Place v. Weinberger Petition for a Writ of Certiorari

    I n  t h e

(Umirt of tltr States
October T erm, 1974 

No..................

D iane M. Place, 

v.
Petitioner,

Caspar W eineerger, et at.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Jack Greenberg 
James M. Nabrit, III 
B arry Goldstein 
E ric S chnapper

10 Columbus Circle 
New York, New York 10019

Irving Stahl 
James P. Gregory

1850 Guardian Building 
Detroit, Michigan 48226

Counsel for Petitioner



I N D E X

Opinions B elow ................................... „ .............................  1

Jurisdiction .........................................................................  1

Question Presented ...........................................................  2

Statutory Provisions Involved ........................................  2

Statement of the Case ...................................................... 4

Reasons for Granting the Writ ......................................  6

Conclusion ................................. - .....................................  24

A ppendix—

Opinion of the District C ourt..................................  la

Opinion of the Sixth Circuit Court of Appeals .... 11a

Opinion of the Fourth Circuit Court of Appeals 
in Roger v. Ball ...................................................... 18a

T able of A uthorities

Cases:

Ballard v. Laird, 6 EPD 8793 (S.D. Cal. 1973)........... 20
Beale v. Blount, 461 F.2d 1133 (5th Cir. 1972)...........15,16
Bradley v. School Board of the City of Richmond, 40

L.Ed. 2d 476 (1974) .............................................. 17,18,19
Brady v. Bristol-Meyers, 452 F.2d 621 (8th Cir. 1972) 17
Brown v. Gaston County Dyeing Machine Co., 457 F.2d

1377 (4th Cir. 1972), cert, denied 409 U.S. 982......... 17
Brown v. General Services Administration, (2d Cir.

No. 73-2628) ..................................................................16,19

PAGE



11

Chambers v. United States, 451 F.2d 1045 (Ct. Cl.
1971) .........................................................- ......14,15,16,21

Cole v. Young, 351 U.S. 536 (1956) ................................  20
Cortright v. Eeasor, 325 F.Supp. 797 (E.D.N.Y. 1971) 16

Fears v. Catlin, 7 EPD fl 9135 (D. Colo. 1974) ...........13,14
Feiger v. Warner, 7 EPD 9140 (S.D. Cal. 1974).......  14
Ficklin v. Sabatini, 7 EPD 9307 (E.D. Pa. 1974)....... 13
Freeman v. Defense Construction Supply Center, 5

EPD IT 8526 (S.D. Ohio 1972) ......................................  12
Frontiero v. Richardson, 411 U.S. 677 (1973) ............... 6

Gautier v. Weinberger, 6 EPD 9001 (D.D.C. 1973).... 13 
Gnotta v. United States, 415 F.2d 1271 (8th Cir. 1969)

cert, denied 397 U.S. 934 .................9,10,11,14,15, 20, 21
Grubbs v. Butz, 6 EPD TT 8763 (D.D.C. 1973)............... 13

Hackley v. Johnson, 360 F. Supp. 1247 (D.D.C. 1973)..13,19
Harrison v. Butz, 5 EPD 8632 (D.D.C. 1973).....13,14,18
Hassett v. Welch, 303 U.S. 303 (1938) ........................... 18
Henderson v. Defense Contract Administration, 7 EPD

9058 (S.D.N.Y. 1973) ............................................... 13,19
Hill-Vincent v. Richardson, 359 F.Supp. 308 (N.D. 111. 

1973) ................................................................................. 14

Jackson v. United States Civil Service Commission, 7
EPD Tf 9134 (S.D. Tex. 1973) ...............................13,14,18

Jalil v. Hampton, 4 EPD 7706 (D.D.C. 1972) ...........  20
Johnson v. Froehlke, 5 EPD 8638 (D. Md. 1973)....12,13
Johnson v. Lybecker, 7 EPD 9191 (D.Ore. 1974).....13,14
Johnson v. University of Pittsburgh, 359 F.Supp. 1002

(W.D. Pa. 1973) .............................................................  14
Jones v. United States, 7 EPD fl 9382 (D.D.C. 1974) 14

PAGE



I l l

Koger v. Ball, 7 EPD fl 9360 (4th Cir. 1974) ...............11,12,
14,18,19

Linkletter v. Walker, 381 U.S. 618 (1965) ....................... 18

Morton v. Mancari, 41 L.Ed. 2d 290 (1974) ...................10,19
Mosley v. United States, 6 EPD U 8875 (S.D. Cal. 

1973) ...............................................................................12,14

Nimitz v. Berzak, 7 EPD 9273 (E.D. La. 1974) ........... 14

Palmer v. Rogers, 6 EPD fl 8822 (D.D.C. 1973) ...........14,16
Penn v. Schlesinger, 490 F.2d 700 (5th Cir. 1973) .........  16
Petit v. United States, 6 EPD U 9035 (Ct. Cl. 1973) ....15, 21 
Petterway v. Veterans Administration, 8 EPD 9437

(5th Cir. 1974).................................................................  16
Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) 23
Pointer v. Sampson, 5 EPD 8610 (D.D.C. 1973) .......  13

Reed v. Reed, 404 U.S. 71 (1971) ......................................  6

Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir.
1970), cert, denied 401 U.S. 948 (1971) ....................... 16

Service v. Dulles, 354 U.S. 363 (1957)..............................  20
Sperling v. United States, 7 EPD fl 9274 (D.N.J. 1974) 20

Thorn v. Richardson, 4 EPD 7630 (W.D. Wash. 1971) 16
Thorpe v. Housing Authority of the City of Durham,

393 U.S. 268 (1969) ......................................................17,18

United States v. Consolidated Edison Co., 366 U.S. 380
(1961) ..................................................    16

United States v. Lindsay, 346 U.S. 568, 571 (1954) ....... 18

PAGE

Vitarelli v. Seaton, 359 U.S. 535 (1959) 20



IV

Walker v. Kliendienst, 357 F.Supp. 749 (D.D.C. 1973) 12,
13,18

Waterman S.S. Corp. v. United States, 381 U.S. 252
(1965) ..............................................................................  16

Waters v. Peterson, 6 EPD 8900 (D.D.C. 1973) .......  20
Waters v. Wisconsin Steel Works, 427 F.2d 476 (7th

Cir. 1970) cert, denied 400 U.S. 911 (1970) .............. 17, 20
Williams v. Zuckert, 371 U.S. 531 (1963) ....................... 20

Young v. International Telephone and Telegraph Co.,
438 F.2d 737 (3d Cir. 1971) .......................................... 16

PAGE

Statutes:

5 U.S.C. § 702 ................................................................... 13

5 U.S.C. § 703 ................................................................... 23

5 U.S.C. § 3502 ................................................................. 23

5 U.S.C. § 5332 ................................................................. 23

5 U.S.C. § 5335 ................................................................. 23

5 U.S.C. § 5337 ................................................................. 23

5 U.S.C. § 6303 ................................................................. 23

5 U.S.C. i§ 7151 .................................................................  3, 7

5 U.S.C. § 8336 .................................................................  23

5 U.S.C. § 8337 ................................................................. 23

5 U.S.C. § 8339 ................................................................. 23

5 U.S.C. § 8341 ................................................................. 23

5 U.S.C. § 8502 ................................................................. 23

5 U.S.C. § 8704 ................................................................. 23



V

28 U.S.C. §1254(1) ............................................................ 1

28 U.S.C. § 1331 ......................................................... 16, 20, 23

28 U.S.C. § 1346  ...... .............................................. 5,13, 20, 23

28 U.S.C. § 1361 ............................................................... 16, 23

42 U.S.C. § 2000e-16, Section 717, Title VII, 1964 Civil 
Rights Act ................................................................... passim

Classification Act of 1923 .................................................. 7

PAGE

Executive Orders:

Executive Order 11375 ...................................................... 7

Executive Order 11478 ..................................................3, 5,14

Legislative Materials:

S. Rep. No. 92-415, 92nd Cong., 1st Sess.........................  8, 9

H. Rep. No. 92-238, 92nd Cong., 1st Sess......................... 7, 9

Hearing on S. 333 Before a Subcommittee of the 
Senate Judiciary Committee, 91st Cong., 2d Sess.
(1970) ............................................................................. 10,20

Hearings Before a Subcommittee of the Senate Com­
mittee on Labor & Public Welfare, 92nd Cong., 1st 
Sess. (1971) ................................................................... 20,22

Hearings Before a Subcommittee of the House Com­
mittee on Education and Labor, 92nd Cong., 1st Sess.
(1971) ...............................................................................  21



VI

Hearings Before a Subcommittee of the House Com­
mittee on Education and Labor, 91st Cong., 1st and

PAGE

2nd Sess. (1969-70) .....   21

Other Materials:

United States Civil Service Commission, Federal Civil­
ian Employment: Women, 1972 Study .....................  5,9

United States Civil Service Commission, Study of Em­
ployment of Women in the Federal Government,
1968 .................................................................................5,7,9



I n  t h e

^itprnnp (Unitrt 0! tbr Uttttrii t̂atPB
October T erm, 1974 

No.................

D iane M. Place,

y.
Petitioner,

Caspar W einberger, et al.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

The petitioner, Diane Place, respectfully prays that a 
Writ of Certiorari issue to review the judgment and opinion 
of the United States Court of Appeals for the Sixth Circuit 
entered in this proceedings on May 15, 1974.

Opinions Below

The opinion of the Court of Appeals, which is not yet 
reported, is reprinted in 7 EPD 1J9367 and in the Appendix 
hereto, infra, at pp. lla-17a. The opinion of the District 
Court, which is not reported, is reprinted in 6 EPD H9010, 
and is set out in the Appendix hereto, infra, at pp. la-lOa.

Jurisdiction

The judgment of the Court of Appeals was entered on 
May 15, 1974. Jurisdiction of this Court is invoked under 
28 U.S.C. §1254(1).



2

Question Presented

Did the District Court have jurisdiction to remedy dis­
crimination in employment on the basis of sex by the 
United States, where the discrimination was alleged to have 
occurred prior to March 24, 1972, the effective date of the 
Equal Employment Opportunity Act of 1972?

Statutory Provisions Involved

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

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

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

(c) Within thirty days of receipt of notice of final 
action taken by a department, agency, or unit referred



3

to in subsection 717(a), or by the Civil Service Com­
mission upon an appeal from a decision or order of 
such department, agency, or unit on a complaint of 
discrimination based on race, color, religion, sex, or 
national origin, brought pursuant to subsection (a) of 
this section, Executive Order 11478 or any succeeding 
Executive orders, or after one hundred and eighty days 
from the filing of the initial charge with the depart­
ment, agency, or unit or with the Civil Service Com­
mission on appeal from a decision or order of such 
department, agency, or unit until such time as final 
action may be taken by a department, agency, or unit, 
an employee or applicant for employment, if aggrieved 
by the final disposition of his complaint, or by the 
failure to take final action on his complaint, may file 
a civil action as provided in section 706, in which civil 
action the head of the department, agency, or unit, as 
appropriate, shall be the defendant.

Section 7151, 5 U.S.C., provides:

It is the policy of the United States to insure equal 
employment opportunities for employees without 
discrimination because of race, color, religion, sex, or 
national origin. The President shall use his existing 
authority to carry out this policy.

Section 1 of Executive Order 11478 provides:

It is the policy of the Government of the United 
States to provide equal opportunity in Federal em­
ployment for all persons, to prohibit discrimination 
in employment because of race, color, religion, sex, or 
national origin, and to promote the full realization of 
equal employment opportunity through a continuing 
affirmative program in each executive department and



4

agency. This policy of equal opportunity applies to 
and must be an integral part of every aspect of per­
sonnel policy and practice in the employment, develop­
ment, advancement, and treatment of civilian em­
ployees of the Federal Government.

Statement of the Case

Petitioner is a female employee of the Food and Drug 
Administration of the Department of Health, Education 
and Welfare. Petitioner, who is presently a GS-12, has not 
been promoted for 7 years.

On September 24, 1971, petitioner filed a formal com­
plaint with the Equal Employment Opportunity officer al­
leging that she had been discriminated against because 
of her sex. The administrative complaint was denied, and 
on August 15, 1972, that denial was affirmed by the Board 
of Appeals and Review of the United States Civil Service 
Commission. This action was commenced on September 13, 
1972, in the United States District Court for the Eastern 
District of Michigan.

Petitioner’s complaint alleged that the defendant officials 
had discriminated against her in that, solely because of her 
sex, they had denied her a promotion to which she was law­
fully entitled, refused to upgrade the job classification for 
the work she was doing, denied her training and counseling 
necessary for promotion, and interfered with her efforts 
to obtain additional training by denying her leave time or 
compensation to take job related college courses. The 
complaint alleged that similarly situated male employees 
of the Food and Drug Administration were promoted 
beyond a GS-12, and provided with training and educational 
assistance which were denied to women employees generally



5

The Civil Service Commission statistics reveal that, as 
of October, 1972, women constituted 58.0% of the white 
collar employees of the Department of Health Education 
and Welfare, but only 16.9% of the GS-13 employees, and 
an even smaller proportion of employees with higher GS 
ratings. Among the lowest paid agency employees, women 
were over 80% of all employees under GS-7.1 During the 
previous six years, while petitioner was locked into her 
GS-12 rating unable to obtain promotion, the proportion 
of GS-13 employees who were women actually declined. 
In 1966 women had constituted 19.1% of that group.1 2

Jurisdiction over petitioner’s action was asserted to 
exist by virtue of the 1972 amendments to Title VII of the 
1964 Civil Rights Act. Although Title V II as originally 
enacted had excluded federal employees from its coverage, 
Congress in 1972 had added section 717(c), which expressly 
authorized private civil litigation by federal employees 
aggrieved by discrimination on the basis of sex, race, 
religion, or national origin. The effective date of this 
amendment was March 24, 1972, six months before the 
filing of the instant action. Jurisdiction was also founded 
upon several other provisions, including the Tucker Act, 
28 U.S.C. §1346, and Executive Order 11478.

The United States moved to dismiss the action for lack 
of jurisdiction, arguing that section 717(c) only created

and petitioner in particular. The complaint further as­
serted that petitioner had been the victim of retaliation
because she had filed an administrative complaint.

1 Federal Civilian Employment: Women, 1972 Study, p. 36, 
Table I-C.

2 Study of Employment of Women in the Federal Government, 
1968.



6

a cause of action for unlawful discrimination which 
occurred after the effective date of the 1972 amendments. 
The government did not deny that discrimination on the 
basis of sex was illegal prior to March 24, 1972, but urged 
that no statute enacted prior to section 717 (c) gave federal 
employees any right to remedy such illegality. Petitioner 
maintained that such a cause of action existed prior to the 
enactment of section 717(c), and that that amendment to 
Title VII, since it created no new substantive right but 
merely augmented the procedural remedies, should be 
applied to all claims of discrimination still pending on 
March 24, 1974.

On July 5, 1973, the District Court granted the govern­
ment’s motion to dismiss, and the Court of Appeals for the 
Sixth Circuit affirmed that decision on May 15, 1974.

Reasons for Granting the Writ

As this Court recognized in Reed v. Reed, 404 U.S. 71 
(1971), government action which arbitrarily discriminates 
between two persons similarly situated solely because of 
their sex is constitutionally impermissible. That principle 
is of particular importance when the treatment of federal 
employees is at stake, for in such cases discrimination 
affects adversely not only the victimized employee, hut 
also the efficiency of the national government which fails 
to draw fully upon the skills of its workers and needlessly 
offends the sensibilities of those with whom it must deal. 
Compare Frontiero v. Richardson, 411 U.S. 677 (1973).

Despite these principles, discrimination on the basis of 
sex, like discrimination based on race, has a long history in 
the federal government. For the first century of our 
country’s existence female employees were virtually un­



7

known in the federal service. Not until the Classification 
Act of 1923 did Congress require that women and men be 
paid the same wages for equal work. Only in 1962 did 
Congress repeal the last of the nineteenth century laws 
which countenanced promoting only men to the higher 
grades. United States Civil Service Commission, Study 
of Employment of Women in the Federal Government, 
1968, pp. 1-2. In 1966 Congress established it to be the 
national policy that all federal employees should be 
afforded the same employment opportunities without regard 
to sex. 5 U.S.C. §7151. In 1967 the Executive Orders which 
a generation earlier had prohibited discrimination on the 
basis of race were amended to condemn as well discrimina­
tion on the basis of sex. Executive Order 11375.

Five years later Congress concluded that neither section 
7151 nor Executive Order 11375 had succeeded in eradicat­
ing discrimination on the basis of sex or race in Federal 
employment. The House Committee on Education and 
Labor3 and the Senate Committee on Labor and Public

3 “ The disproportionate distribution of minorities and women 
throughout the federal bureaucracy and their exclusion from 
higher policy making and supervisory positions indicates the gov­
ernment’s failure to pursue its policy of equal opportunity.”  H. 
Rep. No. 92-238, 92nd Cong., 1st Sess. p. 23.



8

Welfare4 found that the vast majority of the female and 
minority employees were restricted to the lowest federal 
grades. In the years since Congress had mandated equal 
employment opportunities by enacting §7151, the proportion 
of women in higher paid and supervisory positions had not

4 “ Statistical evidence shows that minorities and women continue 
to he denied access to a large number of government jobs, par­
ticularly in the higher grade levels. The disparity can be clearly 
seen in figures presented in a recent report released by the Civil 
Service Commission, Minority Group Employment in the Federal 
Government (1970). On the basis of the figures presented therein, 
the following listing shows the percentage of minority group em­
ployees under the General Schedule by grade level:

Negro
Spanish-

surnamed
American

Indian Oriental

GS-1 through GS-4 ...... 21.8 3.0 1.8 .6
GS-5 through GS-8 ... ... 13.5 2.2 .7 .8
GS-9 through GS-11 ... 5.1 1.5 .5 1.0
GS-12 through GS-13 .. 2.7 .8 .2 .9
GS-14 through GS-15 .. 1.7 .7 .2 .8
GS-16 through GS-18 .. 1.4 .3 .1 .2

Minorities represent 19.4% of the total employment in the Fed­
eral government (15.0% are Negroes, 2.9% are Spanish-surnamed, 
0.7% are American Indians, and 0.8% are Oriental). Their con­
centration in the lower grade levels indicates that their ability to 
advance to the higher levels has been restricted. . . . Mrs. Daisy 
B. Fields, past president of Federally Employed Women (F E W ), 
testified as to the distribution, by percent, of all women employed 
by the federal government (approximately 665,000 or about 34% ) 
as represented by the following breakdown:

Percent

GS-1 through GS-6 ................................  76.7
GS-7 through GS-12 .............................. 21.7
GS-13 and above ......................................  1.7”

S. Rep. No. 92-415, 92nd Cong., 1st Sess., p. 13.



9

increased significantly.6 Both the House6 and Senate7 com­
mittees concluded that a major cause of this continued 
discrimination was that aggrieved federal employees, un­
like private employees covered by Title VII, did not have 
ready access to the courts. The Senate Committee noted 
in particular the practice of the Department of Justice of 
asserting sovereign immunity to prevent the courts from 
remedying discrimination on the basis of race or sex. 
Singled out in the hearings as obstructing such judicial 
relief on the grounds of sovereign immunity was the 
decision of the Eighth Circuit in Gnotta v. United States,

5 The percentage of federal employees who were women changed 
as follows:

1966 1970 Difference

GS-13 .................... .......  4.0 4.5 +0.5
GS-14 .................... .......  3.5 3.6 +0.1
GS-15 .................... .......  2.4 3.3 +0.7
GS-16 .................... .......  1.8 1.8 0
GS-17 .................... .......  1.4 1.1 — 0.3
GS-18 .................... .............. 8 1.3 +0.5
Above GS-18 ........ .......  1.9 1.3 — 0.6

United States Civil Service Commission, Study of Employment of 
Women in the Federal Government, 1968, p.21, Table B ; Federal 
Civilian Employment, Women, 1972 Study, p.12.

6 “Despite the series of executive and administrative directives 
on equal employment opportunity, federal employees, unlike those 
in the private sector to whom Title Y II is applicable, face legal 
obstacles in obtaining meaningful remedies. There is serious doubt 
that court review is available to the aggrieved federal employee.” 
H. Rep. No. 92-238, 92nd Cong., 1st Sess., p. 25.

7 “ The testimony of the Civil Service Commission notwithstand­
ing, the committee found that an aggrieved federal does not have 
access to the courts. In many cases, the employee must over­
come a U.S. Government defense of sovereign immunity or failure 
to exhaust administrative remedies with no certainty as to the 
steps required to exhaust such remedies. Moreover, the remedial 
authority of the Commission and the courts has also been in doubt.” 
S. Rep. No. 92-415, 92nd Cong., 1st Sess., p. 16.



10

415 F.2d 1271 (8th Cir. 1969), cert, denied 397 U.S. 934.® 
The unavailability of judicial review was particularly 
serious because Congress concluded that the administrative 
grievance machinery for both procedural and substantive 
reasons had proved singularly ineffective in remedying 
discrimination.8 9 To augment the inadequate judicial and 
administrative remedies which already existed to enforce 
the established prohibition against discrimination on the 
basis of race or sex in federal employment, Congress on 
March 24, 1972, enacted section 717(c) confirming in un­
equivocal language the right of federal employees to bring 
actions in the United States district courts to remedy such 
discrimination. Morton v. Mancari, 41 L.Ed.2d 290, 300 
(1974).

Two and one half years after Congress disavowed the 
defense of sovereign immunity and the principles enun­
ciated in Gnotta v. United States, the Department of Justice 
is persistently relying on sovereign immunity and Gnotta 
to restrict access to the federal courts. Since the enactment 
of section 717, as many as half of all the cases filed under 
that section have involved acts of discrimination which 
occurred prior to March 24, 1972. The government has 
maintained that none of these cases can be brought under 
section 717, arguing that that provision should only apply 
to discrimination occurring after that date. The govern­
ment further maintains that any federal employee who 
was discriminated against before March 24, 1972, has no 
judicial remedy whatever. A majority of the courts to 
which this argument has been made have rejected it out

8 See Hearings on S.333 Before a Subcommittee of the Senate 
Judiciary Committee, 91st Cong., 2d Sess. (1970).

9 H. Rep. No. 92-238, 92nd Cong., 1st Sess., pp. 24-26; S. Rep. 
No. 92-415, 92nd Cong., 1st Sess., pp. 14-17.



11

The Sixth Circuit concluded that section 717(c) could 
not be applied to this case because of a “presumption” that, 
in the absence of a clear expression to the contrary, new 
statutes will not be applied to litigation pending on the 
date of their enactment and involving events transpiring 
prior to that date. P. 14a. The court incorrectly charac­
terized such an application as “ retroactive” . See n. 13, 
infra. The Court of Appeals held the remedies of section 
717(c) unavailable since Congress had not specifically 
provided that the provision would cover claims of dis­
crimination occurring prior to, or pending before the Civil 
Service on, March 24,1972. The Sixth Circuit also held that 
sovereign immunity and Gnotta v. United States precluded 
judicial relief in any case of employment discrimination 
not covered by section 717(c). P. 16a.

The decision of the Sixth Circuit is in square conflict 
with the decision of the Fourth Circuit Court of Appeals in
Roger v. Ball, ------  F.2d ------  (4th Cir. 1974), 7 EPD
j[9360, pp. 19a-129a. In Roger, on facts virtually identical 
to those in the instant case, the Fourth Circuit held that 
section 717 (c) must be applied to acts of discrimination 
occurring prior to March 24,1972. Unlike the Sixth Circuit, 
which suggested section 717(c) involved “new rights” , pp. 
12a-15a, the Fourth Circuit held that section 717(c) was 
only an additional remedy.

The legislative history establishes that the 1972 
Act did not create a new substantive right for federal 
employees. The constitution, statutes, and executive 
orders previously granted them the right to work 
without racial discrimination. Section 717(c) simply 
created a new remedy for the enforcement of this 
existing right. P. 22a.

of hand. This is one of the few cases in which the govern­
ment has prevailed.



12

The Sixth Circuit held that a law was “presumed” not to 
apply to pending litigation involving prior events “unless 
there is a clear expression to the contrary” , p. 14a, but the 
Fourth Circuit adopted the contrary rule

Procedural statutes that affect remedies are gener­
ally applicable to cases pending at the time of enact­
ment. . . . The general rule has been applied to cases 
affected by either the enlargement or the contraction 
of jurisdiction even though the causes of action arose 
before the enactment of the statutes that changed the 
court’s jurisdiction. P. 23a.

The Sixth Circuit rejected as erroneous district court 
decisions applying 717(c) to prior discrimination in Walker 
v. Kleindienst, 357 F.Supp. 749 (D.D.C. 1973) and Johnson 
v. Froehlke, 5 EPD TJ8638 (D. Md. 1973), and followed 
instead the precedents to the contrary in Mosley v. United 
States, 6 EPD H8875 (S.D. Cal. 1973) and Freeman v. 
Defense Construction Supply Center, 5 EPD U8526 (S.D. 
Ohio). P. 16a. The Fourth Circuit expressly rejected 
Mosley and Freeman and followed the decisions in Walker 
and Johnson. P. 18a, n. 2.

The decision of the Sixth Circuit is also in conflict with 
at least twelve district court decisions holding that the 
provisions of section 717(c) apply to discrimination 
occurring prior to March 24, 1972. Walker v. Kleindienst, 
357 F.Supp. 749 (D.D.C. 1973) expressly adopted the rule 
of construction rejected by the Sixth Circuit:

The 1972 Act is clearly remedial. The Act fits the 
classic definition of legislation which affords a remedy 
or facilitates remedies already existing for the enforce­
ment of rights and redress of injuries . . . The general 
rule of construction is that a remedial statute shall 
be so construed as to make it effect its evident purpose



13

and if the reason of the statute extends to past 
transactions as well as to those in the future, then 
it will he so applied.

357 F.Supp. at 751. See also Harrison v. Butz, 5 EPD 
H8632 (D.D.C. 1973); Jackson v. United States Civil Service 
Commission, 7 EPD H9134 (S.D. Tex. 1973). In Johnson v. 
Lybecker, 7 EPD U9191 (D. Ore. 1974) and Henderson v. 
Defense Contract Administration, 7 EPD H9058 (S.D. N.Y. 
1973), the district courts argued, as did the Fourth Circuit 
later in Koger, that section 717(c) did not create a new 
substantive right, but merely a new remedy.

Federal employees had a right to be free from job 
discrimination long before the passage of the 1972 Act. 
Walker v. Kleindienst, supra. They also had various 
available remedies. Prior to the effective date of the 
1972 Act, federal employees were held to have remedies 
in the federal courts under 28 U.S.C. §1346(a), and the 
Administrative Procedure Act 5 U.S.C. §702. . . . 
Relief, however, was limited under those remedies. The 
Equal Employment Opportunity Act of 1972 was in­
tended to provide additional remedies for employees 
subject to job discrimination.

Johnson v. Lybecker, 7 EPD p. 6978. See also Pointer v. 
Sampson, 5 EPD H8610 (D.D.C. 1973); Johnson v. Froehlke, 
5 EPD j[8638 (D. Md. 1973); Fears v. Catlin, 7 EPD H9135 
(D. Colo. 1974); Ficklin v. Sabatini, 7 EPD H9307 (E.D. 
Pa. 1974); Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C. 
1973); Gautier v. Weinberger, 6 EPD H9001 (D.D.C. 1973); 
Grubbs v. Butz, 6 EPD H8763 (D.D.C. 1973).

The conflict between the Fourth and Sixth Circuits 
regarding section 717(c) is reflected in a similar conflict 
among the district courts. Although most of the district



14

courts have concluded that section 717(c) should be applied 
to discrimination prior to its effective date, a minority 
have reached the opposite conclusion. In Jones v. United 
States, 7 EPD 1J3982 (D.D.C. 1974), the district court held, 
in contrast to Roger, that new statutes were presumed not 
to apply to litigation pending on then effective dates. In 
Hill-Vincent v. Richardson, 359 F.Supp. 308 (N.D. 111. 
1973) the district court concluded section 717(c) could not 
apply to prior discrimination because, unlike section 14 
of the 1972 Act, there was no express provision authorizing 
such application. This same argument was considered and 
rejected by the Fourth Circuit in Roger v. Ball, pp. 26a-27a. 
See also Palmer v. Rogers, 6 EPD ff8822 (D.D.C. 1973); 
Mosley v. United States, 7 EPD ff8875 (S.D. Cal. 1973); 
Feiger v. Warner, 7 EPD fl9140 (S.D. Cal. 1974); Nimitz v. 
Berzak, 7 EPD H9273 (E.D. La. 1974). Within the last year 
the district courts have repeatedly noted the existence of 
this widespread conflict. See Harrison v. Butz, 5 EPD 
TT8832 (D.D.C. 1973); Jackson v. United States Civil Service 
Commission, 7 EPD ^9134 (S.D. Tex. 1973); Fears v. 
Catlin, 7 EPD 1J9135 (D. Colo. 1974); Johnson v. Lybecker, 
7 EPD T[9191 (D. Ore. 1974); Palmer v. Rogers, 6 EPD 
H8822 (D.D.C. 1973); Jones v. United States, 7 EPD ff9382 
(D.D.C. 1974); Johnson v. University of Pittsburgh, 359 
F.Supp. 1002 (W.D. Pa. 1973).

Insofar as the Sixth Circuit held there is no cause of 
action outside of section 717(c) to remedy Federal em­
ployment discrimination, the decision below was in clear 
conflict with the decisions of the Fifth Circuit and the 
Court of Claims. The Court below noted that while the 
Eighth Circuit had disallowed civil actions to enforce 
Executive Order 11478 in Gnotta v. United States, 415 F.2d 
1271 (8th Cir. 1969), cert, denied 397 U.S. 934, the Court of 
Claims had reached the contrary result in Chambers v.



15

United States, 451 F.2d 1045 (Ct. Cl. 1971). See also Pettit
v. United States, ------  F.2d ------ , 6 EPD H9036 (Ct. Cl.
1973). See pp. 16a, 17a. The Sixth Circuit, conceding that 
Gnotta and Chambers were “ irreconcilably in conflict” , 
decided to follow the reasoning of Gnotta and the dissenters 
in Chambers. P. 17a.10 The Court of Claims in Chambers 
declined to follow Gnotta, and the dissenting opinions in 
Chambers and Pettit pointed out that the majority’s 
opinions were in “direct conflict with Gnotta.'1' 451 F.2d at 
1081; 6 EPD pp. 6348, 6354-55.

Similarly, although the Sixth Circuit concluded that no 
civil actions could be maintained other than under section 
717(c) to remedy unlawful federal employment discrimina­
tion, the Fifth Circuit has on three occasions held that the 
remedy of mandamus may be invoked when section 717(c) 
does not afford a remedy. In Beale v. Blount, 461 F.2d 1133 
(5th Cir. 1972), the Fifth Circuit held

Traditionally, the procedural avenue to reinstatement 
for an ex-employee of the federal government claiming 
to be the victim of improper discharge has been a 
petition for mandatory injunction or writ of mandamus 
directed to the head of the agency concerned command­
ing the re-employment of petitioner. . . .  In 1962, Con­
gress broadened the availability of the mandamus 
remedy by investing the district courts generally with 
jurisdiction to issue the writ which eliminated the 
previous requirement that reinstatement suits be 
maintained only in the United States District Court for

10 The District Court and the United States below agreed that 
Gnotta and Chambers were in conflict. See p. 8a; Brief for Ap­
pellee, Place v. Weinberger, No. 73-2037, p. 7.



16

the District of Columbia . . . Title 28 U.S.C., Section 
1361. 461 F.2d at 1137.11

The Fifth Circuit reaffirmed the availability of mandamus 
in such cases in Penn v. Schlesinger, 490 F.2d 700 (5th Cir.
1973), rev’d on other grounds------ F .2 d -------- (1974), and
Petterway v. Veterans Administration, 8 EPD fl9437 (1974). 
The decision of the Sixth Circuit below is in undisputed 
conflict with Chambers v. United States, as well as Pettit v. 
United States, Beale v. Blount, and Penn v. Schlesinger. 
Conflicts between a court of appeals and the Court of 
Claims, like conflicts between courts of appeals, require a 
grant of writ of certiorari to assure uniformity of decisions 
in such questions of federal law. See Waterman S.S. Corp. 
v. United States, 381 U.S. 252, 258 (1965); United States v. 
Consolidated Edison Co., 366 U.S. 380, 381 (1961).11 12 This 
question is one of continuing importance, since in the future 
aggrieved federal employees who cannot meet the strict 
jurisdictional prerequisites of section 717 will seek, as in 
Chambers and Penn, to found their actions on other 
statutes. See e.g. Brown v. General Services Administra­
tion, (2d Cir., No. 73-2628). Although Title Y II was en­
acted to cover private employers a decade ago, employees 
still rely frequently on such other statutes in employment 
discrimination litigation.13

11 Mandamus was denied in Beale because the plaintiff had 
failed to exhaust his administrative remedies. 461 F.2d at 1138- 
1141. In the instant case, of course, those remedies were exhausted.

12 The decision of the District Court expressly “ declines to follow” 
the Fifth Circuit decision in Penn, p. 8a. Insofar as the decision 
of the Sixth Circuit held that no judicial remedy exists other than 
section 717(c) to correct federal employment discrimination, it is 
in conflict with a variety of district court cases to the contrary. 
See e.g., Thorn v. Richardson, 4 EPD fi7630 (W.D. Wash. 1971) 
(mandamus) ; Palmer v. Rogers, 5 EPD fl8822 (D.D.C. 1973) 
(Tucker A ct; 28 U.S.C. §1331); Cortright v. Reasor, 325 F.Supp. 
797, 808 (E.D.N.Y. 1971) (28 U.S.C. §1331).

13 See, e.g., Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th 
Cir. 1970), cert, denied 401 U.S. 948 (1971); Young v. Inter­



17

The decision of the Sixth Circuit is also squarely in 
conflict with the decision of this Court last term in 
Bradley v. School Board of the City of Richmond, 40 
L.Ed.2d 476 (May 15, 1974). Bradley dealt with the ap­
plicability of a new provision authorizing legal fees in 
school desegregation litigation to cases in which litigation 
on the merits had ended before enactment of the new statute, 
but the question of legal fees for that litigation was still 
pending when the statute became effective. The respondent 
in Bradley, like the Sixth Circuit in the instant case, urged 
that new statutes should not be applied to events occurring 
before their enactment absent an express requirement, and 
that legal fees should not be awarded for litigation com­
pleted prior to the effective date of the counsel fee statute.14 
This Court unanimously rejected that approach:

We anchor our holding in this case on the principle 
that a court is to apply the law in effect at the time it 
consider its decision, unless doing so would result in 
manifest injustice or there is a statutory legislative 
history to the contrary. 40 L.Ed.2d at 488

Referring to its earlier decision in Thorpe v. Housing 
Authority of the City of Durham, 393 U.S. 268 (1969), this 
Court explained that Thorpe

national Telephone and Telegraph Co., 438 F.2d 737 (3d Cir. 
1971); Brown v. Gaston County Dyeing Machine Co., 457 F.2d 
1377 (4th Cir. 1972), cert, denied 409 U.S. 982 (1973); Brady 
v. Bristol Myers, 452 F.2d 621 (8th Cir. 1972); Waters v. Wiscon­
sin Steel Works, 427 F.2d 476 (7th Cir. 1970), cert, denied 400 
U.S. 911 (1970).

14 The Sixth Circuit held “a law is presumed to operate prospec­
tively unless there is a clear expression to the contrary” . P. — a. 
The respondents in Bradley had urged, “ the general rule that 
legislative enactments only operate prospectively absent clear legis­
lative intent to the contrary cannot be seriously questioned.”  Brief 
for Respondents, No. 72-2322, p. 10. This use of the term “ pro­
spectively”  is somewhat inaccurate, since a statute is only “ retro­



18

stands for the proposition that even where the interven­
ing law does not explicitly recite that it is to be applied 
to pending cases, it is to be given recognition and 
effect. Accordingly we must reject the contention that 
a change in the law is to be given effect in a pending 
case only where that is the clear and stated intention 
of the legislature. 40 L.Ed.2d 490

In applying section 717(c) to discrimination prior to 
March 24,1972, the Fourth Circuit in Koger v. Ball, p. 23a, 
nn. 14-15 and several district courts have expressly relied 
on Thorpe.1*

In the instant case the new statute, §717(c), was enacted 
while petitioner’s claim was still pending before the Civil 
Service Commission Board of Appeals and Review. Having 
exhausted her administrative remedies, petitioner complied 
with all the express jurisdictional prerequisites of §717 
and commenced this action six months after the statute was 
enacted. In Bradley, by comparison, the litigation for which 
counsel fees were sought was completed over a year before 
the new statute went into effect. No claim is or could be 
made that applying section 717 to the instant case will 
work any injustice upon the United States.15 16 Here, as in

active”  if applied to reopen cases already finally decided. See 
Linkletter v. Walker, 381 U.S. 618 (1965), Bradley v. School Board 
of The City of Richmond, 40 L.Ed.2d at 487-88.

15 Walker v. Kleindienst, 357 F.Supp. 749, 752 (D.D.C. 1973); 
Harrison v. Butz, 5 EPD ^8632, p. 7892 (D.D.C. 1973); Jackson 
v. United States Civil Service Commission, 7 EPD §9134 (S.D. 
Tex. 1973).

16 The Sixth Circuit relied on this Court’s decision in Hassett 
v. Welch, 303 U.S. 303 (1938) for its contention that new statutes 
should be presumed inapplicable to previously pending litigation. 
In United States v. Lindsay, 346 U.S. 568, 571 (1954), this Court 
explained that Hassett was an exception to the rule later reiterated 
in Thorpe and Bradley because it involved “ particular provisions



19

Bradley, the legal obligations of the defendants were clear 
long prior to the new enactment. “The 1972 extension of the 
Civil Rights Act to government employment is in large 
part merely a codification of prior anti-discrimination 
Executive Orders that had proved ineffective because of 
inadequate enforcement machinery. There certainly was no 
indication that the substantive proscription against dis­
crimination was intended to be any broader than that which 
had previously existed.” Morton v. Mancari, 41 L.Ed.2d 
290, 300 (1974).

The position of the Department of Justice on this ques­
tion has not been uniform. In the Sixth Circuit the Govern­
ment argued that section 717(c) did not apply to prior 
actions of discrimination. In the Second Circuit, however, 
the United States maintains that section 717(c) does apply 
to such prior discrimination.17 In the Fourth Circuit the 
United States argued that section 717(c) did not apply to 
discrimination occurring before its effective date, but when 
the Court of Appeals rejected that position in Roger v. 
Ball, the Solicitor General declined to authorize an appeal 
to this Court. Similarly, the United States now argues 
that, prior to the 1972 amendments to Title VII, federal 
employees aggrieved by discrimination had no right to 
sue in federal court for injunctive relief or hack pay. But

. . . deemed so inequitable and unfair when applied retroactively 
[sic] that this Court has refused to impute to law making bodies 
a purpose to bring about such results” . Compare Bradley v. School 
Board of the City of Richmond, 40 L.Ed.2d at 491-494.

17 “ This argument presumes that the Act applies in the present 
case as where the complaint, while alleging discrimination occurring 
before passage of the Act, was filed after the Act became effective. 
Hackley v. Johnson, 360 F.Supp. 1247, 1249, n .l (D.C. 1973), 
appeal docketed; Henderson v. Defense Contract Administration 
Services Region, 7 EPD j[9058 (S.D.N.Y. 1974), have so held.” 
Brief for the United States in Brown v. General Services Admin­
istration, No. 73-2628, p. 6, n.



20

in 1971, when Congress was considering enacting legislation 
to permit such litigation, federal officials repeatedly assured 
Congress that federal employees already had such a 
right to sue and that new legislation was unnecessary.18 
Although the United States in the courts below relied 
heavily on the Eighth Circuit decision in Gnotta v. United 
States, 415 F.2d 1271 (8th Cir. 1969), cert, denied 397 U.S. 
934 (1970), the Civil Service Commission advised Congress 
that Gnotta did not preclude “ judicial review of alleged

is “ There is also little question in our mind that a Federal em­
ployee who believes he has been discriminated against may take 
his ease to the Federal courts after exhausting all of the admin­
istrative remedies.” Remarks of Irving Kator, Executive Director, 
United States Civil Service Commission, Hearings Before a Sub­
committee of the Senate Committee on Labor & Public Welfare, 
92 Cong., 1st Sess. 301 (1971) p. 296. “We believe Federal Em­
ployees now have the opportunity for court review of allegations 
of discrimination, and believe they should have such a right.”  Id. 
p. 310, written statement on behalf of the United States Civil Ser­
vice Commission.

“ [T ]o some extent injunctive remedies are already available. 
The constitutionality of any program can be challenged. The au­
thority within the program of an official to act can be challenged.” 
“ [TJhere is no doubt that a court today may look into unauthor­
ized or unconstitutional agency action . . .”  (Remarks of Assistant 
Attorney General Ruckleshaus) Hearings Before a Subcommittee 
of the Senate Judiciary Committee, 91st Cong., 2d Sess. (1970), 
pp. 69, 74, 256-257.

In a variety of district court cases the Justice Department has 
declined to contest the existence of such jurisdiction under pro­
visions other than §717 (c ). See e.g., Ballard v. Laird, 6 EPD 
j[8793 (S.D. Cal. 1973) (28 U.S.C. §1331); Jalil v. Hampton, 4 
EPD H7706 (D.D.C. 1972) (28 U.S.C. §1331); Sperling v. United 
States, 7 EPD 1f9274 (D.N.J. 1974) (Tucker Act, 28 U.S.C. §1346); 
Waters v. Peterson, 6 EPD 1f8900 (D.D.C. 1973) (Tucker Act, 
28 U.S.C. §1346; 28 U.S.C. §1331). The Solicitor General, in fed­
eral employment litigation in this Court regarding alleged viola­
tions of the Constitution, Vitarelli v. Seaton, 359 U.S. 535 (1959) ; 
Williams v. Zuckert, 371 U.S. 531 (1963), statutes, Cole v. Young, 
351 U.S. 536 (1956) and regulations, Service v. Dulles, 354 U.S. 
363 (1957), has also declined on repeated occasions to contest the 
jurisdiction of the Court.



21

discriminatory action.” Hearings Before the Subcommittee 
on Labor of the House Committee on Education and Labor, 
92nd Cong., 1st Sess. 386 (1971). Although the Court of 
Claims has twice asserted jurisdiction over federal em­
ployment discrimination despite Gnotta, the Solicitor 
General declined to seek review of those decisions by this 
Court. See Chambers v. United States, 451 F.2d 1045 (Ct. 
Cl. 1971); Pettit v. United States, 6 EPD j[9036 (Ct. Cl. 
1973).

At stake in this litigation is the efficacy of the judicial 
remedy which Congress sought to create when it enacted 
section 717 to eradicate discrimination on the basis of race 
or sex. It is now 7 years since petitioner was last pro­
moted, 3 years since petitioner filed her administrative 
complaint, and over two years since Congress adopted 
section 717. Throughout this period discrimination on the 
basis of sex has been indisputably illegal. Because this 
case, as most, involves continuing acts of discrimination, 
the Sixth Circuit suggested that petitioner’s sole remedy 
was to recommence at the very beginning her administra­
tive complaint, bringing the same charges to the same super­
visors, hearing officer and Board of Appeals and Beview 
which rejected them in 1971 and 1972. Only when those 
administrative remedies have been re-exhausted will peti­
tioner, and other plaintiffs similiarly situated, he eligible 
to seek judicial relief. Such a construction of section 717 
is more likely to exhaust aggrieved employees than to 
carry out the purposes of the Equal Employment Oppor­
tunity Act of 1972. The Congress which adopted that 
provision was concerned, not only to afford a judicial 
remedy, but also to end the interminable delays which had 
characterized such remedies as had existed before 1972.19

19 See Hearings Before a Subcommittee of the House Committee 
on Education and Labor, 91st Cong., 1st and 2nd Sess., 111-112,



22

Congress was insistent on adopting new remedies, despite 
the objections of the executive branch, because six years 
after it had adopted section 7151 forbidding discrimina­
tion in federal employment, few steps had been taken to 
disestablish the pattern of discrimination which existed in 
the federal service. Congress made the 1972 Equal Em­
ployment Opportunity Act effective as soon as approved, 
and contemplated that its salutary provisions which have 
an immediate impact on the problems of discrimination. 
The rule adopted hv the Sixth Circuit—delaying applica­
tion of section 717 until there are new acts of discrimina­
tion, and a new effort to exhaust administrative proceed­
ings—will necessarily postpone for several years the effect 
of that provision and thus postpone the elimination of 
discrimination on the basis of race or sex in federal 
employment.

The decision of the Sixth Circuit also severely limits the 
power of the federal courts to remedy continuing acts of 
discrimination. Although an aggrieved employee could 
sue if that discrimination continued past the effective date 
of section 717, the rule adopted by the Sixth Circuit would 
prevent the employee from obtaining back pay for the 
wages unlawfully denied to him or her prior to March 24, 
1972. Similarly, while the courts could usually order that 
an aggrieved employee be accorded the seniority which he 
or she would have had in the absence of discrimination, in 
the Sixth Circuit a federal employee cannot be deemed to 
have been hired or promoted before March 24, 1972, even 
though the unlawful discrimination may have occurred 
years before. The number of years a federal employee is 
deemed to have in grade determines the employee’s salary,

118, 147-149, 157, 176-180, 238-240 (1969-70). Hearings Before a 
Subcommittee of the Senate Committee on Labor and Public Wel­
fare, 92nd Cong., 1st Sess., 206, 212, 276 (1971).



23

5 U.S.C. §§5332, 5335, the employee’s right to a career 
appointment, 5 U.S.C. §3304a, the employee’s right to 
retain his or previous salary if reduced in grade, 5 U.S.C. 
§5337, and the level of the employee’s retirement annuity 
life insurance, and unemployment compensation. 5 U.S.C. 
§§8339, 8341, 8501, 8704. The date on which a federal 
employee is deemed to have been hired determines the 
employee’s rights in the event of a layoff, 5 U.S.C. §3502, 
the amount of the employee’s annual leave, 5 U.S.C. §6303, 
and the employee’s eligibility for an annuity and disability 
retirement. 5 U.S.C. §§8336, 8337. If, as the Sixth Circuit 
has held, the courts cannot remedy discrimination occurring 
before March 24, 1974, employees like petitioner who were 
subject to discrimination before that date will continue to 
suffer from the effects of that discrimination for the rest 
of their careers in the federal service.

Petitioner maintains that jurisdiction over this action 
exists under section 717(c) of Title VTI, as well as under 
28 U.S.C. §1331, 28 U.S.C. §1346, 28 U.S.C. §1361 and the 
Administrative Procedure Act, 5 U.S.C. §§703-706, and that 
the decision of the Sixth Circuit was clearly erroneous. 
Although the instant case is one involving discrimination 
on the basis of sex, the decision of the Sixth Circuit, like 
that revised in Phillips v. Martin Marietta Corp., 400 U.S. 
542 (1971), will also impede the eradication from federal 
employment of discrimination on the basis of race, color, 
religion or national origin.



24

CONCLUSION

For the above reasons, a Writ of Certiorari should 
issue to review the judgment and opinion of the Sixth 
Circuit.

Jack Greenberg 
James M. Nabrit, I II  
B arry Goldstein 
E ric S chnapper

10 Columbus Circle 
New York, New York 10019

Irving S tahl 
James P. Gregory

1850 Guardian Building 
Detroit, Michigan 48226

Counsel for Petitioner



APPENDIX



la

Opinion of the District Court

P ratt, D.J.

Plaintiff filed this complaint on September 13, 1973. 
(Docket Entry 1). The complaint alleges that the plaintiff 
has been discriminated against in her employment by cer­
tain federal officers. (Complaint at 8, 9, 10, 11 & 12). 
These discriminatory acts apparently occurred before Sep­
tember 24, 1971 since plaintiff filed a formal complaint 
with the defendant on that date. (Complaint at U 3). After 
appeal to the Board of Appeals and Review on March 31, 
1972 and an adverse decision of that body (Complaint at 
H6), plaintiff filed this suit. Plaintiff concedes that this 
civil action is brought pursuant to 42 U. S. C. A. § 2000e- 
16(c) (1970-1972 Supp.) (Complaint at IT 7), and that this 
section was enacted on March 24, 1972. (Complaint at 3).

Defendant moves to dismiss and for summary judgment. 
(Docket Entry 17). Defendant argues that sovereign im­
munity bars this suit since the alleged discrimination oc­
curred prior to the enactment of 42 U. S. C. A. § 2000e-16(c) 
(1970-1972 Supp.) on March 24, 1972.

S overeign I m m unity

The Court determines that the doctrine of sovereign im­
munity bars this suit since the alleged discrimination of 
which the plaintiff complained to the United States Civil 
Service Commission occurred prior to the enactment of 42 
U. S. C. A. §2000e-16(c) (1970-1972 Supp.).

42 U. S. C. A. § 2000e-16 (1970-1972 Supp.), for the first 
time in the history of the Republic, explicitly permits a 
federal employee to sue her employer for alleged sexual 
discrimination. That provision was enacted on March 24, 
1972. The issue the Court must decide is whether that



2a

provision permits the institution of a civil suit for alleged 
discriminatory acts that occurred prior to the passage of 
the act but were not completely processed administratively 
until after the passage of the amendatory provision. The 
statute and the legislative history are silent on this precise 
issue; however two federal district courts have addressed 
themselves to it.

T itle V II N ot R etroactive

Freeman v. Defense Construction Supply Center, Civil 
No. 72-241 (S. D. Ohio, filed October 17, 1972) [5 EPD 
If 8526], held that the 1972 amendment only applied to per­
sonnel action occurring after the amendments and not to 
personnel actions occurring prior to the enactment of the 
amendments. Mosley v. United States, Civil No. 72-380-S 
(S. D. Calif., filed January 23, 1973) [6 EPD ]f 8875], also 
held that the 1972 amendments do not apply to personnel 
actions occurring prior to the enactment of the amendments 
and that the amendments are not retroactive. Thus, the 
only case authority presented to the Court on this issue 
suggests that the defendant is entitled to a dismissal of 
the civil action for want of subject matter jurisdiction.

Underlying policy and judicial principles also counsel 
the dismissal of this civil action for want of subject matter 
jurisdiction. As previously noted, neither the language nor 
legislative history of Section 2000e-16 addresses itself to 
the issue of the retroactivity of the section. United States 
v. Sherwood, 312 U. S. 548 (1941), teaches, however, that 
waivers of sovereign immunity should be strictly construed. 
Thus, Sherwood suggests by analogy that any doubts con­
cerning the scope of Section 2000e-16 should be decided in 
favor of prospective application only.

O pinion o f  the D istrict C ourt



3a

Another doctrine suggests that any question of the scope 
of Section 2000e-16 should be decided in favor of only 
prospective application. Hassett v. Welch, 303 U. S. 303 
(1938), establishes the principle that statutes are held to 
be the prospective in application unless the Congress indi­
cates otherwise. There is no indication that Congress in­
tended Section 2000e-16 to apply retroactively to alleged 
discrimination that occurred before March 24,1972. There­
fore, the presumption is once again that Congress only 
intended Section 2000e-16 to apply to discriminatory acts 
that occurred after March 24, 1972.

The principles of statutory construction mentioned above 
apply when the text and legislative history of the statute 
is neutral on the question of the retroactive application of 
the statute. If any inference can he drawn from the present 
statutory scheme, it is that Congress did not intend Section 
2000e-16 to apply to discriminatory acts that occurred prior 
to March 24, 1972. Section 2000e-16 was Section 11 of 
Public Law 92-261. Section 14 of Public Law 92-261 pro­
vided that amendments made by the act to Section 706 (that 
section dealing with the power of the Commission to pre­
vent unlawful employment practices) were applicable to 
both pending and future charges. Thus, Congress dealt 
with the problem of retroactivity when it felt that retro­
active application of the amendments was necessary. Ab­
sence of language similar to Section 14 in Section 11 sug­
gests that Congress did not feel that such retroactive appli­
cation was merited. It would be most improper for a court 
to overturn this congressional determination of the im­
portance of retroactivity.

O pinion o f  the D istrict C ourt



4a

Opinion of the District Court 

Continuing B ias Claim

Plaintiff still maintains that the doctrine of sovereign 
immunity is inapplicable to her Section 2000e-16 claim. 
Plaintiff argues that the complaint is aimed at the continu­
ing policy of sexual discrimination within the Pood and 
Drug Administration even though acts prior to March 24, 
1972 are utilized as evidence to support this conclusion. 
Plaintiff cites numerous cases, including United States v. 
Bethlehem Steel Corp., [3 EPD fl 8257] 446 F. 2d 652 (2d 
Cir. 1971); United States v. Sheet Metal Workers Union 36, 
[2 EPD If 10,083] 416 F. 2d 123 (8th Cir. 1969); Quarles v. 
Philip Morris, Inc., [1 EPD fl 9843] 279 F. Supp. 505 (E. D. 
Va, 1968); Williams v. St. Gohain Corp., 447 F. 2d 561 
(10th Cir. 1971); United States v. Electrical Workers No. 
38, [2 EPD If 10,242] 428 F. 2d 144 (6th Cir. 1970), cert, 
den. 400 U. S. 943 (1970); Culpepper v. Reynolds Metals 
Co., [2 EPD U 10,138] 421 F. 2d 888 (5th Cir. 1970); Griggs 
v. Duke Power Co., [3 EPD fl8137] 401 U. S. 424 (1970); 
and United States v. Carpenters Local 169, [4 EPD fl 7610] 
457 F. 2d 210 (7th Cir. 1972), for the proposition that the 
present consequences of past discrimination are covered 
by the Civil Rights Act of 1964. The Court recognizes this 
principle. The plaintiff, however, objects in her complaint 
to the past consequences of past discrimination. The acts 
and consequences of sexual discrimination of which plain­
tiff complains in her complaint occurred prior to September 
24, 1971. (Complaint at 5). Plaintiff has never presented 
the claims allegedly occurring subsequent to the enactment 
of the 1972 amendments to the Food and Drug Administra­
tion as is required by 42 U. S. C. A. § 2000e-16(c) (1970- 
1972 Supp. Pamphlet). (Complaint at If 12). This is not 
a case where an employee claims that an employment prac­



5a

tice neutral on its face is utilized after the passage of the 
Act to continue a practice of discrimination enforced prior 
to the passage of the Act; rather, this is a case where both 
the allegedly neutral employment practice and the preced­
ing discriminatory act occurs prior to the passage of the 
1972 amendments. None of the above cited cases stand for 
the proposition that the 1972 amendments erase the defense 
of sovereign immunity when the plaintiff has not exhausted 
her administrative remedies with respect to practices oc­
curring after the passage of the amendments.

E xecutive Order 11478

Plaintiff asserts as another jurisdictional ground for her 
complaint (besides Section 2000e-16), Executive Order 
11478. Plaintiff cites Chambers v. United States [4 EPD 
H7538] 451 F. 2d 1045 (Ct. Cls. 1971), for the proposition 
that this Court has subject matter jurisdiction pursuant to 
that Executive Order to compel federal agents to comply 
with the policy of equal employment opportunities of the 
1964 Civil Rights Act. A simple answer to plaintiff’s argu­
ment is that her entire complaint is premised upon 42 
U. S. C. A. § 2000e-16 (1970-1972 Supp. Pam.) as providing 
the Court with subject matter jurisdiction and a claim for 
which relief can be granted. (Complaint at Hlf 3 and 7). 
Another simple answer is that Chambers, a case involving 
a discriminatory refusal to hire, distinguished refusal to 
promote cases such as the present case and Gnotta v. United 
States, [2 EPD If 10,078] 415 F. 2d 1271 (8th Cir. 1969), 
cert. den. [2 EPD 1f 10,178] 397 U. S. 934 (1970), from its 
holding and that Chambers was based in part on the Court 
of Claim’s unique power over federal employment claims, 
451 F. 2d at 1052. The more appropriate and compelling

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6a

answer, however, is that Gnotta is more persuasive than 
Chambers on any point that those cases may be in conflict 
concerning subject matter jurisdiction. Mr. Gnotta filed 
a civil action in district court alleging that his federal 
employer had denied him a promotion because of his Italian 
ancestry. The Circuit Court, through Judge (now Justice) 
Blackmun, affirmed the dismissal of the complaint for want 
of subject matter jurisdiction even though the plaintiff 
relied upon an executive order similar to the one in the 
present case to provide the court with subject matter 
jurisdiction:

[W ]e adopt Judge Oliver’s comments:
“ The plaintiff does not allege that his alleged cause of 
action was created or authorized by any particular 
provision or section of the Constitution, Act of Con­
gress, [or] regulation of any executive department. 
Nor does he allege what sort of an express or implied 
contract he attempts to base his claim. None of the 
executive orders or regulations which the complaint 
cites purports to confer any right on an employee of 
the United States to institute a civil action for damages 
against the United States, in the event of their viola­
tion, even if it should be established that plaintiff’s 
failure to have been promoted as an employee of the 
Corps of Engineers was in fact due to discrimination 
in violation of the Executive Orders pleaded. Congress 
has complete power either to create or to refuse to 
create such a remedy. It did not authorize civil actions 
for damages under any of the laws (including the 
Executive Orders and regulations) applicable to facts 
pleaded by plaintiff in this case.”

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415 F. 2d at 1278.



7a

It was no doubt partly in response to Gnotta that Con­
gress enacted the 1972 amendments so that federal em­
ployees could have judicial redress for discriminatory acts 
occurring after March 24, 1972. (Cramton, Nonstatutory 
Review of Federal Administrative Action—The Need for 
Statutory Reform of Sovereign Immunity, Subject Matter 
Jurisdiction, and Parties Defendant, 68 Mich. L. Rev. 387, 
391 (1970). Absent an explicit command from Congress 
that the amendments apply to discriminatory acts and con­
sequences that occurred prior to the enactment of the 
amendments, Gnotta mandates that this Court lacks subject 
matter jurisdiction over any claim, be it premised on Sec­
tion 2000e-16 or on inherent judicial authority.

“U nconstitutional” A cts of Officials

Plaintiff also argues that the doctrine of sovereign im­
munity is inapplicable since the suit is against an officer 
exercising his powers in an unconstitutional manner, Lar­
son v. Domestic (& Foreign Corp., 337 U. S. 682 (1949). The 
complaint contains no allegation that defendants’ actions 
were unconstitutional; rather, the allegation is that the 
alleged acts violated the amendments to the Civil Rights 
Act of 1964 for which plaintiff is suing the head of the 
employing agency as is required by 42 U. S. C. A. § 2000e- 
16(c). The only suggestion that the FDA made on uncon­
stitutional use of its powers appears in plaintiff’s brief. 
Even then she alleges that the FDA’s unconstitutional use 
of power is a matter of proof. (Brief at 9). Furthermore, 
this argument was rejected in Gnotta since the decision to 
promote directly affects the Treasury and involves admin­
istrative discretion in the sensitive area of personnel ad­
ministration :

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8a

“ These principles, we feel, operate to identify the 
first and second counts against the named individuals 
with counts against the United States, for relief under 
the counts would compel those individuals to promote 
the plaintiff, with the natural effect a promotion has 
upon the Treasury, and to exercise administrative dis­
cretion in an official personnel area. This obviously is 
not a case which concerns either of the exceptions 
recognized . . . namely, where the officer’s act is beyond 
his statutory power or where, although the action is 
within the scope of his authority, the power, or the 
manner of its exercise, is constitutionally void.”

415 F. 2d at 1277.

The Court declines to follow Penn v. United States, [5 
EPD § 8404] 350 F. Supp. 752, 755 (M. D. Ala. 1972) and 
cannot agree with the distinctions of Gnotta made therein. 
Gnotta did not evaluate the merits of the claim. The Court 
in Gnotta assumed plaintiff could prove that he was dis­
criminated against because of ancestry, 415 F. 2d at 1276. 
Gnotta held that the supervisor discretion necessary for 
departmental promotion foreclosed the allegation that the 
discretion was exercised unconstitutionally, 415 F. 2d at 
1276. (The Court does note, however, that any contradic­
tion between Penn and Gnotta will be minimized by Section 
2000e-16 since Courts will not have to engage in contortions 
of the Larson doctrine in order to redress egregious acts 
of discrimination occurring after March 24, 1972).

Ogletree v. McNamara, [4 EPD 7510] 449 F. 2d at 93 
(6th Cir. 1971), also counsels against the adoption of the 
Penn rationale. Ogletree was a civil action by federal Negro 
employees of the Wright Patterson Air Force Base that

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9a

alleged systematic racial discrimination in the merit pro­
motion program. The Court held that Gnotta precluded the 
suit against the individual defendants:

“The operation of our defense establishments is, of 
course, close to the core of the concept of sovereign 
immunity. Perhaps the minimum statement of that 
doctrine is that litigation must not be allowed to stop 
government in its tracks. Larsen v. Domestic <& Foreign 
Commerce Corp., 337 U. S. 682, 704, 69 S. Ct. 1457, 93 
L. Ed. 1628 (1949). In this regard the effect of the 
action upon the sovereign rather than its form is con­
trolling. The fact that defendants are all named as 
individuals does not change the result. Larsen v. 
Domestic & Foreign Corp., supra; Dugan v. Ranli, 372 
U. S. 609, 83 S. Ct. 999, 10 L. Ed. 2d 15 (1963); Hawaii 
v. Gorden, 373 U. S. 57, 83 S. Ct. 1052. 10 L. Ed. 2d 
191 (1963).”

449 F. 2d at 100.

Ogletree provided, however, that the plaintiffs could seek 
judicial review of complaints specifically alleging exhaus­
tion of administrative remedies, see also Beale v. Blount, 
461 F. 2d 1133 (5th Cir. 1972). Virgil v. Post Office Dept., 
406 F. 2d 921 (10th Cir. 1969), limits that judicial review 
to a determination of whether the procedural requirements 
of the statutes and regulations were complied with and 
whether the action of the department officials was arbitrary 
or capricious or not supported by substantial evidence.

D ismissal of A ction

Ogletree and Gnotta therefore mandate that this civil 
action be dismissed without prejudice for lack of subject

Opinion o f  the D istrict C ourt



10a

Opinion of the District Court

matter jurisdiction. Since the dismissal is without prej­
udice, plaintiff is not precluded from seeking judicial review 
of final administrative action as is permitted by Ogletree. 

It Is So Ordered.



11a

Contie, D.J.:

The plaintiff-appellant, a female employed in the Pure 
Food and Drug Administration, filed a complaint in Federal 
District Court on September 13, 1972, alleging she was 
discriminated against because of her sex in the following 
respects:

(a) Her request for promotion had not been acted upon 
as rapidly as those of men similarly situated;

(b) She was being denied administrative leave of com­
pensatory time for attending graduate level classes for 
job-related training while men similarly situated were 
granted such time;

(c) She was being denied compensatory leave or over­
time pay for work accomplished outside of official duty 
hours while men similarly situated were granted such time; 
and

(d) She was unable to obtain details within her agency 
for the purpose of on-the-job training and for the purpose 
of advancement, although male employees had obtained 
such information.

Previously, plaintiff-appellant had filed a formal complaint 
with defendant-appellee Equal Employment Opportunities 
Commission (hereinafter E.E.O.C. or defendant-appellee) 
on September 24, 1971. Said administrative complaint was 
denied for failing to show discrimination. An appeal was 
taken to the Board of Appeals and Review, which affirmed 
the findings of the E.E.O.C., said affirmation being made

Opinion of the Sixth Circuit Court of Appeals

* The Honorable Leroy J. Contie, Jr., United States District 
Judge for the Northern District of Ohio, sitting by designation.



12a

after the date of the adoption of Title 42 U.S.C. 2000e- 
16(c). Plaintiff thereafter filed the instant cause of action 
in District Court.

Plaintiff-appellant assets that her federal court action 
is brought pursuant to Title 42 U.S.C. 2000e-16(c) which 
was enacted March 24, 1972, approximately six months 
after the filing of the formal administrative complaint. 
The United States District Court was thus confronted with 
a complaint filed after the enactment of 2000e-16(c), but 
resulting from a formal administrative complaint which 
was filed before said enactment.

R etroactivity of T itle VII

It is the claim of the plaintiff-appellant that jurisdiction 
of the federal court claim is based upon Title 42 U.S.C. 
2000e-16(c) and/or on Executive Order 11478.

Defendant-appellee, asserting that the federal court did 
not have jurisdiction under either 2000e-16(c) or the Exec­
utive Order, filed a motion to dismiss or in the alterna­
tive for summary judgment in the district court. On 
July 5, 1973, the United States District Court sustained 
defendant-appellee’s motion for summary judgment. The 
District Court determined that the defense of sovereign 
immunity was applicable and that Title 42 U.S.C. 2000 
e-16(c) did not apply retroactively. The Court further 
found that Executive Order 11478 did not give plaintiff- 
appellant subject matter jurisdiction. In argument before 
this Court plaintiff-appellant contends that Title 42 U.S.C. 
2000e-16(c) should be applied retroactively.

The District Court characterized Title 42 U.S.C. 2000 
e-16(c) as the creation of new rights formerly barred 
under the doctrine of sovereign immunity. Plaintiff-appel­
lant asserts that in view of the facts that the E.E.O. Act of

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13a

1972 does not contain a statement as to how said Act 
should be applied and since the purpose of the Act is 
remedial in nature, said Act should therefore be given 
retroactive effect. In the alternative, plaintiff-appellant 
contends that the District Court has jurisdiction of her 
claim by reason of the Civil Eights Act of 1964. In support 
of this alternative claim the plaintiff-appellant cites the 
case of Davis v. Washington, [5 EPD 8088] 352 F.Supp. 
187 (Dist. Ct. D.C. 1972).

This Court first notes that the Civil Rights Act of 1964 
did not grant the courts jurisdiction over litigation involv­
ing federal employees.

Further, the Davis case is totally distinguishable. In that 
case the District Court for the District of Columbia was 
attempting to determine whether a police force promo­
tional test was discriminatory in effect. The court therein 
stated that:

“While strictly speaking, the claims raised here by plain­
tiffs against these governmental employers were not 
governed by Title V II of the 1964 Civil Rights Act until it 
was recently amended1, the Court, as the parties basically 
agree, looks to the Act . . . for guidance as to the constitu­
tional constraints on a public employer.”

We agree that the claims raised by plaintiff-appellant 
are not governed by Title VII of the Civil Rights Act 
of 1964.

We also agree that the Davis case does not stand for the 
proposition that Title V II grants federal courts jurisdiction 
in sex discrimination cases. A  careful reading of that case 
indicates that the court therein did not find jurisdiction 
under either Title VII of the Civil Rights Act or the E.E.O.

1 Equal Employment Opportunity Act of 1972, Pub.L. No. 86 
Stat. 103 (March 24, 1972).

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14a

Act of 1972. Rather, that court determined that having 
taken jurisdiction, it would look to the above mentioned 
acts for guidance and guidelines. Davis v. Washington, 
supra, at 191. Thus, we conclude that the Davis case is 
distinguishable and that the District Court does not have 
jurisdiction of plaintiff-appellant’s claim under the Civil 
Rights Act.

Turning to the issues of sovereign immunity and the 
retroactive application of the E.E.O. Act of 1972, this 
Court is convinced that the District Court properly granted 
defendant-appellee’s motion for summary judgment on the 
grounds of the applicability of the doctrine of sovereign 
immunity. The law in this area is clear.

Waivers of sovereign immunity must be strictly con­
strued. United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 
767 (1941). Furthermore, a law is presumed to operate 
prospectively unless there is a clear expression to the 
contrary. Hassett v. Welch, 303 U.S. 303, 58 S.Ct. 559 
(1938). An examination of Section 14 and Section 11 of 
the E.E.O. Act of 1972 indicates that Congress provided 
that said Act “ shall be applicable in regard to charges 
pending before the Commission.” Thus, Congress clearly 
intended certain portions of the Act to operate retroactively 
and so indicated. We therefore conclude that by its silence 
as to other sections Congress intended such sections to have 
prospective application only. In support of this conclusion 
we note that the District Court relied upon Mosley v. 
United States, Civil 72-380-S (January 4, 1973 S.D. Calif.) 
[6 EPD If 8875] and Freeman v. Defense Construction 
Supply Center, C 72-241 (S.D. Ohio Filed October 17, 1972) 
[5 EPD f[ 8526] in which the Act was held not to apply 
retroactively. We are convinced that this conclusion is 
sound.

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15a

The plaintiff-appellant relies upon Walker v. Kleindienst, 
357 F.Supp. 749 (D.D.C. 1973) [5 EPD fl 8594] wherein the 
Court stated that the 1972 Act was remedial and amen­
datory and that the Act should be construed to cover pend­
ing charges of discrimination in federal employment. The 
District Court in the Walker case further stated that said 
Act takes away no substantive right, but merely changes 
the tribunal that is to hear the case. However, this Court 
cannot agree with this conclusion. See Freeman v. Defense 
Construction Supply Center, supra; Johnson v. Froehlke, 
C.A. 72-677(H ), (D. Md. Jan. 4, 1973) [5 EPD If 8638].

A dministrative R emedies

The District Court in the instant case further determined 
that the plaintiff-appellant had not exhausted her ad­
ministrative remedies relative to acts which occurred after 
the enactment of Title 42 U.S.C. 2000 e-16(c) and that, 
therefore, plaintiff-appellant’s action was barred by reason 
of her failure to exhaust her administrative remedies. 
Myers v. Bethlehem Shipbuilding Corp., 303 TJ.S. 41, 58 
S.Ct. 459 (1938). Plaintiff-appellant asserts that the 
requirement of exhaustion of administrative remedies 
should not apply when the exercise of such remedies would 
be futile. Ogletree v. McNamara, [4 EPD 7510] 449 F.2d 
93 (C.A. 6 1971). In support of this argument, plaintiff- 
appellant contends that her claim is one of continuing dis­
crimination and that the issues already presented to the 
EEOC are “nearly” identical. Therefore, she concludes 
that the futility principle of Ogletree is applicable.

However, this Court is of the opinion that by the state­
ment in the complaint alone, it must be assumed there are 
new acts of discrimination. Such new acts may be similar

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16a

in nature, but could hardly be precisely identical in all 
respects. A  claimant cannot avoid a requirement of the 
Act by the self-serving determination that the new facts 
are similar to prior alleged discriminatory acts, and that 
accordingly the same result would excuse her from adminis­
trative review. The facts as alleged by the plaintiff-appel­
lant in her brief are not identical but, in her own words, 
are “nearly identical” .

The plaintiff-appellant relies upon Griggs v. Duke Power 
Co., [3 EPD U 8137] 401 U.S. 424, 91 S.Ct. 849 (1970), to 
buttress her argument that the alleged acts are continuing 
violations and therefore are exempt from administrative 
procedures. The Griggs case is clearly distinguishable in 
that it does not involve sovereign immunity and was 
decided March 8, 1971. Further, said case was based upon 
acts of a private employer and the violation of Title VII 
of the Civil Rights Act of 1964. See United States v. Car­
penters Local 169, [5 EPD fl 8030] 457 F.2d 210 (C.A. 7 
1972), and United States v. Virginia Electrical and Power, 
[3 EPD H 8207] 327 F.Supp. 1034 (E.D. Va. 1971). These 
cases do not relate to the issue of sovereign immunity prior 
to the 1972 enactment of the E.E.O. Act.

E xecutive Order 11478
Plaintiff-appellant’s final contention is that Executive 

Order 11478 confers subject matter jurisdiction on the 
District Court. However, we conclude that said Executive 
Order does not contemplate judicial review. In the case of 
Gnotta v. United States, [2 EPD 10,078] 415 F.2d 1271 
(C.A. 8 1969), which was cited by this Court in Ogletree, 
supra, Judge (now Justice) Blackman ruled that Executive 
Orders 11246 and 10925, the predecessors of 11478, did not 
provide for a judicial review by civil action. The plaintiff- 
appellant however relies upon Chambers v. United States,



17a

[4 EPD H7538] 451 F.2d 1045 (U.S.Ct.Cl. 1971), in which 
the court therein concluded that inasmuch as Congress did 
not exclude a judicial review, one should have been con­
templated.

It must be unequivocally stated that Gnotta and 
Chambers are irreconcilably in conflict. The Court has 
difficulty in applying the Chambers reasoning that by fail­
ing to contain expressions of exclusion that the Congress 
intended that there be review. We prefer the dissent of the 
Chambers case wherein the Court stated that the Court did 
not have jurisdiction and that no statute of Congress 
granted any right in favor of anyone against the United 
States. We therefore conclude that Executive Order 11478 
does not provide subject matter jurisdiction to plaintiff- 
appellant.

For the reasons stated above, the judgment of the 
District Court is affirmed.

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18a

Opinion of the Fourth Circuit Court of Appeals
in Koger v. Ball

B utzner, C.J.

The narrow question presented by this appeal is whether 
a federal employee whose complaint of racial discrimina­
tion was pending administratively on March 24, 1972, the 
effective date of the Equal Employment Opportunity Act 
of 1972,1 may seek judicial redress. The district court, 
ruling that it lacked subject matter jurisdiction to hear a 
complaint alleging discrimination that occurred before the 
effective date of the Act, and alternatively, that the com­
plaint failed to state a claim on which relief can be granted, 
dismissed the employee’s suit.1 2 * * 5 We hold that the procedural 
provisions of the Act embrace those complaints that were 
being administratively considered at the time of its enact­
ment. Accordingly, we reverse and remand the case for 
further proceedings.

1 Pub. L. No. 92-261, 86 Stat. 103 (March 24, 1972), 42 U.S.C. 
§ 2000e et seq. (1972).

2 Other courts reaching the same conclusion include: Hill-Vin-
cent v. Richardson, [5 EPD If 8639] 359 F.Supp. 308 (N.D. 111.
1973) ; Freeman v. Defense Constr. Supply Center, [5 EPD ff 8526]
5 FEP Cases 505 (S.D. Ohio 1972); Moselv v. United States, 
[6 EPD ff 8875] 6 FEP Cases 462 (S.D. Cal. 1973); Palmer v. 
Rogers, [6 EPD 8822] 6 FEP Cases 892 (D.D.C. 1973).

In contrast, however, a majority of the courts considering the 
problem have applied the Act retrospectively: Walker v. Klein- 
dienst, [5 EPD If 8594] 357 F.Supp. 749 (D.D.C. 1973) ; Hackley 
v. Johnson, [6 EPD f  8725] 360 F.Supp. 1247 (D.D.C. 1973); 
Johnson v. Frochlke, [5 EPD f f  8638] 5 FEP Cases 1138 (D.Md. 
1973); Pointer v. Sampson, [5 EPD If 8610] 6 FEP Cases 9 
(D.D.C. 1973); Harrison v. Butz, [5 EPD If 8632] 6 FEP Cases 
109 (D.D.C. 1973) ; Grulhs v. Butz, [6 EPD If 8783] 6 FEP Cases 
432 (D.D.C. 1973); Henderson v. Defense Contract Admin. Region, 
[7 EPD ]f 9058] 7 FEP Cases 741 (S.D.N.Y. 1973); Johnson v. 
Lyhecker, [7 EPD ]f 9191] FEP Cases 279 (D. Ore. 1974); Gautier 
v. Weinberger, [6 EPD ff 9001] 7 FEP Cases 473 (D.D.C. 1973).



19a

F actual Background

I. The procedural background of this case and the facts 
pertinent to this appeal can be briefly stated. At all relevant 
times, Executive Order 11478 and its supplemental regula­
tions were in effect. The Order reiterates the government’s 
policy of assuring persons of all races equal opportunity 
to federal employment. In addition to encouraging the reso­
lution of grievances on an informal basis, the President 
directed the Civil Service Commission and each department 
to provide for the prompt and impartial consideration of 
complaints of discrimination.3

On November 30, 1971, the appellant, O’Neal W. Roger, 
applied for a better paying position in the Social Security 
Administration where he was employed. After discovering 
he had not been selected for the post, he lodged a complaint 
alleging that he had been denied promotion because of his 
race. On February 22, 1972, as the first step in the griev­
ance procedure prescribed by the regulations, he wrote a 
letter to the director of the bureau where he worked.4 The 
director denied relief and suggested that if Roger wished 
to pursue his complaint he should contact an equal oppor- 3 4

3 Exec. Order 11478 became effective on August 7, 1969, 3 C.F.R. 
803 (1966-1970 Comp.), 42 U.S.C. § 2000e note (1970). The Civil 
Service Regulations which implemented the Order became effective 
on January 1, 1971. 5 C.F.R. § 713.201 et seq. (1971).

The preamble to the Order states:
“ It has long been the policy of the United States Government 

to provide equal opportunity in Federal employment on the basis 
of merit and fitness and without discrimination because of race, 
color, religion, sex, or national origin. All recent Presidents have 
fully supported this policy, and have directed department and 
agency heads to adopt measures to make it a reality.”

4 Exec. Order 11478, § 4; 5 C.F.R. §§ 713.212(a) and 771.303(a) 
(1971).

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in R o g e r  v . Ball



20a

tunity employment counselor.5 The conferences with the 
counselor proved futile, so on April 28, 1972, Koger sub­
mitted a formal complaint to the Secretary of the Depart­
ment of Health. Education and Welfare.6 Since no action 
had been taken on the complaint by November 17, 1972, 
Koger’s lawyer made an inquiry to the Department. On 
December 4, 1972, the assistant general counsel replied that 
the complaint was still under review, but he added that 
Koger could now file a civil action without further notifica­
tion from the Department. Accordingly, Koger, having 
waited 180 days from the institution of his complaint with­
out receiving a decision, filed this action under the 1972 
Act, which had become effective the previous March while 
he was pursuing his administrative remedies.

A pplicability op T itle VTI

II. Although the federal government has long barred its 
departments and agencies from discrimination against their 
employees on the ground of race, judicial enforcement of 
this policy was uncertain and ineffective before 1972.7 To

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in R o g e r  v . B all

5 5 C.F.R. §§713.213 and 771.303(b)(2) (1971).
6 Exec. Order 11478, § 4; 5 C.F.R, § 771.309 (1971).
7 See generally, Walker v. Kleindienst, [5 EPD 8594] 357 

F.Supp. 749, 751 (D.D.C. 1973) (dictum).
The legislative history of the 1972 Act discloses Congress’ con­

cern with the problem.
“ The prohibition against discrimination by the Federal Govern­

ment, based upon the due process clause of the fifth amendment 
to the Constitution, was judicially recognized long before the enact­
ment of the Civil Rights Act of 1964. [Bolling v. Sharpe, 347 
U.S. 497 (1954)] And Congress itself has specifically provided 
that it is ‘the policy of the United States to insure equal employ­
ment opportunities for Federal employees without discrimination



21a

remedy this situation, Congress amended Title VII of the 
Civil Rights Act of 19648 by the Equal Opportunity Act of 
1972,9 which among other provisions, added a new section 
pertaining to government workers.10 This section empha­
sizes that federal employment shall be “ free from any dis­
crimination based on race, color, religion, sex, or national 
origin.” It refines the responsibilities and administrative 
procedures necessary for the departments, agencies, and 
Civil Service Commission “ to maintain an affirmative pro­
gram of equal employment opportunity,” and it negates 
any intention to relieve government officials of their exist­
ing responsibilities “as required by the Constitution. . . . 
statutes [and] Executive Order 11478.” Bearing directly 
on this case, it provides in § 717(c) that after an aggrieved 
employee has exhausted his administrative remedies on a 
complaint brought pursuant to Executive Order 11478, he

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in K o g e r  v . Ball

because of race, color, religion, sex, or national origin. . . .  [5
U.S.C. §7151 (Supp. II 1965, 1966)].

“ The primary responsibility for implementing this stated na­
tional policy has rested with the Civil Service Commission, pur­
suant to Executive Order 11246 (1964) as clarified by Executive 
Order 11748.

“ Despite some progress that has been made in this area, the 
record is far from satisfactory. Statistical evidence shows that 
minorities and women continue to be excluded from large numbers 
of government jobs, particularly at the higher grade levels.”  H.R. 
Rep No. 92-238, 92d Cong., 2d sess. (1972), 2 U.S. Code Cong. & 
Admin. News 2137, 2157 (1972).

8 Pub. L. No. 88-352, 78 Stat. 253 (July 2, 1964), 42 U.S.C. 
§ 2000e et seq. (1972).

9 See n .l, supra.
10 The Equal Employment Opportunity Act of 1972 § 717, 42 

U.S.C. § 2000e-16 (1972). All subsequent section references in 
the text are to the Act.



22a

may file a civil action against the head of his department 
or agency.11

The legislative history establishes that the 1972 Act did 
not create a new substantive right for federal employees. 
The constitution, statutes, and executive orders previously 
granted them the right to work without racial discrimina­
tion.11 12 Section 717(c) simply created a new remedy for the 
enforcement of his existing right. Senator Cranston, a 
proponent of the legislation, explained its function as fol­
lows :

“Subsection (c) of the new section 717 creates a remedy 
in Federal district court—comparable to private employ­
ment actions—for any employee who has exhausted the 
equal employment opportunity complaint procedure within 
his Federal agency.” 13

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in K o g e r  v . Ball

11 Section 717(c), 42 U.S.C. § 2000e-16(c) (1972), provides:
“ Within thirty days of receipt of notice of final action taken

by a department, agency, or unit referred to in subsection (a) 
of this section, 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 with the Civil 
Service Commission on appeal from a decision or order of such 
department, agency, or unit until such time as final action may 
be taken by a department, agency, or unit, an employee or ap­
plicant for employment, if aggrieved by the final disposition of 
his complaint, or by the failure to take final action on his com­
plaint, may file a civil action as provided in section 2000e-5 of this 
title, in which civil action the head of the department, agency, or 
unit, as appropriate, shall be the defendant.”

12 See nn.3 and 7, supra.
13118 Cong. Rec. 2279 (daily ed. Feb. 22, 1972).



23a

Procedural statutes that affect remedies are generally 
applicable to cases pending at the time of enactment.14 Of 
course, retrospective application is not allowed when it will 
work a manifest injustice by destroying a vested right.15 
But this exception plays no role here because the govern­
ment has no vested right to discriminate against its em­
ployees on the basis of race.16 The general rule has been 
applied to cases affected by either the enlargement or the 
contraction of jurisdiction even though the cause of action 
arose before the enactment of the statutes that changed 
the court’s jurisdiction.17 Mr. Justice Holmes succinctly 
explained why a statute, that “ takes away no substantive 
right but simply changes the tribunal that is to hear the 
case, should be applied to pending cases.” Retrospective 
application is appropriate when the statute “evinces a

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14 In Sampevreac v. United States, 32 U.S. (7 Peters) 222, 239 
(1833), the Court said:

“ [Considering the Act . . .  as providing a remedy only, it is 
entirely unexceptionable. It has been repeatedly decided in this 
court that the retrospective operation of such a law forms no 
objection to it. Almost every law, providing a new remedy, affects 
and operates upon causes of action existing at the time the law is 
passed.”

See also Thorpe v. Housing Authority of Durham, 393 U.S. 268, 
281 (1969) ; United States v. Village Corp., 298 F.2d 816, 820 
(4th Cir. 1962).

15 Greene v. United States, 376 U.S. 149 (1964); see Thorpe v. 
Housing. Authority of Durham, 393 U.S. 268, 282 n.43 (1969) 
(dictum) ; 2 J. Sutherland, Statutory Construction § 41.09 (4th ed. 
1973).

16 Walker v. Kleindienst, [5 EPD 8594] 357 F.Supp. 749, 752 
(D.D.C. 1973), see also nn.3 & 7, supra.

17 Federal Reserve Bank of Richmond v. Kalin, 77 F.2d 50 (4th 
Cir. 1935) (jurisdiction enlarged) ; Hallowell v. Commons, 239 
U.S. 506 (1916) (jurisdiction withdrawn).



24a

change of policy” arising out of a “ consideration [that] 
applies with the same force to all cases.” 18 Though Mr. 
Justice Holmes spoke of the transfer of jurisdiction from 
the judiciary to the executive, his reasoning applies pre­
cisely to this case where we deal with the transfer of 
jurisdiction from the executive to the judiciary.

Section 717(c) evinces a congressional policy to make the 
courts the final tribunal for the resolution of controversies 
over charges of discrimination after all administrative rem­
edies have been exhausted. This policy applies with equal 
reason to discrimination that occurred either before or 
after the passage of the Act when the earlier discrimina­
tion was the subject of administrative proceedings at the 
time of enactment. In both instances, the wrong is similar, 
and the requirement for exhaustion of administrative rem­
edies is the same.

Section 717(c), read literally, applies to Roger’s pending 
claim. It authorized him to file a civil action against the 
head of his department because in the language of the 
statute: 1) his “ complaint of discrimination based on race 
. . . [was] brought pursuant to . . . Executive Order 
11478 . 2) he waited “ one hundred and eighty days
from the filing of the initial charge with the department 
agency or unit . . .”  before filing suit; and 3) he was “ag­
grieved . . .  by the failure to take final action on his com­
plaint.” 19 Roger’s complaint, therefore, states a cause of 
action over which the district court has jurisdiction, unless 
his suit is barred by an exception to the general rule gov­
erning the retrospective application of procedural statutes.

18 Halloivell v. Commons, 239 U.S. 506, 508 (1916).

19 See n . l l ,  supra.

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25a

Objections to Court J urisdiction

III. The government advances three reasons why 
§ 717 (c) should not be applied to pending cases of dis­
crimination. It relies primarily on a footnote in Cohen v. 
Chesterfield County School Board,20 in which we said, 
“Buies and practices of [a public school board] in effect 
when the [board] was exempt from the Equal Employment 
Opportunity Act cannot be the basis for a violation of 
that Act.” 21 The government contends that since it was 
similarly exempt until March 1972, Roger’s suit, by anal­
ogy, cannot be maintained.

Cohen, however, is not controlling. There the issue con­
cerned the validity of a school board’s regulation pertain­
ing to maternity leave. For this reason, the court’s in­
quiry was directed to ascertaining the teacher’s substantive 
rights. The corollary of the teacher’s right was the obliga­
tion placed on the board. Obviously, during the time the 
board was exempt, the Act placed no obligation on it ; con­
sequently, the Act afforded the teacher no complementary 
right.22 Because the footnote dealt with the board’s duty

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20 Cohen v. Chesterfield County School Board, [5 EPD If 8419] 
474 F.2d 395-96 n.l (4th Cir. 1972), [7 EPD 9072] rev’d 42 
U.S.L.W. 4186 (U.S., Jan. 21, 1974).

21 Similar language is contained in a footnote of the Supreme 
Court’s opinion. Cohen v. Chesterfield County School Board, 42 
U.S.L.W. 4186, 4188 n.8 (U.S. Jan. 21, 1974).

22 Since the Act imposed no duty on the board at the time the 
teacher was placed on maternity leave, the Court considered her 
constitutional claim and held that the maternity leave regulation 
violated the due process clause of the fourteenth amendment. Cohen 
v. Chesterfield County School Board, [7 EPD ][ 9072] 42 U.S.L.W. 
4186 (U.S., Jan. 21, 1974).



26a

and the teacher’s substantive right, it must be read in this 
context.

In contrast, Roger’s right to be free from racial discrim­
ination does not depend on the 1972 Act. Executive Order 
11478 previously imposed a duty on the officials of his de­
partment to promote employees without regard to their 
race. The Act provided Roger a supplementary remedy for 
a violation of the existing duty defined by the Order. We 
conclude, therefore, that Cohen furnishes no precedent for 
dismissing Roger’s complaint.

The government’s second reason for avoiding retrospec­
tive application of § 717(c) is based on §14 of the 1972 
Act.23 This section provides that amendments made to 
§ 706 of the Civil Rights Act of 196424 shall be applicable 
to charges pending before the Economic Opportunity Com­
mission. The government contends that § 14 indicates that 
only the amendments to § 706 were to be given retroactive 
effect, and therefore § 717(c) cannot he applied retrospec­
tive. In the leading case supporting the government, the 
court ruled that a federal employee’s complaint of pre-Act 
discrimination failed to state a claim under the 1972 Act.25 
The court reasoned that § 717(c) of the Act created a “new 
claim” for federal employees. Since § 717(c) is not an

23 Section 14, 42 U.S.C. § 2000e-5 note (1972), provides:
“ The amendments made by this Act to section 706 of the Civil 

Rights Act of 1964 shall be applicable with respect to charges 
pending with the Commission on the date of enactment of this Act 
and all charges filed thereafter.”

24 42 U.S.C. § 2000e-5(a) to (g) (1972).
25 Hill-Vincent v. Richardson, [5 EPD H 8639] 359 F.Supp. 308 

(N.D. 111. 1973). The court, however, ruled that the complaint 
stated a cause of action under the fifth amendment. 359 F.Supp. 
at 309.

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27a

amendment of § 706, the court concluded that the “new 
claim” was applicable only to post-Act discrimination.

We agree that § 717(c) is not an amendment to §706, 
but this does not settle the matter. The difficulty with the 
government’s argument arises out of the failure to analyze 
the nature of the “new claim” the Act was said to have 
created. I f the phrase means only a new substantive right, 
it is inaccurate because a federal employee’s right to be free 
from racial discrimination existed before the passage of 
the 1972 Act. If it includes—as it should—a new remedy to 
enforce an existing right, then under the general rule fa­
voring retrospective application of procedural statutes, 
§ 717 (c) should be applied to pending cases for the reasons 
mentioned in Part II.

Moreover, we find nothing in the legislative history to 
justify the inference that by making amendments to § 706 
retrospective. Congress intended all other provisions of 
the Act to be prospective. The 1972 amendments to § 706 
enlarged the power of the Economic Opportunity Com­
mission and the Attorney General to deal effectively with 
discrimination in the private sector.26 The House bill was 
silent concerning the application of the new provisions to 
pending charges against private employers,27 and the Sen­
ate bill originally proposed that they should not be retro­
active. However, at the request of the Justice Department, 
Senator Javits offered an amendment to apply the changes 
in § 706 to charges pending before the Commission.28

26 42 U.S.C. § 2000e-5(a) to (g) (1972).
27 H.R. Conf. Rep. No. 92-899, 92d Cong., 2d sess., 2 U.S. Code 

Cong. & Admin. News 2179, 2185 (1972).
28118 Cong. Rec. 2183 (daily ed. Feb. 21, 1972).

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28a

The Senate, and later the House conferees, accepted 
Senator Javits’ amendment without any discussion about 
its effect on the rights of federal employees.29 Therefore, 
in the absence of any indication that Congress intended 
to alter the general rule that procedural statutes should be 
applied retrospectively, the legislative history furnishes no 
authority for limiting the application of § 717(c) to post- 
Act discrimination.30

Finally, the government claims sovereign immunity, cit­
ing Gnotta v. United States,31 which held that this doctrine 
was a defense to a complaint similar to Roger’s. Assum­
ing for the purpose of the government’s argument, that 
Gnotta is correct, we nevertheless find it inapposite. Gnotta 
was decided before the passage of the 1972 Act, and con­
sequently it presented no occasion for considering whether 
§ 717(c) should be applied retroactively to abrogate the 
doctrine with respect to pending complaints of racial dis­
crimination. Clearly, Congress gave its consent for suits 
to redress discrimination occurring after passage of the 
Act. Whether this consent extends to pending cases of 
pre-Act discrimination depends on the propriety of retro­
spective application of the Act. Thus, the government’s 
plea of sovereign immunity does not resolve the issue; it 
simply restates the question in different words.

29 See nn.27 and 28, supra.
30 “Unless a contrary legislative intent appears, changes in stat­

ute law which pertain only to procedure are generally held to 
apply to pending cases.”  2 J. Sunderland, Statutory Construction 
§41.09 at 281 (4th ed. 1973).

31 Gnotta v. United States, [2 EPD If 10,078] 415 F.2d 1271 
(8th Cir. 1969), cert, denied, 397 U.S. 934 (1970); accord, Man- 
hattan-Bronx Postal Union v. Gronouski, [52 LC ff 16,704] 350 
F.2d 451 (D.C. Cir. 1965).

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29a

The only condition precedent to suit that Congress 
created was the exhaustion of administrative remedies, in­
cluding those remedies that Executive Order 11478 made 
available both before and after the passage of the Act. 
Since Roger’s pending case satisfied this condition prece­
dent, the express language of § 717 (c) authorizes him to 
seek judicial relief.32 In this respect, he stands in the 
same position as an employee who exhausted his adminis­
trative remedies for a claim of post-Act discrimination. 
Therefore, no rational purpose is served by invoking the 
doctrine of sovereign immunity to bar judicial adjudication 
of Roger’s complaint simply because his pending case in­
volved pre-Act discrimination.33 We conclude that Con­
gress, being fully aware of the general rule favoring 
retrospective application of procedural statutes, intended 
by enacting § 717(c) to grant employees consent to sue 
for redress of pending cases of pre-Act discrimination.34

The judgment is reversed, and the case is remanded for 
further proceedings.

32 See n .ll , supra.
33 Congressional intention to abolish the defense of sovereign 

immunity is disclosed in S. Rep. No. 92-415, 92d Cong., 1st Sess. 
16 (1971) :

“ An important adjunct to [administrative] responsibilities is 
the statutory provision of a private right of action in the courts 
by Federal employees who are not satisfied with the agency or 
Commission decision.

“ . . . [T]he committee found that an aggrieved Federal em­
ployee does not have access to the courts. In many cases, the 
employee must overcome a U.S. Government defense of sovereign 
immunity . . . The provisions adopted by the committee will 
[afford] . . . employees . . . the full rights available in the courts 
as are granted to individuals in the private sector under Title V II.”

34 Henderson v. Defense Contract Admin. Region, [7 EPD 
§ 9058] 7 FEP Cases 241, 242 (S.D.N.Y. 1973).

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