Brown v. General Services Administration Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit

    I n t h e

Huitpft States §>npnmv (Emirt
O c t o b e r  T e r m , 1974 

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

C l a r e n c e  B r o w n ,

Petitioner,

v.

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

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

FOR THE SECOND CIRCUIT

J a c k  G r e e n b e r g  
J a m e s  M. N a b r it , III 
C h a r l e s  S t e p h e n  R a l s t o n  
B a r r y  L. G o l d s t e in  
E r ic  S c h n a p p e r

10 Columbus Circle 
New York, New York 10019

J e f f  G r e e n u p

200 West 135th Street 
New York, New York 10030

Counsel for Petitioner



I N D E X

Opinions Below .......... .................... -..............................  1

Jurisdiction ...................................-..................................  1

Questions Presented .......................................................  2

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

Statement of the Case ............................................... —- 4

Reasons for Granting the Writ ..................................... 7
1. The Decision of the Court Below That Section 

717 Repealed, Pro Tanto, the 1866 Civil Rights 
Act, the Mandamus Act, and the Administra­
tive Procedure Act, Is in Conflict With the 
Decisions of This Court, the Decisions of 5 
Circuits, and the Express Intent of Congress 7

2. The Decision of the Court Below, Establish­
ing for Actions Under the 1866 Civil Rights 
Act, etc., Exhaustion Requirements Different 
Than Those Established by Congress for Ac­
tions Under Section 717, Seriously Under­
mines the Statutory Scheme of Title VII ~~ 13

C o n c l u s io n  ................................................................................................... 19

A p p e n d ix —

Opinion of the District Court ................................  la
Opinion of the United States Court of Appeals
for the Second Circuit ....... ...................... -..............  2a

PAGE



11

Cases: p a g e

Alexander v. Gardner-Denver Co., 39 L.Ed 2d 147 
(1974) ....................................................................... ..7,8,10

Boudreaux v. Baton Rouge Marine Contracting Co.,
437 F.2d 1011 (5th Cir. 1971) ..... ............................9,10

Bowers v. Campbell, 8 EPD If 9752 (9th Cir. 1974) ...... 16
Brady v. Bristol-Meyers, Inc., 459 F.2d 621 (8th Cir. 

1972) ...................       9

City Bank Farmers’ Trust Co. v. Schnader, 291 U.S.
24 (1934) ........ .................... - .........- ...................... .....

Crown Coat Front Co., Inc. v. United States, 386 U.S.
503 (1967) .................. .................... ...............................

Drew v. Liberty Mutual Insurance Company, 480 F.2d 
69 (5th Cir. 1973) ........... ............................................ 10

Henderson v. Defense Contract Administration Ser­
vices, 370 F. Supp. 180 (S.D.N.Y.) ............ ....... .....  5

Hickman v. Fincher, 483 F.2d 855 (4th Cir. 1973) ___  9
Howard v. Lockheed Georgia Co., 372 F. Supp. 854

(N.D. Ga. 1974) ........ ................... ....... ..... ......... .........  15
Huston v. General Motors Corp., 477 F.2d 1003 (8th 

Cir. 1973) ......... .................. ........................................... 6

Johnson v. Railway Express Agency, No. 73-1543 ___ 14,18
Jones v. Mayer, 392 U.S. 409 (1968) .......... ...................  8

Long v. Ford Motor Co., 496 F.2d 500 (6th Cir. 1970) ..9,10 
Loo v. Gerarge, 374 F. Supp. 1338 (D. Hawaii 1974) .... 15 
Love v. Pullman Co., 404 U.S. 522 (1972) .................... . 12

Macklin v. Spector Freight Systems, Inc., 478 F.2d 979 
(D.C. Cir. 1973) ............. .................................... ........ .

17

19

9



I l l

Morton v. Mancari, 41 L.Ed. 2d 290 (1974) ......... - .......  7,8

Sanders v. Dobbs Houses, Inc., 431 F .2d 1097 (5th Cir.
1970)  ------------------- ------------------------ ---------------- ----------------------------------------------- - ...........................................................- ......... - 9,12

Smith y . Illinois Bell Telephone Co., 270 IT.S. 587
(1926) ............. ................................. - - .........-..... -.... . 17

Sullivan v. Little Hunting Park, 396 IT.S. 229 (1969) ...- 8
Sunshine Publishing Co. v. Summerfield, 184 F. Supp.

767 (D.D.C. 1960) .................... -.... -............... -..... -.... - 17

Walker v. Southern R.R. Co., 385 IT.S. 196 (1966) .......  18
Waters v. Wisconsin Steel Works, 427 F.2d 476 (7th 

Cir. 1970) ........................ - .... ................ -..........------.....  9

Young y. International Telephone & Telegraph, 438 
F.2d 757 (3d Cir. 1971) ................. ...........-...... ............9,12

PAGE

Statutes:

5 U.S.C. § 702 ........ ......................... ..... - ....... -.............- 6, 7

28 U.S.C. § 1254(1) __________ —........- - ...... -.... -........  1
28 U.S.C. § 1361 ................. .... ...............-........-......... - -4 , 6, 7

28 U.S.C. § 1346 __ _______________ __-....... ..........—4, 6, 7
42 U.S.C. § 1981 ................. ........ ..3, 6, 7, 9,10,12,13,14,17
42 U.S.C. § 2000e-16 _________ 2, 3, 5, 6, 7,13,14,15,16,18

Legislative History:

110 Cong. Ree. 13650 _____ _____________ _____ ______ 11
Hearings Before the Senate Committee on Labor and 

Public Welfare 91st Cong. 1st Sess,, (1971) ............. 11



IV

Hearings Before a Subcommittee of the Senate Com­
mittee on Labor & Public Welfare, 92nd Cong., 1st 
Sess. (1971) ............... ........ ...... ................................ 18

Hearings Before a Subcommittee of the House Com­
mittee on Education & Labor, 91st Cong., 1st and 
2nd Sess. (1969-70) ................................... ..................  17

H.R. Rep. 92-238 (1971).............................................12,13,17

Legislative History of the Equal Employment Oppor­
tunity Act of 1972, pp. 1512-1514............. ...................  12

Other Authorities:

5 C.F.R. § 713.220 ............. ............... .................. ............. 15
Yale L.J. 574 (1963) ________ ___________________ ___  17

Board of Appeals and Review, Work Load Statistics .... 15
Brief of the United States as Amicus Curiae in No.

73- 1543 ....... ...............................................................13,18

Memorandum of the Respondents in Opposition, No.
74- 116 ......... .................................................................  15

PAGE



I n  t h e

United Stairs Qlmtrt
O c t o b e r  T e r m , 1974 

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

C l a r e n c e  B r o w n , 

y.
Petitioner,

G e n e r a l  S e r v ic e s  A d m in i s t r a t i o n , et al.

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

FOR THE SECOND CIRCUIT

The petitioner, Clarence Brown, respectfully prays that 
a Writ of Certiorari issue to review the judgment and 
opinion of the United States Court of Appeals for the 
Second Circuit entered in these proceedings on November 
21, 1974.

Opinions Relow

The opinion of the Court of Appeals, which is not yet 
reported, is set out in the Appendix hereto at pp. 2a-18a. 
The opinion of the District Court, which is not reported, 
is set out in the Appendix hereto at p. la.

Jurisdiction

The judgment of the Court of Appeals was entered on 
November 21, 1974. Jurisdiction of this Court is invoked 
under 28 U.S.C. §1254(1).



2

Questions Presented

1. Did section 717 of Title VII of the 1964 Civil Rights 
Act repeal, pro tanto, the 1866 Civil Rights Act, the 
Tucker Act, the Mandamus Act, and the Administrative 
Procedure Act?

2. Are the exhaustion requirements for a civil action 
to remedy employment discrimination, maintained under 
the 1866 Civil Rights Act, the Tucker Act, the Mandamus 
Act, and the Administrative Procedure Act, different and 
more stringent than those established by Congress for an 
action under section 717?

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 sec­
tion 105 of title 5, United States Code (including em­
ployees 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 Co­
lumbia 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



3
shall be made free from any discrimination based on 
race, color, religion, sex, or national origin.

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

Within thirty days of receipt of notice of final ac­
tion taken by a department, agency, or unit referred 
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 suc­
ceeding 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 Ser­
vice Commission on appeal from a decision or order 
of such department, agency, or unit until such time 
as final action may be taken by a department, agency, 
or unit, an employee or applicant for employment, if 
aggrieved by the final disposition of his complaint, 
or by the failure to take final action on his complaint, 
may file a civil action as provided in section 706, in 
which civil action the head of the department, agency, 
or unit, as appropriate, shall be the defendant.

Section 1981, 42 U.S.C., provides:
All persons within the jurisdiction of the United 

States shall have the same right in every State and 
Territory to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal bene­
fit of all lawns proceedings for the security of persons 
and property as is enjoyed by white citizens and shall



4

be subject to like punishment, pains, penalties, taxes, 
licenses, and exactions of every kind, and to no other.

Section 1361, 28 U.S.C., provides:
The district courts shall have original jurisdiction 

of any action in the nature of mandamus to compel an 
officer or employee of the United States or any agency 
thereof to perform a duty owed to the plaintiff.

Section 1346, 28 U.S.C., provides in pertinent part:
(a) The district courts shall have original jurisdiction, 

concurrent with the Court of Claims, o f :

(2) Any other civil action or claim against the 
United States, not exceeding $10,000 in 
amount, founded upon the Constitution or 
any Act of Congress, or any regulation of an 
executive department, or upon any express or 
implied contract with the United States, or 
for liquidated or unliquidated damages in 
cases not sounding in tort.

Statement o f the Case

Petitioner is a black employee of the General Services 
Administration. Petitioner, who is presently a GS-7, has 
not been promoted for 8 years.

On July 15, 1971, petitioner filed with the General Ser­
vices Administration Equal Employment Office an admin­
istrative complaint alleging that he had been denied a 
promotion on the basis of race. The agency investigation 
revealed that petitioner had been repeatedly passed over 
for promotions in favor of white employees. The uncon­
tested statistics revealed that a disproportionately low



5

number of black employees were promoted above the GS-7 
level within the General Services Administration. On 
March 23, 1973, twenty months after petitioner filed his 
administrative complaint, the General Services Admin­
istration issued its final agency decision concluding that 
it had not discriminated on the basis of race.

Petitioner was notified of the agency decision on March 
26, 1973. The letter of notification advised petitioner that 
he could commence a civil action in the United States 
District Court, or file an appeal to the Board of Appeals 
and Review of the Civil Service Commission. The letter 
also indicated that any action under section 717 of the 
1964 Civil Rights Act, 42 U.S.C. §2000e-16, must be com­
menced within 30 days of receipt of the letter. At that 
time, and until May of 1974, it was the uniform position 
of the Department of Justice that section 717 did not ap­
ply to claims such as those of petitioner, which arose 
prior to the effective date of the statute, and that there 
were accordingly no rights to be lost by failing to sue 
within 30 days.1

On the basis of this letter petitioner decided to file suit. 
Because petitioner had great difficulty locating an attor­
ney who would represent him, he did not succeed in filing 
his complaint until May 7, 1973, 12 days after the dead­
line for filing an action under section 717.2 Since the

1 On August 10, 1973, the government moved to dismiss this 
action in the District Court on the ground, inter alia, that peti­
tioner had not commenced his action within the 30 days required 
under Section 717. On July 27 and September 24, 1973, the same 
United States Attorney filed memoranda in the same District 
Court, in Henderson v. Defense Contract Administration Services, 
370 P. Supp. 180 (S.D.N.Y. 1973), arguing that section_717 did 
not apply to employees such as petitioner who were the victims of 
discrimination prior to March 24, 1972.

2 Within a week of receiving the letter of March 23, petitioner 
presented himself and the letter to the clerk of the United States



6

deadline for filing an action nnder section 717 had by then 
passed, petitioner asserted federal jurisdiction under sev­
eral other statutes, including the Mandamus Act, 28 U.S.C. 
§ 1361, the Tucker Act, 28 U.S.C. § 1346, the 1866 Civil 
Eights Act, 42 TJ.S.C. § 1981, and the Administrative Pro­
cedure Act.

On September 27, 1973, the District Court for the 
Southern District of New York dismissed the action for 
lack of jurisdiction. On November 21, 1974, the Court of 
Appeals for the Second Circuit affirmed that dismissal. 
The Second Circuit concluded (1) that section 717 had, 
by implication, repealed pro tanto the Tucker Act, the 
Mandamus Act, the 1866 Civil Rights Act, the Adminis­
trative Procedure Act, and the other statutes which peti­
tioner asserted created federal jurisdiction (2) that sec­
tion 717 applied to discrimination occurring prior to its 
effective date, March 24, 1972, and that this implied repeal 
was accordingly retrospective and (3) that the exhaustion 
requirements for actions other than under section 717 
were different and more stringent than the exhaustion 
requirements fixed by statute for an action under section 
717, and that petitioner had failed to meet these special 
exhaustion requirements.

District Court for the Southern District of New York, where the 
pro se clerk advised him to retain a private attorney. Compare 
Huston v. General Motors Gorp., 477 F. 2d 1003 (8th Cir. 1973). 
Prior to obtaining the services of counsel, petitioner unsuccess­
fully sought assistance from three other attorneys, the New Jersey 
Civil Liberties Union, and the national office and a local chapter 
of the National Association for the Advancement of Colored People.



7

Reasons lor Granting the Writ

1. The Decision of the Court Below That Section 717 Re­
pealed, Pro Tanto, the 1866 Civil Rights Act, the Tucker 
Act, the Mandamus Act, and the Administrative Proce­
dure Act, Is in Conflict With the Decisions of This Court, 
the Decisions of 5 Circuits, and the Express Intent of 
Congress

In the court below petitioner alleged that the District 
Court had jurisdiction over his claim under several stat­
utes which create a variety of overlapping remedies. 
These statutes included the 1866 Civil Rights Act, 42 TJ.S.C. 
§ 1981, the Mandamus Act, 28 U.S.C. § 1361, the Tucker 
Act, 28 IT.S.C. § 1346, and the Administrative Procedure 
Act, 5 TJ.S.C. § 702. The Court of Appeals did not decide 
whether any of these statutes gave the District Court juris­
diction to remedy discrimination in federal employment. 
The Second Circuit concluded, instead, that even if these 
statutes had at one time authorized such remedies, they had 
all been repealed pro tanto by implication when Congress 
enacted section 717 as part of Title YII of the 1964 Civil 
Rights Act. Pp. 13a-15a. The court noted that actions 
under section 717 had to he filed within 30 days, and rea­
soned that- it would “ frustrate Congressional intent” to 
permit suits under statutes which contained no such lim­
itation. P. 15a.

The decision of the Second Circuit is in clear conflict 
with the decisions of this Court in Morton v. Mancari, 41 
L.Ed. 2d 290 (1974) and Alexander v. Gardmer-Denver Co., 
39 L.Ed. 2d 147 (1974). In Morton the appellant argued 
that section 717 had tacitly repealed earlier enacted stat­
utory preferences in favor of Indian applicants for jobs 
at the Bureau of Indian Affairs. This Court unanimously 
rejected that contention:

Appellees encounter head-on the “ cardinal rule . . . 
that repeals by implication are not favored.” . . . They



8
and the District Court read the congressional silence 
as effectuating a repeal by implication. There is nothing- 
in the legislative history, however, that indicates af­
firmatively any congressional intent to repeal the 1934 
preference. . . . The courts are not at liberty to pick 
and choose among congressional enactments, and when 
two statutes are capable of co-existence, it is the duty 
of the courts, absent a clearly expressed congressional 
intent to the contrary, to regard each as effective.

41 L.Ed. 2d at 300-301. In Alexander the employer urged 
that an aggrieved employee could only invoke a single 
remedy in seeking to remedy racial discrimination. In 
ruling to the contrary this Court, expressly referring to 
the 1866 Civil Rights Act, explained,

[Legislative enactments in this area have long evinced 
a general intent to accord parallel or overlapping 
remedies against discrimination. . . . Moreover, the 
legislative history of Title VII manifests a Congres­
sional intent to allow an individual to pursue his rights 
under both Title VII and other applicable state and 
federal statutes. The clear inference is that Title VII 
was designed to supplement, rather them supplant, 
existing laws and institutions relating to employment 
discrimination.

39 L.Ed. 2d at 158. (Emphasis added). The Second Circuit, 
however, reasoned that Title VII was designed to supplant 
pre-existing remedies, and thus repealed them by implica­
tion. That holding is clearly inconsistent with this Court’s 
decisions in Morton and Alexander. See also Jones v. 
Mayer Co., 392 U.S. 409 (1968); Sullivan v. Little Hunting 
Park, 396 U.S. 229 (1969).

The decision below is also in conflict with the decisions 
of five courts of appeals. Private employers have repeat­



9

edly advanced the same argument urged by the government 
in this case—■ that 42 U.8.C. § 1981 and other pre-existing 
statutes were repealed or “pre-empted” by Title VII. That 
contention has been uniformly rejected outside of the 
Second Circuit. Long v. Ford Motor Co., 496 F.2d 500, 
503-04 (6th Cir. 1970); Brady v. Bristol-Meyers, Inc., 459 
F.2d 621, 623 (8th Cir. 1972) ; Young v. International Tele­
phone & Telegraph, 438 F.2d 757, 760-764 (3d Cir. 1971) ; 
jBoudreaux v. Baton Rouge Marine, 437 F.2d 1011, 1016-17 
(5th Cir. 1971) ; Waters v. Wisconsin Steel Works, 427 F.2d 
476, 484-85 (7th Cir. 1970). See also Macldin v. Speetor 
Freight Systems, Inc., 478 F. 2d 979, 993-996 (D.C. Cir. 
1973); Hickman v. Fincher, 483 F. 2d 855, 857 (4th Cir. 
1973). In each of these actions the private employer ar­
gued, as did the Second Circuit, that allowing suits under 
other statutes would allow employees to sue without meet­
ing the- procedural pre-requisites for an action under Title 
VII. In Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th 
Cir. 1970), the employee sued 46 days after receiving a 
right to sue letter from the E.E.O.C., and thus failed to 
meet the Title VII 30 day statute of limitations. The Fifth 
Circuit rejected the argument that Title VII precluded 
suits under section 1981.

Since there is no language in Title VII that can re­
motely be construed as directly repealing § 1981, the 
only means of repeal through pre-emption would be 
by implication. Repeals by implication, however, are 
not favored . . . .  Thus we conclude that the spe­
cific remedies fashioned by Congress in Title VII 
were not intended to pre-empt the general remedial 
language of § 1981. . . . The wide differences pro­
vided by the statute of limitations applicable to ac­
tions under the two acts are not irreconcilable . . . .

431 F.2d at 1100-1101.



10

In Boudreaux v. Baton Rouge Marine Contracting Co., 
437 F.2d 1011 (5th Cir. 1971), the employer claimed the 
plaintiff had not complained to E.E.O.C. within 90 days 
of the alleged discrimination as required for a Title VII 
action, and that allowing an action on any other basis would 
vitiate that requirement. The Court of Appeals concluded:

[E]ven if appellant is unable to demonstrate his ag­
grieved status within the 90-day period for the pur­
poses of this case it is clear that he has stated a claim 
for relief under 42 U.S.C. § 1983. . . . [T]he contention 
that the enactment of Title VII of the Civil Rights 
Act of 1964 pre-empted or repealed by implication 
whatever remedy for employment discrimination that 
previously existed under § 1981 . . . has [been] ex­
plicitly rejected . . . .

437 F.2d at 1016. In Long v. Ford Motor Company, 406 
F.2d 500 (6th Cir. 1974) the plaintiff had not filed any 
complaint with E.E.O.C., a clear jurisdictional pre-requi­
site for a Title VII. The Sixth Circuit nonetheless upheld 
jurisdiction under section 1981, relying on this Court’s 
decision in Alexander v. Gardner-Denver Co., supra, as 
compelling the conclusion that Title VII had not pre­
empted section 1981. In Drew v. Liberty Mutual Insur­
ance Company, 480 F.2d 69 (5th Cir. 1973), plaintiff sued 
for injunctive relief while her complaint to E.E.O.C. was 
still pending. Only the Commission was authorized to 
bring an action under Title VII to protect an employee 
during the pendency of such administrative proceedings. 
The Fifth Circuit upheld plaintiffs right to bring such 
an action under section 1981, rejecting the contention that 
that right had been pre-empted by Title VII. 480 F.2d at 
74-76.

The decision below is also contrary to the clear intent 
of Congress. Congress has repeatedly rejected proposals



11

to make Title YII the exclusive remedy for claims of racial 
discrimination in employment. In 1964 Senator Tower 
proposed an amendment to the pending Civil Eights Act 
to make Title YII the exclusive remedy for discrimina­
tion in employment. The amendment was defeated on the 
floor of the Senate. 110 Cong. Eec. 13650-52. In 1972 
Senator Hruska proposed an amendment which would have 
made Title YII the exclusive remedy for claims of em­
ployment discrimination. The amendment was opposed by 
the Department of Justice; the chief of the Civil Rights 
Division testified,

[V\7]e are concerned that at this point in time there 
be no elimination of any of the remedies which have 
achieved some success in the effort to end employ­
ment discrimination. In the field of civil rights, the 
Congress has regularly insured that there be a variety 
of enforcement devices to insure that all available re­
sources are brought to bear on problems of discrim­
ination. . . .  [I] t would, in our judgment, be unwise 
to dimmish in any way the variety of enforcement 
means available to deal wih discrimination in employ­
ment.8

In opposing the Hruska Amendment, Senator Javits 
argued:

There are other remedies, but those other remedies 
are not surplusage. Those other remedies are needed 
to implement the promise we make under the Consti­
tution to prevent discrimination in employment. The 
laws of 1866, 1871, as well as the law of 1964 are to 
implement that promise . . . .  Mr. President, the 
key to the proposition which we laid before the Sen- 3

3 Hearings Before the Senate Committee on Labor and Public 
Welfare, 91st Cong. 1st Sess., 162-163 (1971).



12

ate—incidentally, this has now been the law for the 
last 8 years—is that what this amendment would seek 
to do is cancel away much of that law. It seems to 
me that should not be the attitude of the Senate, in 
face of the fact, as I say, that employees are not 
fully protected by the exclusive remedy which is 
sought to be compelled by this amendment.4

A similar proposal was rejected by the House Labor Com­
mittee, which expressly approved the decisions in Young 
v. International Telephone & Telegraph Co., 438 F.2d 757 
(3d Cir. 1971) and Sanders v. Dobbs Houses, Inc., 431 
F.2d 1097 (5th Cir. 1970), and expressed its belief that the 
remedies afforded by Title VII and section 1981 “augment 
each other and are not mutually exclusive” .5 6 If the De­
partment of Justice now believes that Congress erred in 
rejecting the Tower and Hruska amendments, its remedy 
is to seek an amendment to Title VII from the Congress, 
not from the courts.

The importance of preserving non-Title VII remedies 
for federal employees is well illustrated by the history of 
litigation under Title VII. Because of the stringent juris­
dictional requirements for a Title VII action, aggrieved 
minority employees—frequently under-educated and with­
out the assistance of counsel—have often failed to meet 
the statutory prerequisites, and have resorted instead to 
suits under other federal statutes. See pp. 9-10, supra; 
compare Love v. Pullman Co., 404 U.S. 522, 525-526 (1972). 
Even where an employee succeeds in bringing a Title 
VII action, he may also wish to assert jurisdiction under 
other statutes which may provide different and more ample

4 Legislative History, of the Equal Employment Opportunity
Act of 1972, pp. 1512-1514.

6 H.R. Rep. 92-238, U.S. Code Congressional and Administrative 
News, 92nd Cong., 1st Sess., 78-79 (1971).



13

remedies. See pp. 15-16, infra. The Solicitor General has 
correctly characterized these additional remedies available 
under statutes such as section 1981 as “of substantial im­
portance.” 6 Earlier this term the government urged this 
Court to reaffirm the existence and preserve the vitality 
of an employee’s non-Title VII rights against a. private 
employer.7 An employee should not enjoy a lesser remedy 
because he works for the United States. Congress enacted 
section 717, not to restrict the remedies available to such 
workers, but “to accord Federal Employees the same rights 
and impartial treatment which the law seeks to afford 
employees in the private sector.” H.R. Rep. 92-238, p. 23 
(1971).8 A grant of certiorari is necessary in the instant 
case to enforce that congressional policy.

2. The Decision of the Court Below, Establishing for Actions 
Under the 1866 Civil Mights Act, etc., Exhaustion Re­
quirements Different Than Those Established by Congress 
for Actions Under Section 717, Seriously Undermines the 
Statutory Scheme of Title VII

Petitioner filed his administrative complaint on July 15, 
1971. After a delay of 617 days, the final agency decision 
was rendered on March 23, 1973. These administrative pro­
ceedings constituted sufficient exhaustion for purposes of 
a civil action under section 717, which authorizes such suits 
after final agency action or the passage of 180 days, whieh-

6 Brief for the United States as Amiens Curiae, in Johnson v. 
Railway Express Agency, No. 73-1543, pp. 13-14.

7 “Although Title VII was designed as a comprehensive solution 
to the problem of invidious employment discrimination, Congress 
intended individuals aggrieved by such discrimination to have 
available parallel or overlapping remedies; such individuals are 
not limited to seeking relief only under Title VII.” Id., p. 13.

8 Section 717(d) provides that the procedures in civil actions 
against the federal agencies shall be the same as in cases against 
private employers. See 42 U.S.C. § 2000e-16(d).



14
ever occurs sooner. In order to sue under section 717, 
petitioner was not required to pursue an appeal to the 
Board of Appeals and Review of the Civil Service Com­
mission. The court below, however, held that there was 
a different and more stringent exhaustion requirement for 
actions under the 1866 Civil Rights Act and other statutes 
enacted prior to 1972, and concluded that prior to com­
mencing an action under these statutes petitioner was ob­
ligated to appeal to the Board of Appeals and Review.

The decision of the Second Circuit thus establishes two 
exhaustion standards for a federal employee aggrieved by 
discrimination. The exhaustion requirement for a section 
717 action is the passage of 180 days since the commence­
ment of administrative proceedings or the completion of 
agency action, whichever occurs first. See 42 U.S.C. § 2000e- 
16(c). The exhaustion requirement for an action under 
section 1981 or other statutes enacted before 1972 is the 
processing of a grievance all the way through the Board 
of Appeals and Review. See pp. 16a-18a. An aggrieved 
employee who has obtained final agency action or has waited 
180 days thus faces a Hobson’s choice—he can sue at once 
under section 717, but in so doing he loses all his rights 
under pre-1972 statutes, or he can preserve those rights 
but only by enduring administrative delays substantially 
longer than contemplated by Congress.

This rule poses the same type of problem as is raised 
by Johnson v. Raihvay Express Agency, No. 73-1543, ar­
gued December 11, 1974. The express exhaustion require­
ments of section 717 reflect an important congressional 
policy that aggrieved federal employees not be required 
to pursue administrative remedies that Congress regarded 
as either futile or unreasonably time consuming. That 
policy was adopted by the ninety-second Congress in the 
light of substantial evidence that open-ended exhaustion re­



15
quirements had led to endless and pointless delays. See 
p. 17, infra. The basis for that policy is well illustrated 
by the facts of this case. Both the regulations of the Cavil 
Service Commission, 5 C.F.E.. § 713.220, and section 717 by 
implication, required that petitioner’s administrative com­
plaint be completely processed by his agency within 180 
days. In fact the agency took more than three times that 
long to reach a final decision. Similarly the record of the 
Board of Appeals and Review, in considering appeals of ag­
grieved employees, reveals the futility of pursuing such 
appeals. In the last three fiscal years the Board has re­
versed an agency decisions and entered findings of discrimi­
nation in only 37 of 1876 appeals, less than 2%.9 A signifi­
cant number of these reversals came in appeals by white 
employees who claimed they had been discriminated against 
by agency affirmative action programs.

There are, on the other hand, a number of legitimate 
reasons why an aggrieved employee would want to retain 
his rights under section 1981 and other pre-1972 enact­
ments. The statute of limitations may be longer under sec­
tion 1981 than under section 717.10 Although compensatory 
and punitive damages may not be available under Title 
VII,11 the pre-1972 statutes are not so limited. The gov­
ernment has generally maintained, except in this case, 
that section 717 does not apply to discrimination occurring 
before March 24, 1972. See p. 5, supra. An employee 
such as petitioner, aggrieved by an act of discrimina­
tion commencing before that date, may only have an

9 Board of Appeals and Review, Work Load Statistics, fiscal 
years 1972, 1973, 1974.

10 Compare Memorandum of the Respondents in Opposition, No. 
74-116, pp. 3-4.

11 See e.g. Loo v. Gerarge, 374 F.Supp. 1338 (D. Hawaii 1974) ; 
Howard v. Lockheed Georgia Co., 372 F.Supp. 854 (N.D. Ga. 
1974).



16
adequate remedy under statutes other than section 717. 
Section 717(c) appears to authorize relief only against 
the agency itself; under section 1981 an employee might 
also be able to obtain relief against discriminating indi­
viduals in an appropriate case. The scope of judicial 
review may be broader if an action is brought under sec­
tion 1981. See Bowers v. Campbell, 8 EPD 9752 (9th 
Cir. 1974). And, as is detailed supra, pp. 10-12, Con­
gress in enacting section 717 intended to leave intact all 
such pre-existing statutory rights and remedies.

This problem is aggravated by the practices of the Civil 
Service Commission. At the completion of final agency 
action, as in this case, each agency, pursuant to forms 
suggested by the Commission, sends the employee a letter 
notifying him that he may now commence a private action 
in federal court or, if he prefers, appeal to the Board of 
Appeals and Review. Nothing in the letter states or im­
plies that the employee will lose any rights whatever by 
declining to pursue that appeal.12 Thousands of these let­
ters have been .sent out to employees who, like petitioner, 
relied on them and declined to pursue such an appeal.13

12 The letter sent to petitioner on March 23, 1973, read in part: 
“ If this decision does not meet with your satisfaction, you may
file an appeal, in writing, either in person or by mail, with, 
the Board of Appeals and Review, U.S. Civil Service Com­
mission, Washington, D.C. 20415. The Board’s decision is the 
final administrative appeal. This appeal must be filed within 
15 days of receipt of this letter.

“ If you choose to appeal to the Board of Appeals and Review, 
you retain the right to file a civil action in Federal district 
court within 30 calendar days after receipt of the Board’s 
final decision on your appeal. You also have the right to file 
a civil action in Federal district court within 30 calendar 
days of receipt of this letter or 180 days after filing an appeal 
with the Board of. Appeals and Review if no decision has 
been made.”

13 The argument that petitioner had not adequately exhausted 
his administrative remedies was not raised by the government in



17
The congressional judgment as to what constitutes ex­

cessive exhaustion requirements must be heeded by the 
courts in fashioning exhaustion rules under statutes such 
as 42 U.S.C. § 1981. This Court has long recognized that 
a complainant need not further pursue administrative 
remedies where previous exhaustion efforts have taken 
so long as to make further delay unreasonable, Smith v. 
Illinois Bell Telephone Co., 270 U.S. 587 (1926),14 15 or 
where there is no reasonable chance that the result of fur­
ther administrative proceedings will be favorable to the 
grievant. City Bank Farmers’ Trust Co. v. Schnader, 291 
U.S. 24 (1934). In the case of federal employees aggrieved 
by discrimination on the basis of race, Congress has con­
cluded that it would be unfair to require such employees 
to file an appeal with the Board of Appeals and Review 
in the Service Commission because “the record shows that 
the Board rarely reverses the agency decision.” H, Rep. 
92-238, p. 24. Similarly Congress has concluded that, be­
cause of the nature of these claims and the history of ex­
cessive delays in their processing, it would be unconscien- 
able to require such employees who want to resort to the 
courts to spend more than 180 days exhausting their ad­
ministrative remedies.16 It would be inappropriate for the

the District Court or in its brief in the Court of Appeals, but first 
arose in a suggestion by the government at oral argument. There 
was, as a result, nothing in the record before the Court of Appeals 
as to why petitioner had not pursued such an appeal. That deci­
sion was in fact made because such an appeal appeared futile, 
because of the long delays already endured, and because petitioner 
believed in light of the letter he received from the General Services 
Administration that failure to appeal would not entail any loss 
of rights.

14 See also Sunshine Publishing Co. v. Summerfield, 184 F.Supp. 
767 (D.D.C. 1960) (One and one half year delay) ; Note, 72 Yale 
L.J. 574 (1963).

15 See Hearings Before a Subcommittee of the House Committee
on Education & Labor, 91st Cong., 1st and 2nd Sess. 111-112, 118,



1 8

courts, in delineating exhaustion requirements for section 
1981 and other statutes without express exhaustion stan­
dards, to require aggrieved employees to pursue appeals 
to the Board of Appeals and Review, a step which Con­
gress concluded was futile, or to consume more than 180 
days in administrative proceedings, a delay which Con­
gress concluded was unfair. Compare Walker v. Southern 
R.R. Co., 385 IT.S. 196 (1966).

The decision below places in irreconcilable conflict two 
clear congressional policies—the policy in favor of per­
mitting resort to the courts without unreasonably lengthy 
or futile exhaustion, and the policy of creating overlap­
ping and complementary civil remedies. An employee who 
has waited 180 days or obtained final agency action must 
choose between prompt judicial action or retaining his 
non-Title YII remedies—in the Second Circuit, at least, 
he cannot have both. Here, as in Johnson v. Railway 
Express Agency, “ [tjhere is no basis in either Section 
1981 or Title VII, or their respective legislative histories, 
for imposing such a Hobson’s choice.” * 16 The choice is 
particularly difficult because an employee has only 30 
days after final agency action to file a section 717 action 
and only 15 days to request an appeal to the Board of 
Appeals & Reviews The court below requires an employee 
to gamble away his non-Title YII rights by not appealing 
by the 15th day in the hope that he will be able to find 
a lawyer and file suit by the 30th. If, like petitioner, he 
does not succeed in filing his Section 717 on time it is 
already too late to appeal and his non-Title YII rights 
are also lost. Such “a procedural trap for the unwary”

147_149; 157; 176-180, 238-240 (1969-70) ; Hearings Before a Sub­
committee of the Senate Committee on Labor & Public Welfare, 
92nd Cong., 1st Sess., 206, 212, 276 (1971).

16 Brief of United States as Amicus Curiae, in No. 73-1543, p. 17.



19

should not be allowed to obstruct the enforcement of basic 
rights. Grown Coat Front Go., Inc. v. United States, 386 
U.S. 503, 515 (1967).

CONCLUSION

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

Respectfully submitted,

J a c k  G r e e n b e r g  
J a m e s  M. N a b r it , III 
C h a r l e s  S t e p h e n  R a l s t o n  
B a r r y  L. G o l d s t e in  
E r ic  S c h n a p p e r

10 Columbus Circle 
New York, New York 10019

J e e p  G r e e n u p

200 West 135th Street 
New York, New York 10030

Counsel for Petitioner



APPENDIX



la

Opinion, o f the District Court

UNITED STATES DISTRICT COURT 
S o u t h e r n  D is t r ic t  o f  N e w  Y o r k

73 Civ. 2026-LFM

C l a r e n c e  B r o w n ,
Plaintiff,

—against—

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

Defendants.

M a c M a h o n , District Judge.

This action is brought purportedly against a govern­
ment agency and several of its officers and is, therefore, 
one against the United States itself. Gnotta v. United. 
States, 415 F.2d 1271 (8th Cir. 1969), cert, deeded, 397 IJ.S. 
934 (1970). The government, however, has not consented 
to such a suit and the action is therefore barred by sover­
eign immunity. Dalehite v. United States, 346 U.S. 15 
(1953). Moreover, there is nothing in either the Civil 
Rights Act of 1964, 28 U.S.C. §§ 1331, 1343, or the Equal 
Opportunity Act of 1972, 42 U.S.C. § 2000e et seq., which 
waives immunity or confers subject matter jurisdiction.

Accordingly, this court lacks subject matter jurisdiction 
over this action, and defendant’s motion to dismiss the com­
plaint, pursuant to Rule 12(b), Fed.R.Civ.P., is granted. 

So ordered.

Dated: New York, N. Y.
September 26, 1973

L l o y d  F. M a c M a h o n  

Lloyd F. MacMahon 
United States District Judge



2a

Opinion o f United States Court o f Appeals 
For the Second Circuit

UNITED STATES COURT OF APPEALS 
F oe t h e  S e c o n d  C ikcttit

No. 935—-September Term, 1973.

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

Docket No. 73-2628

C l a r e n c e  B r o w n ,
Plaintiff-Appellant, 

v.

G e n e r a l  S e e v ic e s  A d m in i s t r a t i o n , U n it e d  S t a t e s  o f  A m e r ­

i c a , T r a n s p o r t a t io n  a n d  C o m m u n ic a t io n s  S e r v ic e , 

C o m m u n ic a t io n s  D iv is io n , R e g io n  2 , J o s e p h  A .  D a l y , 

Regional Director, Transportation and Communications 
Service, A l b e r t  G a l l o , Chief, Communications Division 
and F r a n k  A. L a p o l l a , Acting Chief, Communications 
Division, Transportation and Communications Service, 
Region 2,

Defendants-Appellees.

B e f o r e :
L u m b a r d , H a y s  a n d  T im b e r s ,

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



3a

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

Affirmed.

E r ic  S c h n a p p e r , 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.

C h a r l e s  F r a n k l i n  R i c h t e r , 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 im b e r s , Circuit Judge:

This appeal from a judgment entered September 28, 
1973 in the Southern District of New York, Lloyd F. Mae- 
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) of the Equal Employment Opportunity Act of 1972 
as codified in 42 TJ.S.C. §2000e-16(c) (Supp. II  1972), provides in 
pertinent part:

“Within thirty days of receipt of notice of final action taken by 
[an] . . . agency, or by the Civil Service Commission upon an appeal 
from a decision or order of such . . . agency . . .  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



4a

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 a c t s

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 of 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 
. . . if  aggrieved by the final disposition of his complaint, or by 
the failure to take final action on his eomplaint, may file a civil 
action as provided in section 2000e-5 of this title, in which civil 
action the head of the . . . agency, . . . shall be the defendant.”



5a

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 wfith 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



6a
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 
VII 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 be 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. 
II  1972). See note 1 supra.

3 The position of 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 Relief 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. II  1972); 
42 U.S.C. §2000e-5(k) (1970); 5 C.E.R. §713.271 (b) (1974).



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

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 
XT.S.C. $1331 (1970), no jurisdictional amount was alleged.



8a
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 IT.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 IJ.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 was not needed because a private right

6 See Exec. Order No. 11478, as amended, Exee. Order 11590, 3 C.F.R. 
207 (1974), 42 U.S.C. §2000e, at 10,297 (1970); Exec. Order 11246, as 
amended, Exec. Order 11375, 3 C.E.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), Teprinted in 
Legislative History of the Equal Employment Opportunity Act of 1972, 
at 410, 423 (1972) (hereinafter cited as Legislative History).



9a

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 be taken to the CSC. The employee 
may go directly to court after the agency decision. 42 
U.S.C. §20Q0e-16(c) (Supp. II 1972), note 1 supra.

III. R e t r o a c t iv it y

Brown’s administrative complaint was filed with the GfSA 
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 of 
federal employment discrimination because complaint was no longer



10a

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 .2d -------  (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. Sabatmi, 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 of enactment and because complaint was 
filed beyond 30 day period).



11a

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 which 
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. Roger 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. §2G00e-5, at 1,257 (Supp. II 1972), there is a 
specific provision that amendments to one section of Title 
VII 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

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

11



12a

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. at--------, 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-



13a

ing claims “would result in manifest injustice” . ------U.S.
a t ------, 42 U.S.L.W. at 4707. In each of the eases where
Section 717(c) has been applied retroactively, it was done 
to aid a plaintiff in the prosecution of his complaint. See, 
e.g., Koger 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. If 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 io 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.



14a
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 ease.



15a
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. limited 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 Sedan, 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 U.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) 
vrould effectively undermine the strong public policy that 
requires .strict construction of a statute which waives 
sovereign immunity.13

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



16a

Y. F a il u r e  t o  E x h a u s t  A d m in is t r a t iv e  R e m e d ie s

Finally, even if we were to Fold 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 bane, 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. If 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. §1346(a) and (b ) (1970); and 
42 U.S.C. §1981 (1970) and 28 U.S.C. §1343(4) (1970).



17a

which must he 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 Perm 
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 io 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



18a

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.



MEILEN PRESS INC. —  N. Y. C. 219