Greenberg, Jack, 1961-1983 - 4 of 56

    IN THE
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No, 80-5033

ANNIE HOUSETON,
Plaintiff-Appellee,

- v -
MAX CLELAND, et al,,

Defendants-Appellants.

MOTION FOR LEAVE TO FILE BRIEF OF THE 
NAACP LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC., AS AMICUS CURIAE, AND BRIEF AMICUS CURIAE

JACK GREENBERG 
CHARLES STEPHEN RALSTON 

10 Columbus Circle 
Suite 2030
New York, N.Y, 10019 
(212) 586-8397

Attorneys for Amicus Curiae



Table of Cases
Page

Brown v. G.S.A., 425 U.S. 820 (1976)...................... 2
Chandler v. Johnson, 515 F.2d 251 (9th Cir. 1975), rev'd sub 

nom., Chandler v. Roudebush, 425 U.S. 840 (1976) ........  2
Chandler v. Roudebush, 425 U.S. 840 (1976)................ 2
Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976)............ 3
Eastland v. Tennessee Valley Authority, 553 F.2d 364 (5th

Cir. 1977)............................................... 2
Fischer v. Adams, 572 F.2d 406 (1st Cir. 1978)............ 3
Grubbs v. Butz, 514 F.2d 1323 (D.C. Cir. 1975)..........  2, 6
Hackley v. Johnson, 360 F. Supp. 1247 (D.D.C. 1973), rev1d sub nom. Hackley v. Roudebush, 520 F.2d 108 (D.C. Cir.

1975)................................................... 2
Jeffrey v. Harris, D.D.C., C.A. No. 77-2124 . ............  3
Parker v. Califano, 561 F.2d 320 (D.C. Cir. 1977) ........  2
Salone v. United States, 511 F.2d 902 (10th Cir. 1975), vac. 

and remanded, 426 U.S. 917 (1976)........................2
Williams v. T.V.A., 552 F.2d 691 (6th Cir. 1977).......... 2

Other Authorities

5 C.F.R. § 713.271 3'
29 C.F.R. § 1613.271.....................................3, 5
42 U.S.C. § 2000e-16 ............  1
Senate Report No. 92-415, 92d Cong., 1st Sess. 4

l



IN THE
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 80-5033

ANNIE HOUSETON,
Plaintiff-Appellee, 

- v -
MAX CLELAND, et al.,

Defendants-Appellants.

MOTION FOR LEAVE TO FILE BRIEF AMICUS 
CURIAE ON BEHALF OF THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC, 1

Movant NAACP Legal Defense and Educational Fund,
Inc., respectfully moves the Court, pursuant to Rule 29 F.R.A. 
Proc., for permission to file the attached brief amicus curiae, 
for the following reasons. The reasons assigned also disclose 
the interest of the amicus.

(1) Movant NAACP Legal Defense and Educational 
Fund, Inc., is a non-profit corporation, 
incorporated under the laws of the State 
of New York in 1939. It was formed to 
assist Blacks in securing their consti­
tutional rights by the prosecution of



lawsuits. Its charter declares that its
purposes include rendering legal aid 
gratuitously to Blacks suffering injustice 
by reason of race who are unable, on account 
of poverty, to employ legal counsel on their 
own behalf. The charter was approved by a 
New York Court, authorizing the organization 
to serve as a legal aid society. The NAACP 
Legal Defense and Educational Fund, Inc. (LDF), 
is independent of other organizations and is 
supported by contributions from the public.
For many years its attorneys have represented 
parties and has participated as amicus curiae 
in the federal courts in cases involving many 
facets of the law.

(2) Attorneys employed by movant have represented 
plaintiffs in many cases arising under Title 
VII of the Civil Rights Act of 1964 in both 
individual cases, e,g., McDonnell Douglas Corp. 
v. Green, 411 U.S. 792 (1973); Furnco Consti­
tution Corp, y. Waters, 438 U.S. 567 (.1978); 
and in class actions, e.g., Albemarle Paper Co, 
v. Moody, 422 U.S. 405 (1975); Franks y. Bowman 
Transp. Co., 424 U.S, 747 (1976). They have 
appeared in a variety of Title VII cases 
involving agencies of the federal government 
both as counsel for plaintiffs, e.g., Saunders

2



v. Claytor, 9th Cir. No. 79-4373 (appeal
pending); Foster v. Boorstin, 561 F.2d 
340 (D.C. Cir. 1977); Williams v.
Tennessee Valley Authority, 552 F.2d 691 
(6th Cir. 1977); Barrett v. United States 
Civil Service Commission, 69 F.R.D. 544 
(D.D.C, 1975); and as amicus curiae; e.g., 
Chandler v. Roudebush, 425 U.S. 840 (1976); 
Hackley v. Roudebush, 520 F .2d 108 (D.C.
Cir. 1975) .

(3) Through their extensive participation in
Title VII cases, attorneys for amicus have 
acquired substantial expertise concerning 
the system for the administrative processing 
of federal EEO complaints and that system's 
relationship to court proceedings. There­
fore, we believe that our views on the issues 
before the Court will be helpful in their 
resolution,

WHEREFORE, for the foregoing reasons it is moved that 
the NAACP Legal Defense and Educational Fund, Inc. be given 
leave to file the attached brief amicus curiae.

CHARLES STEPHEN RALSTON 
10 Columbus Circle 
Suite 2030
New York, N„Y, 10Q19 
(212) 586-8397

Attorneys for Amicus Curiae



IN THE
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 80-5033

ANNIE HOUSETON,
Plaintiff-Appellee,

- v -
MAX CLELAND, et al.,

Defendants-Appellants.

BRIEF OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS 

AMICUS CURIAE

As indicated in the Motion for Leave to file the
present brief, the Legal Defense Fund has a continuing interest
in the effective enforcement of Title VII rights on behalf of
federal employees, both at the administrative and judicial
levels. The history of federal employee Title VII enforcement
since the statute was made applicable to the federal govern-

1/ment in 1972 has, unfortunately, been in large part a 
history of the government's taking a variety of positions 
that would undermine the statute's effectiveness by 
lessening the procedural and substantive rights of federal

1/ Section 717 of the Equal Employment Opportunity Act of 
1972, 42 U.S.C. § 2000e-16.



employees.
Thus, for many years the government argued that

federal employees were not entitled to a trial de novo in
district court when they had lost administratively. Rather
the court's role was simply to review the administrative
record and approve it if the decision was substantially
supported by that record. See, e .g., Chandler v. Johnson, 515
F.2d 251 (9th Cir. 1975) , rev1d sub nom., Chandler v. Roudebush,
425 U.S. 840 (1976); Salone v. United States, 511 F.2d 902
(10th Cir. 1975), vac, and remanded, 426 U.S. 917 (1976);
Hackley v. Johnson, 360 F. Supp. 1247 (D.D.C. 1973), rev'd sub

. 2 7 ~nom., Hackley v. Roudebush, 520 F,2d 108 (D.C. Cir. 1975).
In the present case the government has gone the other way, 
having lost the trial de novo issue in Chandler v. Roudebush. 
They now seek a rule of law that would significantly diminish

2/ Similarly, the government argued, for example, that a 
federal employee could not maintain a class action, that if a 
suit were filed because there had been no final agency action 
in 180 days, the matter should be remanded for completion of 
the administrative process and that counsel fees could not 
be awarded for work done in the administrative process. All 
of these arguments were eventually rejected by the courts. 
See, Eastland v. Tennessee Valley Authority, 553 F.2d 364 (5th 
Cir. 1977); Williams v. Tennessee Valley Authority, 552 F.2d 
691 (6th Cir. 1977); Grubbs v. Butz, 514 F ,2d 1323 (D.C. Cir. 
1975); Parker v. Califano, 561 F.2d 320 (D.C. Cir. 1977).

2



the rights of a federal employee who has prevailed adminis 
tratively.

Under Title VII the government has no right to file 
in court to seek any type of review of an adverse decision, 3/
either by the agency or by the administrative reviewing body. Thus,
if the only question raised by a plaintiff who has won an
administrative finding of discrimination is the scope of
relief, the government is not entitled to a trial de_ novo of

1/the finding of discrimination.
The rule that the government cannot relitigate an

3/ Until January 1979, administrative appeals were heard by 
the Appeals Review Board of the Civil Service Commission (5 
C.F.R. § 713.234); they are now heard by the Office of Appeals 
and Review of the Equal Employment Opportunity Commission (29 
C.F.R. § 1613.234).
4/ There have typically been two types of cases in which the 
relief afforded administratively has been inadequate, thus 
necessitating the filing of an action in court for the sole 
purpose of obtaining full relief, (1) Prior to December, 1978,
5 C.F.R. § 713.271 allowed the award of back pay only if the 
administrative record contained clear and convincing evidence 
that the person would have been hired or promoted if there had 
been no discrimination. This rule was directly contrary to 
Title VII law, which requires a back pay award unless there is 
clear and convincing evidence that the complainant would not 
have been hired or promoted in the absence of discrimination.
See, Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976). The Civil 
Service Commission amended the rule in response to litigation 
(Jeffrey v. Harris, D.D.C., C.A. No. 77-2124), to bring it 
into conformity with Title VII. 29 C.F.R. § 1613.271. (2) The
regulations made no provision for the award of attorneys' fees 
administratively until April 11, 1980 when new regulations were 
proposed. See, 45 F.R. pp. 24130 et seq, Thus, it was necessary 
to file an action in court just to get fees. See, e.g., Fischer 
v. Adams, 572 F.2d 406 (1st Cir. 1978).

3



administrative determination of discrimination is both in accord 
with Congressional purpose and supported by sound policy con­
siderations. One of Congress' main concerns when it amended 
Title VII in 1972 was the strengthening of the administrative en­
forcement of the EEO rights of federal employees. Therefore, in 
section 717(b) it gave the Civil Service Commission broad
authority to establish a regulatory scheme that could result in

5/
federal employees having an effective administrative remedy. To 
the extent that the effectiveness of the administrative remedy 
is undermined, the result will be that the courts will have to 
take on the full burden of enforcing the Title VII rights of 
federal employees by otherwise unnecessary and time consuming 
litigation.

5/ Thus, the Senate Committee was critical of the existing 
system, but expressed hope for the future:

The testimony before the Labor Sub­
committee reflected a general lack of con­
fidence in the effectiveness of the complaint 
procedure on the part of Federal employees.
Complaints have indicated skepticism regarding 
the Commission's record in obtaining just reso­
lutions of complaints and adequate remedies.
This has, in turn, discouraged persons from 
filing complaints with the Commission for fear 
that doing so will only result in antagonizing 
their supervisors and impairing any future hope 
of advancement. The new authority given to the 
Civil Service Commission in the bill is intended 
to enable the Commission to reconsider its entire 
complaint structure and the relationships between 
the employee, agency and Commission in these cases.

Senate Report No. 92-415, on the Equal Employment Opportunities 
Enforcement Act of 1971, 92d Cong., 1st Sess., at p. 14.

4



If the position of the government in the present case 
is upheld, however, the finality and enforceability of adminis­
trative determinations of discrimination will be, as a practical 
matter, destroyed. If an agency loses an administrative appeal, 
all it need do is petition the Equal Employment Opportunity 
Commission to reopen. Because of the backlog of cases the EEOC, 
as in this case, may take months or years to act on the petition. 
The complainant will then be put in a difficult, if not impossible, 
situation since, contrary to the government's brief,the filing of 
the petition does not render the appeals board's decision non­
final .

To the contrary, under the regulations, the complain­
ant will have been told that he or she has 30 days in which to 

6/
file in court. If for example, the relief granted is not 
adequate or the agency is not complaying with the order granting 
relief, the complainant must choose between irrevocably losing

6/ 29 C.F.R. §§ 1613.281 and 1613.282 provide that the com­
plainant will be sent a 30-day suit letter after a final agency 
decision under §§ 1613,215, 1613,217, 1613,220, or 1613.221, or 
a decision of the Office of Appeals and Review of the EEOC under 
§ 1613.234. Thus, a complainant is told that the decision of the 
Office is the final administrative step and is not given a 30-day 
letter after an EEOC decision either granting or denying a petition 
to reopen under § 1613,235.

5



the right to go into federal court or going to court and 
having to relitigate a favorable administrative deter- 
mination of discrimination and risk losing the entire 
case.

Further, such a result would conflict with 
Congress' attempts to address another of Congress' main 
concerns, which was with the long delays in the adminis­
trative process of complaints. Under the statute a com­
plainant has the right to go to court and have his claims 
adjudicated if either the agency or the EEOC has failed to 
act on a complaint or an appeal within 180 days. The present 
case had already taken a period of time far in excess'of the 
180 days provided in the statute. When plaintiff filed in 
court seeking enforcement of the relief ordered administra­
tively, the result of the EEOC petition was to delay the 
matter for more than a year. It was only after giving the 
Commission every opportunity to act that the district court 
decided that any further delay would irrevocably injure the 
plaintiff and ordered the relief to which she was entitled. 
This result was fully consistent with the decision in Grubbs 
v. Butz, 54 8 F. 2d 975 (D.C. Cir, 197 5)., which held that after 
the expiration of the 180 day period, the complainant has the 
absolute right to seek relief in court without a delay or

7/ See, Brown v . G.S.A, , 425 U.S. 82Q (.1976).

6



remand for completion of the administrative process.
In summary, amicus urges that the adoption of the 

government's position in this case will destroy the effec­
tiveness of the administrative processing of EEO cases by 
allowing agencies to delay indefinitely the implementation of 
administrative determinations that there has been discrimina­
tion. Agencies will achieve by indirection that which the 
statute does not give them— judicial relitigation of adverse 
decisions by forcing complainants to file court actions or 
risk losing their Title VII rights completely. The result will 
be to thrust unnecessarily lengthy litigation on already over­
burdened district courts.

CONCLUSION
For the foregoing reasons the decision below should 

be affirmed.
Respectfully submitted,

JACK GREENBERG 
CHARLES STEPHEN RALSTON 

10 Columbus Circle 
Suite 2030
New York, N.Y. 10019 
(212) 586-8397

Attorneys for Amicus Curiae



CERTIFICATE OF SERVICE

I hereby certify that I have served copies of
the foregoing Motion for Leave to File Brief Amicus Curiae
and Brief Amicus Curiae by depositing the same in the United
States mail, first class mail pre-paid, addressed as follows:

Alice Daniel, Assistant Attorney General 
Andrea Sheridan Ordin, United States 

AttorneyRobert E. Kopp, Katherine Gruenheck,
AttorneysCivil Division, Room 3631,

Department of Justice 
'Washington, D.C. 20530
Attorneys for Appellants

Stuart P. Herman, Esq.
Richman, Sacks, Herman & Twitty 
9601 Wilshire Boulevard 
Beverly Hills, California 9Q210
Attornevs for Appellee

Defense and Educational 
Fund, Inc,, as Amicus Curiae