McLaughlin v. Callaway Reply Brief for Appellant

    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 -