Brief of Defendants in Support of Proposed Findings of Fact and Conclusions of Law and the Board's Detroit Plan

    No. 74-116

3ln the Supreme Court of the United States
October Term, 1974

D iane M. Place, petitioner

v.

Caspar W. Weinberger,
Secretary of Health, Education, and Welfare, et al.

ON PETITION FOR A WRIT OF CERTIORARI TO 
THE UNITED ST A TES COURT OF A P PEALS 

FOR THE SIXTH CIRCUIT

MEMORANDUM IN RESPONSE TO PETITION FOR REHEARING

Robert H. Bork,
Solicitor General, 
Department o f  Justice, 
Washington, D.C. 20530.



3 n  t\\t Supreme (Hour! af the United States
October Term, 1974

No. 74-116
D iane M. Place, petitioner 

v.

Caspar W. Weinberger,
Secretary of Health, Education, and Welfare, et al.

ON PETITION FOR A WRIT OF CERTIORARI TO 
THE UNITED STA TES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

MEMORANDUM IN RESPONSE TO PETITION FOR REHEARING

On April 14, 1975, this Court requested the Solicitor 
General to file a response to the petition for rehearing of 
this Court’s denial of certiorari. The petition for rehear­
ing is founded on the assertion that “the government 
advanced inconsistent positions” (p. 3) in the courts 
of appeals in the present case and in Brown v. General 
Services Administration, 507 F. 2d 1300 (C.A. 2), pend­
ing on petition for a writ of certiorari, No. 74-768, with 
respect to the retroactive effect of Section 717(c) of the 
Equal Employment Opportunity Act of 1972. That asser­
tion, as we show below, is inaccurate.

We do not oppose the petition for rehearing, however, 
because we have concluded that the position the govern­
ment has previously taken in the lower federal courts on 
the retroactivity issue—a position adopted by the court 
of appeals in this case—is in error.

(1)



2

1. The government has consistently argued in the dis­
trict courts and courts of appeals that Section 717(c) does 
not apply to federal employment discrimination claims 
in which the alleged discrimination took place prior to 
the effective date of the 1972 Act. With respect to 
cases in which a complaint had not finally been deter­
mined prior to the Act’s effective date, that argument has 
been rejected by every court of appeals that has con­
sidered it, except for the Sixth Circuit in the present 
case. See Koger v. Ball, 497 F.2d 702 (C.A. 4); Womack v. 
Lynn, 504 F. 2d 267 (C.A. D.C.); Sperling v. United 
States, C.A. 3, No. 74-1533, decided April 18, 1975.

In Brown v. General Services Administration, supra, 
the retroactivity issue was not directly presented. Since 
the plaintiff there had failed to bring an action within 
the 30-day period specified by Section 717(c), he could 
not rely on that section as a basis of subject matter 
jurisdiction. He argued, instead, that jurisdiction was con­
ferred by the Mandamus Statute (28 U.S.C. 1361), the 
Administrative Procedure Act (5 U.S.C. 701, et seq.), the 
Tucker Act (28 U.S.C. 1346), and the old civil rights leg­
islation (28 U.S.C. 1343(4) and 42 U.S.C. 1981). Brown’s 
appellate counsel (three of whom also represent peti­
tioner in the present case) also argued in their brief to 
the court of appeals that “Congress did not intend 
Section 717 to be the exclusive judicial remedy avail­
able to federal employees” alleging employment discrim­
ination (Br. 7).

The government’s brief1 responded by arguing that none 
of the statutes relied on by Brown conferred subject 
matter jurisdiction (pp. 19-28). The government also 
took issue with Brown’s assertion concerning the preemp­
tive effect of Section 717, arguing alternatively that, even 
if jurisdiction might otherwise have been conferred by 
the statutes invoked by Brown, Section 717 was intended 
by Congress to provide an exclusive judicial remedy.

'We have lodged with the Clerk of this Court a copy of the 
government’s brief in the court of appeals in Brown.



3

The government’s brief did not argue that Section 
717(c) should be applied retroactively to Brown’s com­
plaint (which alleged pre-March 24, 1972, discrimination). 
It argued only that //Section 717(c) were applicable, it 
would preclude reliance on other jurisdictional bases. 
The brief stated (p. 6, n.):

This [preemption] argument presumes that the Act 
applies in the present case where the complaint, 
while alleging discrimination occurring before passage 
of the Act, was filed after the Act became effective. 
Hackley v. Johnson, 360 F. Supp. 1247, 1249 n. 1 
(D.C. 1973), appeal docketed-, Henderson v. Defense 
Contract Administration Services Region, 7 EPD 
para. 9058 (S.D. N.Y. 1974), have so held. The 
Government has argued differently in its appeal 
brief in Hackley. In any event, should this Court 
conclude that these holdings are correct, the fact 
that the Government has elsewhere argued otherwise 
is plainly immaterial.2

The court of appeals, which ultimately concluded, in 
part, that Section 717 did apply to Brown’s complaint 
and was intended to be the exclusive judicial remedy for 
federal employment discrimination claims, made clear in 
its opinion that it correctly understood the government’s 
preemption argument to be founded on an assumption 
arguendo that Section 717 was applicable. The court 
stated: “All parties to this appeal have sidestepped 
the retroactivity issue. Appellees deal with the 
issue briefly in a footnote by stating that they

2The Assistant United States Attorney who presented the oral 
argument before the court of appeals in Brown has informed us 
that he recalls stating during argument that there were conflicting 
court of appeals decisions on the retroactivity issue and that it 
was the position of the United States Attorney’s office that retro­
active application of the Act was the better view. He did not 
represent that to be the position of the government generally; indeed, 
he acknowledged, as did the brief, that the government had argued 
to the contrary in other cases.



4

assume retroactive operation in their arguments 
here although they have argued otherwise else­
where” (507 F. 2d at 1305).3

2. Although the government has consistently argued 
that Section 717 applies only to discrimination occurring 
after enactment of the 1972 Act, we have reexamined 
our position in light of the additional court of appeals 
decisions holding to the contrary in certain circumstances. 
We have concluded, essentially for the reasons stated by the 
Fourth Circuit in Koger v. Ball, supra, 497 F. 2d at 
704-709, and by the Second Circuit in Brown v. General 
Services Administration, supra, 507 F.2d at 1304-1306, 
that Section 717 does apply to claims of federal employ­
ment discrimination occurring prior to March 24, 1972, 
if the employee’s complaint was the subject of admin­
istrative proceedings on that date or if a judicial 
proceeding had been timely commenced after final 
administrative action and was pending on the Act’s 
effective date. In those circumstances, the applica­
bility of Section 717 is consistent with “the prin­
ciple that a court is to apply the law in effect 
at the time it renders its decision, unless doing 
so would result in manifest injustice or there is 
statutory direction or legislative history to the

3Although the court in Brown held that Section 717 applied 
retroactively to the complaint and preempted other jurisdictional 
bases, it also held alternatively that the other bases of jurisdiction 
were unavailable to Brown because he failed to exhaust his avail­
able administrative remedies (507 F. 2d at 1307-1308). It was upon 
the latter ground that we opposed the petition for a writ of certiorari 
in Brown. Petitioner in the present case states that “it was 
clearly incumbent upon the Solicitor General in responding to the 
petition in Brown to advise this Court” of his position on the retro­
activity issue (Supplemental Memorandum in Support of Petition for 
Rehearing, p. 1). But since the petition in Brown did not present 
the retroactivity issue, we do not see why the Solicitor General 
should be faulted for not addressing that question in his response.



5

contrary” (Bradley v. Richmond School Board, 416 U.S. 
696, 711).4 The government will accordingly acquiesce 
in this construction of the Act in all pending and future 
cases involving allegations of pre-1972 Act discrimi­
nation.5

We originally opposed the petition for a writ of 
certiorari in this case because of our view that the 
narrow conflict among the courts of appeals here is 
not of continuing importance. We adhere to that view. 
Since we have now reexamined the government’s posi­
tion on the legal issue in light of additional court 
of appeals decisions, however, we believe that it 
would be appropriate to grant the petition for re­
hearing and the petition for a writ of certiorari, 
vacate the judgment of the court of appeals, and 
remand the case to that court for further consider­
ation in light of our present position.6

Respectfully submitted.

May 1975.

Robert H. Bork, 
Solicitor General.

4We adhere to the view that Section 717 is inapplicable to such 
claims where the administrative complaint was finally determined 
prior to the Act s effective date and no pending judicial proceeding 
had been timely initiated after the final administrative determination 
See Clark v. Goode, 499 F. 2d 130 (C.A. 4).

5We have not been able to ascertain the number of such cases 
that are presently pending in the federal courts. The General 
Counsel s office in the Civil Service Commission roughly estimates 
that there are approximately 25 to 30 such cases.

6We note that, while the decision of the court of appeals in the 
present case was rendered five days after the Fourth Circuit’s 
decision in Koger v. Ball, supra, the court did not refer to that 
decision and may have been unaware of it.

DOJ-1975-05