Witherspoon v. Illinois Motion for Leave to File Brief Amici Curiae

    Supreme (Hmtrt erf tlje United States
October T erm, 1974 

No. 74-116

I n  the

D iane M. Place,

v.

Petitioner,

Caspar W einberger, et al.

ON PETITION FOR A WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

PETITION FOR REHEARING

Jack Greenberg 
James M. N abrit, 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 th e

imprint? (ftmtrt of tljp Hutted States
October T erm, 1974 

No. 74-116

Diane M. Place,
Petitioner,

v.

Caspar W einberger, et al.

on petition for a writ of certiorari to the

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

PETITION FOR REHEARING

The Petitioner herein respectfully moves this Court for 
an order vacating its denial of the Petition for Writ of 
Certiorari, entered on November 25, 1974, and granting 
the petition. This petition for a rehearing is founded upon 
the decision of the Second Circuit Court of Appeals in 
Brown v. General Services Administration (No. 73-2628) 
(November 21, 1974), pp. la-17a, Petition For Writ of 
Certiorari filed December , 1974, No. 74- .*

1 Counsel were notified by telephone of the decision in Brown 
in the late afternoon of Thursday, November 21, 1974, and ob­
tained a copy of the decision in the afternoon of Friday, Novem­
ber 22, 1974. The instant Petition For W rit of Certiorari was 
considered at the conference of Friday, November 22, 1974, the 
result of which was announced on Monday, November 25, 1974. 
Under the circumstances Petitioner, of course, had no opportunity 
to bring this development to the attention of the Court prior to 
the denial of Certiorari.



2

The instant case presents the question, inter alia, whether 
the new remedies of section 717 of the 1964 Civil Rights 
Act, as amended, apply to discrimination occurring prior 
to March 24, 1972, the date on which that section became 
law. Section 717, 42 U.S.C. § 2000e-16, authorizes the dis­
trict courts to provide to federal employees aggrieved by 
discrimination on the basis of race or sex the same rem­
edies available to employees of private employers. There 
is a conflict among the courts of appeals on this question; 
three circuits have concluded that section 717 is applic­
able to discrimination occurring before March 24, 1972, 
and one circuit, in the instant case, has concluded that it 
is not. On November 25, 1974, this Court denied the 
Petition For Writ of Certiorari, Justices Stewart, White 
and Douglas voting to grant the writ. Whenever a fed­
eral employee has sought to assert federal jurisdiction 
under section 717 to remedy such discrimination, the gov­
ernment, in three circuits and at least twenty-four dis­
trict courts, including the instant case, has opposed judicial 
scrutiny of such claims of discrimination by arguing that 
section 717 does not apply to discrimination occurring be­
fore March 24, 1972.

In Brown v. General Services Administration the gov­
ernment successfully advanced the opposite contention in 
preventing judicial scrutiny of Mr. Brown’s claims; in 
the Second Circuit the government contended that sec­
tion 717 does apply to discrimination occurring before 
March 24, 1972. The government there urged that sec­
tion 717 had repealed a variety of statutes on which plain­
tiff founded his cause of action. Since the discrimination 
of which plaintiff complained had occurred prior to March 
24, 1972, the government argued that section 717, and 
thus the repeal, applied to such discrimination occurring 
before the effective date of the section 717.



3

The Second Circuit, in holding at the instance o f the 
government that section 717 applied to discrimination be­
fore its effective date, expressly rejected the contrary 
conclusion reached by the Sixth Circuit, also at the urging 
of the government, in this very case.

In light of Bradley, we cannot agree with the Sixth 
Circuit’s holding in Place v. Weinberger, supra, that 
Congress by its silence as to all sections of the Act 
except one intended the other sections to have pro­
spective application only.2

At oral argument in Brown, the government expressly 
relied on Roger v. Ball, 497 F.2d 702 (4th Cir. 1974) and 
urged that this Court’s decision in Bradley v. School Board 
of the City of Richmond, 40 L.Ed 2d 476 (1974), dictated 
that section 717 be applied to discrimination occurring 
prior to March 24, 1974. In the instant case petitioner 
advanced the identical argument3 but the government re­
fused to acknowledge its correctness.

That the government advanced inconsistent positions 
in these two cases was not the result of inadvertence. In 
Brown the government, in stating its assumption that sec­
tion 717 applied to discrimination occurring before March 
24, 1972, conceded the government “has argued differently” 
in other cases.4 The Solicitor General was also made 
aware of the inconsistent position being taken by the 
government in different circuits.5 Had the Solicitor Gen­
eral, in response to the Petition in this case, taken a 
definitive position as to whether or not the government 
maintained the decision of the Sixth Circuit was correct,

2 P. 11a.

3 Petition for W rit of Certiorari, No. 74-116, pp. 17-19.

4 Brief for Defendants-Appellees No. 73-2628, 2d Cir., p. 6 n.

5 See Petition for W rit of Certiorari, p. 19.



4

uniformity in the position of the government in other 
case might have resulted. Instead, the Solicitor opposed 
Certiorari solely on the ground that the decision below 
was unimportant, thus avoiding committing the govern­
ment to one position or the other.6

It has long been a precept of Anglo-Saxon jurisprudence, 
at least since Lord Mansfield’s opinion in Montefiori v. 
Montefiori, 25 K.B. 203 (1762), that a party must not be 
permitted to advance inconsistent positions in judicial 
proceedings. See, e.g. Story’s Equity Jurisprudence, 14th 
ed., § 2020.7 The rule prevents a party from encouraging 
the growth of conflicts among the courts by seeking to 
win two inconsistent decisions where consistency would 
preclude him from winning more than one. “ Such use of 
inconsistent positions would most flagrantly exemplify 
that playing ‘fast and loose with the courts’ which has 
been emphasized as an evil the courts will not tolerate. 
. . . And this is more than an affront to judicial dignity. 
For intentional self-contradiction is being used as a means 
of obtaining unfair advantage in a forum provided for 
suitors seeking justice.” Scarano v. Central R. Co. of New 
Jersey, 203 F.2d 510, 513 (3d Cir. 1953).

This Court has applied that principle in a variety of 
cases. In Callanan Road Co. v. United States, 345 U.S. 
507 (1953), this Court refused to permit the holder of a 
certificate of convenience and necessity to collaterally 
attack the provisions of its certificate. The Court noted 
that, in obtaining its certificate, the holder had earlier

6 Memorandum for the Respondents in Opposition, pp. 2-4.

7 See also IB Moore’s Federal Practice, Tf 0.405[8] ; Note, 59 
Harv. L.Rev. 1132 (1946) ; Note, “ Estoppel Against Inconsistent 
Positions in Judicial Proceedings” , 9 Brooklyn L. Rev. 245 (1940) ; 
Note, 1 Tenn. L.Rev. 1 (1922). The principle was expressed by 
Lord Kenyon in the maxim, “Allegans contraria non est audiendus” .



5

argued before the Interstate Commerce Commission that 
the provisions of such certificates were not subject to 
collateral attack. This Court held that “ [t]lie appellant 
cannot blow hot and cold and take now a position con­
trary to that taken in the proceedings it invoked to obtain 
the Commission’s approval.” 345 U.S. at 513. In Davis v. 
Wakelee, 156 U.S. 680 (1895), Wakelee had obtained a 
final state court judgment against Davis on certain notes 
following service by publication. When Wakelee sought 
to assert the underlying claim in a bankruptcy action, the 
bankrupt Davis successfully argued that Wakelee need 
not, and thus could not, do so since the claim had already 
been reduced to a valid final judgment and was not dis­
chargeable. Thereafter Davis moved to set aside the 
original judgment on the ground that service by publica­
tion was unconstitutional, relying on Pennoyer v. Neff, 95 
U.S. 714 (1878). This Court forbade Davis from main­
taining such an inconsistent position as to the legality of 
service and the validity of the resulting judgment. 156 
U.S. at 689-691.8 See also Philadelphia R.R. Co. v. How­
ard, 54 U.S. (14 How) 307 (1851), Ohio R.R, Co. v. Mc­
Carthy, 96 U.S. 258 (1878).

These principles apply a fortiori when the party seeking 
to advance inconsistent positions is the government. A 
private party has an interest in winning an action regard­
less of the arguments or maneuvers it may use. The gov­
ernment’s overriding interest is that justice should be

8 “It may be laid down as a general proposition that, where a 
party assumes a certain position in a legal proceeding, and suc­
ceeds in maintaining that position, he may not thereafter, simply 
because his interests have changed, assume a contrary position 
. . . It is contrary to the first principles of justice that a man 
should obtain an advantage over his adversary by asserting and 
relying upon the validity of a judgment against himself, and in 
a subsequent proceeding upon such judgment, claim it was ren­
dered without personal service upon him.”



6

done; so long as that occurs the government has won, 
regardless of whether a particular defendant goes free 
or a civil litigant obtains injunctive or monetary relief. 
Berger v. United States, 295 U.S. 78, 88 (1935). Six cir­
cuits considering this question have all held that the 
government may not advance inconsistent positions.9 As 
the Second Circuit pointed out in Staten Island Hggeia 
Ice Co. v. United States, 85 F.2d 68, 72 (1936), “ [tjhere 
is nothing in the nature of sovereignty or in the recog­
nized prerogatives of the sovereign that would allow the 
government to take and keep a right without the accom­
panying burden” .

The due administration of justice would be materially 
advanced by requiring the Solicitor General to respond 
to this Petition For Rehearing and to state definitively 
whether the government maintains that section 717 does 
or does not apply to discrimination occurring prior to 
March 24, 1974. I f the Solicitor General adheres to the 
government’s position in Brown, the instant case can be 
summarily reversed.10 I f the Solicitor General adheres to 
the government’s position in the Sixth Circuit, the issues 
presented by the pending Petition for Writ of Certiorari 
in Brown will be substantially simplified, and the neces­
sity for a grant of certiorari in the instant case, in view 
of the new and conflicting decision of yet another court

9 Goodman v. Public Service Commission, 467 F.2d 375 (D.C. 
Cir. 1972) ; United States v. Fox Lake State Bank, 366 F.2d 962, 
965-66 (7th Cir. 1966); Vestal v. C.I.R., 152 F.2d 132 (D.C.Cir. 
194 5 ); Eichelberger & Co. v. C.I.R., 88 F.2d 874 (5th Cir. 1937); 
United States v. Brown, 86 F.2d 798 (6th Cir. 193 6 ); Staten 
Island Hygeia Ice Co. v. United States, 85 F.2d 68 (2d Cir. 1936); 
United States v. Denver, etc., R.R., 16 F.2d 374, 376 (8th Cir. 
1926).

10 See, regarding the effect of such confessions of error Urrutia 
v. United States, 357 U.S. 577 (1 9 5 8 ); Howard v. United States, 
356 U.S. 25 (1958).



7

of appeals, will be manifest. Compare Sanitary Refrigera­
tor Co. v. Winters, 280 U.S. 30, 34 n. (1929). Directing 
the Solicitor General to submit such a response is the 
most expeditious manner of precluding the government 
from continuing to advance different positions in different 
courts of appeal.

The inconsistent positions taken by the respondents 
doubtless reflect a good faith belief by the Department 
of Justice that it would be extremely undesirable to 
permit inquiry into claims that federal officials are 
breaking the law by discriminating on the basis of race 
or sex. But the national policy in this regard is to be 
made, not by lawyers in the executive branch, but by 
Congress. It was Congress which prohibited such discrim­
ination in 1957. And it was Congress which, over the 
objections of the executive branch, mandated such judicial 
scrutiny in 1972. The issue presented by this case is the 
extent to which attorneys within the Department of Jus­
tice can thwart or delay implementation of congressional 
policy by asserting whichever of two inconsistent theories 
will, in any particular case, prevent aggrieved employees 
from obtaining a judicial remedy. It is the very essence 
of a government of laws that there should be, in a case 
such as this, but one rule, uniform and invariable, ap­
plied to all citizens, regardless of whether, in some in­
stances, the result of that application may be displeasing 
to the men who chance to hold public office. United States 
v. United Mine Workers, 330 U.S. 258, 307-08 (1947) 
(Frankfurter, J. concurring). The ultimate responsibility 
for vindicating that principle is imposed by the Constitu­
tion on this Court.



8

CONCLUSION

For the above reasons, as well as those contained in 
the Petition for Writ of Certiorari, Petitioner prays that 
this Court direct the Solicitor General to respond to this 
Petition for Rehearing, and that the Court thereafter 
grant rehearing of the order of denial, vacate that order, 
grant the petition and review the judgment and opinion 
below.

Respectfully submitted,

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



9

Certificate of Counsel

As counsel for petitioner, I hereby certify that this 
Petition for Rehearing is presented in good faith and not 
for delay and is restricted to the grounds specified in Rule 
58(2).

Counsel for Petitioner



APPENDIX



Opinion of United States Court of Appeals 
For the Second Circuit

UNITED STATES COURT OF APPEALS 

F or the Second Circuit

No. 935— September Term, 1973.

(Argued June 14, 1974 Decided November 21, 1974.) 

Docket No. 73-2628

Clarence B rown,
Plaintiff-Appellant, 

v.

General Services A dministration, U nited States of A mer­
ica, T ransportation and Communications Service, 
Communications D ivision, R egion 2, J oseph A. D aly, 
Regional Director, Transportation and Communications 
Service, A lbert Gallo, Chief, Communications Division 
and F rank A. L apolla, Acting Chief, Communications 
Division, Transportation and Communications Service, 
Region 2,

Defendants-Appellees.

B e f o r e :
L umbard, H ays and T imbers,

Circuit Judges.

Appeal from judgment entered in the Southern District 
of New York, Lloyd F. MacMahon, District Judge, dismiss­
ing a complaint which alleged racially discriminatory em-

la



2a

ployment practices on the part of an agency and officials 
of the federal government.

Affirmed.

E ric S chnapper, New York, N.Y. (Jeff Greenup, 
Jack Greenberg, James M. Nabrit, III, 
Johnny J. Butler, Joseph P. Hudson and 
Greenup & Miller, New York, N.Y., on the 
brief), for Plaintiff-Appellant.

Charles F ranklin R ichter, Asst. U.S. Atty., 
New York, N.Y. (Paul J. Curran, U.S. Atty., 
and Gerald A. Rosenberg, Asst. U.S. Atty., 
New York, N.Y., on the brief), for Defen­
dants-Appellees.

T imbers, Circuit Judge:

This appeal from a judgment entered September 28, 
1973 in the Southern District of New York, Lloyd F. Mac- 
Mahon, District Judge, dismissing the complaint in an ac­
tion brought against an agency and officials of the federal 
government to redress alleged racially discriminatory em­
ployment practices presents the questions (1) whether 
Section 717(c) of the Equal Employment Opportunity Act 
of 19721 applies retroactively to claims arising before its

1 Section 717(c) o f the Equal Employment Opportunity Act o f 1972 
as codified in 42 U.S.C. §2000e-16(c) (Supp. I I  1972), provides in 
pertinent part:

“Within thirty days o f receipt o f notice of final action taken by 
[an] . . . agency, or by the Civil Service Commission upon an appeal 
from a decision or order o f such . . . agency . . .  on a complaint of 
discrimination based on race, color, religion, sex or national origin, 
brought pursuant to subsection (a ) o f this section, Executive Order 
11478 or any succeeding Executive orders, or after one hundred



3a

enactment; (2) whether the statute pre-empts any other 
federal jurisdictional basis for appellant’s claim; and (3) 
whether in any event appellant has failed to exhaust ad­
ministrative remedies. We hold that each of these ques­
tions must be answered in the affirmative. We affirm.

I. F acts

Appellant Clarence Brown, a black, has been employed 
by the General Services Administration (GSA) Regional 
Office No. 2 (New York City) since 1957. He has not been 
promoted since 1966. His current job classification is 
Communications Specialist, GS-7, Telecommunications 
Division, Automated Data Telecommunications Service.

In December 1970, Brown was referred for promotion 
to GS-9 by his supervisors along with two white employees, 
Ownbey and Trost. All three were rated “highly qualified” . 
Trost was the only one promoted. Brown filed an admin­
istrative complaint of racial discrimination with the GSA 
Equal Employment Opportunity Office. The complaint was 
withdrawn, however, after Brown was told that further 
promotions would soon be available and that he had been 
denied promotion because of lack of the requisite “voice 
experience” .

Brown claims that he thereafter acquired full “voice 
experience” . In June 1971, another GS-9 promotional op­
portunity opened. Brown and Ownbey again were rated 
“ highly qualified” for the opening. A third white employee 
also was available. Ownbey was chosen.

and eighty days from the filing o f the initial charge with the . . . 
agency . . .  or with the Civil Service Commission on appeal from 
a decision or order of such . . . agency . . . until such time as 
final action may be taken by [an] . . . agency, . . .  an employee 
. . . i f  aggrieved by the final disposition o f his complaint, or by 
the failure to take final action on his complaint, may file a civil 
action as provided in section 2000e-5 o f this title, in which civil 
action the head of the . . . agency, . . . shall be the defendant.”



4a

On July 15, 1971, Brown filed a second administrative 
complaint with the GSA Equal Employment Opportunity 
Office, claiming racial discrimination in the denial of his 
promotion. An investigative report was prepared. After 
review, the GSA Regional Administrator determined that 
there was no evidence of racial discrimination and so in­
formed Brown by letter dated October 19, 1972. This letter 
also informed Brown that he could request a hearing on 
his complaint within seven days; but that if he did not 
make such a request, the determination would become the 
final agency decision and he would then have the right to 
appeal the GSA’s decision to the Board of Appeals and 
Review of the Civil Service Commission (CSC), or to file 
a civil action in the federal district court within 30 days.

Brown requested a hearing. It was held on December 
13, 1972 before a complaints examiner of the CSC. Brown 
was represented by counsel. On February 9, 1973, the com­
plaints examiner issued his findings and recommended de­
cision. He found no evidence of discrimination and recom­
mended that no action be taken on the basis of the com­
plaint.

By letter dated March 23, 1973, received by Brown on 
March 26, the GSA Director of Civil Rights rendered the 
final agency decision that the evidence did not support the 
complaint of racial discrimination. The letter, pursuant to 
regulations, included a copy of the transcript of the hear­
ing and of the findings and recommended decision of the 
complaints examiner. The letter also advised Brown of his 
options: (1) to file an appeal with the Board of Appeals 
and Review of the CSC within 15 days after receipt of 
the letter, in which case he could commence a civil action 
in the federal district court within 30 days after receipt 
of the Board’s decision or 180 days after filing the appeal 
if no decision had been rendered; or (2) to commence a



5a

civil action in the federal district court within 30 days after 
receipt of the letter.2

Brown did not file an appeal with the Board. Instead, 
he commenced the instant action in the district court on 
May 7, 1973—more than 30 days after receipt of the letter. 
His complaint named as defendants the GSA and Brown’s 
superiors, Joseph A. Daly, Albert Gallo and Frank A. 
Lapolla.

Basically, Brown’s complaint alleges that he has been 
denied promotions because of his race.3 Apparently he 
seeks a promotion to Communications Assistant, GS-9, a 
supervisory position, and appropriate back pay, although 
some reference is made in his brief to damages based on 
discrimination.

The original complaint alleged jurisdiction under Title 
V II of the Civil Rights Act of 1964, 42 U.S.C. §§2000e 
et seq. (1970); Section 717 of the Equal Employment 
Opportunity Act of 1972, 42 U.S.C. §2000e-16 (Supp. II 
1972); 28 U.S.C. §1331 (1970); and the Declaratory Judg­
ment Act, 28 U.S.C. §§2201-02 (1970). The complaint also 
sought to invoke jurisdiction to secure protection of and 
redress deprivation of rights secured by 42 U.S.C. §§2000e 
et seq. (1970) and 42 U.S.C. §1981 (1970). The complaint 
demanded “ such relief as may he appropriate, including 
injunctive orders, damages, costs, attorney’s fees and back 
pay.” 4

2 The provisions for civil actions are set forth in Section 717 (c ) of 
the Equal Employment Opportunity Act, 42 U.S.C. §2000e-16(c) (Supp. 
I I  1972). See note 1 supra.

3 The position o f the GSA is that Brown is a somewhat uncooperative 
employee and therefore has not been promoted. The substantive dispute, 
however, is not before us on this appeal. Our decision is limited to the 
threshold jurisdictional questions presented.

4 Belief available under Title V II  and the regulations promulgated 
thereunder would include retroactive promotion with back pay and at­
torney’s fees. 42 U.S.C. $$2000e-16(d), 2000e-5(g) (Supp. I I  1972); 
42 U.S.C. $2000e-5(k) (1970); 5 C.F.E. $713.271(b) (1974).



6a

On July 23, 1973, defendants moved to dismiss the com­
plaint on the ground that the court lacked subject matter 
jurisdiction since Brown had not filed his complaint within 
30 days as required by Section 717(c) of the Equal Employ­
ment Opportunity Act of 1972 and his action therefore was 
barred by sovereign immunity.

On September 18, 1973, Brown moved for leave to file 
an amended complaint. The proposed amended complaint 
sought to add the CSC and Selbmann, the complaints exam­
iner, as defendants, the original complaint having stated 
that the CSC had been joined as a party defendant although 
it was not actually named. The amended complaint also 
alleged as additional bases of jurisdiction 28 U.S.C. §1343 
(4) (1970) and the Tucker Act, 28 U.S.C. §1346(a) and (b) 
(1970), and added an allegation that more than $10,000 was 
in controversy.5 6

In a memorandum opinion filed September 27,1973, Judge 
MacMahon held that Brown’s action was barred by sover­
eign immunity and that the district court therefore lacked 
subject matter jurisdiction. The judge also denied the 
motion for leave to amend on the ground that the original 
complaint had been dismissed and the proposed amended 
complaint did not change the situation.

The essential questions thus presented are whether Sec­
tion 717(c) of the Equal Employment Opportunity Act of 
1972 is to be applied retroactively to claims arising before 
but pending administratively at the time of its enactment; 
if so, whether that Act pre-empts any other avenue of 
judicial review; and whether in any event appellant has 
failed to exhaust administrative remedies.

5 Although the original complaint had alleged jurisdiction under 28
U.S.C. §1331 (1970), no jurisdictional amount was alleged.



II. L e g is l a t iv e  H is t o r y  a n d  S t a t u t o r y  P r o v is io n s

We believe that a key to the resolution of these questions 
may be found in the legislative history and the statutory 
provisions that emerged.

Title VII of the Civil Rights Act of 1964 forbids em­
ployment discrimination based on race, color, religion, sex 
or national origin. 42 U.S.C. §§2000e-2 to -3 (1970), as 
amended (Supp. II 1972). As originally enacted in 1964, 
however, it did not apply to federal employees. 42 U.S.C. 
§2000e(b) (1970). Executive Orders6 and agency regula­
tions covered their complaints of employment discrimina­
tion.7 In general, the agency itself conducted an investiga­
tion and hearing on such complaints. Although the hear­
ing examiner might come from an outside agency, espe­
cially the CSC, the head of the employee’s agency made 
the final agency determination. Appeal lay only to the 
Board of Appeals and Review of the CSC.8

No private right of action was provided for federal em­
ployees by Title VII until 1972 when Congress amended 
the Equal Employment Opportunity Act by adding Sec­
tion 717(c). The legislative history of this section gen­
erally evinces a concern that job discrimination had not 
been eliminated in the federal government. It indicates the 
dissatisfaction of federal employees with the complaint 
procedures available. The committee reports show that 
Congress was not persuaded by testimony of agency offi­
cials that legislation wras not needed because a private right

6 See Exec. Order No. 11478, as amended, Exec. Order 11590, 3 C.E.R. 
207 (1974), 42 U.S.C. $2000e, at 10,297 (1970); Exec. Order 11246, as 
amended, Exec. Order 11375, 3 C.F.R. 169 (1974), 42 U.S.C. $2000e, at 
10,294-97 (1970).

7 See 5 C.E.R. Pt. 713 (1971).

8 Id .; S. Rep. No. 92-415, 92d Cong., 1st Sess. 14 (1971), reprinted in 
Legislative History of the Equal Employment Opportunity Act o f 1972, 
at 410, 423 (1972) (hereinafter cited as Legislative History).



8a

of action already existed. They note that, even if such right 
was available, the federal employee faced defenses of sov­
ereign immunity and failure to exhaust administrative rem­
edies ; and, even if such defenses were overcome, the relief 
available, such as back pay or immediate advancement, 
was in doubt.9

It was against this backdrop that Congress in 1972 pro­
vided a private right of action for federal employees who 
were not satisfied with the agency or CSC decisions. Under 
Section 717(c), an aggrieved employee may commence an 
action in a federal district court within 30 days after a 
final order by his agency on a complaint of discrimination 
based on race, color, religion, sex or national origin, or 
within 30 days after a final order of the CSC on an appeal 
from such an agency decision, or after the elapse of 180 
days from the filing of the initial complaint with the agency 
or of the appeal with the CSC if no decision has been ren­
dered. No appeal need he taken to the CSC. The employee 
may go directly to court after the agency decision. 42 
U.S.C. §2000e-16(c) (Supp. II 1972), note 1 supra.

III. R e t r o a c t i v it y

Brown’s administrative complaint was filed with the GSA 
in 1971. It was under agency consideration at the time of 
the enactment of Section 717(c) on March 24, 1972. The 
question of retroactivity thus presented is whether the sec­
tion should be applied to claims of discrimination which 
arose before its effective date but were awaiting final ad­
ministrative decision at that time.10 Retroactivity in this

9 H. R. Rep. No. 92-238, 92d Cong., 1st Sess. 23-26 (1971), in Legis­
lative History 61, 82-86; S. Rep. No. 92-415, 92d Cong., 1st Sess. 14-17 
(1971), in Legislative History 410, 421-26.

10 Cf. Petterway v. Veterans Administration Hospital, 495 F.2d 223 
(5 Cir. 1974) (Section 717(c) held not applicable to pre-Act claim o f  
federal employment discrimination because complaint was no longer



9a

context refers only to the claim; the district court com­
plaint in the instant action was filed on May 7, 1973—well 
after the date of enactment.

All parties to this appeal have sidestepped the retro­
activity issue. Appellees deal with the issue briefly in a 
footnote by stating that they assume retroactive operation 
in their arguments here although they have argued other­
wise elsewhere. Appellant argues that the section is not 
applicable to the instant action precisely because he did 
not file his complaint within the required 30 days and that 
other statutes provide a jurisdictional basis for his action.

The issue of retroactive application of this statute has 
resulted in a conflict between the circuits. The District 
of Columbia and Fourth Circuits have held that Section 
717(c) applies retroactively to claims pending at the time
of its enactment. Womack v. Lynn,------ F .2 d _____  (D.C.
Cir. 1974) (No. 72-1827, filed October 1, 1974); Roger v. 
Ball, 497 F.2d 702 (4 Cir. 1974). The Sixth Circuit has 
held that it does not. Place v. Weinberger, 497 F.2d 412 
(6 Cir. 1974). The district courts have gone both ways. 
Compare, e.g., Ficklin v. Sabatini, 378 F.Supp. 19 (E.D. 
Pa. 1974) (retroactive); Henderson v. Defense Contract 
Administration Services, 370 F.Supp. 180 (S.D.N.Y. 1973) 
(retroactive); Walker v. Kleindienst, 357 F.Supp. 749 
(D.D.C. 1973) (retroactive) with Moseley v. United States, 
No. 72-380-S (S.D. Cal., filed January 23, 1973) (non­
retroactive) ; Hill-Vincent v. Richardson, 359 F.Supp. 308 
(N.D. 111. 1973) (non-retroactive).

The conflict as to retroactivity has turned on whether 
Section 717(c) is to be viewed as providing a new substan­
tive right for federal employees or whether it merely 
provides a new remedy for enforcing an existing right.

pending in agency at time o f enactment and because complaint was 
filed beyond 30 day period).



10a

The pre-1972 right of a federal employee not to be dis­
criminated against is said to be found in Congressional en­
actments, 5 U.S.C. §7151 (1970), and Executive Orders. 
Exec. Orders 11246, 11478, note 6 supra. Courts ivhich 
have adopted the view that Section 717 (c) provides a new 
remedy for enforcing an existing right have held the sec­
tion retroactive on the grounds that it is remedial, Hender­
son v. Defense Contract Administration Services, supra, or 
that it is procedural. Koger v. Ball, supra.

Courts which have refused to give retroactive effect to 
the statute, aside from rejecting the view that Section 
717(c) merely creates a new remedy for a pre-existing 
right, have held that Congress intended only certain por­
tions of the Equal Employment Opportunity Act to be 
retroactive for the reason that in Section 14 of the Act, 
in 42 U.S.C. §2000e-5, at 1,257 (Supp. II 1972), there is a 
specific provision that amendments to one section of Title 
V II are to be given retroactive effect, and since there is 
no reference in Section 14 to Section 717(c), the latter 
should not be given retroactive effect. See, e.g., Place v. 
Weinberger, supra.

This latter view strikes us as being inconsistent with the 
underlying principle of Bradley v. School Board of City
of Richmond,------U .S.------- (1974), 42 U.S.L.W. 4703 (U.S.
May 15, 1974). There the Supreme Court held that a stat­
ute11 authorizing a federal court to award attorney’s fees 
in school desegregation cases should have been applied by 
the Court of Appeals so as to result in the affirmance of the 
decision of the District Court which had awarded such fees 
on the basis of its general equity power, since the statute 
was enacted after the District Court’s award but before

11 Section 718 o f the Emergency School Aid Act, Title V II  o f the 
Education Amendments o f 1972, 20 E.S.C. §1617 (Supp. I l l  1973).



11a

the Court of Appeals’ decision. The rationale of the Su­
preme Court’s decision was stated as follows:

“We anchor our holding in this case on the prin­
ciple that a court is to apply the law in effect at the 
time it renders its decision, unless doing so would re­
sult in manifest injustice or there is statutory direc­
tion or legislative history to the contrary.” -----U.S.
a t ------ , 42 U.S.L.W. at 4707.

We believe that this principle applies here. Neither the 
statute itself nor the legislative history gives any direction 
as to whether Section 717 (c) should be applied to com­
plaints pending within the agency at the time of its enact­
ment. In light of Bradley, we cannot agree with the Sixth 
Circuit’s holding in Place v. Weinberger, supra, that Con­
gress by its silence as to all sections of the Act except 
one intended the other sections to have prospective ap­
plication only. As the Supreme Court stated in Bradley:

“ [E]ven where the intervening 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. . . . ” ------U.S. a t ------- , 42 U.S.L.W. at 4708.

While Bradley dealt with a court of appeals’ review of a 
district court’s decision, we believe that the underlying 
principle is applicable to a review by a district court of an 
agency decision. So far as the statutory language and the 
relevant legislative history are concerned, retroactive appli­
cation of Section 717(c) would appear to be appropriate.

This does not end our analysis under Bradley. We must 
determine whether application of a change in law to pend-



12a

ing claims “would result in manifest injustice” . ------ U.S.
a t ------ , 42 U.S.L.W. at 4707. In each of the cases where
Section 717(c) has been applied retroactively, it was done 
to aid a plaintiff in the prosecution of his complaint. See, 
e.g., Roger v. Ball, supra. In view of the policy of the 
federal government against discrimination in federal em­
ployment and its encouragement of efforts to eliminate 
such discrimination in the private and state and local gov­
ernment sectors, such retroactive application of the statute 
appears sound. I f Section 717(c) is held applicable here, 
however, Brown’s claim must fall since he admittedly has 
failed to comply with its 30 day filing requirement.

We hold that there is no “manifest injustice” in the retro­
active application of the statute to Brown’s complaint. 
Twice he was notified in letters from the GSA of the pro­
cedure for obtaining court review of the agency decision. 
Both letters gave notice of the 30 day filing requirement. 
His counsel have not suggested any excuse for the delay 
in filing the complaint—either in their briefs, or in oral 
argument, particularly in response to a direct question by 
the Court concerning such delay. Instead, his counsel argue 
that the statute does not apply because Brown has not com­
plied with it.12 In a sense, he is correct in that he cannot 
take advantage of the statute because he has not complied 
with its terms. This failure is fatal to Brown’s claim, since 
we hold below that Congress intended Section 717(c) to 
be the exclusive judicial remedy for federal employee dis­
crimination grievances.

IV. P r e -e m p t i o n

Appellees argue that, whatever may be the merits of the 
alternative bases for jurisdiction asserted by appellant,

12 It is interesting to note that both the original complaint and the 
proposed amended complaint invoked Section 717 as one basis of 
jurisdiction in the district court.



13a

they are pre-empted by Section 717(c). Neither the Act 
itself nor its legislative history conclusively demonstrates 
that such pre-emption was intended. Congress enacted 
Section 717(c) to provide a private right of action for fed­
eral employees—a right it believed to have been previously 
non-existent or so difficult to enforce as to have been in 
effect non-existent. The most persuasive argument in favor 
of pre-emption is that the Act constitutes a waiver of sov­
ereign immunity and as such must be strictly construed.

The doctrine of sovereign immunity forbids suits against 
the government without its consent. Sovereign immunity 
in the present context involves not only that of the United 
States but also that of its officers in performing their offi­
cial functions. As the Eighth Circuit succinctly put it :

“A  suit against an officer of the United States is one 
against the United States itself ‘if the decree would 
operate against’ the sovereign, Hawaii v. Gordon, 373 
U.S. 57, 58, 83 S.Ct. 1052, 1053,10 L.Ed. 2d 191 (1963); 
or if ‘the judgment sought would expend itself on the 
public treasury or domain, or interfere with the public 
administration’, Land v. Dollar, 330 U.S. 731, 738, 67 
S.Ct. 1009, 91 L.Ed. 1209 (1947); or if the effect of 
the judgment would be ‘to restrain the Government 
from acting, or to compel it to act’, Larson v. Domestic 
£  Foreign Commerce Corp., 337 U.S. 682, 704, 69 S.Ct.
1457,1468, 93 L.Ed. 1628 (1949)___ ” Gnotta v. United
States, 415 F.2d 1271, 1277 (8 Cir. 1969) (Blackmun, 
J.), cert, denied, 397 U.S. 934 (1970).

The court in Gnotta held that demands for promotion and 
back pay fall within the scope of this immunity as they 
necessarily involve expenditures from the Treasury and 
compel the exercise of administrative discretion in an offi­
cial personnel area. 415 F.2d at 1277. This is precisely 
the relief demanded in the instant case.



14a

Sovereign immunity would bar prosecution of this action 
absent an effective waiver. Congress can impose restric­
tions on its consent to be sued, Battaglia v. United States, 
303 F.2d 683, 685 (2 Cir.), cert, dismissed, 371 U.S. 907 
(1962), including limitations on the time within which suit 
must be commenced. United States v. One 1961 Red Chev­
rolet Impala Sedcm, 457 F.2d 1353,1357 (5 Cir. 1972). The 
consent Congress has given for the instant type of action 
is set forth in Section 717(c). Such consent is conditioned 
on compliance with the 30 day filing requirement.

Statutes waiving sovereign immunity are to be strictly 
construed. But assuming, as appellant argues, that deci­
sions of the Supreme Court illustrate a more liberal atti­
tude with regard to waivers of sovereign immunity at least 
where a federal agency is concerned, see Federal Housing 
Administration v. Burr, 309 TJ.S. 242 (1940); Kiefer & 
Kiefer v. Reconstruction Finance Corp., 306 U.S. 381 
(1939), we cannot ignore the explicit condition imposed by 
Congress on a suit such as the instant one. It would wholly 
frustrate Congressional intent to hold that a plaintiff could 
evade the 30 day filing requirement “by the simple ex­
pedient of putting a different label on [his] pleadings.” 
Preiser v. Rodriguez, 411 U.S. 475, 489-90 (1973).

The instant complaint was filed more than a year after 
passage of the 1972 Act. Brown had notice of its provi­
sions. He has offered no excuse for failure to comply, 
nor has he addressed the issue of retroactivity. We find 
no injustice in requiring compliance with the 30 day filing 
requirement. On the contrary, to permit suit without com­
pliance with the conditions imposed by Section 717(c) 
would effectively undermine the strong public policy that 
requires strict construction of a statute which waives 
sovereign immunity.13

13 In view o f our holding, we find it unnecessary to consider appellant’s 
claims that jurisdiction can be founded on 28 TJ.S.C. $1361 (1970)



15a

V. F a i l u r e  t o  E x h a u s t  A d m in i s t r a t i v e  R e m e d ie s

Finally, even if we were to hold in favor of Brown on 
the issues discussed above, his claim would fall for failure 
to exhaust administrative remedies under regulations in 
effect prior to the 1972 Act. Although he pursued these 
remedies to the extent of obtaining a final agency deci­
sion, he failed to appeal to the Board of Appeals and Re­
view of the CSC. See 5 C.F.R. §§713.231 to .234 (1974), 34 
Fed. Reg. 5371 (1969).

Assuming without deciding that exhaustion of federal 
administrative remedies may not be required in every case 
of alleged discriminatory federal employment practices, cf. 
McKart v. United States, 395 U.S. 185 (1969); but see Penn 
v. Schlesmger, 490 F.2d 700, 707-14 (5 Cir. 1973) (dissent­
ing opinion), rev’d en banc, 497 F.2d 970 (5 Cir. 1974) 
(adopting panel dissent), there is nothing in the allega­
tions of Brown’s complaint which justifies the “premature 
interruption of the administrative process.” McKart v. 
United States, supra, 395 U.S. at 193. The “notions of 
judicial efficiency” stressed by the Court in McKart are 
particularly applicable here:

“A  complaining party may be successful in vindicating 
his rights in the administrative process. I f he is re­
quired to pursue his administrative remedies, the 
courts may never have to intervene.” 395 U.S. at 195.

For aught that appears in the record before us, we can­
not say that an appeal to the CSC might not have resulted 
in granting the relief sought by Brown. Since he did 
not exhaust his administrative remedies, however, we have 
been presented with troublesome jurisdictional questions

(mandamus); the Administrative Procedure Act, 5 U.S.C. §§701-06 
(1970); the Tucker Act, 28 U.S.C. §I346(a) and (b ) (1970); and 
42 U.S.C. §1981 (1970) and 28 U.S.C. §1343(4) (1970).



16a

which must be resolved before the substantive issue of 
discrimination can even be considered. See Penn v. 
Schlesinger, supra, 490 F.2d at 712.

Moreover, it cannot be said here that the administra­
tive remedies available to Brown were inadequate or fu­
tile. Cf. McKart v. United States, supra, 395 U.S. at 
200; Eisen v. Eastman, 421 F.2d 560, 569 (2 Cir. 1969), 
cert, denied, 400 U.S. 841 (1970). Administrative regula­
tions in effect at the time Brown filed his complaint in 
the district court (and which remain in effect) provided 
for retroactive promotion with back pay if discrimina­
tion was found. 5 C.F.R. §713.271(b) (1974), 37 Fed. Reg. 
22,717 (1972). This essentially is the relief sought in 
his federal court action. Nor does Brown claim that he 
had no notice of the appellate relief available (he re­
ceived two letters so informing him), or that his attempts 
to seek administrative remedies were frustrated. See Penn 
v. Schlesinger, supra, 490 F.2d at 706.

Under the circumstances of this case, we hold that Brown 
inexcusably failed to exhaust available administrative rem­
edies.

C o n c l u s i o n

Clearly the federal courts have jurisdiction under Sec­
tion 717(c) of the Equal Employment Opportunity Act 
of 1972 to review claims by federal employees of dis­
criminatory employment practices. Brown’s failure to com­
ply with the statutory requirements with respect to ap­
pealing to the Board of Appeals and Review of the CSC, 
or by commencing a timely action in the district court, 
has presented the threshold jurisdictional issues to which 
this opinion is addressed. We hold that his failure to 
commence the instant action in the district court within 
30 days of the final agency decision is fatal to his com­



17a

plaint since Section 717(c) operates retroactively and pre­
empts any other avenue of judicial review; and that he 
has failed to exhaust available administrative remedies. 
The entire process of administrative review by the CSC 
and of judicial review within the 30 day period for seek­
ing such review makes no sense at all if an employee may 
simply ignore the statutory requirements.

Affirmed.



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