McLaughlin v. Callaway Reply Brief for Appellant
Public Court Documents
October 2, 1975

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Brief Collection, LDF Court Filings. McLaughlin v. Callaway Reply Brief for Appellant, 1975. 253686b4-bc9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ae2f10f7-6ed1-4f60-8522-e3b3fff143ab/mclaughlin-v-callaway-reply-brief-for-appellant. Accessed July 30, 2025.
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IN THE -f UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 75-2261 NORMAN R. MCLAUGHLIN, etc., Appellant, vs. HOWARD E. CALLAWAY, et al.. Appellees. On Appeal From The United States District Court For The Southern District Of Alabama Southern Division REPLY BRIEF FOR APPELLANT J. U. BLACKSHER Crawford, Blacksher & Kennedy 1407 Davis Avenue Mobile, Alabama 36603 CARYL P. PRIVETT Adams, Baker & demon Suite 1600 - 2121 Building Birmingham, Alabama 35203 Attorneys JOSEPH P. HUDSON Lawyer & Hudson 1909 30th Avenue Gulfport, Mississippi 39501 JACK GREENBERG CHARLES STEPHEN RALSTON MELVYN R. LEVENTHAL MORRIS J. BALLER 3ILL LANN LEE Suite 2030 10 Columbus Circle New York, New York 10019 for Appellant TABLE OF CASES Page Albemarle Paper Company v. Moody, __ U.S. __, 45 L. Ed. 2d 280 (1975) ............................ 11,12 Alexander v. Gardner-Denver Corp., 415 U.S. 36 (1974) ........................................ 5,17 Bolling v. Sharpe, 347 U.S. 497 (1953) ............. 14 Brown v. General Services Administration, 507 F.2d 1300 (2nd Cir. 1974), cert. granted, 43 U.S.L.W. 3625 (May 27, 1975) 16 Caro v. Schultz, __ F.2d __, 10 EPD 510,381 (Sept. 3, 1975) .................................. 5 Carr v. Conoco Plastics, Inc., 423 F.2d 57 (5th Cir. 1970), affirming per curiam, 295 F. Supp. 128 (N.D. Miss. 1969), cert, denied, 400 U.S. 951 (1970)........................................ 8 Chisholm v. U.S. Postal Service, 9 EPD at p. 7948.... 8,16 Columbia v. Carter, 409 U.S. 418 (1973) ............. 15 Dillon v. Bay City Construction Co., 512 F.2d 801 (5th Cir. 1975) .................................. 7 Douglas v. Hampton, 512 F.2d 976 (D.C. Cir. 1975).... 5 Drew v. Liberty-Mutual Ins. Co., 480 F.2d 69 (5th Cir. 1973) .................................. 4 Eastland v. T.V.A., 9 EPD 5 9927, p. 6882 (N.D. Ala. 1975) ....................................... 2 Ellis v. NARF, N.D. Cal. No. C-73-1794 WHO, slip opinion at 3-7 (September 22, 1975) ......... 2,8,13,15 Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir. 1975)...... 9 Hackley v. Johnson, 360 F. Supp. 1247 (DDC 1973), rev'd sub nom. Hackley v. Roudebush, __ F.2d __(D.C. Cir. No. 73-2072)........................ 2,5 - i - Table of Cases (continued) PAGE Handy v. Gayler, 364 F. Supp. 676 (D. Md. 1973) .... 2 Huff v. N.D. Cass Co., 485 F.2d 710 (5th Cir. 1973) ............................................ 7,8 Hurd v. Hodge, 334 U.S. 24 (1948) .................. 16 Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968) ........ 8,12 Johnson v. Railway Express Agency, __ U.S. __, 44 L.Ed. 2d 295 (1975) ............................ 17,18 Jones v. Alfred E. Mayer Co., 392 U.S. 409 (1968)___ 17 Lance v. Plummer, 353 F.2d 585 (5th Cir. 1965)...... 10,11 Long v. Sapp, 502 F.2d 34 (5th Cir. 1974) .......... 8 Miller v. Saxbe, 9 EPD 5 10,005 (DDC 1975).......... 16 Morton v. Mancari, 417 U.S. 535 (1974)......... 5,13,16,17 Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968) ................... '........... 8,12,13 Parks v. Dunlop, 517 F.2d 785 (5th Cir. 1975)___ 4,5,12,14 Predmore v. Allen, 10 EPD 5 10,360, p. 5079 (D. Md. 1975) .................................... 2,8 Richerson v. Fargo, 8 EPD S 9751, p. 6135 (E.D. Pa. 1974)......................................... 2 Robinson v. Klassen, 9 EPD S 9954 (E.D. Ark. 1974)__ 16 Sampson v. Murray, 415 U.S. 61 (1974) ......... 5 Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970) ................... ..................... 17 Sosna v. I own, 419 U.S. 393 (1975) ............... 8 Sperling v. United States, 515 F.2d 465 (3rd Cir. 1975) ............................................ 5,11 Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) ........................................... 17 - ii - Table of Cases (continued) PAGE Swain v. Callaway, Fifth Circuit No. 75-2002 ....... 6,13 Sylvester v. U.S. Postal Service, 9 EPD 5 10,210, p. 7936 (S.D. Tex. 1975) 2,7 Tillman v. Wheaton-Haven Rec. Assoc., 410 U.S. 431 (1973) ....................................... 16 United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826 (5th Cir. 1975) ..................... 13 Weinberger v. Salfi, __ U.S. __, 45 L.Ed.2d 522 (1975) 9,10,11,12 - iii IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 75-2261 NORMAN R. MCLAUGHLIN, etc., Appellant, v s . HOWARD H. CALLAWAY, et al.. Appellees. On Appeal From The United States District Court For The Southern District Of Alabama Southern Division i — i i REPLY BRIEF FOR APPELLANT This reply brief will respond point by point to a number of arguments made in appellees' brief. Initially, however, exactly what the government's position on federal Title VII class actions is should be made clear. The government has now abandoned the argument that class actions are permissible in federal employment discrimination litigation generally, but improper in the instant case because the plaintiff failed to bring an "administrative class action" through third party complaint procedures pursuant to 5 C.F.R. § 713.251. This was specifically argued by the government and was the reason the court below precluded a class action. The regulations enacted pursuant to § 2000e-16 contemplate, and provide procedures for, the maintenance of a class action in the administrative process. 5 C.F.R. § 713.251. There has been no attempt to pursue these procedures by the plaintiff or any other member or representatives of the class. The Fifth Circuit has recently expressed, in clear and definite terms, the necessity of exhausting administrative remedies under the 1972 Amendment to Title VII before bringing an action in court. Penn v. Schlesinger, supra (R. 126-27)(A. ). 1/ The Civil Division now concedes that the government was wrong, 2/for reasons consistently advanced and documented by plaintiff, 1/ The government has argued against class actions because the "administrative class action" remedy was not exhausted in other district courts throught the nation. .See, Hacklev v. Johnson. 360 F. Supp. 1247, 1254 n. 11 (DDC 1973); Handy v. Gayler. 364 F. Supp. 676, 67 9 (D. Md. 1973) ; Pointer v. Sampson, 7 EPD 3 9326, p. 750 9 (DDC 1974); Evans v. Johnson, 7 EPD «[[ 9351, p. 7590 (C.D. Cal. 1974) Richerson v. Fargo, 8 EPD 3 9751, p. 6135 (E.D. Pa. 1974); Eastland v* l?.«y. > 9 EPD 5 9927, p. 6882 (N.D. Ala. 1975) ; Sylvester v. U.S. Postal Service, 9 EPD 3 10,210, p. 7936 (S.D. Tex. 1975); PredmorJ” v. Allen, 10 EPD 5 10,360, p. 5079 (D. Md. 1975); Ellis v. NARF, N.D. Cal. No. C-73-1794 WHO, Slip opinion at 3-7 (September 22, 1975)(Opinion attached to brief as Appendix A). 2/ R. 170-241, 259-62, 279-307 and 315-22 (A. ). 2 As interpreted by the Civil Service Commission, the regulations do not permit filing of a class action administrative complaint. 5 C.F.R. 713.251 is designed to permit third party complaints and not class action complaints. 5 C.F.R. 713.251 is not a substitute for the filing of individual complaints, and plaintiff could not use 5 C.F.R. 713.251 to prosecute his individual claim on behalf of a class. Rather, it is contemplated that groups, (e.g., civil rights organizations) or other third parties will use 713.251 to prosecute "general allegations * * * which are unrelated to an individual complaint of discrimination." Appellees' Brief at 13. It is then argued that the holding of the court below nevertheless should be affirmed on a ground other than that relied on by the district court. Id. The Civil Division, of course, fails to admit that the government has been smoked out on its prior inconsistent erroneous position and, more importantly, that the principal ground on which affirmance is sought, that class actions are statutorily precluded, was necessarily rejected by the 3/ district court. The statutory preclusion argument now made by the Civil Division is that every potential class member must file an "individual" administrative complaint pursuant to 5 C.F.R. § 713.211 et sec., and obtain a final decision on his individual charges before any joint action could be brought. Class actions pursuant but hitherto opposed by government lawyers. 3/ If the government had taken its present position — that there is no administrative vehicle for raising class claims — below, the district court might have permitted a class action. The court specifically noted the absence of an administrative record as to the class claims, which absence would require a full trial d<2 novo (R. 127; A. ). If the court had known that there was no such record because one could not be made, this factor would not have influenced its decision. As interpreted by the Civil Service Commission, the regulations do not permit filing of a class action administrative complaint. 5 C.F.R. 713.251 is designed to permit third party complaints and not class action complaints. 5 C.F.R. 713.251 is not a substitute for the filing of individual complaints, and plaintiff could not use 5 C.F.R. 713.251 to prosecute his individual claim on behalf of a class. Rather, it is contemplated that groups, (e.cr., civil rights organizations) or other third parties will use 713.251 to prosecute "general allegations * * * which are unrelated to an individual complaint of discrimination." Appellees' Brief at 13. It is then argued that the holding of the court below nevertheless should be affirmed on a ground other than that relied on by the district court. Id. The Civil Division, of course, fails to admit that the government has been smoked out on its prior inconsistent erroneous position and, more importantly, that the principal ground on which affirmance is sought, that class actions are statutorily precluded, was necessarily rejected by the 3/district court. The statutory preclusion argument now made by the Civil Division is that every potential class member must file an "individual" administrative complaint pursuant to 5 C.F.R. § 713.211 et seg., and obtain a final decision on his individual charges before any joint action could be brought. Class actions pursuant but hitherto opposed by government lawyers. 3/ If the government had taken its present position — that there is no administrative vehicle for raising class claims — below, the district court might have permitted a class action. The court specifically noted the absence of an administrative record as to the class claims, which absence would require a full trial de novo (R. .127; A. ). If the court had known that there was no such record because one could not be made, this factor would not have influenced its decision. 3 to Rule 23, Fed. R. Civ. Pro. in which "one or more members of a class may sue . . . as representative parties on behalf of all," the principal vehicle for judicial vindication of civil rights guarantees, would simply be eliminated from the arsenal of weapons to enforce equal employment opportunity available to federal employees. The consequence would be to effectively exempt the federal government, the nation's largest employer, from judicial scrutiny of classwide, systemic discrimination to which all other employers are subject and the federal government has long advocated with respect to all other employers. This in fact is the Civil Division's basic proposition with regard to the class action question and other issues such as trial de novo, viz., that the law of employment discrimination developed by the courts in Title VII cases involving private litigants does not apply to suits against the federal government. Unfortunately for the government, this Court has already squarely rejected this contention in Parks v. Dunlop, 517 F.2d 785 (5th Cir. 1975). There, the Civil Division argued that district courts lacked jurisdiction to grant Rule 65 preliminary injunctions to federal employees who had not fully exhausted administrative remedies. It urged that Drew v. Liberty-Mutual Ins, Co., 480 F.2d 69 (5th Cir. 1973), did not apply because, "The Court's reasoning . . . applies only to discrimination by private employers . . . Brief for Appellant in No. 75-1786, pp. 17-18. The government also argued generally - 4 - in Parks, that Alexander v. Gardner-Denver Corp., 415 U.S. 36 (1974), and other Title VII decisions were inapplicable because they involved private employers. Instead, Sampson v. Murray, 415 U.S. 61 (1974) governed. See, Brief for Appellant in No. 75-1786, at pp. 10-19. This Court rejected these arguments and squarely held that, "The intent of Congress in enacting the 1972 amendments to that Act [Title VII] extending its coverage to federal employment was to give those public employees the same rights as private employees enjoy," 517 F.2d at 787, and distinguished Sampson on that ground. The Supreme Court has also so held with regard to substantive law in Morton v. Mancari, 417 U.S. 535, 547 (1974) the District of Columbia Circuit has so held with regard to both substantive law and remedies in Douglas v. Hampton, 512 F.2d 976 (D.C. Cir. 1975), and the Third and Seventh Circuits with regard to the right to plenary judicial hearing and a trial de novo in Sperling v. United States, 515 F.2d 465 (3rd Cir. 1975) and Caro v. Schultz, __ F.2d __, 10 E.P.D. 5 10,381 (Sept. 3, 1975). Most devastating to the government's position is the reversal by the District of Columbia Circuit, on September 29, 1975, of Hackley v. Johnson, 360 F. Supp. 1247 (D.D.C. 1973), rev1d sub nom., Hackley v. Roudebush, __ F.2d __ (D. C. Cir. No. 73-2072). In Hackley, the Court of Appeals held that "Congress intended to bestow on federal employees the same rights in District Court — including the right 5 to a trial de novo — which it had previously mandated for private sector employees. . . . " Slip Opinion, p. 1835. The Civil Division should not be permitted to frustrate and nullify the purposes of a. statute whose enactment the Civil Service Commission opposed without success in 1972 because it was "unnecessary." 1. The Civil Division first contends that plaintiff fails to meet the typicality requirement of Rule 23 (a) (3) . Brief for Appellees at 15-19. At best, the issue is premature. Because the court below ruled that a class action was precluded since no exhaustion of "administrative class action" procedures occurred, the question of Rule 23(a) prerequisites was never reached. The government's present statutory preclusion position of course makes the issue no less premature. Indeed, the government has admitted that Rule 23(a) should not be considered for the first time in this Court in identical circumstances in Swain v. Callaway, Fifth Circuit No. 75-2002. These questions are particularly well-suited for district court to rule upon in the first instance, and since the district court denied the class aspects of this suit on jurisdictional grounds without reaching those issues, we believe it inappropriate to argue them for the first time in this Court. Appellee's Brief at 51 n. 30. The Civil Division argues that the district court's decision shows that typicality was not satisfied. The court's decision, however, did not extend to an assessment or determination of the - 6 - kinds of discrimination suffered by the class, or to any of the other Rule 23 prerequisites since the Court based its decision 4/ on a failure to exhaust. In response to government motions, the court denied any discovery as to discrimination against the class so that an adequate factual basis for considering any Rule 23 issue was absent. Dillon v. Bay City Construction Co.. 512 F.2d 801, 804 (5th Cir. 1975); Huff v. N.D. Cass Co.. 485 F.2d 710, 713 (5th Cir. 1973)(en banc); Sylvester v. U. S. Postal Service, 9 EPD fl 10,210 at p. 7936 (S.D. Tex. 1975). Indeed, to the extent the available record does speak to class issues, it shows that many of the salient employment policies the court below found discriminatory in Mr. McLaughlin's case are in fact generally applicable to black and other minority persons. Brief for Appellant at 13-15. The government's whole Rule 23(a) argument demonstrates a profound misunderstanding of the nature of employment discrimi nation and of the law of Title VII. It is clear that in suits 4/ The discussion in the government's brief quoting the district court may erroneously give the impression that the court passed on typicality. The language quoted at page 16-17 of the appellee' brief, however, is from the Court's decision on the merits. That decision did not purport to be a consideration of•Rule 23 criteria since the court had long before ruled out a class action. challenging across-the-board employment discrimination, as here, "While it is true . . . that there are different factual questions with regard to different employees it is also true that the 'Damoclean threat of a racially discriminatory policy hangs over the racial class [and] is a question of fact common to all members of the class.' Hall v. Werthan Bag corp., M.D. Tenn. 1966, 251 F. Supp. 184," Johnson v. Georgia Highway Express, Inc., 417 F .2d 1122, 1124. 5/ Long v. Sapp, 502 F .2d 34 (5th Cir. 1974); Ellis v. NAFF, slip opinion at 8-11, N.D. Cal. No. C-73-1794 (Sept. 22, 1975)(attached to this Brief as Appendix A); Predmore v. Allen, supra, 10 EPD at p. 5080; Chisholm v. U. S. Postal Service, supra, 9 EPD at p. 7948. The plaintiff in such suits is attacking a range of employment practices that have the effect of discriminating against blacks as a class "by stigmatization and explicit or implicit application of a badge of inferiority." Sosna v. Iown, §/419 U.S. 393, 413-14 n. 1 (1975) (White, J., dissenting). /f 5/ See also Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968); Jenkins v. United Gas Corp., 400 F .2d 28 (5th Cir. 1968); Carr v. Conoco Plastics, Inc., 423 F.2d 57 (5th Cir. 1970), affirming per curiam, 295 F. Supp. 128 (N.D. Miss. 1969), cert. denied, 400 U.S. 951 (1970); Huff v. N.D. Cass Co., 485 F.2d 710 (5th Cir. 1973) (en banc) . 6/ Justice White, who dissented from the majority's application of established Title VII law to class action3generally, went on to point out that Congress had given persons aggrieved by such systemic discrimination "standing . . . to continue an attack upon such discrimination even though they fail to establish injury to themselves in being denied employment unlawfully." 8 2. The government next contends that a "finality" requirement of 42 U.S.C. § 2000e-16 precludes class action treatment under Weinberger v. Saifi, __ U.S. __, 45 L.Ed.2d 522 (1975). Brief for Appellees at 20-23. The Civil Division, however, is erroneous at every step in its analysis. First, § 2000e-16 does not."specifically provide that a civil suit may be filed only after 'final action'." as the defendants claim (Brief for Appellees, p. 21). To the contrary, § 2000e-16 "specifically provides" that federal employees can file a Title VII suit after 180 days from the filing of an administrative Vcharge when there has been a ”failure to take final action." See, Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir. 1975). Indeed, the instant case is just such an action,® as the district court noted, it was filed some 422 days after the administrative complaint was filed, and was grounded solely on the lack of final agency action within 180 days. Appellee's brief itself concedes both 7/ The full text of § 2000e-16 (c) is: (c) Within thirty days of receipt of notice of final action taken by a department, agency, or unit referred to in subsection (a) of this section, or by the Civil Service Commission upon an appeal from a decision or order of such department, agency, or unit on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section. Executive Order 11478 or any succeeding Executive orders, or after one hundred and eighty days from the filing of the initial charge with the department, agency, or unit or with the Civil Service Commission on appeal from a decision 9 IIthat federal employees can file civil actions without "finality, at p. 4, and that the instant case was brought without "final decision," at p. 8. Second, the syllogism the Civil Division derives from Salfi that the "simple requirement" of finality in a civil action statute necessarily precludes class actions is nonsense. Whether an administrative decision must be "final" is not even remotely preclusive. Compare Lance v. Plummer, 353 F.2d 585, 591 (5th Cir. 1965). Rather Salfi stands for the limited proposition that in a Social Security Act suit brought under the particular restric tions of 42 U.S.C. § 405(g) each class member must have been a "party" to the administrative proceedings and have received a 8/ final decision therein. Salfi is not analogous to federal 7/ (Continued) 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 2000e-5 of this title, in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant. 8/ As to class members, however, the complaint is deficient in that it contains no allegations that they have even filed an application with the Secretary, much less that he has rendered any decision, final or otherwise, review of which is sought. The class thus cannot satisfy the requirements for juris diction under 42 U.S.C. § 405(g). 45 L.Ed.2d at 538. 10 employee Title VII actions because similar language is absent from §§ 717(c) and (d) and the general § 706 civil action pro visions incorporated by § 717 (d) . Third, the government fails to explain why Salfi would not also bar a class action in private employee litigation brought under § 2000e-5 (f) (1). Just as § 2000e-16, that provision speaks only of "the person aggrieved" bringing a civil action after filing an administrative complaint. In fact, § 2000e-5 contains an additional requirement, viz., a notice of the right to sue addressed to "the person aggrieved." Nevertheless, that single person can represent all past, present, or would-be employees by a class action under Title VII even though they have not filed complaints themselves, as the Supreme Court held the 9/day before it decided Salfi. In short, the attempt to rule out a class action by pointing to the "person aggrieved" language must be rejected as it was in Lance v. Plummer, supra. Fourth, the rejected Erleborn amendment to § 706, containing language found preclusive in Salfi, is obviously "pertinent." The rejection of the Erleborn amendment shows why Salfi supports appellant's position. Brief for Appellant at 51-56. The Civil Division's argument that the Erleborn amendment is not an indica tion of Congressional intent because it is limited to § 706 actions brought by private or state and local government employees simply ignores § 717(d)'s express incorporation of the general § 706 framework for federal employee suits. Compare Sperling v. U.S.A., 17 Albemarle Paper Co. v. Moody. __ U.S. __, 45 L.Ed.2d 280 (1975) 11 515 F.2d 465, 474 et seq. (3rd Cir. 1975). In any event, nothing in the legislative history indicates that the rejection of the Erleborn amendment is not probative of Congressional intent with respect to class actions by all employees covered by Title VII. 3. The Civil Division also contends that while Saifi, a Social Security Act case, is applicable to determine the incidents of a § 717 action, private Title VII decisions approving class actions are totally inapplicable. As noted above, this Court's decision in Parks v. Dunlop, supra, rejected such an argument. Moreover, on its face, this contention is wrong. The Supreme Court's recent decision in Albermarle Paper Co. v. Moody, __ U.S. __, 45 L.Ed.2d 280 (1975) and this Circuit's decisions in Oatis v. Crown Zellerbach Corp., 398 F .2d 496 (5th Cir. 1968 and Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968), construe the general § 706 civil action framework incorporated for federal sector actions in § 717(d) and are thus directly applicable. As appellant's brief points out, Congress even specifically cited Oatis and Jenkins in rejecting the Erleborn amendment. The particular claim that, because the CSC has "plenary" remedial power while the EEOC does not, Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1969) is inapplicable is without merit. Actual CSC administrative performance indicates that the reasoning of Oatis with respect to the futility of requiring identical administrative claims applies with particular force to 12 federal administrative remedies. The Civil Service Commission's complaint resolution process has been subjected to intense criticism by Congress, see Morton v. Mancari, 417 U.S. at 547; the courts, see e.g., Ellis v. NARF, supra, and the U.S. Commission on Civil Rights in The Federal Civil Rights Enforcement Effort - 1974, Vol. V (July 1975) (Relevant excerpts have been reproduced and attached to the Reply Brief for Appellants in Swain v. Callaway (5th Cir. No. \ 75-2002). The very commitment of the Civil Service Commission to/ enforce equal employment opportunity must be questioned. The Civil Rights Commission Report found, for instance, that the vaunted "plenary power" (Brief for Appellees, p. 25) of the CSC was exercised so feebly in fiscal year 1973 that retroactive relief, including back pay, was provided to 22 government employees, or 3% of 778 cases (pp. 84-85). The EEOC, in contrast, and in spite of the supposed deficiencies in enforcement powers relied upon by appellees in their brief (pp. 24-25), in the same fiscal year was able to obtain back pay relief for 22,000 employees in the telephone industry alone, in an amount of $45,000,000. (Equal Employment Opportunity Commission, Eighth Annual Report for FY 1973, p. 24.) See also, United States v. Allegheny-Ludlum Industries, Inc., 517 F .2d 826, 834-35, 852, n. 29 (5th Cir. 1975). It is further claimed that Oatis is inapplicable because "class actions are unnecessary when injunctive relief is sought against a governmental defendant because of the presumption that 13 the government will not continue activities which have been declared unconstitutional or discriminatory." It is far too late in the day to set this forth as a general proposition much less to contend its validity in the instant case. Racial discrimination in the federal service has been illegal under the Fifth Amendment at least since Bolling v. Sharpe, 347 U.S. 497 (1953). As the "Department of the Army Special Study of Equal Employment Opportunity in the State of Alabama," conducted in September-October 1972, found, after examining the range of dis criminatory employment practices this class action seeks to eliminate, "The Mobile District has a very long way to go to have a viable program in equal employment opportunity." 4. The Civil Division concedes that nothing in the legisla tive history affirmatively prohibits federal Title VII class actions and appears content merely to argue that legislative history is "essentially silent." Brief for Appellees at 29-32. Assuming arguendo that legislative history spoke only to § 706 class actions brought by private or state and local government employees, § 717(d) would make it applicable to federal Title VII actions. See, Parks v. Dunlop, supra. Assuming that the legis lative history only spoke of § 706 class actions, even if § 717 did not expressly refer to § 706, the legislative history would still be highly probative of general Congressional intent in favor of class actions. Indeed, even if the legislative history had been absolutely silent on any right to bring class actions at 14 all, Rule 23 of the Federal Rules would still require them. The claim that legislative history provides no support for class action treatment of federal employment discrimination litigation, however, is also in fact erroneous. Appellant's brief at 30-32 demonstrates that Congress wanted the Civil Service Commission and federal agencies to uproot classwide, systemic discrimination. See Ellis v. NARF, supra, slip opinion at 6-7, 12. The appellees have admitted that the Civil Service Commission has failed to provide any administrative avenue to correct systemic discrimination. An acceptance of their argument that there is no judicial avenue either would result in total frustration of the main reason for enacting § 717. 5. Leaving aside its exclusivity argument, see infra, the Civil Division does not contest at all appellant's assertions concerning the district court's erroneous ruling on the propriety of class action treatment of claims arising under the Fifth Amendment and a suit in the nature of mandamus under 28 U.S.C. § 1361. As to class action treatment of suits brought pursuant to to 42 U.S.C. § 1981, the Civil Division apparently acknowledges that the Supreme Court has "recognized a federal employee's right to Section 1981 relief," citing District of Columbia v. Carter, 409 l_g/ As to the commentary on legislative history on pages 53-54 of appellant's brief, set forth in Brief for Appellees at 31-32, to the extent it is cogent, it appears to conflict with the Supreme Court's analysis in Albemarle Paper Co. v. Moody, 45 L.Ed.2d at 294, n. 8. 15 U.S. 418 (1973), (see also Hurd v. Hodge, 334 U.S. 24 (1948); u /Tillman v. Wheaton-Haven Rec. Assoc,, 410 U.S. 431 (1973),) adding the caveat that "it is far from clear" in this Circuit. Brief for Appellees at 36, n. 14. Appellant agrees with the former proposition, but disagrees with the latter for reasons stated in the Brief for Appellant at 60-62. Thus, the government's whole case as to class actions to enforce rights guaranteed by civil action provisions other than § 717 rests on the exclusivity of § 717 of Title VII. 6. As to exclusivity, the Civil Division adopts the position of the Second Circuit in Brown v. General Services Administration, 507 F. 2d 1300. (2nd Cir. 1974), cert. granted, 43 U.S.L.W. 3625 (May 27, 1975). Brief for Appellees at 33-37. First, it should be noted that the Civil Division does not and cannot assert that § 717 on its face repeals all preexisting remedies for federal employment discrimination, nor that legislative history supports such a theory. Indeed, it is not even asserted that the § 717 civil action scheme is in apparent substantive conflict with alternative remedies such as § 1981 as was the case in Morton v. Mancari, supra, concerning the Indian Reorganization Act of 11/ Cases in which federal employee actions .under 42 U.S.C. § 1981 have been recognized include Chisholm v. U.S. Postal Service, supra, 9 EPD at p. 7947; Miller v. Saxbe, 9 EPD 5 10,005 (DDC 1975) (Gesell, J.); Robinson v. Klassen, 9 EPD 5 9954 (E.D. Ark. 1974). 16 1934 which established an employment preference for qualified Indians in the Bureau of Indian Affairs. Nothing the Civil Division argues, a fortiorari, meets the "cardinal rule that . . . repeals by implication are not favored." Morton v. Mancari, supra, 417 U.S. 535, 549. Second, the argument that it makes no sense for Congress to enact a comprehensive Title VII legislative scheme and then allow alternative remedies of which Congress may not have been aware has already been rejected by the Supreme Court with regard to 42 U.S.C. § 1982 and Title VIIE of the Civil Rights Act of 1968; Jones v. Alfred E. Mayer Co., 392 U.S. 409, 413-417 (1968); Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) and with respect to 42 U.S.C. § 1981 and Title VII itself, Johnson v. Railway Express Agency, __ U.S. __, 44 L.Edc2d 295 (1975). See Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970). Moreover, the notion that because civil rights statutes, "although related, and although directed to most of the same ends, are separate, distinct and independent," Johnson v. Railway Express Agency, 44 L.Ed.2d at 302, they are therefore exclusive remedies, is just the opposite of prevailing law. Alexander v. Gardner- Denver Co., 415 U.S. 36, 47 (1974). Third, the coverage of § 717 is also clearly not coextensive with that of § 1981 and other pre-existing legal remedies. The 17 and as tostatutes differ both as to relief available h Vemployees covered. These earlier statutes provide for relief not necessarily available under Title VII. For these reasons it is apparent that § 717 and pre-existing statutes complement one another and provide a diverse arsenal of remedies for an 12/ aggrieved federal employee. J. U. BLACKSHER Crawford, Blacksher & Kennedy 1407 Davis Avenue Mobile, Alabama 36603 CARYL P. PRIVETT Adams, Baker & demon Suite 1600 - 2121 Building Birmingham, Alabama 35203 Respectfully submitted, 1909 30th Avenue Gulfport, Mississippi 39501 JACK GREENBERG CHARLES STEPHEN RALSTON MELVYN R. LEVENTHAL MORRIS J. BALLER BILL LANN LEE Suite 2030 10 Columbus Circle New York, New York 10019 Attorneys for Appellant 1?/ Under § 1981 an employee would be entitled in appropriate circumstances to punitive or compensatory damages. Johnson v. Railway Express Agency, 44 L.Ed.2d at 30. Title VII's two year limit action on back pay, if applicable to the federal government, would not restrict the back pay available under any of the pre existing remedies. On the other hand, § 717 provides for awards of attorneys' fees, court appointed counsel, and waiver of court costs. Ijj/ § 717 does not cover aliens employed outside the limits of the United States, employees of the Government Accounting Office, and persons in the Government of the District of Columbia and the legislative and judicial branches who are not in the competitive service. 18 CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of October, 1975, copies of the Reply Brief for Appellant was served on counsel for the parties by the United States mail, air mail, special delivery, postage prepaid, addressed to: Robert E. Kopp, Esq. Judith S. Feigin, Esq. Appellate Section, Civil Division United States Department of Justice Washington, D. C. 20530 I 19 sp? UNITED STATES DISTRICT C O U R ^ ^ 5U. § NORTHERN DISTRICT OF CALIFORNIA54^ Ff?/.?[Sr- Coin- ^ I S C q ( r JOSEPH L. ELLIS, et al., Plaintiffs, vs. NAVAL AIR REWORK FACILITY, et al., Defendants. ETTA D. SAUNDERS, individually and on behalf of all others similarly situated. Plaintiff, vs. JAKES W. MIDDENDORF, II, et al., Defendants. U t t i / C / J L i i j / j - i i u x v j L U u a x x j - No. C-73-1794 WHO 0. No. C-73-2241 WHO behalf of all others similarly ) situated, )* ) Plaintiff, ) ) )vs. No. C-74-0028 WHO ) ’ JAMES W. MIDDENDORF, II, et al., ) ) ) . Defendants. ) ) • GWENDOLYN DAWSON, ) ) )Plaintiff, S’ ) vs. ) ) ) No. C-74-0489 WHO NAVAL AIR STATION, Alameda California, et al., ) ) )* Defendants. X/ ) )MOSES SAUNDERS, et al., )■ ) Plaintiffs, ■\. ) vs. ) No. C-74-0520 WHO )NAVAL AIR REWORK FACILITY, Alameda, California, et al.. ) ) ) )Defendants. / • ) 1 - MANUEL F. ALVARADO, et al., Plaintiffs, vs. NAVAL AIR REWORK FACILITY, et al., Defendants. ETTA B. SAUNDERS, •Plaintiff, vs. JAMES W. MIDDENDORFII, et al., Defendants. HARGROW D. BARBER, individually and on behalf of all others similarly situated, Plaintiff, vs. JAMES W. MIDDENDORF, II., et al., Defendants. HARGROW D. BARBER, Plaintiff, vs. JAMES W. MIDDENDORF, II, et al. , Defendants. )))))))))))~))))))))))))))))))))))))))))))))>)) No. C-74-0764 WHO No. C-74-1286 WHO No. C-75-0820 WHO No. C-75-0886 WHO OPINION . In these nine consolidated actions brought under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e et seq.), minority civilian employees at the Naval Air Rework Facility (NARF) and the Naval Air Station (NAS).in Alameda, California, allege discrimination on the basis of race and sex. Plaintiffs have moved to certify a class action pursuant I : - 2 - . to Rule 23 of the Federal Rules of Civil Procedure, and defend ants Civil Service Commissioners (Commissioners) have moved to be dismissed from the case. For the reasons hereinafter set forth, I certify a class of all past, present, and future Black, Chicano, Asian and Native American civilian employees of NARF and NAS and all past, present, and future Black, Chicano, Asian and Native American applicants for civilian employment at NARF and NAS,1 2 and I deny the Commissioners' motion to dismiss. x. THE motion to certify the class In considering the'motion-to certify the class, it is important to note that the Court previously ruled that federal employees are entitled as a matter of right to hearings de novo in federal court. Ellis v. Naval Air Rework Facility, C-73-1794 (N.D. Cal., June 20, 1975).^ This becomes important in considering whether plaintiffs have exhausted their adminis trative remedies as well as whether their motion to certify the class meets the requirements of Rule 23 of the Federal Rules of Civil Procedure. A. Exhaustion of Administrative Remedies. Before considering whether the class plaintiffs seek to represent meets the requirements of Rule.23 of the Federal Rules of Civil Procedure, the Court must first determine whether plaintiffs, having failed to raise third-party allegations through the administrative procedures outlined at 5 C.F.R. 1. I certify this class only for the discovery and liability phases of the proceedings. At this time, I make no rulings as to whether the damages portion of the proceedings, as suming for the moment that liability is established, will be handled on an individual or class-wide basis. 2. See also, Sperling v. United States, 515 F .2d 465 (3d Cir. 1975); Caro v. Schultz, No. 74-1728 (7th Cir., Sept. 3̂, 1975). cf.. Chandler v. Johnson, 515 F . 2d 251 (9th Cir. 1975). -3- I > ! I1 1 §713.251 (1974),^ are now precluded from bringing class actions. The Court is aware that the majority of district courts consider ing this question has refused to certify class actions where the administrative avenues have not first been exhausted, e.g. , Hackley v. Johnson, 360 F.Supp. 1247 (D.D.C. 1973); McLaughlin v. Callaway, 382 F-^Supp. 885 (S.D. Ala. 1974). However, these courts have also held that federal employees suing under Title VII were not entitled to hearings de novo in federal court. In light of that ruling, it only made sense to require the administrative exhaustion of third-party allegations since the district courts would ultimately be deciding the discrimination allegations on the basis of the administrative record. Having ruled that the administrative record would be controlling, the district courts had virtually ■ no alternative but to require development of the most extensive administrative records possible. 3. 5 C.F.R. §713.251 provides; "Third party allegations of discrimination. (a) Coverage. This section applies to general allegations by organizations or other third parties of discrimination in personnel matters within the agency which are unrelated to an individual complaint of discrimination subject to §§713.211 through 713.222. (b) Agency procedure. The organization or other third party shall state the allegation with sufficient specificity so that the agency may investigate the allegation. The agency may require additional specificity as necessary to proceed with its investigation. The agency shall establish a file on each general allega tion, and this file shall contain copies of all material used in making the decision on the allegation. The agency shall furnish a copy of this file to the party submitting the allega tion and shall make it available to the Commis- • sion for review on request. The agency shall notify the party submitting the allegation of . its decision, including any corrective action • taken on the general allegations, and shall furnish to the Commission on request a copy of its decision. (c) Commission procedures. If the third party disagrees with the agency decision, it -4- ' Exhaustion, however, is a judically created remedy that must be tailored to fit the particular situation and should not be applied blindly in every case. McKart v. United States, 395 U.S. 185 (1969). Traditionally, the courts have required parties to exhaust administrative remedies for the dual purpose of creating a factual record to assist the court and to put the agency on notice of plaintiffs' claims, thereby giving the agency the first opportunity to rectify internal problems. This Court having ruled that plaintiffs are entitled to hearings de novo and that the administrative record will not be determinative of the discrimination claim, it is no longer sound to require rigid adherence to the administrative avenues available under 5 C.F.R. §173.251. Sylvester v. United States Postal Service, No. 73-H-220 (S.D. Tex., Apr. 23, 1975); Chisholm v. United States Postal Service, No. C-C-73-148 (W.D. N.C., May 29, 1975). Since plaintiffs will be presenting evi dence at trial, the Court no longer needs the detailed factual record of class claims that a "third-party" allegation filed 4under 5 C.F.R. §713.251 might have produced. . * 4 Footnote 3 continued: may, within 30 days after receipt of the decision, request the Commission to review it. The request shall be in writing and shall set forth with par ticularity the basis for the request. When the Commission receives such a request, it shall make, or require the agency to-make, any additional in vestigations the Commission deems necessary. The Commission shall issue a decision on the allega tion ordering such corrective action, with or without back pay, as it deems appropriate." 4. The Court has serious doubts as to the usefulness of any record that might have been produced through the adminis trative avenues available under 5 C.F.R. §713.251. Sec tion 713.251 does not impose any time limit in which the agency must act when it is investigating third-party com plaints, nor does it impose any affirmative duty on the agency to investigate the charges. The agency is required to do no more than establish a file on each general allega tion, and having made a decision, to notify the complain ing party. The agency file constitutes the only record of the investigation. -5- I also find that it is unnecessary to require plain tiffs to file "third-party" claims in order to put the defendants on notice that there was a generalized or class-wide dissatis faction on the part of minority civilian employees at the naval base. Each of the named plaintiffs filed an "individual" ad ministrative complaint pursuant to 5 C.F.R. §713.211 et seq. Each and every of the "individual" administrative complaints raised issues of policy and practice that are inherently class- type claims of discrimination. It is well-settled in the pri vate sector employment discrimination cases that administrative complaints are to be construed broadly to encompass any dis crimination that could be considered to grow out of the adminis trative charge. Danner v. Phillips Petroleum, 447 F.2d 159 (5th Cir. 1971); King v, Georgia Power Co., 295 F.Supp. 943 (N.D. Ga. 1968). Federal employment claims at the administra tive level are also entitled to broad construction. The agency's ovm regulations require that the investigation of administrative complaints shall include: " (a) * * * thorough review of the cir cumstances under which the alleged discrimi nation occurred, the treatment of members of the complainant's group identified by his complaint as compared with the treatment: of , other employees in the organizational seg ment in which the alleged discrimination ... occurred, and any policies ana practices re lated to work situations which mav constitute, or appear to constitute, discrimination even though they have not been expressly cited by the complainant. 5 C.F.R. §713.216(a) In addition, 5 C.F.R. §713.218(c)(2) requires the complaint examiner to develop a complete record and to receive into evi dence "information having a bearing on the complaint or employ ment policies and practices relevant to the complaint * * • Had the defendants followed their ovm regulations, they would have examined administratively the very policies and practices that the plaintiffs now seek to challenge on a class-wide basis at the judicial level. Defendants cannot • t«• • - 6 - improperly narrow the focus of an "individual" discrimination complaint at the administrative level and then claim that plain tiffs have failed to notify the agency of system-wide dissatis faction. . Chisholm v. United States Postal Service, sugra. Indeed, there are strong equitable considerations that favor permitting plaintiffs to pursue a class action des pite their failure to file administrative third-party allega tions. Plaintiffs in these actions filed their administrative complaints without the aid of counsel. They filled out blank forms supplied to them by the naval base for initiating dis crimination complaints. The forms do not indicate that plain tiffs should use a different procedure if they wish to make a system-wide class action attack on alleged discrimination rather than raise an individual complaint. Nor do the employing ■ agencies of NARF or NAS or the CSC make any effort to explain the intricate administrative regulations to the individual complainants. Against this background, requiring the individual complainants to use the unspecified and complicated third-party allegation procedures of 5 C.F.R. §713.251 would run contra to the legislative aims of the 1972 Amendments to Title VII. One of the purposes behind these amendments was to permit federal employees to litigate claims in federal courts without those^ claims first being lost in the quagmire of administrative remedies requiring exhaustion.5 Accordingly, I hold that plain tiffs' failure to file third-party allegations pursuant to 5 C.F.R. §713.251 does not preclude their raising class-action claims in federal court. * • 5. Senate Report No. 92-415 on S 2515, 92d Cong., 1st Sess. 16-17 (1971) stated: .• ; ^ • "The testimony of the Civil Service Commission notwithstanding, the committee found that an aggrieved Federal employee does not have access to the courts. In many cases, the employee must overcome a U.S. Government defense of sovereign inununity or failure to exhaust administrative remedies with no certainty as to the steps re quired to exhaust such remedies." -7- B. Requirements of Rule 23. Seeking to certify the class under Rule 23(b)(2) of the Federal Rules of Civil Procedure, plaintiffs must meet the Rule 23 prerequisites for a class action.^ 1. Numeroslty. I find that the class is so numerous that joinder of all members is impracticable. There are over 1,200 minority civilian employees at the Alameda naval base. In addition, plaintiffs seek to bring this action on behalf of future employees and applicants for employment. Since there is no way now of deter mining how many of these future plaintiffs there may be, their joinder is impracticable. Jack v. Amer. Linen Supply Company, 498 F.2d 122 (5th Cir. 1974). >' • 2. Common Questions of Lav/ or Fact. I find that there are questions of law and fact common to the class members. Although defendants argue that the de tailed civil service rating requirements that must be met for each federal job position are so varied that each discrimination claim presents a unique set of facts, I find that, following this line of reasoning, it would be almost impossible for a federal • 6. Pursuant to Rule 23(a) of the Federal Rules of Civil Pro cedure plaintiffs must establish that: "One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of.the representative parties are typical of the • claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." . In addition, they" must satisfy the requirement of Rule 23(b)(2) and establish that: - 8 - / employee to bring a class action discrimination suit since individualized applications of the civil service ratings would always be involved. The commonality of issues for both pri vate and federal employees rests on the common threat of dis crimination that confronts all members of the class. Johnson Express, Inc. . , ,v, Georgia Highway,/417-^2^1122 (5th Cir. 1969); Chisholm jv̂ . United States Postal Service, supra. While I find that the general claims of discrimina tion in promotions, hirings, firings, and job training oppor tunities, present common questions of law and fact for the named plaintiffs and the class they seek to represent with respect to the liability phase of these actions, I do note that the determination of the appropriate amount of damages due the different class members, if liability is eventually .established, may pose too many individual questions to be handled on a class basis. Therefore, I limit my finding tnat there are common questions of law and fact to the commonality of issues as to liability and the appropriateness of injunctive relief. Harvey v. International Harvester Company, 56 F.R.D. 47 (H.D. Cal. 1972). . / 3. Typicality of Claims. I find that the claims of the representative parties are typical of the claims of the class. The claims of the snamed plaintiffs run the gamut of discrimination in hirings, firings, and promotions. Although there may be individual variations in the particulars, the claims of the representa tives need not be identical to those of the class. If all the members of the purported class would be benefited by the suit Footnote 6 continued: "the party opposing the class has acted or re fused to act on grounds generally applicable to the class, thereby making appropriate final in junctive relief or corresponding declaratory re-^ • lief with respect to the class as a whole * • * *. -9- plaintiffs seek to bring, the requirement of typicality has been satisfied. Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2d Cir. 1968), aff'd in part, 417 U.S. 156 (1974). 4. Adequacy of Representation. I find that the representative parties can adequately and fairly represent the class. Although the named plaintiffs in these actions are of Black and Chicano ancestry, since their purpose in bringing these actions is to better the positions of the minority workers at the naval base as a whole, I find they can adequately represent the claims of a broad spectrum of minority workers at the base including employees of Asian and Native American national origin. I note that there is authority f to support the certification of such a broad class for purposes of discovery and liability determinations where, as here, there is no evidence of collusion or conflicting claims among members of the class. Harvey v. International Harvester Company, supra; Perm v. Sturopf, 308 F.Supp. 1238 (N.D. Cal. 1970). 5. Rule 23(b)(2) of the Federal Rules of Civil Procedure. In addition to satisfying all the above requirements , of Rule 23 (a), I find that the plaintiffs have satisfied the requirements of Rule 23(b)(2) and have demonstrated that the defendants have acted on grounds generally applicable to the class, thereby making injunctive relief or corresponding declara tory relief with respect to the class as a whole appropriate. Plaintiffs claim that the defendants have discriminated against them and the class they seek to represent on the "generally applicable" grounds of hiring, firing, and promotion, and on the basis of race, national origin and/or sex. Should plain tiffs successfully prove these allegations, declaratory and in- '5<fftCtive relief would be most appropriate. Accordingly, I i 10 ertify these actions as Rule 23(b)(2) Purposes of discovery and det • ' 355 a°ti0"S ^ the7 n<i dat™ » * t i o n of liability. ZZ\ DISM1SS“ OP M E COMMISSIONERS. Defendants claim that- ^ any way involved in the alle d d ‘ 0nUIUSS1°ners are n°t in should, therefore be d ■ • r u m i n a t i o n and that they once again r a i s e s *>» — ho exhaust the ^ “ * - » - U e d W n g Prao tic I : r 2 r niStratiVe * » —tne Commissioners s n - _300.104. * C‘F,R* §§300.101- ’ . Commissioners construe their role in isions too narrowly and that tt„ involved in the eh n h Y are lntegrallythe challenged employment decisions t ,s base. The CSC ic th at the navalne CSC is the general personnel a federal government in charge of .rec ^ “ * ranking, and selection Df • d • • rUltmSnt' measurement,i°n of individuals for initl-,1 nnd competitive promotions in the ^ - n t m e n t -oo.ioi. 101.103 governing personnel actions tithin' the” " promulgates and enforces such regulations that T T ” ^ - r y out those rules. 5 „.s.c. *” specifically charged with regulatin / heaeral agency. affirmative action p reVieWinS ^ ment °PPort uni ties. 5 c.r.R. sn"3 ^ - o r a l agencies under the ^ ^ "ith “ “ ^ d s and regulations s c the plaintiffs are eventually able t “ been discriminated against the e=tabUsh that they have relief against their ' „ * ‘o i„i„„otive — *• - - against the Commissioners'eni • • «3unctiva relief ° f thGSe " ^ - ^ - t o r y e m p l o Z n T p ^ i c ^ -11- •w I do not find the Commissioners' assertion of the ex haustion requirement to be persuasive. Plaintiffs all filed their complaints with the employing agencies under 5 C.F.R. §713; defend ants would insist upon their filing under 5 C.F.R. §§300.101- 300.104 as well.7 Once again, I find the filing of an adminis trative complaint by each named plaintiff raising system-wide discrimination allegations adequately put the CSC on notice of the dissatisfaction of minority workers at the naval base. I also find that'it would be unduly burdensome to the plaintiffs to insist that they select the strictly proper section of the regulations for processing their complaints when the regulations contain a myriad of confusing and technical regulations requiring legal sophistication to decipher. No purpose being met by blindly requiring rigid adherence to the doctrine of exhaustion (McKart v. United States, supra), I deny the Commissioners' motion to dismiss. i Dated: September 18, 1975. William H. Orncx, or. O United States District Judge C.F.R. §300.104 provides in pertinent part: "(a) Employment practices. (1) A candidate who believes that an employment practice whicn was applied to him and which is administered or re quired by the Commission violates a basic require ment in §300.103 is entitled to appeal to the Commission. , j • (2) An appeal shall be filed in writing, shall set forth the basis for the candidate s. belief that a violation occurred, and shall be filed with the Appeals Review Board, U.S. Civil Servicq Commission, Washington, D.C. 20415, no later than 15 da/ s fJ ° ? e ■ the date the employment practice was applied to je candidate or the date he became aware of the results of the application of the employment practice. m e board may extend the time limit in this subparagraph for good cause shown by the candidate.. (3) An appeal shall be processed in accordance with Subpart D of Part 772 of this chapter. - 19 -