9, 1980

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Brief Collection, LDF Court Filings. Houseton v. Cleland Motion for Leave to File and Brief Amicus Curiae, 1980. 2de89079-b89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/803eef3b-5799-4bde-9192-6cc1a1e1a27c/houseton-v-cleland-motion-for-leave-to-file-and-brief-amicus-curiae. Accessed July 02, 2025.
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IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No, 80-5033 ANNIE HOUSETON, Plaintiff-Appellee, - v - MAX CLELAND, et al,, Defendants-Appellants. MOTION FOR LEAVE TO FILE BRIEF OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., AS AMICUS CURIAE, AND BRIEF AMICUS CURIAE JACK GREENBERG CHARLES STEPHEN RALSTON 10 Columbus Circle Suite 2030 New York, N.Y, 10019 (212) 586-8397 Attorneys for Amicus Curiae Table of Cases Page Brown v. G.S.A., 425 U.S. 820 (1976)...................... 2 Chandler v. Johnson, 515 F.2d 251 (9th Cir. 1975), rev'd sub nom., Chandler v. Roudebush, 425 U.S. 840 (1976) ........ 2 Chandler v. Roudebush, 425 U.S. 840 (1976)................ 2 Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976)............ 3 Eastland v. Tennessee Valley Authority, 553 F.2d 364 (5th Cir. 1977)............................................... 2 Fischer v. Adams, 572 F.2d 406 (1st Cir. 1978)............ 3 Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir. 1975).......... 2, 6 Hackley v. Johnson, 360 F. Supp. 1247 (D.D.C. 1973), rev1d sub nom. Hackley v. Roudebush, 520 F.2d 108 (D.C. Cir. 1975)................................................... 2 Jeffrey v. Harris, D.D.C., C.A. No. 77-2124 . ............ 3 Parker v. Califano, 561 F.2d 320 (D.C. Cir. 1977) ........ 2 Salone v. United States, 511 F.2d 902 (10th Cir. 1975), vac. and remanded, 426 U.S. 917 (1976)........................2 Williams v. T.V.A., 552 F.2d 691 (6th Cir. 1977).......... 2 Other Authorities 5 C.F.R. § 713.271 3' 29 C.F.R. § 1613.271.....................................3, 5 42 U.S.C. § 2000e-16 ............ 1 Senate Report No. 92-415, 92d Cong., 1st Sess. 4 l IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 80-5033 ANNIE HOUSETON, Plaintiff-Appellee, - v - MAX CLELAND, et al., Defendants-Appellants. MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE ON BEHALF OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC, 1 Movant NAACP Legal Defense and Educational Fund, Inc., respectfully moves the Court, pursuant to Rule 29 F.R.A. Proc., for permission to file the attached brief amicus curiae, for the following reasons. The reasons assigned also disclose the interest of the amicus. (1) Movant NAACP Legal Defense and Educational Fund, Inc., is a non-profit corporation, incorporated under the laws of the State of New York in 1939. It was formed to assist Blacks in securing their consti tutional rights by the prosecution of lawsuits. Its charter declares that its purposes include rendering legal aid gratuitously to Blacks suffering injustice by reason of race who are unable, on account of poverty, to employ legal counsel on their own behalf. The charter was approved by a New York Court, authorizing the organization to serve as a legal aid society. The NAACP Legal Defense and Educational Fund, Inc. (LDF), is independent of other organizations and is supported by contributions from the public. For many years its attorneys have represented parties and has participated as amicus curiae in the federal courts in cases involving many facets of the law. (2) Attorneys employed by movant have represented plaintiffs in many cases arising under Title VII of the Civil Rights Act of 1964 in both individual cases, e,g., McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Furnco Consti tution Corp, y. Waters, 438 U.S. 567 (.1978); and in class actions, e.g., Albemarle Paper Co, v. Moody, 422 U.S. 405 (1975); Franks y. Bowman Transp. Co., 424 U.S, 747 (1976). They have appeared in a variety of Title VII cases involving agencies of the federal government both as counsel for plaintiffs, e.g., Saunders 2 v. Claytor, 9th Cir. No. 79-4373 (appeal pending); Foster v. Boorstin, 561 F.2d 340 (D.C. Cir. 1977); Williams v. Tennessee Valley Authority, 552 F.2d 691 (6th Cir. 1977); Barrett v. United States Civil Service Commission, 69 F.R.D. 544 (D.D.C, 1975); and as amicus curiae; e.g., Chandler v. Roudebush, 425 U.S. 840 (1976); Hackley v. Roudebush, 520 F .2d 108 (D.C. Cir. 1975) . (3) Through their extensive participation in Title VII cases, attorneys for amicus have acquired substantial expertise concerning the system for the administrative processing of federal EEO complaints and that system's relationship to court proceedings. There fore, we believe that our views on the issues before the Court will be helpful in their resolution, WHEREFORE, for the foregoing reasons it is moved that the NAACP Legal Defense and Educational Fund, Inc. be given leave to file the attached brief amicus curiae. CHARLES STEPHEN RALSTON 10 Columbus Circle Suite 2030 New York, N„Y, 10Q19 (212) 586-8397 Attorneys for Amicus Curiae IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 80-5033 ANNIE HOUSETON, Plaintiff-Appellee, - v - MAX CLELAND, et al., Defendants-Appellants. BRIEF OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., AS AMICUS CURIAE As indicated in the Motion for Leave to file the present brief, the Legal Defense Fund has a continuing interest in the effective enforcement of Title VII rights on behalf of federal employees, both at the administrative and judicial levels. The history of federal employee Title VII enforcement since the statute was made applicable to the federal govern- 1/ment in 1972 has, unfortunately, been in large part a history of the government's taking a variety of positions that would undermine the statute's effectiveness by lessening the procedural and substantive rights of federal 1/ Section 717 of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16. employees. Thus, for many years the government argued that federal employees were not entitled to a trial de novo in district court when they had lost administratively. Rather the court's role was simply to review the administrative record and approve it if the decision was substantially supported by that record. See, e .g., Chandler v. Johnson, 515 F.2d 251 (9th Cir. 1975) , rev1d sub nom., Chandler v. Roudebush, 425 U.S. 840 (1976); Salone v. United States, 511 F.2d 902 (10th Cir. 1975), vac, and remanded, 426 U.S. 917 (1976); Hackley v. Johnson, 360 F. Supp. 1247 (D.D.C. 1973), rev'd sub . 2 7 ~nom., Hackley v. Roudebush, 520 F,2d 108 (D.C. Cir. 1975). In the present case the government has gone the other way, having lost the trial de novo issue in Chandler v. Roudebush. They now seek a rule of law that would significantly diminish 2/ Similarly, the government argued, for example, that a federal employee could not maintain a class action, that if a suit were filed because there had been no final agency action in 180 days, the matter should be remanded for completion of the administrative process and that counsel fees could not be awarded for work done in the administrative process. All of these arguments were eventually rejected by the courts. See, Eastland v. Tennessee Valley Authority, 553 F.2d 364 (5th Cir. 1977); Williams v. Tennessee Valley Authority, 552 F.2d 691 (6th Cir. 1977); Grubbs v. Butz, 514 F ,2d 1323 (D.C. Cir. 1975); Parker v. Califano, 561 F.2d 320 (D.C. Cir. 1977). 2 the rights of a federal employee who has prevailed adminis tratively. Under Title VII the government has no right to file in court to seek any type of review of an adverse decision, 3/ either by the agency or by the administrative reviewing body. Thus, if the only question raised by a plaintiff who has won an administrative finding of discrimination is the scope of relief, the government is not entitled to a trial de_ novo of 1/the finding of discrimination. The rule that the government cannot relitigate an 3/ Until January 1979, administrative appeals were heard by the Appeals Review Board of the Civil Service Commission (5 C.F.R. § 713.234); they are now heard by the Office of Appeals and Review of the Equal Employment Opportunity Commission (29 C.F.R. § 1613.234). 4/ There have typically been two types of cases in which the relief afforded administratively has been inadequate, thus necessitating the filing of an action in court for the sole purpose of obtaining full relief, (1) Prior to December, 1978, 5 C.F.R. § 713.271 allowed the award of back pay only if the administrative record contained clear and convincing evidence that the person would have been hired or promoted if there had been no discrimination. This rule was directly contrary to Title VII law, which requires a back pay award unless there is clear and convincing evidence that the complainant would not have been hired or promoted in the absence of discrimination. See, Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976). The Civil Service Commission amended the rule in response to litigation (Jeffrey v. Harris, D.D.C., C.A. No. 77-2124), to bring it into conformity with Title VII. 29 C.F.R. § 1613.271. (2) The regulations made no provision for the award of attorneys' fees administratively until April 11, 1980 when new regulations were proposed. See, 45 F.R. pp. 24130 et seq, Thus, it was necessary to file an action in court just to get fees. See, e.g., Fischer v. Adams, 572 F.2d 406 (1st Cir. 1978). 3 administrative determination of discrimination is both in accord with Congressional purpose and supported by sound policy con siderations. One of Congress' main concerns when it amended Title VII in 1972 was the strengthening of the administrative en forcement of the EEO rights of federal employees. Therefore, in section 717(b) it gave the Civil Service Commission broad authority to establish a regulatory scheme that could result in 5/ federal employees having an effective administrative remedy. To the extent that the effectiveness of the administrative remedy is undermined, the result will be that the courts will have to take on the full burden of enforcing the Title VII rights of federal employees by otherwise unnecessary and time consuming litigation. 5/ Thus, the Senate Committee was critical of the existing system, but expressed hope for the future: The testimony before the Labor Sub committee reflected a general lack of con fidence in the effectiveness of the complaint procedure on the part of Federal employees. Complaints have indicated skepticism regarding the Commission's record in obtaining just reso lutions of complaints and adequate remedies. This has, in turn, discouraged persons from filing complaints with the Commission for fear that doing so will only result in antagonizing their supervisors and impairing any future hope of advancement. The new authority given to the Civil Service Commission in the bill is intended to enable the Commission to reconsider its entire complaint structure and the relationships between the employee, agency and Commission in these cases. Senate Report No. 92-415, on the Equal Employment Opportunities Enforcement Act of 1971, 92d Cong., 1st Sess., at p. 14. 4 If the position of the government in the present case is upheld, however, the finality and enforceability of adminis trative determinations of discrimination will be, as a practical matter, destroyed. If an agency loses an administrative appeal, all it need do is petition the Equal Employment Opportunity Commission to reopen. Because of the backlog of cases the EEOC, as in this case, may take months or years to act on the petition. The complainant will then be put in a difficult, if not impossible, situation since, contrary to the government's brief,the filing of the petition does not render the appeals board's decision non final . To the contrary, under the regulations, the complain ant will have been told that he or she has 30 days in which to 6/ file in court. If for example, the relief granted is not adequate or the agency is not complaying with the order granting relief, the complainant must choose between irrevocably losing 6/ 29 C.F.R. §§ 1613.281 and 1613.282 provide that the com plainant will be sent a 30-day suit letter after a final agency decision under §§ 1613,215, 1613,217, 1613,220, or 1613.221, or a decision of the Office of Appeals and Review of the EEOC under § 1613.234. Thus, a complainant is told that the decision of the Office is the final administrative step and is not given a 30-day letter after an EEOC decision either granting or denying a petition to reopen under § 1613,235. 5 the right to go into federal court or going to court and having to relitigate a favorable administrative deter- mination of discrimination and risk losing the entire case. Further, such a result would conflict with Congress' attempts to address another of Congress' main concerns, which was with the long delays in the adminis trative process of complaints. Under the statute a com plainant has the right to go to court and have his claims adjudicated if either the agency or the EEOC has failed to act on a complaint or an appeal within 180 days. The present case had already taken a period of time far in excess'of the 180 days provided in the statute. When plaintiff filed in court seeking enforcement of the relief ordered administra tively, the result of the EEOC petition was to delay the matter for more than a year. It was only after giving the Commission every opportunity to act that the district court decided that any further delay would irrevocably injure the plaintiff and ordered the relief to which she was entitled. This result was fully consistent with the decision in Grubbs v. Butz, 54 8 F. 2d 975 (D.C. Cir, 197 5)., which held that after the expiration of the 180 day period, the complainant has the absolute right to seek relief in court without a delay or 7/ See, Brown v . G.S.A, , 425 U.S. 82Q (.1976). 6 remand for completion of the administrative process. In summary, amicus urges that the adoption of the government's position in this case will destroy the effec tiveness of the administrative processing of EEO cases by allowing agencies to delay indefinitely the implementation of administrative determinations that there has been discrimina tion. Agencies will achieve by indirection that which the statute does not give them— judicial relitigation of adverse decisions by forcing complainants to file court actions or risk losing their Title VII rights completely. The result will be to thrust unnecessarily lengthy litigation on already over burdened district courts. CONCLUSION For the foregoing reasons the decision below should be affirmed. Respectfully submitted, JACK GREENBERG CHARLES STEPHEN RALSTON 10 Columbus Circle Suite 2030 New York, N.Y. 10019 (212) 586-8397 Attorneys for Amicus Curiae CERTIFICATE OF SERVICE I hereby certify that I have served copies of the foregoing Motion for Leave to File Brief Amicus Curiae and Brief Amicus Curiae by depositing the same in the United States mail, first class mail pre-paid, addressed as follows: Alice Daniel, Assistant Attorney General Andrea Sheridan Ordin, United States AttorneyRobert E. Kopp, Katherine Gruenheck, AttorneysCivil Division, Room 3631, Department of Justice 'Washington, D.C. 20530 Attorneys for Appellants Stuart P. Herman, Esq. Richman, Sacks, Herman & Twitty 9601 Wilshire Boulevard Beverly Hills, California 9Q210 Attornevs for Appellee Defense and Educational Fund, Inc,, as Amicus Curiae